Click here for Adobe Acrobat version
Click here for Microsoft Word version
Click here for Commissioner Copp's Dissenting Statement
Click here for Commissioner Martin's Statement
Click here for Commissioner Adelstein's Statement

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



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


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


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:   March 28, 2003               Released:  April 3, 2003

By the Commission:  Commissioner  Copps dissenting and issuing  a 
statement; 
                                     Commissioners   Martin   and 
Adelstein issuing separate statements.


                        I.  INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture 
(``NAL''), we find that Infinity Broadcasting Operations, Inc., 
(``Infinity''), licensee of Station WKRK-FM, Detroit, Michigan 
apparently violated 18 U.S.C.  1464 and 47 C.F.R.  73.3999 by 
willfully broadcasting indecent language. Based upon our review 
of the facts and circumstances in this case, we conclude that 
Infinity is apparently liable for a forfeiture in the amount of 
twenty-seven thousand five hundred dollars ($27,500). 

                        II.   BACKGROUND

     2.   The Commission received a complaint alleging that WKRK-
FM broadcast indecent material during the ``Deminski & Doyle 
Show,'' on January 9, 2002 between 4:30 p.m. and 5:00 p.m.  The 
complainant provided a tape of the ``Deminski & Doyle Show'' 
containing the allegedly indecent material broadcast.  After 
reviewing the complainant's tape, the staff of the Enforcement 
Bureau issued a letter of inquiry to the licensee that included a 
copy of the tape submitted by the complainant as well as a 
transcript of a portion of the tape.  See Attachment A. 

     3.   Infinity submitted a response to the letter of inquiry, 
and confirms that the program segment that is the subject of the 
complaint was broadcast.  However, Infinity asserts that no 
enforcement action or administrative penalty can be assessed 
because the Commission's generic definition of indecency is 
unconstitutional.  Infinity does not argue that the material 
broadcast is not indecent under the Commission's definition.


                        III.  DISCUSSION

     4.   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.1  In contrast, federal 
courts have held that indecent speech is protected by the First 
Amendment.2  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.3  However, the First Amendment is 
a critical constitutional limitation that demands we proceed 
cautiously and with appropriate restraint.4 Consistent with a 
subsequent statute and case law,5 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.  

     5.   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.6  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.7 

     6.   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. See 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 at 8015,  24 (2001).  ``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. 

     7.   There is no question that the complained of material 
broadcast on the ``Deminski & Doyle Show'' as set forth in 
Attachment A, which concerns a discussion of sexual techniques 
and practices, in context, refers to sexual and excretory organs 
and activities.  Thus, the material warrants scrutiny.  Moreover, 
as discussed below, based on the nature of the material in 
question, it is not surprising that Infinity does not argue that 
the complained of broadcast is not indecent. We find that the 
complained of material, in context, is patently offensive when 
considered under the three factors set out in the Indecency 
Policy Statement.  

     8.   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 
activities.  

     9.   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 
programming that has been found to be indecent or apparently 
indecent.8 

     10.   Given our application of established standards that 
have been repeatedly affirmed by the courts as constitutional, we 
also reject Infinity's arguments that our indecency definition is 
unconstitutionally vague and overbroad.  The Commission has 
rejected similar constitutional challenges to our broadcast 
indecency standards, including constitutional challenges based on 
Reno v. ACLU, a case which Infinity cites and which invalidated 
an indecency standard for the Internet. See, e.g., Infinity 
Broadcasting Corporation of Los Angeles (KROQ-FM), 17 FCC Rcd 
9892 (2002); WQAM License Limited Partnership, supra, 15 FCC Rcd 
at 2518 (noting that the Court indicated that broadcast indecency 
regulations were justified based on significant differences 
between the Internet and the broadcast medium and between the 
standard in the statute at issue and the Commission's broadcast 
indecency standard).  Moreover, we disagree with Infinity's 
assertion that our indecency definition is constitutionally 
invalid because no causal link has been demonstrated between the 
broadcast of indecent material and harm to children.9   

     11.  Infinity does not claim that any of the complained of 
material was broadcast outside the 6 a.m. to 10 p.m. time frame 
relevant to an indecency determination.  Thus, there was a 
reasonable risk that children may have been in the audience at 
the time that the material at issue was broadcast on January 9, 
2002 and, therefore, the material broadcast is legally 
actionable.  By broadcasting this material, WKRK-FM apparently 
violated the prohibitions in the Act and the Commission's rules 
against broadcast indecency. 

     12.  Section 503(b) of the Act, 47 U.S.C.  503(b), and 
section 1.80(a) of the Commission's rules, 47 C.F.R  1.80, both 
state that any person who willfully or repeatedly fails to comply 
with the provisions of the Act or the rules shall be liable for a 
forfeiture penalty.  For purposes of section 503(b) of the Act, 
the term ``willful'' means that the violator knew it was taking 
the action in question, irrespective of any intent to violate the 
Commission's rules. 10  Based on the material before us, it 
appears that Infinity willfully violated 18 U.S.C.  1464 and 
section 73.3999 of the Commission's rules, by airing indecent 
programming on WKRK-FM on January 9, 2002.  We also take this 
opportunity to note that we could have found Infinity to have 
engaged in apparent repeated violations.  The statute prohibits 
the broadcast of indecent ``utter[ances].''  While the Commission 
has traditionally viewed all of the utterances in one program to 
be a single utterance and thus a single violation, such an 
approach is not legally required.  Here, for example, there were 
several distinct conversations, each of which could be viewed as 
a separate indecent utterance, and thus a separate violation.  
For purposes of this proceeding, we will use our traditional per-
program approach.  We hereby make clear that, in the future, we 
may treat situations like this as multiple, repeated violations 
with the accompanying increase in forfeitures.  

