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

In the Matter of                )  File Nos. EB-01-IH-0124, 
                                )  EB-01-IH-0319  and EB-01-
Emmis Radio License Corporation )  NAL/Acct.             No. 
                                )  FRN 0001529346
Licensee of Station WKQX(FM)    )  Facility ID No. 19525
Chicago, Illinois               )


   Adopted:   February 17, 2004         Released:   February 
18, 2004

By the Chief, Enforcement Bureau:

     1.      In this  Memorandum Opinion  and Order,  issued 
pursuant to section  405 of the Communications  Act of 1934, 
as  amended  (the  ``Act''),1   and  section  1.106  of  the 
Commission's rules,2 we deny  a Petition for Reconsideration 
filed  on   December  2,   2002,  by  Emmis   Radio  License 
Corporation,  (``Emmis''),  licensee  of  Station  WKQX(FM), 
Chicago, Illinois, of a Forfeiture Order3 imposing a Twenty-
One Thousand Dollar ($21,000.00) monetary forfeiture penalty 
against it for willful and  repeated violations of 18 U.S.C. 
§ 1464  and section 73.3999  of the Commission's  rules, the 
latter of which prohibits the broadcast of indecent material 
during the period from 6 a.m. through 10 p.m.  Specifically, 
in  the Forfeiture  Order, we  found that  the complained-of 
material broadcast over  Station WKQX(FM) on March  6, 7 and 
May  17,  2001,  during the  ``Mancow's  Morning  Madhouse'' 
(``Mancow'')   program   met  the   Commission's   indecency 
definition, and thus that Emmis's broadcast of this material 
violated the statute and the Commission's rule.  
     2.       Reconsideration is  appropriate only where the 
petitioner either demonstrates a  material error or omission 
in the underlying order or raises additional facts not known 
or   not  existing   until  after   the  petitioner's   last 
opportunity  to  present  such  matters.4   A  petition  for 
reconsideration   that   reiterates  arguments   that   were 
previously considered  and rejected will be  denied.5  Emmis 
presents a  number of  repetitious arguments that  have been 
thoroughly considered and rejected,  and thus do not support 
reconsideration of our Forfeiture Order.6   

     3.        However, Emmis's Petition for Reconsideration 
also  raises  new  arguments  that we  have  not  previously 
addressed. 7   Emmis argues  that the material  broadcast on 
March 6  and 7, 2001,  is less explicit  than a parody  of a 
Britney  Spears song  that  the staff  found not  actionably 
indecent.8  Unlike  the material at issue  here, the Britney 
Spears song parody had been edited by the radio station over 
which it was broadcast, so that  it was not possible for the 
staff to  determine what  the omitted  terms were  or derive 
from  the surrounding  text what  meaning was  intended.  In 
contrast here, the Mancow material  broadcast on March 6 and 
7,  2001,  was  not  edited,  and  it  relied  on  innuendo, 
including  colloquial  terms  used to  describe  sexual  and 
excretory organs  and activities,  the sexual  and excretory 
import of  which is  unmistakable.9  There is  no non-sexual 
meaning  that  a listener  could  have  attributed to  these 
terms.10    Consequently,   the   material  at   issue   was 
sufficiently  explicit  or  graphic to  be  deemed  patently 
offensive  as measured  by contemporary  community standards 
for the broadcast medium.

     4.       Emmis also argues  that the Commission has not 
sufficiently articulated precisely how it determines whether 
particular  material is  patently offensive  to the  average 
broadcast  listener under  contemporary community  standards 
for  the broadcast  medium, and  thus that  broadcasters are 
unable  to make  informed decisions  as to  whether material 
will be found to be indecent.   However, as set forth in the 
Forfeiture  Order, we  evaluated the  complained-of material 
based upon the Commission's  indecency definition, which has 
been   specifically  upheld   by   federal  courts.11    The 
Commission  defines indecent  speech  as  language that,  in 
context, depicts or describes sexual or excretory activities 
or  organs  in  terms  patently  offensive  as  measured  by 
contemporary community standards for the broadcast medium.12  

           Indecency  findings  involve at  least 
           two     fundamental    determinations.  
           First,  the  material  alleged  to  be 
           indecent must fall  within the subject 
           matter   scope    of   our   indecency 
           definition¾that is,  the material must 
           describe or depict sexual or excretory 
           organs  or activities.  . .  . Second, 
           the   broadcast   must   be   patently 
           offensive as  measured by contemporary 
           community standards  for the broadcast 

In our assessment of whether broadcast material is patently 
offensive, ``the full context in which the material appeared 
is critically important.'' 14 Three principal factors are 
significant to this contextual analysis: (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.15  In examining these three factors, we 
must weigh and balance them to determine whether the 
broadcast material is patently offensive because ``[e]ach 
indecency case presents its own particular mix of these, and 
possibly, other factors.''16  In particular cases, one or 
two of the factors may outweigh the others, either rendering 
the broadcast material patently offensive and consequently 
indecent,17 or, alternatively, removing the broadcast 
material from the realm of indecency.18   The Commission 
judges material by drawing on its ``knowledge of the views 
of the average viewer or listener''19 and its ``general 
expertise in broadcast matters.''20  Published decisions, 
including those in the Indecency Policy Statement, provide 
guidance indicating the analytical process by which the 
Commission determines whether material is patently offensive 
as measured by contemporary community standards for the 
broadcast medium.  We accordingly find Emmis's argument to 
be without merit. 

