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

In the Matter of                             )    File No. 
EB-00-IH-0401
                                   )
EMMIS RADIO LICENSE CORPORATION         )    NAL/Acct. No. 
200132080029
                                   )    FRN: 0001-5293-87
Licensee of Station WKQX(FM)            )    Facility ID # 
19525
Chicago, Illinois                       )

                   MEMORANDUM OPINION AND ORDER

     Adopted:  March 17, 2004                Released: April 
8, 2004

By the Commission:  Commissioner Copps dissenting and 
issuing a statement.

I. INTRODUCTION

     1.  In  this Memorandum Opinion  and Order, we  deny an 
Application for Review  filed on October 28,  2002, by Emmis 
Radio  License Corporation,  licensee1 of  Station WKQX(FM), 
Chicago,  Illinois.   Emmis  seeks review,  pursuant  to  47 
C.F.R.   1.115,  of  a Memorandum  Opinion  and Order  (the 
``MO&O'')  2 issued  by the  Chief, Enforcement  Bureau (the 
``Bureau'').    The  MO&O   denied   Emmis's  Petition   for 
Reconsideration  of  a  Forfeiture  Order3  that  imposed  a 
monetary  forfeiture  penalty  in  the  amount  of  Fourteen 
Thousand Dollars  ($14,000) against  it for its  willful and 
repeated  violations 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.    

II. BACKGROUND

     2.   On March  20, 2000,  between 8:13  and 8:16  a.m., 
Station  WKQX(FM) (the  ``Station'')  broadcast a  telephone 
conversation between a porn star and the on-air staff of the 
``Mancow's Morning Madness''  show.  The broadcast generated 
a  complaint  in  which  the complainant  alleged  that  the 
Station's  staff and  the porn  star had  talked in  graphic 
detail  about ``fisting,''  which the  porn star  reportedly 
described  as a  procedure  by which  a  female is  sexually 
gratified by having an entire  hand inserted into her sexual 
organ.4  On  May 15, 2000,  between 7:45 and 8:00  a.m., the 
Station aired a pre-recorded segment of the program entitled 
``Bitch  Radio.''   It,  too, generated  a  complaint.   The 
complainant alleged  that, during the segment,  Heather, the 
show's female air personality, interviewed three women about 
their  sex  lives,  specifically asking  them  whether  they 
``spit or  swallowed'' their partners' sperm  after engaging 
in oral sex.   During the interviews, the  Station played in 
the  background the  sounds of  women moaning.5   The Bureau 
ultimately  imposed,  and  affirmed  on  reconsideration,  a 
forfeiture of  $7,000 for  each of  the two  segments aired, 
resulting in a total forfeiture of $14,000.

     3.  In  its Application  for Review, Emmis  argues that 
the MO&O misapplied Commission  precedent by concluding that 
the  complaints provided  sufficient detail  to support  the 
indecency  determinations.   Specifically,  Emmis  maintains 
that, because neither complaint  provided a tape, transcript 
or significant excerpt of  the complained-of broadcasts, the 
Bureau lacked  the requisite information with  which to make 
indecency  findings  and  deviated  from  ``established  FCC 
precedent''  in   doing  so.6    Emmis  contends   that  the 
information  supplied  in  the complaints  constituted  only 
``exceedingly  brief''  descriptions   of  the  broadcasts.7  
According to  Emmis, the Commission characterized  this type 
of  evidence  in  its  2001 Policy  Statement  on  broadcast 
indecency as  the type  of evidence  which should  be viewed 
``only  as a  research tool  and should  not be  taken as  a 
meaningful selection  of words  and phrases to  be evaluated 
for indecency  purposes without the fuller  context that the 
tapes or transcripts provide.''8 
      