     13.  The Commission's Forfeiture Policy Statement sets a 
base forfeiture amount of $7,000 for transmission of indecent or 
obscene materials.11  The Forfeiture Policy Statement also 
specifies that the Commission shall adjust a forfeiture based 
upon consideration of the factors enumerated in section 
503(b)(2)(D) of the Act, 47 U.S.C.  503(b)(2)(D), such as ``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.''12 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.  We therefore believe that an 
upward adjustment of the forfeiture amount to the statutory 
maximum of $27,500 is warranted in this case for the apparent 
broadcast of indecent material. Forfeiture Policy Statement, 
supra.13   We take this opportunity to note that given the 
egregiousness of this violation, additional serious violations by 
Infinity may well lead to the initiation of a revocation 
proceeding.  Moreover, other broadcasters are 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.  312(a).    

                      IV.  ORDERING CLAUSES

     14.  ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) 
of the Communications Act of 1934, as amended, and Sections 
0.111, 0.311, and 1.80 of the Commission's rules,14 that Infinity 
Broadcasting Operations Inc. is hereby NOTIFIED of its APPARENT 
LIABILITY FOR FORFEITURE in the amount of twenty-seven thousand 
five hundred dollars ($27,500) for willfully violating 18 U.S.C. 
 1464 and section 73.3999 of the Commission's rules.

     15.   IT IS FURTHER ORDERED, pursuant to section 1.80 of the 
Commission's rules, that within thirty days of the release of 
this Notice, Infinity SHALL PAY the full amount of the proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

     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.  The payment MUST INCLUDE 
the FCC Registration Number (FRN) referenced above and also 
should note the NAL/Acct. No. referenced above.

     17.  The response, if any, must be mailed to Maureen F. Del 
Duca, Chief, Investigations and Hearings Division, Enforcement 
Bureau, Federal Communications Commission, 445 12th Street, S.W, 
Room 3-B443, Washington DC 20554 and MUST INCLUDE the NAL/Acct. 
No. referenced above.

     18.  The Commission will not consider reducing or canceling 
a forfeiture in response to a claim of inability to pay unless 
the respondent submits: (1) federal tax returns for the most 
recent three-year period; (2) financial statements prepared 
according to generally accepted accounting practices (``GAAP''); 
or (3) some other reliable and objective documentation that 
accurately reflects the respondent's current financial status.  
Any claim of inability to pay must specifically identify the 
basis for the claim by reference to the financial documentation 
submitted.

     19.  Requests for payment of the full amount of this Notice 
of Apparent Liability under an installment plan should be sent 
to: Chief, Revenue and Receivables Operations Group, 445 12th 
Street, S.W., Washington, D.C. 20554.15 

     20.  Under the Small Business Paperwork Relief Act of 2002, 
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is 
engaged in a two-year tracking process regarding the size of 
entities involved in forfeitures.  If you qualify as a small 
entity and if you wish to be treated as a small entity for 
tracking purposes, please so certify to us within thirty (30) 
days of this NAL, either in your response to the NAL or in a 
separate filing to be sent to the Investigations and Hearings 
Division.  Your certification should indicate whether you, 
including your parent entity and its subsidiaries, meet one of 
the definitions set forth in the list provided by the FCC's 
Office of Communications Business Opportunities (OCBO) set forth 
in Attachment B of this Notice of Apparent Liability.  This 
information will be used for tracking purposes only.  Your 
response or failure to respond to this question will have no 
effect on your rights and responsibilities pursuant to Section 
503(b) of the Communications Act.  If you have questions 
regarding any of the information contained in Attachment B, 
please contact OCBO at (202) 418-0990.

     21.  IT IS FURTHER ORDERED that a copy of this Notice 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. 

                         FEDERAL COMMUNICATIONS COMMISSION




                         Marlene H. Dortch
                         Secretary  

                          2.   ATTACHMENT A
                                3.   
EB-02-IH-0109
Radio Station:                     WKRK-FM, Detroit, Michigan
Date/Time of Broadcast:  January 9,  2002 between  4:30 p.m.  and 
5:00 p.m.
Material Broadcast:           Deminski & Doyle Show

MV1:  Male Cast member  

MV2:  Male Cast member

MV3:  Male Cast member

MC1:  First caller

MC2:  Second caller

MC3:  Third caller

MC4:  Fourth caller

MC5:  Fifth caller

MC6:  Sixth caller

MC7:  Seventh caller

MC8:  Eighth caller

MC9:  Ninth caller


MV1:  4:37 on a Wednesday. So listen to this.  Former Baywatch 
babe Yasmine Bleeth was in court today in our area in Wayne 
county, you know for that drug charge. She just got 2 years 
probation.  She's gotta do the substance abuse screening and all 
that. Ah Rudy's the only one I did not show this photograph to in 
the new story. Do you remember Yasmine Bleeth?

MV2:  Oh yeah, she's hot or was hot.

MV1:  Okay, well I think she still is.  I guess you can tell the 
drugs took a toll but she's got a little even bigger in the boobs 
there. Look how big her boobs look now. Look at the size of those 
Bleeths.

MV2:  Oh man, yeah!  She looks like she put on some weight.  She 
doesn't look like Baywatch.

MV1:  So you'd like to Yasmine all over those Bleeths, wouldn't 
you?

MV2:  Damn right I would, hell yeah! I'd buy that for a dollar. 

MV1:  What does that mean?  You'd buy that for a dollar?
 
MV2:  It's an inside joke, from ``Robocop.''

MV1:  Okay.

MV3:  Okay, that was so inside Rudy's the only one who knows what 
he's talking about.

