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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.
INFINITY RADIO LICENSE, INC. ) NAL/Acct. No.
) FRN: 0004-0367-11
Licensee of Station WLLD(FM), ) Facility ID # 18527
Holmes Beach, Florida )
MEMORANDUM OPINION AND ORDER
Adopted: March 4, 2004 Released: March 18,
By the Commission: Commissioner Martin concurring and
issuing a statement; Commissioner Adelstein issuing a
statement; and Commissioner Copps dissenting and issuing a
1. In this Memorandum Opinion and Order, we deny an
Application for Review, filed on October 28, 2002, by
Infinity Radio License, Inc. (``Infinity''), licensee of
Station WLLD(FM), Holmes Beach, Florida. Infinity seeks
review, pursuant to 47 C.F.R. § 1.115, of a Memorandum
Opinion and Order1 (``MO&O'') issued by the Chief,
Enforcement Bureau (``Bureau''). The MO&O denied Infinity's
Petition for Reconsideration of a Forfeiture Order2 that
imposed a monetary forfeiture penalty in the amount of Seven
Thousand Dollars ($7,000.00) against Infinity for a willful
violation of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999, which
prohibit the broadcast of indecent material between 6 a.m.
and 10 p.m.
2. On September 11, 1999, Station WLLD(FM)
(``Station'') broadcast a live rap/hip-hop concert called
``The Last Damn Show.'' The broadcast generated a
complaint, which included a tape recording of the entire
show, as well as a transcript and related tape recording of
those portions of the program which the complainant deemed
most offensive. The Bureau ultimately imposed, and affirmed
on reconsideration, a forfeiture for the Station's broadcast
of repeated graphic references to oral sex:
God damn, where are my pussy eating niggers? Any my
niggers into eating pussy? Y'll make some noise. Hey,
where are my girls? If you're eating pussy, where you
at? That's it. Oh, they all like it. I ain't eating
no pussy tonight. If you all don't like it, fuck it.
I ain't going to beg you. You like it?
3. In its Application for Review, Infinity contends
that the MO&O provided no support for rejecting without
comment Infinity's argument that the sexual import of the
material was not inescapable to children. Infinity also
asserts that the MO&O ignored critical contextual factors,
the consideration of which would have supported a finding
that the material was not indecent. Infinity faults the
MO&O for not explaining why changing contemporary community
standards do not render acceptable the material broadcast on
Station WLLD(FM). Finally, Infinity argues that Supreme
Court decisions in Reno v. ACLU3 and Ashcroft v. Free Speech
Coalition4 render the Commission's generic indecency
definition facially unconstitutional, and, at the least,
require proof of a proximate link between broadcast
indecency and harm to children.
4. After reviewing Infinity's Application for Review
and the record in this matter, we find no reason to reverse
the MO&O. Applying our indecency standard,5 we agree with
the Bureau that the material cited in the MO&O was indecent.
Consequently, we deny the Application for Review and affirm
the forfeiture assessed by the Bureau.
A. The Cited Material Had an Inescapable Sexual
5. We reject Infinity's argument that the cited
material did not have an inescapable sexual meaning.6 The
phrase ``eating pussy'' has but one meaning in common
parlance; it refers to a specific oral sexual activity.
Infinity does not suggest any other meaning, much less a
non-sexual one. Having reviewed the tape and transcript, we
believe it beyond argument that the cited material described
a sexual activity. We therefore reject Infinity's
contention that the Station WLLD(FM) and Station WRLR(FM)7
broadcasts are ``similarly situated'' and warrant the same
6. Infinity argues that we must produce evidence that
the broadcasts had an inescapable sexual meaning to
children.8 We disagree. The courts have held that the
Commission is justified in concluding that the government's
interest in protecting children from exposure to indecent
material extends to minors of all ages, who are defined as
under the age of 18 years.9 Given the explicit references
and the graphic manner in which the material described
sexual activity, there is no non-sexual meaning that a 17
year-old listener, who is within the class of ``children'' protected by our indecency rule, could have attributed to
B. The Context of the Broadcast Does Not Render the
Material Not Indecent.