     4.   Emmis  also  contends  that  the  First  Amendment 
prohibits  imposition of  a forfeiture  here based  upon the 
limited degree  of detail  provided in each  complaint.9  In 
this regard, it maintains that the March 20 Complaint, which 
included only the descriptive phrase ``graphic detail,'' and 
the May  15 Complaint,  which included only  the descriptive 
phrases  ``both euphemistic  and  direct conversation  about 
oral   sex''  and   ``pornographic   sound  effects   (women 
moaning),''  could  not  support the  staff's  determination 
regarding  the  explicitness  or   graphic  nature  of  each 
broadcast.  Further,  according to  Emmis, the staff  had no 
basis  to have  determined  whether  the alleged  broadcasts 
dwelled  on or  repeated  at length  descriptions of  sexual 
organs or  activities or contextual information  to conclude 
that  it was  patently offensive.10   Emmis further  submits 
that, notwithstanding the participation  of the porn star in 
the  March  20, 2000,  broadcast,  the  complaint failed  to 
provide a context  from which the staff  could possibly have 
concluded  that Emmis  had  intended that  the broadcast  be 
pandering,  titillating   or  shocking.11    Finally,  Emmis 
contends that the MO&O inappropriately shifted the burden of 
proof from the Commission to  itself because, as a practical 
matter,  the  MO&O  required  Emmis  to  retain  a  tape  or 
transcript of its broadcasts in order to be in a position to 
rebut the complaints.12  

III. DISCUSSION

     5.  After reviewing Emmis's  Application for Review and 
the record in this matter, we  find no reason to reverse the 
MO&O.  Consequently, we deny  the Application for Review and 
affirm the forfeiture assessed by the Bureau.

     6.  The Federal Communications Commission is authorized 
to license  radio and  television broadcast stations  and is 
responsible  for   enforcing  the  Commission's   rules  and 
applicable statutory provisions  concerning the operation of 
those stations.  The Commission's role in overseeing program 
content is very limited.  The  First Amendment to the United 
States Constitution  and section  326 of  the Communications 
Act  of  1934,  as   amended  (the  ``Act''),  prohibit  the 
Commission   from  censoring   program  material   and  from 
interfering with broadcasters' freedom of expression.13  The 
Commission  does, however,  have  the  authority to  enforce 
statutory  and regulatory  provisions restricting  indecency 
and obscenity.   Specifically, it is a  violation of federal 
law to broadcast obscene  or indecent programming.  Title 18 
of  the  United  States  Code, Section  1464  prohibits  the 
utterance of ``any obscene,  indecent or profane language by 
means  of  radio  communication.''14  In  addition,  section 
73.3999 of  the Commission's  rules provides that  radio and 
television stations shall not  broadcast obscene material at 
any  time, and,  consistent  with a  subsequent statute  and 
court decision, shall not broadcast indecent material during 
the period 6 a.m. through 10 p.m.15 

     7.   Any  consideration  of government  action  against 
allegedly indecent  programming must  take into  account the 
fact  that   such  speech  is  protected   under  the  First 
Amendment.16   The federal  courts consistently  have upheld 
Congress's authority  to regulate the broadcast  of indecent 
speech,   as  well   the  Commission's   interpretation  and 
implementation  of the  governing statute.17   Nevertheless, 
the First Amendment is  a critical constitutional limitation 
that demands  that, in indecency determinations,  we proceed 
cautiously and with appropriate restraint.18  

     8.   As  Emmis  acknowledges  in  its  Application  for 
Review,19 the  Indecency Guidelines  provide that,  in order 
for  the Commission  to conclude  that particular  broadcast 
material  is   indecent,  we   must  make   two  fundamental 
determinations.  First, the material broadcast must describe 
or depict sexual or excretory organs or activities.  Second, 
the  material  must be  patently  offensive  as measured  by 
contemporary community standards for the broadcast medium.20  
In determining  whether material is patently  offensive, the 
full  context  in  which  broadcast  material  depicting  or 
describing sexual activities or organs appears is critically 
important in  determining whether that material  is patently 
offensive.21   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.22  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....''23  
In particular cases, one or  two of the factors may outweigh 
the others, either rendering the broadcast material patently 
offensive  and consequently  indecent,24 or,  alternatively, 
removing  the  broadcast  material from  the  definition  of 
indecency.25  

     9.   After reviewing the  record here, we conclude that 
the  descriptions  of  the  March   20  and  May  15,  2000, 
broadcasts  provided in  the complaints  were sufficient  to 
support  an   indecency  determination.    Consequently,  we 
conclude  that  the  Bureau correctly  determined  that  the 
material broadcast on those  days was indecent and therefore 
actionable.  