MV2:  There was a line in ``Robocop'' where the guy.... Forget 
it.

MV1:  No, you gotta tell `em.

MV2:  There's some old man who keeps going ``I''... It was a game 
show on a television that was inside a window in a department 
store and the guy kept going ``I'll buy that for a dollar.''

MV3:  Was that the horsey game at the casino he was playing?

MV2:  No.

MV1:  To whom was that an inside joke?

MV2:  It was for me. (laughter)  It was one of those things where 
I was saying in my head I was thinking I'd buy that for a dollar.

MV1:  That's not usually what an inside joke normally means.  
It's when only a few others get it.  But you gotta have those few 
others.

MV2:  Exactly.  You got it.  Humor me.

MV1:  Our phone is 248-559-9797 so again I was saying no children 
are to be listening to this next segment or so and ladies you 
probably don't wanna hear this crap either `cause this is really 
foul. Now we talked about this only one other time on the show 
and not that long ago but this is why this cracked me up so much. 
You know those weird funky uh made up sex techniques or sex 
positions or sex maneuvers that guys have their whole websites 
full of this stuff now and they have all these clever names 
assigned to them?

MV3:  They all seem like urban legends. 

MV1:  Right, right. Well, I'm watching TV last night and there's 
a brand new TV show, brand new sitcom. I'm not even saying it was 
all that good.  I didn't even watch the whole thing, but it's 
that Hank Azaria show.  Hank Azaria has been on different things, 
he's a lot of the voices on ``The Simpsons'' actually.  So he's 
got his own show now where like his imagination goes running wild 
with crap.  So part of the plot was that they're going to a 
therapist and they're trying to work on their sex life, he and 
his wife. And um, she is telling him that he could have anything 
that he wants. This one night he could have anything he wants.  
He's like ``anything?''  She's like ``anything you want.''   And 
so he comes up with the term ``okay how about a `Cleveland 
tornado?'''  And this is something that apparently he had done to 
her in the past because she's like ``a Cleveland Tornado?''  
``You're not doing that to me again!'' And they had both been 
really drunk this night when they had done the ``Cleveland 
Tornado.'' And she gets horribly offended on the show last night.  
And he's like ``oh no, no, I don't know why I said it.'' ``I 
don't know what I was thinking,'' blah, blah, blah.''
 
MV3:  Well, what is it?

MV1:  That's just it.  They never say.  Or well, I didn't see the 
end of it but I don't think they ever explained it `cause it's a 
sitcom so they couldn't ... Rudy what is it?

MV2:  Don't know.  Never heard of that one before.
 
MV1:  Now try to describe carefully what a ``Cleveland Steamer'' 
would be.

MV2:  Now the ``Cleveland Steamer'' is when... I'm pretty sure 
it's when...

MV1:  Now you don't even know what a ``Dirty Sanchez'' was by the 
way, so I'm not even so sure if you're accurate about this.

MV2:  They're all different. I think a ``Cleveland Steamer'' is 
when you take a poop like on the girl's chest area.
 
MV1:  And this is romantic to whom?  This improves your sex life?

MV2:  And then, hold on. So you take a poop on her chest area,...

MV1:  Oh, the romantic part is coming up apparently...

MV2:  ...her breasts and then you supposedly sit on it and make 
the noise of a steamboat.

MV1:  So you Yasmine on her Bleeth's and then you ... (laughing).  
Have you ever performed any of this Rudy?

MV2:  I've never done any of these techniques except ``The 
Stranger.''

MV1:  Have you ever asked a woman if you could do them?

MV2:  No I have not.

MV3:  You gotta tell what ``The Stranger'' is again for those 
that don't follow every day.

MV2:  ``The Stranger'' is when...

MV1:  And he's done this!!!  This is the sad part, Rudy's done 
it.  Go ahead...

MV2:  ``The Stranger'' is when you sit on your hand to cut off 
the circulation; the hand that you use to masturbate with and you 
cut off the circulation until it's numb and you can't feel it and 
then uh, you pleasure yourself with that hand. So it feels like 
someone else, therefore ``The Stranger.''

MV1:  (Laughing) This is so sad, when did you first develop your 
interest in these strange sex techniques?

MV2:  You know what?  I have no idea to be honest with you.  Let 
it be known that this sitcom is jocking the Deminski & Doyle 
Show. `Cause we have brought these into the mainstream. 

MV1:  Well, see, I don't know who's brought them into the 
mainstream, but if it was in prime time then naturally they 
didn't describe what it was but it was obviously something really 
disgusting and kinky but if they're starting to talk about 
``Cleveland Tornados'' in prime time I'm thinking yeah yeah 
there's gotta be all sorts of websites and jokes about this kinda 
thing. So I just wanted to bring this up what sorts of things 
like this have you heard of and try to, you know, carefully 
within reason describe it as best as you can what these strange 
sex techniques are.  248-559-9797.

MV3:  And I would like to make a challenge to anyone who's 
actually done one; `cause I mean we've all heard these, but 
they're all urban myths.

MV2:  I would like to say the last two of my favorite ones lately 
is ``The Shocker'' which I'm sure somebody will call that one in.  
I don't want to say that.  And uh what was the other one?

MV1:  So just give us the title without telling us what it means.

MV3:  What's ``The Shocker?''

MV2:  That's when...  It's with the fingers, two in the orifices. 
I can't really say.  Can't do it careful enough.

MV1:  Oh one... Oh... Look, we already warned people no children 
and no women, so...

MV2:  Two in the pink, one in the stink.

MV1:  Okay now I was gonna see, I was gonna say ``vagina'' and 
``rectum.''  But hey, you know...

MV3:  Have you performed that one?

MV2:  No. 

MV3:  And that's called a ``Shocker.''

