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

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

                      FORFEITURE ORDER

   Adopted: January 7, 2002             Released: January 8, 
2002

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     1.  In this Forfeiture Order, we impose a forfeiture of 
$14,000 on Emmis FM License Corp. of Chicago (``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.  We take this action pursuant to 47 U.S.C.  
503(b)(1)(D) and 47 C.F.R.  1.80(f)(4).  

                       II.  BACKGROUND
  
     2.  The Commission received letters dated March 20, 
2000, and May 15, 2000, complaining about material aired on 
Station WKQX(FM) on each of those dates during the ``Mancow 
Morning Madhouse'' (``Mancow'') program.  The March 
complaint alleged that the station broadcast a conversation 
between 8:13 a.m. and 8:16 a.m., which the complainant 
deemed indecent.  The May complaint alleged that the station 
broadcast interviews between 7:45 a.m. and 8:00 a.m., which 
the complainant believed indecent.  After reviewing the 
complaints, Enforcement Bureau (``Bureau'') staff issued a 
letter of inquiry to Emmis, licensee of the station 
involved.  In its response to the staff's inquiry, Emmis 
stated that it had neither a tape nor a transcript and could 
not determine whether the alleged material actually aired.  
Emmis does not deny that the material aired as stated in the 
complaints.

     3.  On April 6, 2001, the Bureau issued a Notice of 
Apparent Liability (``NAL''),1 which found that the material 
apparently violated the Commission's indecency rule.  To 
redress the apparent rule violations, we concluded that a 
monetary sanction in the base forfeiture amount of $7,000 
appeared appropriate with respect to each broadcast.  
Accordingly, the NAL proposed a forfeiture of $14,000. 

     4.  Emmis challenges the NAL's findings.  Emmis argues 
that the factual record is inadequate because it lacks 
objective evidence as to what was actually broadcast.  Emmis 
notes that the complaints do not include a tape or 
transcript, and it contends that the information actually 
provided can only be characterized as a summary or brief 
description.  Emmis argues that the complaint's descriptions 
contain even less detail and context than the majority of 
the segments appearing in the Commission's indecency 
guidelines,2 which, as Emmis notes, the Commission 
``intended only as a research tool'' and not as a 
``meaningful selection of words and phrases to be evaluated 
for indecency purposes without the fuller context that the 
tapes or transcripts provide.''  Indecency Policy Statement, 
supra, 16 FCC Rcd at 8003  11.  Emmis concludes that our 
finding of apparent liability, based on the complainant's 
characterizations, has effectively shifted the burden of 
proof to the licensee, contrary to the Administrative 
Procedure Act and due process.  In light of the above, Emmis 
requests cancellation of the forfeiture.

                      III.  DISCUSSION

     5.  It is a violation of federal law to broadcast 
obscene or indecent programming.  Specifically, Title 18 of 
the United States Code, Section 1464 (18 U.S.C.  1464), 
prohibits the utterance of ``any obscene, indecent or 
profane language by means of radio communication.'' Congress 
has given the Federal Communications Commission the 
responsibility for administratively enforcing 18 U.S.C.  
1464.  In doing so, the Commission may, among other things, 
impose a monetary forfeiture, pursuant to Section 503(b)(1) 
of the Communications Act (the ``Act''), 47 U.S.C.  
503(b)(1), for broadcast of indecent material in violation 
of 18 U.S.C.  1464.  Federal courts have upheld Congress's 
authority to regulate obscene speech and, to a limited 
extent, indecent speech.  Specifically, the U.S. Supreme 
Court has determined that obscene speech is not entitled to 
First Amendment protection.  Accordingly, Congress may 
prohibit the broadcast of obscene speech at any time.3  In 
contrast, federal courts have held that indecent speech is 
protected by the First Amendment.4  Nonetheless, the federal 
courts consistently have upheld Congress's authority to 
regulate the broadcast of indecent speech, as well as the 
Commission's interpretation and implementation of the 
statute.5  However, the First Amendment is a critical 
constitutional limitation that demands we proceed cautiously 
and with appropriate restraint.6  Consistent with a 
subsequent statute and case law,7 under the Commission's 
rules, no radio or television licensee shall broadcast 
obscene material at any time, or broadcast indecent material 
during the period 6 a.m. through 10 p.m.  See 47 C.F.R.  
73.3999.  

