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

In the Matter of                 )
Infinity Broadcasting            )
Operations, Inc.                 )    File No. EB-02-IH-0109
                                )    NAL/Acct. No. 200332080010
Licensee of Station WKRK-FM      )    FRN 0003476074
Detroit, Michigan                )    Facility ID # 9618

                        FORFEITURE ORDER

   Adopted:  November 24, 2003          Released:  December 8, 

By the Commission:  Chairman Powell and Commissioner Adelstein 
issuing separate statements, Commissioner Martin concurring and 
issuinga separate statement, and Commissioner Coppsdissenting 
and issuing separate statements.

                         I.  INTRODUCTION

     1.   In this  order,  we  impose a  monetary  forfeiture  of  
twenty-seven thousand  five  hundred  dollars  ($27,500)  against 
Infinity Broadcasting Operations,  Inc. (``Infinity''),  licensee 
of Station WKRK-FM, Detroit, Michigan, for the willful  broadcast 
of indecent language,  in violation of  18 U.S.C.   1464 and  47 
C.F.R.   73.3999,  during the  ``Deminski  and Doyle  Show''  on 
January 9, 2002 between 4:30 p.m. and 5:00 p.m.         

                        II.   BACKGROUND

     2.   In response  to  a complaint,  we  issued a  Notice  of 
Apparent Liability (``NAL'')  on April 3,  2003.1   We found  the 
material broadcast,  attached  hereto  in  the  Appendix,  to  be 
apparently  indecent.   In  particular,  applying  the  standards 
described in  the Commission's  Indecency Policy  Statement2,  we 

          The inquiry under the first key factor relevant to 
          a determination of patent offensiveness is whether 
          the sexual and excretory references are graphic or 
          explicit.  The  complained  of  broadcast  of  the 
          ``Deminski &  Doyle  Show'' invited  listeners  to 
          call in to discuss  sexual practices.  There  were 
          separate discussions  with  nine  individuals  who 
          called the show to  talk about sexual  activities.  
          Callers and the show's  hosts described in  detail 
          how specifically named sexual acts are  performed.  
          The broadcast included explicit and graphic sexual 
          references, including references to anal and  oral 
          sex, as well as explicit and graphic references to 
          sexual   practices    that    involve    excretory 

          With respect to the second factor, the  complained 
          of material dwelled on sexual and excretory organs 
          and  activities  and  the  sexual  and   excretory 
          references were  repeated.  Thus,  the sexual  and 
          excretory   references   cannot   be    considered 
          fleeting.  Under the  third factor,  we find  that 
          the  graphic  and  explicit  descriptions  of  the 
          sexual practices at issue in the broadcast,  which 
          were  identified   in  descriptive,   non-clinical 
          terms,   and   the   comments   of   the    on-air 
          personalities demonstrate  that the  material,  in 
          context, appears  to  have been  used  to  pander, 
          titillate and  shock.  The  tone of  the  material 
          broadcast is extremely vulgar and extremely  lewd, 
          and is similar to other program that has found  to 
          be indecent or apparently indecent.3

Because of the egregious nature of the apparent violation, 
we proposed a forfeiture for the statutory maximum -- 

          Based upon  our review  of the  entire record,  we 
          believe that imposition  of a  forfeiture that  is 
          higher than  the base  amount is  warranted.   The 
          violation  was  egregious  in  that  the  indecent 
          material was extensive,  and included  discussions 
          with nine callers. 4  

     3.   In addition to proposing a forfeiture for the broadcast 
at issue  in  this  case,  we provided  future  guidance  on  two 
subjects.  First, we indicated that, in the future, we may  treat 
situations like this  as multiple, repeated  violations with  the 
accompanying increase  in forfeitures.   In addition,  we  stated 
that  given  the  egregiousness  of  this  violation,  additional 
serious violations by Infinity may well lead to the initiation of 
a revocation proceeding.  Moreover, we placed other  broadcasters 
on notice that the Commission  will not hesitate to adopt  strong 
enforcement  actions  in  the  future,  including  the  potential 
initiation of  revocation proceedings.   See, e.g.,  47 U.S.C.   