MV2:  ``The Shocker,'' it takes them by surprise.

MV3:  He only performed the one finger on himself.

MV2:  And the other one which was called in awhile ago not when 
we were talking about this but the ``Rusty Trombone.''

MV1:  Oh that one I know!

MV2:  That one's gross.

MV3:  Yeah, once again one that had not been actually done. 

MV1:  The ``Rusty Trombone'' you know that I think that is the 
oldest of all these sickening things uh, `cause I heard that one 
years and years and years ago.

MV3:  I've never heard of it until that guy brought it up on the 
show.

MV1:  Really? For some reason I heard of that a long time ago.

MV3:  Be honest I've never heard of any of these.

MV1:  ``Rusty Trombone,'' and again please, no kids, no women. 
``Rusty Trombone'' I believe that's when you're having anal sex 
with a girl and then right afterwards you make her perform uh, 
oral sex on you.

MV3:  That's the way the man described it. Yes.

MV1:  Without washing up first. That's just disgusting. 

MV3:  She is referred to as playing the ``Rusty Trombone.'' 

MV1:  So if anyone has had the balls or was stupid enough or and/ 
or to actually try one of these on a girlfriend, wife, concubine, 
whatever that's about the only person you'll get away with it. If 
you got a hooker somewhere...

MV3:  She'll probably kick your ass. 

MV1:  She'll have her driver kill you. So tell us if you were 
ever dumb enough to try one of these on a girl and even if not 
just what sort of strange sex techniques have you heard of. 248-
559-9797. 

MV3: Billy from Southfield you're on 97.1 FM talk.

MC1:  How're you guys doin' today?

MV3:  Okay Billy.

MC1:  Yeah, the ``David Copperfield.''

MV1:  I heard of this but I can't remember how it goes.

MC1:  Um, I think it's when you're having sex with a girl from 
behind...

MV1:  Oh yeah.

MC1:  and then you spit on her back.

MV1:  Oh yeah, okay you pretend by spitting that you've just 
finished.
.
MC1:  Right and then when you turn around you Yasmine on her.... 
It's an illusion.

MV1:  (Laughing)  You Yasmine on her face. 

MC1:  Right.

MV1:  And Billy have you actually performed this?

MC1:  I believe I have once, but I was really drunk.

MV1:  What do you mean ``you believe you have?'' You're not sure 
you did?

MC1:  Well, I'm sure about the first part but the second part's a 
little fuzzy.

MV1:  You may have missed?

MC1:  Yeah. Right.

MV1:  But you definitely did the spitting on the back?

MC1:  Yeah, I tried it.

MV1:  Okay now but to perform a ``David Copperfield'' though 
doesn't one have to not spit just once you have to sorta you know 
``puph, puph, puph'' (simulates a spitting noise) get a couple 
spits out there in a rhythmic fashion?

MC1:  You know I never claimed to be a professional at it. 
(Laughter).  

MV1:  You're just in it for the love of the game. Okay, alright 
Billy, thanks for your call. Oh my God we're being told, Frank in 
Belleville. Hey Frank?

MC2:  Yes?

MV1:  We got a note here that says you actually know what a 
``Cleveland Tornado'' is supposed to be?

MC2:   I know what the ``Cleveland Tornado'' is. Are you ready?

MV1:  I just thought it was something they made up just to put on 
the show.

MC2:  Oh no, no, no. A ``Cleveland Tornado'' is ... You have to 
have a sex swing. What you do is you lay down and you have to 
lower the girl.  You have to...

MV1:  Wait, wait, I'm sorry.  Who is in the swing?

MC2:  Oh, a girl okay?

MV1:  And you're on the bed?

MC2:  You're on the bed or floor preferably, okay and you have to 
penetrate her rectum and...

MV1:  Yeah?

MC2:  ...you turn her around and supposedly she is supposed to 
have ate something that is going to make her defecate all over 
you.

MV1:  Oh God!!!!

MC2:  While you're spinning around.

MV1:  That's beautiful, that's like a dream wedding night 
(laughing).

MC2:  Why anybody would do this I don't know but I heard.... 
Yeah.

MV2:  Who would want that? 

MV3:  I don't know...

MV1:  What guy would want the girl to crap on her [him]? 
(laughing) I don't know. What's fun about any of these? That 
makes the show last night even funnier because that's what they 
were referring to. The thing is you gotta have the sex swing and 
the plot of the show was something they just sorta tried one 
night. You know you gotta have the swing! Alright strange sex 
techniques you've heard of 248-559-9797. 

MV3:  Alan in Garden City you're on 97.1 FM talk.

MC3:  Alright the one I know of is called the ``Chili Dog.''

MV1:  Well of course it is.

MC3:  And it's kinda like the ``Cleveland Steamer'' the way you 
started out except for you do the Hershey squirts on her chest. 
And then you add the hot dog which would be your member.

MV1:  You add it. You just put it there?

MC3:  You put it there and, yeah.

MV1:  Okay, wait a minute... so it starts off like the 
``Cleveland Steamer''...

MC3:  Yeah, you're using Hershey squirts instead of just 
defecating. And then you add the hot dog and the bun there...  So 
the chili's already there.

MV1:  So you put your unit in your own feces?

MC3:  Yeah, in between her breasts.

MV1:  So Alan, how many times have you tried this?

MC3:  Absolutely none.

MV1:  That sounds like a real good maneuver.

MV2:  Well once you find the right girl.  Why would you wanna put 
your unit in your own poop? (laughing)

MV1:  Josh, you're on 97.1 FM talk.

MC4:  Hey guys

MV1:  Hey Josh.

MC4:  I got one for you, have you ever heard of a ``Tony Danza?''