     10.  The March 20,  2000, Broadcast.  The Station aired 
a  conversation lasting  up to  (though not  necessarily the 
full) three minutes between the on-air hosts and a porn star 
which  was  broadcast outside  of  the  10  p.m. to  6  a.m. 
indecency   ``safe   harbor''   period.26    The   broadcast 
conversation included a discussion of ``fisting,'' which the 
porn  star   described  as   a  procedure  for   the  sexual 
gratification  of a  female  involving the  insertion of  an 
entire hand into  her sexual organ.  In its  response to the 
Bureau's letter of inquiry,27 Emmis  did not deny airing the 
programming as alleged in the  complaint and did not provide 
any additional  facts that would indicate  that the material 
was  not  indecent  in  context.28  Thus,  based  upon  this 
information,  we agree  with  the Bureau  that the  material 
described a sexual activity.29  In addition, in light of the 
complaint's  description  of   what  was  discussed  (sexual 
gratification of a  female through insertion of  a fist into 
her  genitalia) and  the identities  of the  participants (a 
``shock  jock''  and a  porn  star),  we conclude  that  the 
material was  sufficiently explicit, shocking  and pandering 
to  be  patently  offensive   as  measured  by  contemporary 
community standards for the broadcast medium.
  
     11.   The   May  15,  2000,  Broadcast.    The  Station 
broadcast three  interviews outside of the  ``safe harbor,'' 
during  the time  period that  our rule  prohibits broadcast 
indecency,  all  of  which  dealt  with  sexual  activities.  
Specifically, according to the May 15 Complaint, during each 
interview, the  program's female  air personality  posed the 
same question to each of three different women, whether they 
``spit or  swallowed'' their  partners' sperm.30   Emmis did 
not challenge this characterization of its broadcast, merely 
asserting  that it  did  not possess  a  recording of  it.31  
Thus, initially,  we conclude that the  material described a 
sexual  activity, and  that,  through  the three  interviews 
aired,  it   did  so   repeatedly.   Further,   because  the 
questioning  of   each  interviewee  regarding   her  sexual 
activities was initiated by the  Station on-air host and the 
Station  aired  the  sounds  of women  moaning  while  those 
questions were  asked and answered,  we also agree  with the 
Bureau that  the material was  presented in a  pandering and 
titillating manner intended to shock listeners.  In light of 
the foregoing, we conclude that  the May 15 program material 
described sexual activities in  a patently offensive manner.  
Thus, we  agree with the  staff's determination that  May 15 
broadcast material was actionably indecent.

     12.  Other Matters.  We  reject Emmis's contention that 
the staff's  decisions unfairly or improperly  ``shifted the 
burden of  proof'' or otherwise violated  the Administrative 
Procedure Act.32  Before  the staff issued the  NAL, it sent 
copies  of the  allegations contained  in the  complaints to 
Emmis  and asked  Emmis to  state whether  it had  aired the 
material as alleged.33  Significantly,  in its LOI Response, 
Emmis  did not  deny broadcasting  the material,  but merely 
stated that it  had no tape or transcript  of the broadcasts 
in question  and that  its inquiries of  pertinent personnel 
did  not allow  it to  determine  whether it  had aired  the 
material  as  alleged.   Thus, Emmis  neither  disputed  the 
accuracy of  the complainant's allegations nor  supplied any 
countervailing  evidence,  such as  a  denial  from the  air 
personalities,  program's  producers or  Station  management 
that  the  material  was  broadcast  as  had  been  alleged.  
Following the  staff's issuance  of the NAL,  the Forfeiture 
Order and the MO&O, Emmis never contended, much less offered 
any   evidence   to   establish,  that   the   complainant's 
allegations  were inaccurate  in  any way,  although it  had 
every opportunity to do so.  Consequently, the complainant's 
allegations stand unchallenged, and the only issue for us to 
decide at this point  is whether those allegations, standing 
alone, are sufficient to support indecency determinations.34  
As discussed above,  we find that they are.   In response to 
Emmis's generalized  claim, we also find  no First Amendment 
defect in relying on this level of proof.  

     13.   Contrary  to  Emmis's  contentions,  neither  the 
staff's handling  of this  matter nor our  decision deviates 
from or alters our procedures  or policies for assessing and 
resolving indecency complaints.  ``[O]ur practice is that [a 
complaint]  must generally  include: (1)  a full  or partial 
tape or  transcript or significant excerpts  of the program; 
[footnote omitted] (2)  the date and time  of the broadcast; 
and  (3)  the  call  sign of  the  station  involved.35   As 
explained  above,   we  agree   with  the  staff   that  the 
descriptions of  the broadcasts provided in  the complaints, 
the  accuracy  of  which   Emmis  did  not  challenge,  were 
sufficient to support the  Bureau's ultimate conclusion that 
Emmis twice violated our indecency rule.        
       
