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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 )
MEMORANDUM OPINION AND ORDER
Adopted: February 17, 2004 Released: February
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.
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.
FEDERAL COMMUNICATIONS COMMISSION
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
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
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'').