     4.   Infinity  responded  to  the  NAL  on  June  4,  2003.6  
Infinity does not challenge that  it broadcast the language  that 
is the subject of the NAL.   It also does not challenge that  the 
language it  broadcast  is  indecent  under  18  U.S.C.    1464.  
Rather, with respect to whether a forfeiture should be imposed in 
this case,  it claims  only that  the Commission's  long-standing 
indecency standard  is unconstitutional  on  its face  under  the 
First Amendment.  With respect to  the amount of the  forfeiture, 
Infinity claims that the increase from the $7,000 base amount  in 
the Forfeiture  Policy Statement7  to  the statutory  maximum  of 
$27,500  is  not  justified.   Infinity  also  claims  that   the 
Commission has  adopted  a new  ``serious  violation  standard.''  
With respect to future  cases, it also  claims that the  guidance 
provided by the Commission regarding multiple violations within a 
program and regarding revocation is unconstitutional.
                         III.   DISCUSSION

          A.   This Case

     5.   Imposition of the Forfeiture:  As noted above, Infinity 
does not  dispute that  it  broadcast the  material or  that  the 
material  meets  the   Commission's  well-established   indecency 
definition.   Accordingly, and for the  reasons set forth in  the 
NAL, we conclude  that Infinity  willfully violated  18 U.S.C.   
1464 and 47 C.F.R.  73.3999.  We also reject Infinity's argument 
that the Commission's definition of indecency is unconstitutional 
under the First Amendment.  This  issue has already been  decided 
in the  Commission's favor  by  the courts.   See, e.g.,  FCC  v. 
Pacifica Foundation, 438 U.S.  726 (1978); Action for  Children's 
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc),  cert. 
denied, 516 U.S. 1072 (1996); Action for Children's Television v. 
FCC, 852 F.2d 1332 (D.C. Cir. 1988).  Infinity's reliance on  the 
more recent Supreme Court decision in Reno v. ACLU, 521 U.S.  844 
(1997)  is   misplaced.   In   that  case,   the  Supreme   Court 
specifically distinguished broadcast  indecency in striking  down 
an Internet indecency statute.8

     6.   Amount of the Forfeiture:  Infinity does challenge  the 
Commission's decision to  increase the  proposed forfeiture  from 
the $7,000 base amount set  forth in the Commission's  Forfeiture 
Policy Statement to  the statutory maximum  of $27,500.9    Under 
the  Communications  Act,   in  determining  the   amount  of   a 
forfeiture, the Commission is instructed to 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.''10   Consistent  with  the  Forfeiture 
Policy Statement, which includes an upward adjustment factor from 
the base amounts for ``egregious misconduct,''11 the NAL proposed 
a forfeiture of  $27,500.  We have  little difficulty  concluding 
that this is an egregious violation justifying imposition of  the 
statutory maximum.   The  material that  Infinity  broadcast  was 
extremely graphic,  lewd  and  offensive and  continued  over  an 
extended period  of time  and  included conversations  with  nine 
callers over a 30-minute period.  While Infinity is correct  that 
other cases in recent  years have involved  a forfeiture of  only 
$7,000 for each  indecent broadcast,12 we  believe the  egregious 
nature of the  violation here justifies  a more severe  sanction.  
In addition, we disagree with Infinity that the fact that this is 
the first  cognizable indecency  violation  at WKRK  justifies  a 
lower forfeiture.13   Whatever benefit should accrue to  Infinity 
from this  fact is  outweighed  by the  egregious nature  of  the 
broadcast here.  Finally,  we disagree with  Infinity that it  is 
unconstitutional under the First Amendment for the Commission  to 
increase the  amount  of an  indecency  forfeiture based  on  the 
seriousness of the violation.14    The Communications Act permits 
a forfeiture of up  to $27,500 for  a single indecency  violation 
and we find nothing in the case law cited by Infinity to  suggest 
that the  First Amendment  requires that,  unless the  Commission 
articulates detailed standards regarding the appropriate sanction 
in specific  circumstances,  it  may  never  issue  an  indecency 
forfeiture  for   $27,500.   Accordingly,   we  reiterate   that, 
depending on the facts, the Commission may impose a forfeiture of 
up to the  statutory maximum  for indecency  violations that  are 
``egregious'' and we find that this is such a violation.15  

       B.  Future Cases

     7.   We do not  address Infinity's  arguments regarding  the 
constitutionality  of  revocation   or  imposition  of   separate 
forfeitures for  multiple violations  because  we do  not  impose 
those sanctions in this case.  