7. With respect to context, Infinity submits, without
offering any support whatsoever, that, by carrying the
concert live and uncut, Station WLLD(FM) did not intend to
shock, pander or titillate, but rather sought to convey the
street legitimacy of the various artists. In addition,
Infinity asserts that the Station's broadcast of ``The Last
Damn Show'' is less problematic than the broadcast of a tape
recording of John Gotti's expletive-laced conversation,
which the Commission found not to be indecent.11
8. As the Forfeiture Order accurately observed, ``the
speaker [broadcast over Station WLLD(FM)] repeatedly and
unmistakably asks the audience in patently offensive terms
whether they perform or enjoy a type of oral sex.''12 The
utterances, although apparently spontaneous and not related
to the performance of any song, occurred during a live
rap/hip-hop concert, during which artists and other speakers
repeatedly used expletives. The Station apparently took no
precautions with respect to this material but opted to
broadcast all material uttered at the concert regardless of
its suitability for broadcast.13 In light of these
circumstances, we conclude that, regardless of what the
speaker may have intended to convey to the concert's
audience, the licensee should not have broadcast before 10
p.m. repeated indecent utterances. In the instant case, the
cited material clearly and repeatedly refers to an oral
sexual activity; thus it was neither fleeting nor
isolated.14 Further, the language broadcast describes the
sexual activity in a graphic, explicit, crude and vulgar
manner. Consequently, even if we were to conclude that the
licensee's apparent purpose for broadcasting the cited
material was not to pander, titillate or shock - which we do
not - we note that ``the absence of a pandering or
titillating nature ... will not necessarily prevent an
9. We thus disagree with Infinity's contention that,
because the cited material was aired during a live event,
the material became not indecent. Unquestionably, the
material described a sexual activity. The description was
not clinical or educational; rather, it was graphic and
vulgar.16 Infinity could have prevented, but did not
prevent, its broadcast. By comparison, the utterances cited
in Branton were not presented in a vacuum, but during a news
story concerning organized crime. Listeners were warned
about the rough language and informed, inter alia, that Mr.
Gotti's words came from a wiretap recording of material that
the government had used as evidence at Mr. Gotti's trial.
C. The Arguable Social Merit of the Broadcast Does Not
Preclude an Indecency Finding.
10. Infinity also argues that the MO&O ignored a
second important contextual factor - the merits of the
concert. Infinity contends that ``The Last Damn Show'' was
a major artistic and cultural event in Tampa and that the
Commission is constitutionally barred from drawing a
distinction between the cited material and material that the
Commission believes may be of greater cultural or
``serious'' merit.17 Infinity appears to claim both that
the Bureau ignored the concert's relative merit and that,
nevertheless, the Commission is constitutionally forbidden
from drawing a distinction between the merit of the ``The
Last Damn Show'' and some other, arguably more serious,
material. We do not read the cases cited by Infinity to
support these apparently contradictory propositions of law.
Neither Hustler nor Cohen involved broadcast indecency. The
former concerned the possible liability of a magazine and
its publisher for the tort of intentional infliction of
emotional distress when the person allegedly attacked in
print was a public figure. The latter concerned the
constitutionality of a criminal conviction for wearing a
jacket bearing offensive wording in a public setting. The
court's holdings in each case clarified the limitations
imposed by the First Amendment18 on a state's power to
punish offensive speech in two non-broadcast contexts. By
comparison, it is well settled that broadcasters do not have
unlimited rights to air indecent material, even if the
material has ``merit.''19
11. The Indecency Guidelines advise that the full
context in which broadcast material appears is critically
important in determining whether that material is patently
offensive.20 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.21 In examining
these three factors, it is necessary to 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....''22 In particular cases, one or two of
the factors may outweigh the others, either rendering the
broadcast material patently offensive and consequently
indecent,23 or, alternatively, removing the broadcast
material from the realm of indecency.24 The ``merit'' of a
work is one of many variables that make up a work's context;
however, the presence of artistic or social merit does not
preclude a finding that material is indecent.25 Thus,
regardless of whether there was artistic or social merit to
``The Last Damn Show,'' we may still find that the material
broadcast by Station WLLD(FM) was indecent if, after
weighing and balancing all pertinent factors, we conclude
that the material is patently offensive.26 Because we agree
with the Bureau that the cited material was explicit,
graphic and repeated, we also conclude that, even after
factoring in the concert's merit, as described by Infinity,
the Bureau correctly determined that the material was
D. The Bureau Applied the Proper Test of Contemporary
12. We find no error in the MO&O's decision not to
address again the Forfeiture Order's observation that the
relevant test for determining contemporary community
standards is not the popularity of the speakers or the event
but whether the material is patently offensive for the
broadcast medium.27 We also disagree with Infinity's
apparent belief that it can broadcast with impunity anything
uttered during ``The Last Damn Show'' because such
utterances were acceptable to the attendees of the concert
and those who chose to listen to the performance's
broadcast. Our Indecency Guidelines advise that the
community standard for the broadcast medium is ``that of the
average broadcast viewer or listener.''28 We rely on our
collective experience and knowledge, developed through
constant interaction with lawmakers, courts, broadcasters,
public interest groups and ordinary citizens, to keep
abreast of contemporary community standards for the
broadcast medium. Applying the test of the average
broadcast listener to the material at issue, we are
satisfied that he or she would find it patently offensive
for the broadcast medium.29 Thus, we conclude that the
nation's ever-changing contemporary community standards have
not yet reached the point where the cited material is
acceptable broadcast fare. E. The Commission's Indecency Standard Is
13. Infinity argues that the Commission's indecency
standard is facially unconstitutional, citing Reno v. ACLU30
and Ashcroft v. Free Speech Coalition.31 The courts,
however, have repeatedly found otherwise.32 Moreover, as we
have previously indicated, neither Reno nor Ashcroft alters
this conclusion nor requires that we prove actual harm to
children before we can impose a forfeiture for broadcasting
indecent material outside of the safe harbor hours of 10
p.m. to 6 a.m.33
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED that, pursuant to 47
C.F.R. § 1.115(g), the Application for Review filed on
October 28, 2002, by Infinity Radio License, Inc. IS DENIED.