     6.  In enforcing its indecency rule, the Commission has 
defined indecent speech as 
language that first, in context, depicts or describes sexual 
organs or activities.  Second, the broadcast must be 
``patently offensive as measured by contemporary community 
standards for the broadcast medium.''  Infinity Broadcasting 
Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987) 
(subsequent history omitted) (citing Pacifica Foundation, 56 
FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica 
Foundation, 438 U.S. 726 (1978)).  This definition has been 
specifically upheld by the federal courts.8  The 
Commission's authority to restrict the broadcast of indecent 
material extends to times when there is a reasonable risk 
that children may be in the audience.  ACT I, supra.  As 
noted above, current law holds that such times begin at 6 
a.m. and conclude at 10 p.m.9 

     7.  The Commission's indecency enforcement is based on 
complaints from the public.  Once a complaint is before the 
Commission, we evaluate the facts of the particular case and 
apply the standards developed through Commission case law 
and upheld by the courts.  Indecency Policy Statement, 
supra, 16 FCC Rcd at 8015,  24.  ``Given the sensitive 
nature of these cases and the critical role of context in an 
indecency determination, it is important that the Commission 
be afforded as full a record as possible to evaluate 
allegations of indecent programming.''  Id.  In evaluating 
the record to determine whether the complained of material 
is patently offensive, three factors are particularly 
relevant: (1) the explicitness or graphic nature of the 
description; (2) whether the material dwells on or repeats 
at length descriptions of sexual or excretory organs or 
activities; and (3) whether the material appears to pander 
or is used to titillate or shock.  See Indecency Policy 
Statement, supra, 16 FCC Rcd at 8003  10. 

     8.  In the NAL, we found that the material allegedly 
aired was apparently indecent.  With respect to the March 
20, 2000 broadcast, based on the uncontradicted facts set 
forth in the complaint, the Mancow program featured a 
telephone conversation with a porn star.  The program talked 
in graphic detail about ``fisting,'' which, according to the 
complainant, the porn star described as a procedure by which 
a female is sexually gratified by having an entire hand 
inserted into her sexual organ.  With respect to the May 15, 
2000 broadcast, the Mancow program featured interviews with 
three women about their sex lives.  The interviewer asked 
each woman (and each answered) whether she ``spit or 
swallowed'' her partner's sperm.  During the questions and 
answers, the station played in the background sounds of 
women moaning.    
       
     9.  There is no question that the material broadcast 
referred to sexual activities and that it aired between 6 
a.m. and 10 p.m.  As discussed below, the uncontradicted 
excerpts and descriptions provided by the complainant lead 
us to conclude that both broadcasts violated the 
Commission's indecency rule.

     10.  March 20, 2000 broadcast.  With respect to the key 
factors set out in the Indecency Policy Statement, we 
conclude that the language aired was sufficiently graphic or 
explicit to meet the patently offensive standard.  The 
complainant's unchallenged assertions reflect that the 
station aired a telephone conversation with a porn star; 
that the show talked in graphic detail about ``fisting;'' 
and that the porn star described ``fisting'' as noted above.  
The information provided makes plain that the activity 
described left nothing to the imagination as to how the 
people involved interacted and that the purpose of such 
interaction was sexual gratification.  With regard to the 
second factor, we further conclude that we have sufficient 
information to determine that the material broadcast dwelled 
on the sexual activity identified as ``fisting'' as opposed 
to being a mere fleeting reference.  Again, the information 
before us reveals that the activity was not merely adverted 
to, but described in such detail that one knew exactly not 
only what ``fisting'' was but what it was intended to do.  
Finally, there is nothing in the record that suggests that 
the context of the program was educational.10  Indeed, the 
fact that a porn star was involved suggests that the 
material was pandering, titillating and/or presented for 
shock value.  We thus conclude that Emmis' March 20, 2000 
broadcast included indecent material in violation of our 
rules.  See Citicasters Co. (KEGL(FM)), 16 FCC Rcd 7546 
(Enforcement Bureau 2001) (interviews with porn stars); 
Citicasters Co. (KSJO(FM)), 15 FCC Rcd 19095, 19096 
(Enforcement Bureau 2000); Regent Licensee of Flagstaff, 
Inc. (KZGL(FM)), 15 FCC Rcd 17286 (Enforcement Bureau 2000).  