     8.   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,  Infinity 
Broadcasting Operations, Inc.  FORFEIT to the  United States  the 
sum of twenty-seven thousand  five-hundred dollars ($27,500)  for 
willfully and repeatedly violating 18 U.S.C.  1464 and 47 C.F.R. 

     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 Forfeiture Order.  See 47 C.F.R.  504(a).

ORDER shall be sent by Certified Mail Return Receipt Requested to 
Stephen A.  Hildebrandt,  Vice President,  Infinity  Broadcasting 
Operations, Inc.,  2000 K  Street, N.W.,  Suite 725,  Washington, 
D.C., 20006.


                         Marlene H. Dortch
                          STATEMENT OF 
                   CHAIRMAN MICHAEL K. POWELL

Re: Infinity Broadcasting Operations, Inc., Licensee of Stations 
          WKRK-FM, Detroit, Michigan, Forfeiture Order

     I fully support the Commission's decision to levy the 
statutory maximum forfeiture amount against Infinity Broadcasting 
Operations for the broadcasting of indecent language stemming 
from the Deminski and Doyle show out of WKRK-FM in Detroit.  The 
blatant broadcasting of filth of this extreme nature has no place 
on our nation's airwaves.  Broadcasters should take this latest 
action as yet another sign that the Commission will continue to 
rigorously enforce our indecency regulations.                      SEPARATE STATEMENT OF 

Re:  Infinity Broadcasting Operations, Inc., Licensee of Station 
WKRK-FM, Detroit, Michigan, Forfeiture Order

     I dissent from this forfeiture order because I believe it is 
inadequate to address the serious nature of this station's 
actions.  As I stated in the attached dissent when we issued the 
Notice of Apparent Liability, a fine of $27,500 is not even a 
slap on the wrist to Infinity for airing what can only be 
described as vulgar and disgusting indecency.  This Commission 
should have conducted a hearing on revocation of this station's 
                      SEPARATE STATEMENT OF 

Re:  Infinity Broadcasting Operations Inc., licensee of WKRK-FM, 
Detroit Michigan, Notice of Apparent Liability for Forfeiture

     In this case, WKRK-FM in Detroit aired some of the most 
vulgar and disgusting indecency that I have had the misfortune to 
examine since I joined the Commission. The station presented 
graphic descriptions of violent sexual acts against women as 
entertainment at a time when children likely composed a 
significant portion of the audience.  The extreme nature of this 
broadcast - among the worst we have faced in the Commission's 
history - and the fact that it was broadcast in the middle of the 
day, gives the FCC the responsibility to take serious action.  I 
dissent from the majority's decision because I believe that a 
financial slap on the wrist does not adequately reflect the 
seriousness of the station's actions.  To fulfill our duty under 
the law, we should initiate a hearing to determine whether the 
WKRK-FM license should be revoked.

     I am deeply disappointed that the majority proposes a mere 
$27,500 fine against this station.  Such a fine will easily be 
absorbed by the station as a ``cost of doing business.''  While I 
am encouraged that the Commission has at least, and at last, 
found such programming to be indecent, I am discouraged that it 
does so little about it.  

     Would anyone who reads the transcript of this program argue 
that the United States should subsidize such material by giving 
WKRK-FM free spectrum through their broadcast license?  Can 
anyone read the indecency law that Congress has given us and 
conclude that any station could broadcast such material on the 
public's airwaves consistent with the law?  The majority admits 
that WKRK-FM appears to have violated egregiously and extensively 
the statutory ban on the broadcast of indecent material.  The 
majority presumably recognizes the seriousness of the offense.  
And, importantly, this Commission has agreed for the first time 
that it may revoke the license of a station owner that broadcasts 
indecent material.  But the Commission does not take this step.