15. 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 Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment MUST INCLUDE the FCC Registration
Number (FRN: 0004-0367-11) referenced above, and also should
note the NAL/Acct. No. (2001320800008). If the forfeiture
is not paid within thirty (30) days of the release of this
Memorandum Opinion and Order, the case may be referred to
the Department of Justice for collection pursuant to 47
U.S.C. § 504(a).
16. 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. 20554.34
17. 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
DISSENTING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Infinity Radio License, Inc., Licensee of Station
WLLD(FM), Holmes Beach, Florida, Memorandum Opinion and
In this decision, the majority upholds the Enforcement
Bureau's decision to fine Infinity $7000 for airing graphic
and explicit sexual content that clearly violates the
statutory prohibition on broadcasting obscene, indecent, or
This decision highlights serious problems with way the
Commission carries out its statutory enforcement
responsibilities. The timeline of this complaint
demonstrates clearly why many consider the Commission's
enforcement to be ineffective. Many complaints languish for
a year or more without any action. But this case shows that
even after the first Notice is issued, the delays are just
· September 1999 -- the program aired.
· December 2000 -- the Enforcement Bureau issues the
initial Notice of Apparent Liability fifteen months
· March 2001 -- the Bureau releases its Forfeiture Order
three months later.
· September 2002 -- the Bureau takes another year and a
half to address Infinity's reconsideration petition.
· March 2004 -- a year and a half after that, the
Commission is finally addressing this case - four and a
half years after this program was broadcast.
And when this agency finally acts, the penalties it
imposes are woefully inadequate. The vulgar and explicit
nature of the indecency and profanity that was broadcast
gives the FCC the obligation to take serious action.
Instead, the majority upholds a fine of $7000. Such a fine
does not even rise to a cost of doing business for this
multi-billion dollar conglomerate.
It is small wonder that Americans across this country are
dissatisfied with the Commission's enforcement of these
statutes against obscenity, indecency, and profanity. How
do we change this situation? First, we must begin to assess
truly meaningful fines. Second, the more outrageous cases
should be sent to hearings for possible revocation of
licenses. Third, the Commissioners themselves, rather than
the Bureau should be making these decisions. Issues of
indecency on the people's airwaves are important to millions
of Americans. I believe they merit, indeed compel,
Commissioner-level action. And finally, the Commission
should set a deadline for action on all obscenity,
indecency, and profanity complaints. Congress has taken
notice of this problem and is already moving forward to set
such deadlines for the Commission. The Energy and Commerce
Committee of the United States House of Representatives
voted just last week to require the Commission to act on
complaints within 180 days and to issue forfeitures within
270 days. Although I applaud the decision to provide a
deadline for Commission action, I urge my colleagues not to
wait for legislation to get our indecency enforcement house
in order. CONCURRING STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
Re: Infinity Radio License, Inc., Licensee of Station
WLLD(FM), Holmes Beach, FL, Memorandum Opinion and
This broadcast included numerous indecent utterances.
Infinity, the licensee, has a long history of repeated
violations. The Bureau's proposed $7,000 fine is
inadequate; each violation in this broadcast deserves a much
higher fine. We should have issued a new Notice of Apparent
Liability today for a fine at least ten times higher. STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Infinity Radio License, Inc., Licensee of
Station WLLD(FM), Holmes Beach, Florida;
Memorandum Opinion and Order
I support this Order affirming a forfeiture for the
broadcast of indecent material at a time when children may
be in the audience. Were I acting on a clean slate, I would
have imposed a higher fine given the nature of the broadcast
and the licensee's history. Nevertheless, recognizing that
four and a half years have already passed since this
broadcast, I am reluctant to start the process anew. The
unnecessary delay in this case is regrettable. Such delay
can impede the Commission's ability to meet our obligation
to enforce statutory and regulatory provisions restricting
Since I arrived at the Commission, we have greatly
stepped up our enforcement against indecent broadcasts. I
expect that these stepped-up actions will convince
broadcasters that they cannot ignore their responsibility to
serve the public interest and to avoid the broadcast of
indecent material over the public airwaves.
