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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                )  File No. EB-00-IH-0401 
                                )
Emmis Radio License Corporation1   )    NAL/Acct.        No. 
200132080029
                                )  FRN: 0001-5293-87
Licensee of Station WKQX(FM),   )  Facility ID #19525
Chicago, Illinois               )

                MEMORANDUM OPINION AND ORDER

   Adopted:  September 26, 2002         Released:  September 
27, 2002

By the Chief, Enforcement Bureau:

     1.  In this Memorandum Opinion and Order (``Order''), 
we deny the petition for reconsideration filed on February 
7, 2002 by Emmis Radio License Corporation (``Emmis'').  
Emmis seeks reconsideration of Emmis FM License Corp. of 
Chicago, 17 FCC Rcd 493 (Enf. Bur. 2002) (``Forfeiture 
Order''), which imposed a forfeiture of $14,000 on Emmis, 
licensee of Station WKQX(FM), Chicago, Illinois, for willful 
and repeated violations of 18 U.S.C.  1464 and 47 C.F.R.  
73.3999.    

     2.  In the Forfeiture Order, we determined that 
uncontradicted information provided by a complainant 
established that Emmis broadcast indecent material on two 
occasions.  In making this finding we found that ``the 
excerpts are significant enough, when viewed in combination 
with the descriptions provided by the complainant and the 
lack of contradiction by Emmis,2 to be consistent with our 
practice.'' Forfeiture Order at 496  12.  We also observed 
that ``the complainant provided the dates and times of the 
broadcast, the call sign of the station, and sufficient 
detail and context about what was broadcast to determine 
that Emmis broadcast prohibited indecent material.''  Id. 

     3.  In its petition, Emmis raises three principal 
arguments.  First, it contends that the record was so 
inadequate that our reliance thereon was unsupported by 
precedent and resulted in a violation of the First 
Amendment.  Second, Emmis claims the Forfeiture Order 
violated the Administrative Procedure Act by shifting the 
burden of proof from the complainant to Emmis.  Finally, 
Emmis submits that the Bureau exceeded its delegated 
authority because the matters raised cannot be resolved 
under existing precedent. 

     4.  In the Forfeiture Order, we thoroughly considered 
and rejected Emmis's arguments about the adequacy of the 
record.  In particular, we noted that, although the 
complaints did not include a tape or transcript, they 
contained sufficient information to allow us to conclude 
that the station had repeatedly broadcast indecent material.  
While the two complaints quoted few of the exact words used 
in the broadcasts at issue, the complaints clearly alleged 
that the station aired descriptions of specific sexual 
activities, namely ``fisting'' and fellatio.  After 
considering the context of the material, we concluded that 
the excerpts referenced in complainant's letters provided 
were ``significant enough'' to be consistent with the 
Commission's policy of considering complaints supported by 
significant excerpt or full or partial tape or transcript.  
See See Industry Guidance on the Commission's Case Law 
Interpreting 18 U.S.C.  1464 and Enforcement Policies 
Regarding Broadcast Indecency, 16 FCC Rcd 7999, 8015  24 
(2001) (``Indecency Policy Statement'').  Moreover, as 
explained in the Forfeiture Order, we could further draw 
from the complainant's allegations that the descriptions 
aired were explicit, that the material dwelled on or 
repeated the descriptions of the sexual activities, and that 
the material appeared to pander or was used to titillate.  
Thus, the material was patently offensive as measured by 
contemporary community standards for the broadcast medium 
and therefore indecent.  See Indecency Policy Statement, 16 
FCC Rcd at 8003  10.  Absent any contrary evidence from 
Emmis, we determined that the record was adequate enough for 
us to determine that the station willfully and repeatedly 
aired indecent material.

     5.  We therefore disagree with Emmis that the 
complaints should have been dismissed because they were not 
supported by a tape, transcript or significant excerpt.  As 
discussed in the Forfeiture Order and above, each complaint 
contained enough information to allow us to find a  
``significant excerpt.''  Moreover, Emmis's argument that 
the First Amendment requires more than a ``blanket 
acceptance'' of the complainant's allegations that the 
broadcasts were indecent and contained graphic detail is 
inapt.  Emmis did not deny that WKQX(FM) broadcast the 
material described by the complainant, nor did it supply any 
information to suggest that the material aired differed in 
any way from that alleged by the complainant.  Rather, Emmis 
merely demurred, arguing that the complainant did not 
provide enough information for us to conclude that the 
station broadcast indecent material - a contention with 
which we disagreed and continue to disagree.  As the 
Forfeiture Order's discussion at paragraphs 8, 10 and 11 
clearly reflects, we considered not only the word or words 
allegedly used but also who said them, the subject matter of 
the conversations and, in the case of the May 15, 2000, 
interviews, the accompanying sound effects.  In this regard, 
Emmis's assertion that the Forfeiture Order conclusively 
relied on the presence of a porn star in finding liability 
for the March 20, 2000, broadcast is unavailing and simply 
wrong.  In the instant case as well as in each of the 
pertinent cases cited in the Forfeiture Order,3 the presence 
of porn stars was not determinative that indecent material 
aired but merely informed our judgment as to whether the 
material broadcast appeared to pander or was used to 
titillate.  In sum, Emmis provided no evidence whatsoever.  
The only evidence before us was that provided by the 
complainant.  Only after thoroughly considering that 
evidence did we conclude that the material allegedly 
broadcast was indecent.   