MV1:  Oh, this is a brand new one, so I'm glad, no I have not.

MC4:  A ``Tony Danza's'' when you grab her by the hair, throw her 
down on the bed, smack her around a little bit and tell her who's 
the boss.

MV1:  Aww. That's it?! Aww, otherwise know as a domestic violence 
move. Yeah I think that's known as a former Senator David Jay 
move.  Brian in Milford you're on 97.1 FM talk.

MC5:  Hey, what's up guys?

MV1:  Hey Brian.

MC5:  I have done the ``Rusty Trombone.''

MV1:  Aw, for God's sakes.

MV2:  You must've really loved her.

MC5:  No it was a girl I picked up when I was vacationing down in 
Hilton Head, South Carolina.

MV1:  Okay and you're back.

MC5:  She wanted me to do it.

MV1:  Now, you're in the hotel room?

MC5:  No, we were in a condo.

MV1:  Okay so you're in this condo and it's just you and the 
girl, it's not a threesome or anything?

MC5:  No. It was just me and the girl, my buddy was sleeping in 
the other bedroom.

MV1:  And uh, when you say she wanted you to do it, I mean, what 
happens, like you start having anal sex with her?

MC5:  Yeah, and I was approaching the finish line and she says...

MV1:  She says, ``Finish in my mouth?''

MC5:  Yes, yes. 

MV1:  No kiddin'? Wasn't that kinda disgusting?

MC5:  It was bizzare when it happened.

MV1:  Didn't it kind of gross you out?

MC5:  Yeah, but uh, it was a story, you know.

MV1:  Oh yeah, it is a good story.  What does the girl do 
immediately after? Does she go to the bathroom and use a bunch of 
Listerine or what? 

MC5:  No she tried to kiss me and that wasn't happenin.' 
(Laughter).

MV1:  No way!! Oh man, now was she offended that you would not 
kiss her?

MC5:  Yeah, she was.

MV1:  Yeah, I mean, I guess she would be, `cause hey look what 
she did for you.

MV2:  Yeah but so what!

MV1:  Oh no, I agree, it's just that it's inevitable that she's 
gonna be offended you know?  Brian, thanks for your call.  Oh 
yeah, if you actually tried these with anybody for God sakes get 
on a phone we'll talk about this just for the next segment...
 
MV2:  I still think about 99 percent of them are urban legend.

MV1:  Oh yeah, they've never actually been performed. I just 
think that guys, I think that guys bein' sick just tryin' to come 
up with just the most disgusting turn-off they can and then just 
pretend like oh yeah, this is what I did with somebody. So 
strange sex techniques you've heard of, no children no women 248-
559-9797.

97.1 FM Talk.  D&D Talk That Rocks In Detroit.

COMMERCIAL BREAK

Deminski (Deminski) and Doyle (Doyle).  It's like seeing nude 
photos of your sister. (Sound of a spring snapping back 
``boing'').  Sure it's creepy, but there's just something about 
it (Woah).  97.1 FM Talk.

MV1:  It's 4:55 with Deminski and Doyle and by the way Rudy 
somebody e-mailed and was laughing their ass off when you said 
``I'd buy that for a dollar'' `cause he says it all the time too. 
So another ``RoboCop'' fan out there.

MV2:  Oh so it was an inside joke.

MV3:  Between Rudy and a listener.

MV1:  Another guy who lives in the basement somewhere just like 
Rudy. Oh, oh, hey, real quick-- hot girl upstairs any update?!  
You still haven't talked to the hot girl upstairs? No ``Cleveland 
Tornado?'' Nothing? Okay. Just getting the update. So again no 
women no children we'll drop this after five, strange sex 
techniques. `Cause this is making the main stream. Last night on 
that Hank Azaria brand new sitcom they were using the term 
``Cleveland Tornado.'' 248-559-9797. Scott from Grand Bluff!

MC6:  Yeah hi guys, how ya doing?

MV1:  Hi Scott.

MC6:  You guys are classic. This is classic radio right here. I 
love it.
 
MV1:  Yeah.

MC6:  You know I didn't know this was so mainstream. I was 
telling my buddies about all these acts  a couple months ago and 
they didn't believe me.  So God bless you guys.  Nevertheless I 
have one that's an offshoot of the ``Cleveland Steamer'' and it's 
called the ``Manhattan Hot Platter.''
 
MV1:  Okay, carefully now tell us what happens.

MC6:  It's the same thing but it's not done on the chest it's 
done in the mouth.

MV1:  Oh God! So you're telling me you get a girl and you, you 
crap in her mouth?

MC6:  Exactly.

MV1:  And then what? That's it?

MC6:  That's it.
 
MV1:  Okay Scott, have you ever done this?

MC6:  And the ``Copperfield'' is also known as the ``Houdini.''

MV1:  No you gotta tell us, have you ever done this?

MC6:  No. Goodness no.

MV1:  Do you honestly believe anybody has ever done any of these 
things?

MC6:  You know I've seen the ``Manhattan Hot Platter'' on the 
Internet. I have seen it in an e-mail.

MV1:  It's gotta be a model.

MC6:  No it's not 

MV1:  Somebody's getting paid.

MC6:  I swear it's not; it's very disgusting.

MV1:  No, no Bill's saying it's a real person; it's gotta be a 
porno actress that gets paid to get demeaned.

MC6:  I watched it several times.

MV2:  Gotta be pretty low on the porno scale too.  You start off 
with the ``Manhattan Hot Platter,''  whatever.

MV1:  I think that's the 90 days before you make your health 
insurance.

MV2:  And what does that even have to do with sex?

MV1:  (Laughing) I don't know. 

MV2:  There's no sex involved. You poop in somebody's mouth. 
(hoots).