     Our tepid action today will not dissuade these types of 
broadcasts in the future.  The message to licensees is clear:  
Even egregious violations will not result in revocation of a 
license.  The majority does warn Infinity that another similar 
action could result in a revocation hearing, but it fails to 
mention that this is not the first action against a station owned 
by Infinity.  Infinity stations were fined $1.7 million by a 
previous Commission in 1995 to settle a series of indecency 
cases.  As part of that settlement, Infinity agreed to take steps 
to prevent further broadcast of indecent material.  But more 
complaints involving other broadcasts followed.  Last August, for 
example, another Infinity station aired the ``Opie & Anthony'' 
program allegedly involving sex acts performed in or near St. 
Patrick's Cathedral.  That investigation is still pending without 
action by the Commission. 

     The majority may say that this is the largest fine we are 
allowed to impose under our guidelines.  But fines are not the 
only tool Congress gave us to enforce the law.  The Commission 
would be more credible by moving immediately to a hearing to 
determine whether the station's license should be revoked.  We 
would be well within our statutory authority to do this under 
Section 312(a)(6) of the Communications Act, which specifically 
provides such a remedy.
     I wonder when this Commission will finally take a firm stand 
against broadcast's ``race to the bottom'' as the level of 
discourse on the public's airwaves gets progressively coarser and 
more violent.  The time has come for this Commission to send a 
message that it is serious about enforcing its indecency rules.  
Our enforcement actions should convince broadcasters that they 
cannot ignore their responsibility to serve the public interest 
and to protect children.  The FCC's actions today fail to do so.                       SEPARATE STATEMENT 
                   COMISSIONER KEVIN J. MARTIN

Re:  Infinity Broadcasting Operations, Inc., Licensee of Station 
WKRK-FM, Detroit, Michigan, Forfeiture Order

     I am disappointed with today's decision. 

     I agree that Infinity Broadcasting Operations, Inc. violated 
our indecency rule during the broadcast of the ``Deminski and 
Doyle Show'' on January 9, 2002.  As I noted when we issued the 
Notice of Apparent Liability, however, I believe the fine of 
$27,500 is inadequate, and therefore I concur in this Order.  

     As the attached Order explains, the indecent broadcast 
included conversations with nine callers over a 30-minute period.  
I believe each of these 9 calls could be separate ``utterances'' 
or ``material'' for purposes of the statute and our rules.16  
Because of the extremely graphic, lewd and offensive nature of 
this broadcast, I would have applied the statutory maximum fine 
for each call, for a total of $247,500.  

                      SEPARATE STATEMENT OF 

Re:  Infinity Broadcasting Operations, Inc., Licensee of Station 
WKRK-FM, Detroit, Michigan, Forfeiture Order

     I strongly support the imposition of the statutory maximum 
forfeiture amount against Infinity Broadcasting Operations, Inc., 
licensee of station WKRK-FM, Detroit, Michigan, for the willful 
broadcast of grossly indecent language during the Deminski and 
Doyle show.  The egregious nature of the material broadcast 
clearly warrants the statutory maximum fine.  

     In addition, as I stated in April, the Commission has now 
given fair notice to broadcasters that it can and will avail 
itself of a range of enforcement sanctions when broadcasters 
violate our indecency rules.  These sanctions include the 
potential initiation of revocation proceedings for serious, 
repeated violations of our rules.  Broadcasters are also on 
notice that the Commission may find them liable for multiple 
violations that occur in a single program where statements can be 
viewed as separate indecent utterances.  This approach could 
result in substantially higher forfeiture amounts in the future.  

     I am disappointed that the licensee in this case continues 
to challenge this sanction rather than accept responsibility for 
such an extreme violation of our rules.  


