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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.
INFINITY RADIO LICENSE, INC.1 ) NAL/Acct. No.
) FRN: 0004-0367-11
Licensee of Station WLLD(FM), ) Facility ID # 18527
Holmes Beach, Florida )
MEMORANDUM OPINION AND ORDER
Adopted: August 6, 2004 Released:
August 23, 2004
By the Commission: Commissioner Martin concurring and
issuing a statement.
1. In this Memorandum Opinion and Order, we deny a
Petition for Reconsideration filed on April 19, 2004, by
Infinity, licensee of Station WLLD(FM), Holmes Beach,
Florida (``Petition''). Infinity seeks reconsideration of
the Commission's denial of Infinity's October 28, 2002,
Application for Review.2 In its Application for Review,
Infinity sought review of a Memorandum Opinion and Order3
issued by the Chief, Enforcement Bureau (``Bureau''), which
denied Infinity's Petition for Reconsideration of a
Forfeiture Order4 that imposed a monetary forfeiture in the
amount of Seven Thousand Dollars ($7,000.00) against it for
willful violation of 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999, the latter of which prohibits the broadcast of
indecent material between 6 a.m. and 10 p.m.
2. The facts and circumstances resulting in the
forfeiture are discussed at length in the 2004 Commission
MO&O and Bureau orders noted above and will not be repeated
here. In its Petition, Infinity repeats arguments
previously made in this proceeding and advances two
additional arguments, both of which, it maintains, warrant
reconsideration and reversal of the 2004 Commission MO&O.
First, Infinity contends that the 2004 Commission MO&O
raises questions as to whether the Commission's
ascertainment and understanding of contemporary community
standards relative to broadcast indecency are adequate.5
Second, Infinity argues that five Commission decisions6
released contemporaneously with the Commission MO&O further
undermine the constitutionality of the Commission's
indecency enforcement scheme. Infinity maintains that,
until the Commission brings clarity to the purportedly
unconstitutionally vague standards employed in enforcing the
prohibition against broadcast indecency and reintroduces
procedural and substantive restraints consistent with the
First Amendment, it cannot penalize any broadcaster for
airing allegedly indecent material.7
3. Reconsideration is appropriate only where the
petitioner either shows a material error or omission in the
original order or raises additional facts not known or
existing until after the petitioner's last opportunity to
present such matters.8 A petition that simply repeats
arguments previously considered and rejected will be
denied.9 To the extent that the Petition repeats
constitutional arguments regarding the indecency standard
which we have already considered and rejected,10 denial of
reconsideration is warranted. Moreover, as we explain
below, neither additional argument raised by Infinity in its
Petition warrants reconsideration of the 2004 Commission
4. Applying our long-standing definition of
indecency11 in the 2004 Commission MO&O, we affirmed the
Bureau's determination that the utterance at issue aired by
Station WLLD(FM) was indecent. Nothing in Infinity's
Petition suggests that Station WLLD(FM) did not air the
cited utterance between the hours of 6 a.m. and 10 p.m.
Moreover, neither the 2004 Commission MO&O's discussion of
how the Commission determines contemporary community
standards in indecency cases nor the Commission decisions
cited by Infinity, either singly or in combination,
constitute a changed fact or circumstance that justifies
reconsideration. The 2004 Commission MO&O did not modify
the definition of ``contemporary community standards'' nor
the agency's methodology for ascertaining those standards.12
Likewise, none of the five recent Commission decisions cited
by Infinity altered the Commission's definition of indecency
or the safe harbor parameters prescribed in 47 C.F.R. §
73.3999 or addressed issues pertinent to the case now before
us. Thus, Infinity's arguments about the sufficiency of a
complainant's evidence as to what was broadcast,13
unpublished staff decisions as relevant precedent,14 or the
validity of finding that a particular utterance could be
profane as well as indecent15 are irrelevant. As discussed
at length in our prior decision, the cited utterance
broadcast by Station WLLD(FM), which described a sexual
activity in patently offensive terms, was indecent,16 and
this finding was consistent with precedent.17 Consequently,
nothing raised in the Petition constitutes new facts or
changed circumstances that warrant further reconsideration
of the forfeiture penalty assessed against Infinity for the
material at issue here. Rather, Infinity's Petition
contains arguments that the Commission has already
considered or that have absolutely nothing to do with the
issues in this proceeding. We therefore deny Infinity's
IV. ORDERING CLAUSES
5. ACCORDINGLY, IT IS ORDERED that, pursuant to 47
U.S.C. § 405 and 47 C.F.R. § 1.106(b)(3), the Petition for
Reconsideration filed on April 19, 2004, by Infinity Radio
License, Inc. IS DENIED.
6. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent by certified
mail, return receipt requested, to counsel for Infinity,
Steven A. Lerman,
Esq., Leventhal Senter & Lerman PLLC, 2000 K Street, N.W.,
Suite 600, Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary CONCURRING STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
Re: Infinity Radio License, Inc., Licensee of Station
WLLD(FM), Holmes Beach, FL, Memorandum Opinion and
This Order denies a Petition for Reconsideration of an
Order we released in March of this year. I concur in this
Order for the same reason I concurred in the underlying
Order: the broadcast included numerous indecent utterances;
Infinity, the licensee, has a long history of repeated
violations; and thus each violation in this broadcast
deserves a much higher fine. The Bureau's proposed $7,000
fine is therefore inadequate.
1 Commission records reflect that the licensee of Station
WLLD(FM) is now Infinity Radio Inc., following grant of an
application for approval of the pro forma assignment of the
station's license on November 25, 2003. See File No. BALH-
20031110AHJ. We hereafter refer to the licensee as
2 Infinity Radio License, Inc., 19 FCC Rcd 5022 (2004)
(``2004 Commission MO&O'').
3 Infinity Radio License, Inc., 17 FCC Rcd 18339 (EB 2002).
Infinity Radio License, Inc., 16 FCC Rcd 4825 (EB 2001)
5 Petition at 4-6.
6 The five decisions are: Clear Channel Broadcasting
Licenses, Inc. et al., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 6773 (2004); Emmis Radio License
Corporation, Memorandum Opinion and Order, 19 FCC Rcd 6452
(2004) (``Emmis''); Infinity Broadcasting Operations, Inc.,
Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 5032
(2004); Complaints Against Various Broadcast Licensees
Regarding Their Airing of the ``Golden Globe Awards''
Program (Memorandum Opinion and Order), 19 FCC Rcd 4975
(2004) (``Golden Globe''); and Capstar TX Limited
Partnership (WAVW(FM) and WCZR(FM), Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 4960 (2004)
(``Capstar''). Infinity also suggests that Infinity
Broadcasting Operations, Inc., Notice of Apparent Liability
for Forfeiture, 18 FCC Rcd 6915, 6919 (2003), which warned
broadcasters about possible license revocations for future
serious indecency violations and about possible forfeitures
for multiple indecency violations within a single program,
constitutes a changed circumstance that justifies
reconsideration of the 2004 Commission MO&O.
7 Petition at 2, 6-13.
8 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); 47 C.F.R. § 1.106(c).
Bennett Gilbert Gaines, 8 FCC Rcd 3986 (Rev. Bd. 1993).
2004 Commission MO&O, supra note 2, p. 6, ¶ 13; Forfeiture
Order, supra note 4, 16 FCC Rcd at 4827, ¶ 9.
11 See In the Matter of Industry Guidance on the
Commission's Case Law Interpreting 18 U.S.C. § 1464 and
Enforcement Policies Regarding Broadcast Indecency, 16 FCC
Rcd 7999, 8000 ¶ 4 (2001) (``Indecency Guidelines'').
Indecent material is ``language or material that, in
context, depicts or describes, in terms patently offensive
as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or
organs.'' See also 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.
12 Compare 2004 Commission MO&O, 19 FCC Rcd at 5026, ¶ 12
with Infinity Broadcasting Corporation of Pennsylvania
(WYSP(FM)), 3 FCC Rcd 930, 933 ¶ 24 (1987) (subsequent
history omitted). To the extent we spelled out in more
detail how we determine contemporary community standards,
our statements were entirely consistent with prior
See Petition at 7, at which Infinity cites Capstar and
argues that the Commission's initial reliance therein on a
``complainant's sketchy, unsupported recollection ... strips
away the procedural protections of the erstwhile `tape or
transcript' requirement.'' In a similar vein, in the
Petition at 7-8, Infinity finds fault with Emmis, 19 FCC Rcd
at 6455-56, ¶ 10, for supposedly basing an indecency finding
``solely on the complainant's `characterization' of the
broadcast and the Commission's categorization of the
speakers involved.'' In this proceeding, however, the
complainant submitted both tapes and transcripts. Infinity
did not dispute that the material that the Commission found
indecent was broadcast over Station WLLD(FM) between 6 a.m.
and 10 p.m. See CBS Radio License, Inc., 15 FCC Rcd 23881,
¶ 4 (Enf. Bur. 2000).
See Petition at 9-10, at which Infinity maintains that, in
Infinity Broadcasting Operations and Clear Channel, the
Commission's determination that unpublished staff decisions
are not binding on the Commission undermines the guidance
set forth in Indecency Guidelines.
See Petition at 10-13, at which Infinity argues that Golden
Globe, supra note 6, 19 FCC Rcd at 4981-82, replaced
established indecency regulation with a new regime of
profanity regulation. In this proceeding, Infinity was
assessed a forfeiture because the broadcast in question was
determined to be indecent, not because it was found to be
2004 Commission MO&O, 19 FCC Rcd at 5022-24.
WQAM License Limited Partnership, 15 FCC Rcd 2518, recon.
denied, 15 FCC Rcd 13549 (2000); The Rusk Corporation
(KLOL(FM)), 8 FCC Rcd 3228 (1993).