MV1:  Some guys are thinking ``Yeah; she wants that; she enjoys 
it.''  From Auburn Hills,
Tim.  Hey Tim, you're on 97.1 FM Talk.  

MC7:  Hey you guys, how ya doin'?  I listen every day. My 
personal favorite is the ``Frothy Walrus.'' (Laughing)

MV1:  What's a... I may have heard this but I forget. What's a 
``Frothy Walrus?''

MC7:  Well, that's where you have a girl perform oral on you, you 
complete the act and then you finish it off by punching her in 
the stomach so it comes outta her nose. (Laughing)

MV1:  Oh God. Another abuse one. If we ever talk about this again 
`cause I swear there's so many of these and guys have jammed the 
phone lines, we gotta get all sorts of romantic music to play 
underneath this.  Tom in Sterling Heights you're on 97.1 FM Talk.

MC8:  Hey guys this is great.  This is actually kind of like the 
last one, its called the ``Strawberry Swirl.'' You get the girl 
to pleasure you, get it on her face, punch her in the nose and 
smear it all around.

MV1:  Have you ever done this one Tom?

MC8:  Oh no, no, no.

MV1:  Would you ever consider doing this?

MC8:  No, I'm not that violent.
 
MV1:  So yeah, you gotta get her bloody nose mixed in with 
everything else.

MC8:  Yeah, gotcha.

MV2:  That's charming, another a wedding night memory.  Let's 
just take one more.

MV1:  Alright, Tom in Sterling Heights, you're on 97.1 FM Talk.  

MV2:  Another Tom.

MC9:  Hey guys.  Hey, I'd like to call in a blumpkin.

MV1:  A blumpkin?

MC9:  Blumpkin, yeah.   It's you're receiving.  The cow's being 
serviced while you're on the can.
 
MV1:  Okay. A blumpkin is where she's giving you oral sex while 
you're on the...while you're moving your bowels?

MC9:  Absolutely.

MV1:  What's fun about that?

MC9:  It's just dirty that's all.

MV1:  Have you had a blumpkin?

MC9:  Absolutely not.

MV1:  What would you think of a guy who had a blumpkin?

MC9:  I don't know.

MV1:  `Cause you know what Tom? My dad had a blumpkin.

MC9:  Oh no way!! (Laughing).

MV1: Yeah, swear to God.  He didn't know it was called a blumpkin 
but my dad had this kinky girlfriend for about a year. Did all 
this weird stuff, and and this was her idea.  She wanted to give 
my dad and enema.  This was like a longtime fantasy of hers, and 
then when the enema kicks in she wanted to blumpkin him.  And she 
did and my dad for some reason my dad told me about this.

MV2:  That's even worse. I mean it's bad enough he's got a 
blumpkin but then he shares it with his son.  That's priceless.

MV1:  I wonder if when you die you really do just gain all the 
knowledge that's out there in the universe;  meaning that at this 
point now that my dad has passed now maybe he knows that that was 
a blumpkin. Alright we're gonna stop, so men you can find your 
women and children and allow them back to the radio. 97 1 FM 
Talk. It's 5:00. 
     4.   October 2002
                          ATTACHMENT B


                FCC List of Small Entities

   As described below, a ``small entity'' may be a small 
                       organization,
  a small governmental jurisdiction, or a small business.

(1)  Small Organization 
Any not-for-profit  enterprise  that is  independently  owned 
and operated and 
is not dominant in its field.

  
(2)  Small Governmental Jurisdiction
Governments of cities, counties, towns, townships,  villages, 
school districts, or 
special  districts, with  a  population of  less  than  fifty 
thousand.


(3)  Small Business
Any  business  concern   that  is  independently  owned   and 
operated and 
is not dominant  in its field, and  meets the pertinent  size 
criterion described below.
  

      Industry Type          Description of Small Business 
                                     Size Standards
                 Cable Services or Systems
                            Special Size Standard - 
Cable Systems                Small Cable Company has  400,000 
                            Subscribers Nationwide or Fewer
Cable  and   Other   Program 
Distribution                     $12.5 Million in Annual 
                                    Receipts or Less

Open Video Systems 
       Common Carrier Services and Related Entities
Wireline    Carriers     and 
Service providers 
                                1,500 Employees or Fewer
Local   Exchange   Carriers, 
Competitive           Access 
Providers,     Interexchange 
Carriers,  Operator  Service 
Providers,          Payphone 
Providers, and Resellers


Note:   With  the  exception  of  Cable  Systems,  all   size 
standards are  expressed  in either  millions of  dollars  or 
number of  employees  and are  generally the  average  annual 
receipts or  the average  employment of  a firm.   Directions 
for  calculating   average   annual  receipts   and   average 
employment of a firm can be found in 
13 CFR 121.104 and 13 CFR 121.106, respectively.





                  International Services
International      Broadcast 
Stations






                                $12.5 Million in Annual 
                                    Receipts or Less
International  Public  Fixed 
Radio  (Public  and  Control 
Stations)
Fixed              Satellite 
Transmit/Receive       Earth 
Stations
Fixed Satellite  Very  Small 
Aperture Terminal Systems
Mobile    Satellite    Earth 
Stations
Radio          Determination 
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary      Space 
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
                    Mass Media Services
Television Services