1 Infinity Radio License, Inc., 17 FCC Rcd 18339 (EB 2002).
Infinity Radio License, Inc., 16 FCC Rcd 4825 (EB 2001)
3 521 U.S. 844 (1997).
122 S. Ct. 1389 (2002).
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.''
Application for Review, p. 4.
The complaint against WRLR(FM) was dismissed because it
provided no information that could reasonably support a
conclusion that the alleged use of the word ``pussy''
referenced a sexual organ or was used in connection with a
Application for Review, p. 3.
See Action for Children's Television v. FCC, 58 F.3d 654,
664 D.C. Cir. 1995), cert. denied, 516 U.S. (1043) (1996)
10 See Sagittarius Broadcast Corporation, 7 FCC Rcd 6873,
6874, ¶ 9 (MMB 1992) (subsequent history omitted) (salient
question is whether sexual import was inescapable and
understandable not only to adults but especially to
See Peter Branton, 6 FCC Rcd 610 (1991) (subsequent history
omitted) (Newscast concerning the criminal trial of an
organized crime boss, featuring a taped conversation played
during the trial, which used variations of the ``F-word''
repeatedly) (subsequent history omitted).
Forfeiture Order, supra note 2, 16 FCC Rcd at 4826, ¶ 7.
See CBS Radio License, Inc., 15 FCC Rcd 23881, 23883, ¶ 8
By comparison, see Indecency Guidelines, supra note 5, 16
FCC Rcd at 8008-09, ¶¶ 17-18.
Id., 16 FCC Rcd at 8014, ¶ 23.
By comparison, the Commission has cited as not indecent
sexually explicit material that was presented in a clinical
or instructional, as opposed to a pandering, titillating or
vulgar, manner. See id., 16 FCC Rcd at 8011-12, ¶ 21.
17 Application for Review, p. 8, citing Hustler Magazine v.
Falwell, 485 U.S. 46 (1988) and Cohen v. California, 403
U.S. 15, 26 (1970).
U.S. CONST., amend. I.
See Indecency Guidelines, supra note 5, 16 FCC Rcd at 8000,
¶ 4 and n. 8. See also Infinity Broadcasting Corporation of
Pennsylvania (WYSP(FM)), 3 FCC Rcd 930, 932, ¶ 17 (1987),
aff'd in part, vacated in part on other grounds, remanded
sub nom. Action for Children's Television v. FCC, 852 F.2d
1332, 1340 (D.C. Cir. 1988) (``ACT I'') (``Some material
that has significant social value may contain language and
descriptions as offensive, from the perspective of parental
control over children's exposure, as material lacking such
value. [Footnote omitted] Since the overall value of a
work will not necessarily alter the impact of certain words
and phrases on children, the FCC's approach is permissible
under controlling case law: merit is properly treated as a
factor in determining whether material is patently
offensive, but does not render such material per se not
Indecency Guidelines, supra note 5, 16 FCC Rcd at 8002, ¶
21 Id., 16 FCC Rcd at 8003, ¶ 10.
Id., 16 FCC Rcd 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).
Indecency Guidelines, supra note 5, 16 FCC Rcd 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
See note 19, supra.
26 Infinity Broadcasting Corp. of Pennsylvania (WYSP(FM)),
supra note 19, 3 FCC Rcd at 932, ¶ 17.
Forfeiture Order, supra note 2, 16 FCC Rcd at 4827, ¶ 8.
Indecency Guidelines, supra note 5, 16 FCC Rcd at 8002, ¶
29 We also note that, separate and apart from our affirmance
of the Bureau forfeiture, the broadcast also included
repeated use of the ``F-word.'' Had this issue been
presented to the full Commission in the first instance, we
would also have found that repeated use of the ``F-word'' in
this context was indecent.
30 Supra note 3.
31 Supra note 4.
FCC v. Pacifica Foundation, 438 U.S. 726, 750-51 (1978);
ACT III, supra note 9, 58 F.3d at 657-59; ACT I, supra note
19, 852 F.2d at 1338-40.
See Infinity Broadcasting Operations, Inc. (``WKRK-FM''),
Apparent Liability for Forfeiture, Forfeiture Order, __ FCC
Rcd __ ¶ 5 and n. 8 (2003).
See 47 C.F.R. § 1.1914.