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  Emmis Radio  License Corporation  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: 0001-5293-87) referenced above, and also should 
note the NAL/Acct. No. (200132080029).  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 
Memorandum  Opinion  and  Order under  an  installment  plan 
should be sent to: Chief, Revenue and Receivables Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.36

     17.   IT  IS  FURTHER   ORDERED  that  copies  of  this 
Memorandum  Opinion and  Order  shall be  sent by  certified 
mail,  return  receipt  requested, to  Emmis  Radio  License 
Corporation,  3500 West  Olive Avenue,  Suite 300,  Burbank, 
California 91505, and to its  counsel, John E. Fiorini, III, 
Esq.,  Wiley  Rein &  Fielding  LLP,  1776 K  Street,  N.W., 
Washington, D.C. 20006.


                         FEDERAL COMMUNICATIONS COMMISSION



                         Marlene H. Dortch
                         Secretary
                   DISSENTING STATEMENT OF
                COMMISSIONER MICHAEL J. COPPS

Re:  Emmis Radio  License Corporation,  Licensee of  Station 
WKQX(FM),  Chicago, Illinois,  Notice of  Apparent Liability 
for Forfeiture

     I   dissent   from   today's  decision   upholding   an 
Enforcement  Bureau  decision  that I  believe  is  woefully 
inadequate.  In  response to complaints about  five separate 
incidents aired on WKQX-FM, the Enforcement Bureau dismissed 
three of the complaints, including  one in which sex between 
a 27 year old man and a nine year old child was discussed on 
the air.   In the  other two incidents  - an  interview with 
three women about oral sex and a discussion with a porn star 
about sexual  activities - the Enforcement  Bureau imposed a 
fine of  $7000 for  each incident.  I  also note  that since 
addressing   these  five   broadcasts,   we  have   received 
additional  complaints  about  this same  station  and  same 
program, and the Enforcement Bureau has continued to propose 
$7000 fines on four different occasions.  Such fines will be 
easily  absorbed  as  a  ``cost of  doing  business.''   Our 
enforcement  actions should  send a  message that  licensees 
cannot  ignore  their  responsibility to  serve  the  public 
interest and  to protect children.  The  Commission's action 
today fails to do so. 


_________________________

1 Emmis Radio License Corporation was the pro forma assignee 
of the  license for Station  WKQX(FM) from Emmis  FM License 
Corporation of Chicago, the entity  named in both the Notice 
of  Apparent Liability  for  Forfeiture  and the  Forfeiture 
Order that  are discussed  herein.  See  FCC File  No. BALH-
20001121ADF, granted December 11,  2000.  In this Memorandum 
Opinion and Order, ``Emmis''  will refer to either commonly-
controlled entity. 

2 Emmis  FM License Corp. of  Chicago, 17 FCC Rcd  18343 (EB 
2002).
3
 Emmis FM License Corp. of Chicago, 17 FCC Rcd 493 (EB 2002) 
(``Forfeiture Order'').   The Forfeiture Order  assessed the 
forfeiture against  Emmis, which was proposed  in the Notice 
of Apparent Liability for Forfeiture, Emmis FM License Corp. 
of Chicago, 16 FCC Rcd 7829 (EB 2001) (``NAL'').
4
 Letter from  David Edward Smith to Linda  Blair, Mass Media 
Bureau, Federal  Communications Commission, dated  March 20, 
2000 (``March 20 Complaint'').
5 Letter from David Edward  Smith to Linda Blair, Mass Media 
Bureau,  Federal Communications  Commission,  dated May  15, 
2000 (``May 15 Complaint'').

6 Application for Review at 1.

7 Id. at 2.
8
 Id. at 5, quoting 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, 8003,  11 (2001) (``Indecency Guidelines'').  
9
 Emmis cites, without  reference to any particular language, 
FCC v. Pacifica  Foundation, 438 U.S. 726  (1978) and Action 
for Children's Television  v. FCC, 852 F.2d  1332 (D.C. Cir. 
1988) (``ACT I''). 
10
 Application for Review at 6.
11
 Id. at 7.