     11.  May 15, 2000 broadcast.  Again, the complainant's 
assertions are unchallenged.  They reflect that the station 
broadcast interviews with three women about their sex lives.  
The interviews included conversations about oral sex.  The 
interviewer asked each woman whether she ``spit or 
swallowed'' her partner's sperm after engaging in oral sex.  
During the segment in which the women were asked whether 
they spit or swallowed, the station played sounds of women 
moaning in the background.  In light of the direct and plain 
nature of the questions asked and answers provided, we 
conclude that the material broadcast was sufficiently 
graphic or explicit to meet the patently offensive standard.  
Likewise, considering that the station posed the question 
about spitting or swallowing to three different women, we 
further conclude that the material was repeated and not 
fleeting in nature.  Finally, in light of the subject 
matter, the specific question posed, and the accompanying 
sound effects, we find that the material was meant to pander 
or titillate. We thus conclude that Emmis' May 15, 2000 
broadcast included indecent material in violation of our 
rules.  See Citicasters Co. (KEGL(FM)), supra (conversation 
with female regarding her methods and frequency of 
masturbation); Citicasters Co. (KSJO(FM)), supra.

     12.  As noted above, Emmis contends that the NAL is 
based on an inadequate factual record because the 
complainant did not, in either case, submit a tape, 
transcript or significant excerpt.  We disagree, finding 
that the excerpts are significant enough, when viewed in 
combination with the descriptions provided by the 
complainant and the lack of contradiction by Emmis, to be 
consistent with our practice.  In any event, ``our practice 
that complainants provide a tape, transcript or significant 
excerpt is not a requirement, but a general practice used by 
the Commission to assist in the evaluation of indecency 
complaints.''  Infinity Broadcasting Corporation of Los 
Angeles (KROQ-FM), 16 FCC Rcd 6867, 6870  11 (Enforcement 
Bureau 2001).  We base our decision to investigate on 
whether the complainant provided sufficient information for 
us to determine that the station may have broadcast indecent 
material contrary to the Commission's rule.  We base our 
decision to impose a forfeiture on whether the record as a 
whole contains sufficient excerpts and description to 
support a finding that a violation occurred.  As explained 
above, the complainant provided the dates and times of the 
broadcasts, the call sign of the station, and sufficient 
detail and context about what was broadcast to determine 
that Emmis broadcast prohibited indecent material.11   Emmis 
submitted no evidence to rebut the complainant's 
allegations.  We therefore reject Emmis' contention that the 
record is inadequate.  For the same reasons, we reject its 
contention that our action is contrary to the Administrative 
Procedure Act or due process.   We have based our decision 
on the information provided by both the complainant and 
Emmis, a procedure that is consistent with 47 U.S.C.  
503(b) and 47 C.F.R. 1.80.  Should Emmis choose not to pay 
the forfeiture, 47 U.S.C.  504 protects its rights by 
providing that a forfeiture imposed without an evidentiary 
hearing cannot be used to the prejudice of that entity 
unless a court of competent jurisdiction has issued a final 
order after a trial de novo requiring payment of the 
forfeiture.  See Infinity Broadcasting Corporation of Los 
Angeles (KROQ-FM), supra, 16 FCC Rcd at 6869.

     13.  Section 503(b) of the Act and 47 C.F.R.  1.80 
both state that any person who willfully or repeatedly fails 
to comply with the Act or the Commission's rules shall be 
liable for a forfeiture penalty.  For purposes of 47 U.S.C. 
 503(b), the term ``willfully'' means that the violator 
knew that it was taking the action in question, irrespective 
of any intent to violate the Commission's rules, while 
``repeatedly'' means more than once.12  In assessing a 
forfeiture, we take into account the nature, circumstances, 
extent and gravity of the violation, and, with respect to 
the violator, the degree of culpability, any history of 
prior offenses, ability to pay, and such other matters as 
justice may require.13  

     14.  The Commission's Forfeiture Guidelines set a base 
forfeiture amount of $7,000 for transmission of 
indecent/obscene materials.14  After considering all the 
facts and circumstances, we conclude that the base 
forfeiture amount is the appropriate sanction for each of 
the two violations described above and that neither an 
upward nor downward adjustment should be made. 

