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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.
EMMIS RADIO LICENSE CORPORATION ) NAL/Acct. No.
) FRN: 0001-5293-87
Licensee of Station WKQX(FM) ) Facility ID #
Chicago, Illinois )
MEMORANDUM OPINION AND ORDER
Adopted: March 17, 2004 Released: April
By the Commission: Commissioner Copps dissenting and
issuing a statement.
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.
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
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
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
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
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
DISSENTING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Emmis Radio License Corporation, Licensee of Station
WKQX(FM), Chicago, Illinois, Notice of Apparent Liability
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-
2 Emmis FM License Corp. of Chicago, 17 FCC Rcd 18343 (EB
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'').
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.
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'').
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'').
Application for Review at 6.
Id. at 7.
12 Id. at 8-9.
13 U.S. CONST., amend. I; 47 U.S.C. § 326.
18 U.S.C. § 1464.
See 47 C.F.R. § 73.3999.
U.S. CONST., amend. I. See ACT I, supra note 9, 852 F.2d
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
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, ¶
Id., 16 FCC Rcd at 8002, ¶ 9.
22 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 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
See id., 16 FCC Rcd at 8001, ¶¶ 5-6. See also 47 C.F.R. §
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
Indecency Guidelines., supra note 8, 16 FCC Rcd at 8002, ¶
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
31 See Emmis LOI Response.
32 Application for Review at 8.
33 See Bureau LOI.
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.