     5.     Emmis's  new arguments  do not  demonstrate that 
the Forfeiture  Order contains material error  or omissions, 
and  we  have  already  considered and  rejected  its  other 
arguments.  Therefore, we deny Emmis's Petition.  

                      ORDERING CLAUSES

     6.    Accordingly,  IT  IS ORDERED  THAT,  pursuant  to 
section 405 of  the Communications Act of  1934, as amended, 
and  section 1.106  of the  Commission's rules,  Emmis Radio 
License  Corporation's Petition  for Reconsideration,  filed 
December 2, 2002, IS HEREBY DENIED.  
     7.          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)(0001529346)  referenced 
above,   and   also   should    note   the   NAL/Acct.   No. 
(200232080008).  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). 

     8        IT IS  FURTHER  ORDERED THAT  a  copy of  this 
Memorandum Opinion and Order shall be sent by Certified Mail 
Return  Receipt   Requested  to   J.  Scott   Enright,  Vice 
President,   Associate   General   Counsel   and   Assistant 
Secretary,  Emmis  Radio  License Corporation,  40  Monument 
Circle, Indianapolis, Indiana  46204 and to Emmis's counsel, 
John  E.  Fiorini,  III,  Esquire  and  Eve  Klindera  Reed, 
Esquire, Wiley  Rein &  Fielding LLP,  1776 K  Street, N.W., 
Washington, D.C.  20006. 

                         David H. Solomon
                         Chief, Enforcement Bureau



1 47 U.S.C. § 405 (2002).

2 47 C.F.R. § 1.106 (2002).  

3  Emmis  Radio  License  Corporation  (WKQX(FM)),  Apparent 
Liability for Forfeiture, Forfeiture Order, 17 FCC Rcd 21697 
(EB 2002).  

4 See 47 C.F.R. § 1.106(c);  EZ Sacramento, Inc., 15 FCC Rcd 
18257, ¶  2 (EB 2000),  citing WWIZ,  Inc., 37 FCC  685, 686 
(1964), aff'd sub. nom. Lorain  Journal Co. v. FCC, 351 F.2d 
824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966).   

5 EZ Sacramento, Inc., 15 FCC Rcd at 18257, ¶ 2.  

6 See  Petition for  Reconsideration of Emmis  Radio License 
Corporation,  filed   December  2,  2002.   (``Petition  for 
Reconsideration'').    Specifically,   Emmis   repeats   its 
arguments  that the  complained-of  material broadcast  over 
WKQX(FM)  on March  6  does not  depict  or describe  sexual 
activity, and relies solely on innuendo that is not patently 
offensive.  Emmis  also again asserts its  argument that the 
sexual  references  in  the  March  6,  2001  broadcast  are 
fleeting.  In addition, Emmis again argues that the March 7, 
2001, broadcast relies solely on innuendo and that the March 
17,  2001, broadcast  relies heavily  on innuendo,  and that 
neither is pandering, titillating or shocking.  

7  Petition for Reconsideration at 3-4, 5.  

8  See Letter from Charles  W. Kelley to Cathy Levin, EB-01-
IH-0326 (May 3, 2002).  

9  Emmis Radio License Corporation (WKQX(FM)), 17 FCC Rcd at 
21699-700, 21702-08.  

10  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, 8003-04, ¶ 12.

11 Emmis Radio License Corporation (WKQX(FM)), 17 FCC Rcd at 
21698-99, ¶  ¶ 6-7, citing  FCC v. Pacifica  Foundation, 438 
U.S. 726,  732 (1978);  Action for Children's  Television v. 
FCC, 852 F.2d 1332 (D.C.  Cir. 1988) (``ACT I''); Action for 
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 
1991),  cert.  denied, 503  U.S.  914  (1992) (``ACT  II''); 
Action for Children's  Television v. FCC, 58 F.  3d 654, 657 
(D.C. Cir. 1995), cert. denied,  516 U.S. 1043 (1996) (``ACT 
III'');   and    Infinity   Broadcasting    Corporation   of 
Pennsylvania, 2 FCC Rcd 2705 (1987). 

12 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)).  

13 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶¶ 7-8. 
(2001) (emphasis in original).

14 Id. at 8002, ¶ 9.  

15 Id. at 8002-15, ¶¶ 8-23.  

16 Id. at 8003, ¶ 10.

17 Id. at 8009, ¶ 19  (citing Tempe Radio, Inc (KUPD-FM), 12 
FCC  Rcd  21828  (MMB  1997)  (forfeiture  paid)  (extremely 
graphic  or  explicit  nature  of  references  to  sex  with 
children outweighed the fleeting  nature of the references); 
EZ New Orleans, Inc. (WEZB(FM)),  12 FCC Rcd 4147 (MMB 1997) 
(forfeiture paid) (same). 

18  Id.  at  8010, ¶  20  (``the  manner  and purpose  of  a 
presentation  may well  preclude an  indecency determination 
even though other factors, such as explicitness, might weigh 
in favor of an indecency finding'').

19 Id. 

20 Id.