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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-00-IH-0401
Emmis Radio License Corporation1 ) NAL/Acct. No.
) FRN: 0001-5293-87
Licensee of Station WKQX(FM), ) Facility ID #19525
Chicago, Illinois )
MEMORANDUM OPINION AND ORDER
Adopted: September 26, 2002 Released: September
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. §
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,
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