     6.  Likewise, we conclude that no error occurred with 
respect to the Forfeiture Order's consideration and 
rejection of Emmis's arguments that our actions in this 
proceeding violated the Administrative Procedure Act.  Emmis 
is simply wrong that the Forfeiture Order shifted the burden 
of proof.  As the Forfeiture Order explained at paragraph 
12, the complainant supplied evidence that Emmis repeatedly 
broadcast indecent material outside of the safe harbor 
established by 47 C.F.R.  73.3999.  Emmis, on the other 
hand, supplied no evidence whatsoever.  Having failed to 
supply any evidence, Emmis cannot now reasonably complain 
that the Forfeiture Order improperly shifted any burden or 
violated the Administrative Procedure Act.  Likewise, Emmis 
is wrong that the Forfeiture Order effectively imposes a 
rule that, in order to contradict complaints such as those 
in this proceeding, a broadcast licensee must retain a tape 
or transcript.  In cases where there are disagreements as to 
whether certain material was actually broadcast and the 
conflicting contentions are supported by evidence of 
equivalent value, the Commission will deny an indecency 
complaint.  See Mr. Steve Bridges, 9 FCC Rcd 1681 (Mass Med. 
Bur. 1994).  However, where, like here, the licensee does 
not or cannot counter a complainant's allegations, and those 
allegations, standing alone, are sufficient to support a 
finding of an indecency violation, we will not hesitate to 
impose an appropriate sanction.4 

     7.  Finally, we reject Emmis's argument that our action 
exceeded the scope of the authority delegated to the 
Enforcement Bureau by 47 C.F.R.  0.311(a)(3).  The legal 
question before us is not novel.  Both the staff and the 
Commission have repeatedly addressed what constitutes 
broadcast indecency.  See generally Indecency Policy 
Statement, supra.  Moreover, there is no factual dispute as 
to what Emmis broadcast on Station WKQX(FM) and when it did 
so.  Rather, the issue is whether the evidence before us is 
sufficient to support our conclusion that Emmis broadcast 
indecent material.  For the reasons specified in the 
Forfeiture Order, which we reaffirm here, we conclude that 
the evidence is sufficient.  We imposed liability only after 
considering what the licensee broadcast, when the broadcasts 
occurred, and their contexts.  See Indecency Policy 
Statement, 16 FCC Rcd at 8003.  Such action is within the 
scope of authority delegated to the Bureau.  See Indecency 
Policy Statement, 16 FCC Rcd at 8015-16.   

     8.  Accordingly, IT IS ORDERED THAT, pursuant to 47 
U.S.C.  1.106, Emmis Radio License Corporation's petition 
for reconsideration IS DENIED. 

     9.  Payment of the forfeiture may be made by mailing a 
check or similar instrument, payable to the order of the 
Federal Communications Commission, to the Forfeiture 
Collection Section, Finance Branch, Federal Communications 
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482, 
within thirty (30) days of the release of this Order.  See 
47 C.F.R.  1.80(h).  The payment MUST INCLUDE the FCC 
Registration Number (FRN) referenced above, and also should 
note the NAL/Acct. No. referenced above.  If the forfeiture 
is not paid within that time, the case may be referred to 
the Department of Justice for collection pursuant to 47 
U.S.C.  504(a). 

     10.  IT IS FURTHER ORDERED THAT a copy of this Order 
shall be sent by Certified Mail Return Receipt Requested to 
Emmis Radio License Corporation, c/o Doyle L. Rose, 
President, Emmis Radio, 15821 Ventura Blvd., Suite 685, 
Encino, California 91436-29155; with a copy to John E. Fiorini, III, Esq., 
Wiley, Rein & Fielding, 1776 K Street, N.W., Washington, 
D.C. 20006. 

     
                         FEDERAL COMMUNICATIONS COMMISSION
               


     
                         David H. Solomon
                         Chief, Enforcement Bureau  



_________________________

1  Emmis Radio License Corporation is the current licensee 
of WKQX(FM) and the successor-in-interest to Emmis FM 
License Corp. of Chicago.  See File No. BALH-20001121ADF. 

2  In responding both to a letter of inquiry and to the 
Notice of Apparent Liability, 16 FCC Rcd 7829 (Enf. Bur. 
2001), Emmis could neither confirm nor deny that the 
broadcasts occurred as alleged by the complainant. 
 

3  Citicasters Co. (KEGL(FM)), 16 FCC Rcd 7546 (Enf. Bur. 
2001); Citicasters Co. (KSJO(FM)), 15 FCC Rcd 19095, 19096 
(Enf. Bur. 2000); Regent Licensee of Flagstaff, Inc. 
(KZGL(FM)), 15 FCC Rcd 17286 (Enf. Bur. 2000).

4  See Community Broadcasters, Inc., 55 FCC 2d 28, 35 
(1975).  See also Infinity Broadcasting Corporation of Los 
Angeles (KROQ-FM), 17 FCC Rcd 9892, 9896  18 (2002) 
(applying Community Broadcasters, Inc. in the indecency 
context).