                             $12 Million in Annual Receipts 
                                        or Less
Low     Power     Television 
Services   and    Television 
Translator Stations
TV    Auxiliary,     Special 
Broadcast and  Other Program 
Distribution Services
Radio Services
                             $6 Million in Annual Receipts 
                                        or Less
Radio   Auxiliary,   Special 
Broadcast and  Other Program 
Distribution Services
Multipoint      Distribution Auction Special Size Standard -
Service                      Small  Business  is  less   than 
                            $40M  in annual  gross  revenues 
                            for three preceding years
          Wireless and Commercial Mobile Services
Cellular Licensees
                                1,500 Employees or Fewer
220  MHz  Radio   Service  - 
Phase I Licensees
220  MHz  Radio   Service  - Auction special size standard -
Phase II Licensees           Small Business is average  gross 
                            revenues  of  $15M or  less  for 
                            the   preceding   three    years 
                            (includes     affiliates     and 
                            controlling principals)
                            Very  Small Business is  average 
                            gross  revenues of  $3M or  less 
                            for  the preceding  three  years 
                            (includes     affiliates     and 
                            controlling principals)
700 MHZ Guard Band Licensees


Private and  Common  Carrier 
Paging
Broadband           Personal 
Communications      Services     1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband           Personal Auction special size standard -
Communications      Services Small  Business is $40M or  less 
(Block C)                    in  annual  gross  revenues  for 
                            three previous calendar years
                            Very  Small Business is  average 
                            gross  revenues of $15M or  less 
                            for    the    preceding    three 
                            calendar     years     (includes 
                            affiliates   and   persons    or 
                            entities  that hold interest  in 
                            such     entity    and     their 
                            affiliates)
Broadband           Personal 
Communications      Services 
(Block F)
Narrowband          Personal 
Communications Services


Rural Radiotelephone Service     1,500 Employees or Fewer
Air-Ground    Radiotelephone 
Service
800 MHz  Specialized  Mobile Auction special size standard -
Radio                        Small  Business is $15M or  less 
                            average  annual  gross  revenues 
                            for  three  preceding   calendar 
                            years
900 MHz  Specialized  Mobile 
Radio
Private Land Mobile Radio        1,500 Employees or Fewer
Amateur Radio Service                      N/A
Aviation  and  Marine  Radio 
Service                          1,500 Employees or Fewer
Fixed Microwave Services
                            Small    Business    is    1,500 
Public Safety Radio Services employees or less
                            Small  Government  Entities  has 
                            population  of less than  50,000 
                            persons
Wireless    Telephony    and 
Paging and Messaging             1,500 Employees or Fewer
Personal Radio Services                    N/A
Offshore      Radiotelephone     1,500 Employees or Fewer
Service
Wireless      Communications Small  Business is $40M or  less 
Services                     average  annual  gross  revenues 
                            for three preceding years
                            Very  Small Business is  average 
                            gross  revenues of $15M or  less 
                            for the preceding three years 

39 GHz Service
                            Auction  special  size  standard 
                            (1996) -
Multipoint      Distribution Small  Business is $40M or  less 
Service                      average  annual  gross  revenues 
                            for  three  preceding   calendar 
                            years
                            Prior to Auction -
                            Small   Business   has    annual 
                            revenue of $12.5M or less
Multichannel      Multipoint 
Distribution Service             $12.5 Million in Annual 
                                    Receipts or Less
Instructional     Television 
Fixed Service
                            Auction  special  size  standard 
                            (1998) -
Local             Multipoint Small  Business is $40M or  less 
Distribution Service         average  annual  gross  revenues 
                            for three preceding years
                            Very  Small Business is  average 
                            gross  revenues of $15M or  less 
                            for the preceding three years 
                            First   Auction   special   size 
                            standard (1994) -
                            Small  Business  is  an   entity 
                            that,    together    with    its 
                            affiliates,  has no more than  a 
218-219 MHZ Service          $6M   net   worth   and,   after 
                            federal income taxes  (excluding 
                            carryover  losses) has  no  more 
                            than $2M in annual profits  each 
                            year for the previous two years
                            New Standard - 
                            Small Business is average  gross 
                            revenues  of  $15M or  less  for 
                            the   preceding   three    years 
                            (includes     affiliates     and 
                            persons  or entities  that  hold 
                            interest  in  such  entity   and 
                            their affiliates)
                            Very  Small Business is  average 
                            gross  revenues of  $3M or  less 
                            for  the preceding  three  years 
                            (includes     affiliates     and 
                            persons  or entities  that  hold 
                            interest  in  such  entity   and 
                            their affiliates)
Satellite   Master   Antenna 
Television Systems               $12.5 Million in Annual 
                                    Receipts or Less
24 GHz - Incumbent Licensees     1,500 Employees or Fewer
24 GHz - Future Licensees    Small Business is average  gross 
                            revenues  of  $15M or  less  for 
                            the   preceding   three    years 
                            (includes     affiliates     and 
                            persons  or entities  that  hold 
                            interest  in  such  entity   and 
                            their affiliates)
                            Very  Small Business is  average 
                            gross  revenues of  $3M or  less 
                            for  the preceding  three  years 
                            (includes     affiliates     and 
                            persons  or entities  that  hold 
                            interest  in  such  entity   and 
                            their affiliates)
                       Miscellaneous
On-Line Information Services  $18 Million in Annual Receipts 
                                        or Less
Radio     and     Television 
Broadcasting  and   Wireless 
Communications     Equipment      750 Employees or Fewer
Manufacturers
Audio  and  Video  Equipment 
Manufacturers
Telephone          Apparatus 
Manufacturers        (Except     1,000 Employees or Fewer
Cellular)
Medical    Implant    Device      500 Employees or Fewer
Manufacturers
Hospitals                     $29 Million in Annual Receipts 
                                        or Less
Nursing Homes                    $11.5 Million in Annual 
                                    Receipts or Less
Hotels and Motels             $6 Million in Annual Receipts 
                                        or Less
Tower Owners                 (See Lessee's Type of Business)
                      DISSENTING STATEMENT OF 
                  COMMISSIONER MICHAEL J. COPPS

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.