                    IV.  ORDERING CLAUSES

     15.  Accordingly, IT IS ORDERED THAT, pursuant to 47 
U.S.C.  503(b), and 47 C.F.R.  0.111, 0.311 and 1.80, 
Emmis FM License Corp. of Chicago FORFEIT to the United 
States the sum of fourteen thousand dollars ($14,000) for 
willfully and repeatedly violating 18 U.S.C.  1464 and 47 
C.F.R.  73.3999. 

     16.  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 Forfeiture 
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). 

     17.  IT IS FURTHER ORDERED THAT a copy of this 
FORFEITURE ORDER shall be sent by Certified Mail Return 
Receipt Requested to Emmis FM License Corp. of Chicago, 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 FM License Corp. of Chicago, Notice of Apparent 
Liability, 16 FCC Rcd 7829 (Enforcement Bureau 2001). 

2  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 (2001) 
(``Indecency Policy Statement'').

3  See Miller v. California, 413 U.S. 15 (1973), rehearing 
denied, 414 U.S. 881 (1973); Sable Communications of 
California, Inc. v. FCC, 492 U.S. 115 (1989). 

4  Sable Communications of California, Inc. v. FCC, supra 
note 3, 492 U.S. at 126.  

5  FCC v. Pacifica Foundation, 438 U.S. 726 (1978).  See 
also Action for Children's Television v. FCC, 852 F.2d 1332, 
1339 (D.C. Cir. 1988) (``ACT I''); Action for Children's 
Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991), 
cert denied, 112 S.Ct. 1282 (1992) (``ACT II''); Action for 
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), 
cert denied, 116 S.Ct. 701 (1996) (``ACT III'').

6  ACT I, supra note 5, 852 F.2d at 1344 (``Broadcast 
material that is indecent but not obscene is protected by 
the first amendment; the FCC may regulate such material only 
with due respect for the high value our Constitution places 
on freedom and choice in what people say and hear.'').  See 
also United States v. Playboy Entertainment Group, Inc., 529 
U.S. 803, 813-15 (2000).  

7  Public Telecommunications Act of 1992, Pub. L. No. 356, 
102nd Cong., 2nd Sess. (1992); ACT III, supra note 5.

8  In FCC v. Pacifica Foundation, the Court quoted the 
Commission's definition of indecency with apparent approval.  
FCC v. Pacifica Foundation, supra note 5, 438 U.S. at 732.  
In addition, the D.C. Circuit Court of Appeals upheld the 
definition against constitutional challenges.  ACT I, supra 
note 5, 852 F.2d at 1339; ACT II, supra note 5, 932 F.2d at 
1508; ACT III, supra note 5, 58 F.3d at 657.

9  ACT III, supra note 5.

10   See Indecency Policy Statement, supra, 16 FCC Rcd at 
8012 (Letter from Chief, Complaints and Investigations 
Branch, Enforcement Division, Mass Media Bureau, to Gerald 
P. McAtee, dated October 26, 1989, concerning the ``Geraldo 
Rivera Show'' (Unlocking the Great Mysteries of Sex) on 
KTVI-TV, St. Louis, Missouri).  

11  See Infinity Broadcasting Corporation of Los Angeles 
(KROQ-FM), supra, 16 FCC Rcd at 6868 (accepting a 
complainant's uncontradicted statement that she heard 
certain words as probative evidence that a particular 
version of a song was played).      

12  See Southern California Broadcasting Co., 6 FCC Rcd 4387 
(1991). 

13  47 U.S.C.  503(b)(2)(D).  See also The Commission's 
Forfeiture Policy Statement and Amendment of Section 1.80 of 
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC 
Rcd 17087, 17100-01 (1997), recon. denied, 15 FCC Rcd 303 
(1999) (``Forfeiture Guidelines''). 

14  Forfeiture Guidelines, supra note 13, 12 FCC Rcd at 
17113.