1 Notice of Apparent Liability, 18 FCC Rcd 6915 (2003).
2 Industry Guidance on the Commission's Case Law Interpreting  18 
U.S.C.    1464  and  Enforcement  Policies  Regarding  Broadcast 
Indecency (``Indecency  Policy  Statement''),  16  FCC  Rcd  7999 
3 Id. at 6917 (footnote and citations omitted).
4 Id. at 6919.
5 Id. (quoting 14 U.S.C.  1464).
6  Response  to  Notice  of  Apparent  Liability  for  Forfeiture 
(``Infinity Response'').  
7 The Commission's Forfeiture  Policy Statement and Amendment  of 
Section  1.80  of  the   Rules  to  Incorporate  the   Forfeiture 
Guidelines, 12 FCC Rcd  17087 (1997), recon.  denied, 15 FCC  Rcd 
303 (1999)  (``Forfeiture  Policy Statement''),  codified  at  47 
C.F.R.  1.80(b)(4) Note.
8 In  Reno,  the  court articulated  three  distinctions  between 
regulation of  Internet  indecency  and  broadcast  indecency  as 
upheld in  Pacifica:  (1)  unlike  the situation  with  broadcast 
indecency,  the  Internet  statute  at  issue  involved   ``broad 
categorical prohibitions  [that] are  not limited  to  particular 
times and  are  not dependent  on  any evaluation  by  an  agency 
familiar with the unique  characteristics of the Internet'';  (2) 
the Commission's action  in Pacifica did  not involve a  criminal 
prosecution; and (3) ``the Commission's order applied to a medium 
which as a matter of history `had received the most limited First 
Amendment protection,' [citation omitted], in large part  because 
warnings  could  not   adequately  protect   the  listener   from 
unexpected program content.''  521 U.S. at 867.  See also id.  at 
868.  Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002),  on 
which Infinity also relies, is similarly distinguishable.
9 47 U.S.C.  503(b)(2)(A).
10 Id.  503(b)(2)(D).
11 47 C.F.R.  1.80(b)(4) Note.
12 Infinity Response at 35.
13 Id.  We note that, contrary to Infinity's suggestion, id., the 
NAL did not increase the base forfeiture amount because of  prior 
indecent broadcasts by Infinity  at other stations, although  the 
Commission could have done  so.  See Forfeiture Policy  Statement 
Reconsideration Order, 15 FCC Rcd  303 (1999).
14 Infinity  Response at  35.   On August  6,  2003, a  group  of 
broadcasters and public interest  groups filed ``Comments of  the 
First Amendment  Coalition  in  Response to  Notice  of  Apparent 
Liability,'' similarly  arguing that  the Commission's  indecency 
standard violates  the  First  Amendment.  We  will  treat  these 
Comments as  an amicus  curiae brief.   Nothing in  the  Comments 
alters our  decision  here  or  leads us  to  conclude  that  the 
Commission should initiate a broader proceeding to reconsider our 
indecency policies in light of the First Amendment issues  raised 
by the Comments.  
 We will likewise treat as an amicus curiae brief comments  filed 
on September  15, 2003  by The  Office of  Communications of  the 
United Church of Christ, Inc.  (OCI).  In its comments, OCI  also 
argues that the Commission  should initiate a broader  proceeding 
to reexamine the indecency standard,  especially in light of  our 
statement in  the underlying  decision that  in the  future,  for 
egregious  cases,  we  ``will   not  hesitate  to  adopt   strong 
enforcement actions ...,  including the  potential initiation  of 
revocation proceedings.''  See para.  3, supra.  OCI argues  that 
one unintended consequence of the use of revocation in  indecency 
cases would be an  increase in market  barriers to new  broadcast 
entrants because, given the uncertainty potential revocation will 
produce, lenders and investors will simply choose to invest their 
money elsewhere.  Again,  nothing in these  comments leads us  to 
conclude  that  a  far-ranging  reexamination  of  our  indecency 
policies is  appropriate.  We  also note  that on  May 19,  2003, 
Chairman Powell announced the formation of the Advisory Committee 
on Diversity Communications to  assist the agency in  formulating 
ways  to   create  opportunities   for   new  entrants   in   the 
communications   sector,    including   broadcasting.      Issues 
concerning barriers to entry will be appropriately considered  in 
that forum.   
15 We note that an  indecency forfeiture could be increased  from 
the $7,000 base amount for other reasons as well, e.g., a history 
of prior violations.
16 See 18 U.S.C.  1864 (``Whoever utters any obscene,  indecent, 
or profane  language by  means of  radio communication  shall  be 
fined under this title or imprisoned not more than two years,  or 
both''), 47  C.F.R.    73.3999  (``No licensee  of  a  radio  or 
television broadcast station shall broadcast on any day between 6 
a.m. and 10 p.m. any material which is indecent'').