                                5.   
                      SEPARATE STATEMENT OF 
                  COMMISSIONER KEVIN J. MARTIN

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

I support  this Notice's  finding  that the  licensee  apparently 
violated our rule against the broadcast of indecent content,  but 
I would have proposed a higher fine.  For instance, we could have 
found that each time the show's hosts solicited a new call on  an 
indecent topic, the ensuing  conversation constituted a  separate 
violation.  As the Notice acknowledges, we have the discretion to 
consider each indecent utterance a separate violation.16



                      SEPARATE STATEMENT OF 
                 COMMISSIONER JONATHAN ADELSTEIN

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

I strongly  support  this Notice  and  the message  it  sends  to 
Infinity and other broadcasters that violate our indecency rules.  
The Commission has  now given fair  notice that it  can and  will 
avail itself of a range  of enforcement sanctions, including  the 
initiation of revocation  proceedings.  Moreover, the  Commission 
will, in  the future,  consider finding  broadcasters liable  for 
multiple  violations  that  occur  in  a  single  program   where 
statements can be viewed  as separate indecent utterances.   Such 
an approach  could  result  in  substantially  higher  forfeiture 
amounts. 

                                6.   
_________________________

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

     2  Sable Communications of  California, Inc. v. FCC,  supra 
note 1, 492 U.S. at 126.  

     3  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'').

     4 ACT  I,  supra note  3,  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). 

     5  Public Telecommunications Act of 1992, Pub. L. No.  356, 
102nd Cong., 2nd Sess. (1992); ACT III, supra note 3.

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

     7  ACT III, supra note 3.

     8  See, e.g., WQAM  License Limited Partnership  (WQAM(AM)) 
15 FCC Rcd 2518  (2000), aff'd 15  FCC Rcd 13549  (2000)(segment 
consisting of  a telephone  conversation discussing  anal  sex); 
Emmis Radio  License Corporation,  17 FCC  Rcd 5263  (EB  2002), 
aff'd 17 FCC Rcd  21697 (EB 2002)(Forfeiture  Order)(discussions 
concerning sexual  practices by  female  cast member  and  women 
guests); Capstar TX Limited  Partnership (KTXQ(FM)), 15 FCC  Rcd 
19615 (EB 2000)(radio show hosts discuss sexual techniques  with 
a caller);   Communicast  Consultants, Inc., (KRXK(AM)), 15  FCC 
Rcd 18730 (EB 2000), aff'd 15 FCC Rcd 19697 (EB 2000)(Forfeiture 
Order)(complained of  material includes  graphic description  of 
sexual activities  and  organs);  Southern  Nevada  Radio,  Inc. 
D.I.P.(KKLZ(FM)), 13 FCC  Rcd 2787 (MMB  1998)(radio show  hosts 
solicit ``men are pigs'' stories  and discuss with a caller  the 
sexual and excretory  activities performed by  the caller's  ex-
husband); Rich Communications Corporation (WGRF(FM)), 10 FCC Rcd 
5149 (MMB 1995)(radio show hosts solicit women callers to relate 
``the  strangest  intimate  story''   confided  to  them  by   a 
girlfriend and then  discuss the  details of  such stories  with 
callers).    

     9 Infinity cites language from Ashcroft v. Free Speech 
Coalition, 122 S.Ct. 1389 (2002), a case invalidating provisions 
of the Child Pornography Prevention Act of 1996 (``CPPA''), which 
criminalized non-obscene ``virtual'' child pornography.  The CPPA 
extended the federal prohibition against child pornography to 
sexually explicit images that appeared to depict minors but were 
produced without using any real children.  In the text cited, the 
Court distinguished provisions of the CPPA related to ``virtual'' 
child pornography from constitutionally valid statutory 
provisions banning actual child pornography.  Protecting children 
from exposure to indecent material is a compelling governmental 
interest and courts have not questioned or expected proof on the 
issue of harm.  See Sable Communications, supra note 1, 492 U.S. 
at 126-27.  However, to withstand constitutional scrutiny, 
government regulations aimed at promoting this compelling 
interest must be narrowly drawn so as not to unnecessarily 
interfere with First Amendment freedoms.  The D.C. Circuit has 
concluded that a 10 p.m. to 6 a.m. ``safe harbor'' period, during 
which indecent speech may be legally broadcast, is justified as a 
properly tailored means of vindicating the government's 
compelling interest in the welfare of children.  See ACT III, 
supra note 3.  

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

     11  The  Commission's   Forfeiture  Policy  Statement   and 
Amendment of  Section  1.80  of the  Rules  to  Incorporate  the 
Forfeiture Guidelines, 12  FCC Rcd 17087,  17113 (1997),  recon. 
denied 15 FCC Rcd 303  (1999) (Forfeiture Policy Statement);  47 
C.F.R.  1.80(b).

     12   Forfeiture Policy Statement, 12 FCC Rcd at 17110.

     13   See 47 C.F.R.  1.80.  The Commission recently amended 
its rules  to  increase the  maximum  penalties to  account  for 
inflation since the last adjustment  of the penalty rates.   The 
new rates  apply  to violations  that  occur or  continue  after 
November 13, 2000.  See Order,  ``In the Matter of Amendment  of 
Section 1.80(b)  of the  Commission's  Rules and  Adjustment  of 
Forfeiture Maxima  to  Reflect  Inflation.'' 15  FCC  Rcd  18221 
(2000).

     14 47 C.F.R.  0.111, 0.311 and 1.80.  

     15 See 47 C.F.R.  1.1914.

     16  See Notice  at    12.   See  also  18  U.S.C.    1864 
(``Broadcasting obscene language.   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.'')