12 Id. at 8-9.

13 U.S. CONST., amend. I; 47 U.S.C.  326.
14
 18 U.S.C.  1464. 
15
 See 47 C.F.R.  73.3999.  
16
 U.S. CONST.,  amend. I.  See ACT I, supra  note 9, 852 F.2d 
at 1344.
17
 18 U.S.C.  1464; FCC v. Pacifica Foundation, supra note 9.  
See also ACT  I, supra note 9, 852 F.2d  at 1339; 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 (D.C. 
Cir.  1995),  cert.  denied,  516 U.S.  1043  (1996)  (``ACT 
III'').
18
 ACT I, supra note 9, 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 may say and hear.'').  See 
id. at 1340  n. 14 (``...the potentially  chilling effect of 
the FCC's  general definition of indecency  will be tempered 
by the Commission's restrained enforcement policy.'').  
19 Application for Review at 2-3.

20 Indecency Guidelines, supra note 8, 16 FCC Rcd at 8002,  
7.
21
 Id., 16 FCC Rcd at 8002,  9.

22 Id., 16 FCC Rcd at 8003,  10.  
23
 Id.
24
 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). 
25
 Indecency Guidelines,  supra note 8, 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 
indecency finding'').
26
 See id., 16 FCC Rcd at  8001,  5-6.  See also 47 C.F.R.  
73.3999.

27 Letter from Charles  W. Kelley, Chief, Investigations and 
Hearings     Division,    Enforcement     Bureau,    Federal 
Communications  Commission,   Emmis  FM  License   Corp.  of 
Chicago,  dated November  29, 2000  (``the ``LOI'').   In an 
attachment   to   the   LOI,    Emmis   was   provided   the 
characterization   of  the   broadcasts  contained   in  the 
complaints  and   was  ``directed  to  advise   whether  you 
broadcast the comments described  in the attachment.  If the 
identified   material  does   not  accurately   reflect  the 
broadcasts in question, note any inaccuracies.''
  
28 Letter  from Charles H. Miller,  General Manager, Station 
WKQX(FM)  to Charles  W. Kelley,  Chief, Investigations  and 
Hearings     Division,    Enforcement     Bureau,    Federal 
Communications Commission,  dated January 25,  2001 (``Emmis 
LOI  Response'').   (Emmis's  response  to  the  complaints' 
allegations was, ``We  have neither a tape  nor a transcript 
of the  broadcasts in question  and, having made  inquiry of 
pertinent  personnel   (including  those  involved   in  the 
production and airing  of the Mancow program),  we have been 
unable to  determine whether the alleged  statements were in 
fact made.'')
29
 Indecency Guidelines., supra note 8,  16 FCC Rcd at 8002,  
7.

30 We recognize that the  complainant did not quote the word 
or  words  that  the  Station broadcast  which  led  him  to 
conclude  that what  was  ``spit or  swallowed'' was  sperm.  
Thus, we  do not find  that the description was  explicit or 
graphic.   However, in  light  of the  words  quoted by  the 
complainant and the accompanying  sound effects, which Emmis 
does  not deny  airing, and  the complainant's  unchallenged 
assertion that the conversations concerned the interviewees' 
sex  lives, we  believe that  sufficient evidence  exists to 
allow us  conclude that the material  repeatedly described a 
sexual  activity, and  that  it  did so  in  a pandering  or 
titillating manner.

31 See Emmis LOI Response.

32 Application for Review at 8.

33 See Bureau LOI. 
34
  Compare Mr.  Steve  Bridges,  9 FCC  Rcd  1681 (MMB  1994) 
(indecency  complaint denied  where  there was  disagreement 
between the licensee and the complainant as to what had been 
broadcast)  with Infinity  Broadcasting  Corporation of  Los 
Angeles  (KROQ-FM),   17  FCC  Rd  9892   (2002)  (indecency 
determination upheld where complainant  alleged that she had 
heard  certain  words that  appeared  only  on the  unedited 
version of the  song and the licensee could  not say whether 
it had broadcast the edited or unedited version). 

35 Indecency Guidelines, supra note 8, 16 FCC Rcd at 8015,  
24 (emphasis added).
36 See 47 C.F.R.  1.1914.