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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-05-IH-0109
INFINITY RADIO INC.
) NAL/Acct. No.
Licensee of Station WLLD(FM), 200532080012
Holmes Beach, Florida FRN No. 0003612447
Forfeiture Order released March 2, NAL /Acct. No.
2001 ) 2001320800008
(DA 01-537) ) FRN No. 0003616588
INFINITY BROADCASTING EAST INC. ) Facility ID No. 18527
Licensee of Stations WKRK-FM, Detroit, ) FRN No. 0009225210
Michigan and WNEW(FM), New York, New
York ) Facility ID No. 9618
Forfeiture Order released December 8, ) Facility ID No. 25442
2003 (FCC 03-302)
) NAL/Acct. No.
Notice of Apparent Liability for 200332080010
Forfeiture released March 18, 2004 )
(FCC 04-49) NAL/Acct No. 200432080013
Notice of Apparent Liability for NAL/Acct. No.
Forfeiture Released June 7, 2002 (DA ) 200232080012
) NAL/Acct. No.
INFINITY BROADCASTING EAST INC. 200432080004
Licensee of Stations FRN No. 0009225210
WNEW(FM), New York, New York Facility ID No. 25442
WYSP(FM), Philadelphia, Pennsylvania Facility ID No. 28628
KYCY(AM), San Francisco, California Facility ID No. 25458
INFINITY RADIO INC. FRN No. 0003616588
Licensee of Stations Facility ID No. 53699
WBUF(FM), Buffalo, New York Facility ID No. 47745
KSFN(AM), North Las Vegas, Nevada Facility ID No. 74473
WXTM(FM), Cleveland Heights, Ohio Facility ID No. 64717
WAZU(FM), Circleville, Ohio Facility ID No. 26926
KUPL(AM), Portland, Oregon FRN No. 002052751
INFINITY RADIO HOLDINGS INC. Facility ID No. 11273
Licensee of Station KHWD(FM),
Roseville, California )
INFINITY BROADCASTING ) FRN No. 0001661032
CORPORATION OF DALLAS )
Licensee of Station KLLI(FM), Dallas, Texas ) Facility ID No. 1087
INFINITY BROADCASTING ) FRN No. 0002147528
CORPORATION OF WASHINGTON, DC )
Licensee of Station WJFK-FM, Manassas, Virginia ) Facility ID No. 28625
INFINITY RADIO HOLDINGS CORPORATION ) FRN No. 0001800705
OF ORLANDO )
Licensee of Station WCKG(FM), Elmwood Park, ) Facility ID No. 71283
HEMISPHERE BROADCASTING ) FRN No. 0003617933
Licensee of Station WBCN(FM), Boston, ) Facility ID No. 26897
Notice of Apparent Liability for Forfeiture Released )
October 2, 2003 (FCC 03-234) )
ORDER ON RECONSIDERATION
Adopted: October 10, 2006 Released: October 17, 2006
By the Commission:
1. In this Order on Reconsideration, we deny a Petition, jointly filed by
Right to Decency, Inc. and the American Decency Association
(collectively, the "Petitioners"), seeking reconsideration of our
Order approving a Consent Decree settling enforcement actions
regarding possible violations of broadcast indecency restrictions
against Viacom Inc. and its network and broadcast licensee
subsidiaries and affiliates, including CBS Broadcasting Inc., UPN, and
Infinity Broadcasting Corporation (collectively, "Viacom").
2. Viacom is the Commission licensee of various broadcast stations. The
Commission received complaints that Viacom had broadcast indecent
material over a number of those stations, in violation of a federal
statute and the Commission's rules. As a result of some of these
complaints and subsequent investigations by the Enforcement Bureau,
the Commission issued two notices of apparent liability that, in turn,
resulted in forfeiture orders against Viacom, assessing monetary
forfeitures against it for violation of the Commission's indecency
rule. Subsequently, the Commission and Viacom entered into the Consent
Decree resolving the forfeiture orders, as well as other pending
indecency complaints and ongoing indecency investigations against
3. Pursuant to the Consent Decree, Viacom admitted that some of the
broadcast material at issue in the forfeiture orders, and certain
other programming that was the subject of the pending complaints and
ongoing investigations, is indecent and in violation of section
73.3999 of our rules, agreed to make a voluntary contribution of
$3,500,000 to the United States Treasury, and adopted a "company-wide
compliance plan for the purpose of preventing the broadcast of
material violative of the indecency laws." In addition, Viacom waived
any and all rights to contest the validity of the Consent Decree or
the Order. In return, the Commission agreed to rescind, vacate and
cancel the forfeiture orders, terminate its pending inquiries into
possible indecency violations by Viacom stations, and dismiss all but
certain specified indecency complaints against Viacom. The Commission
also agreed not to use the facts of the Consent Decree, the forfeiture
orders, the pending inquiries or complaints, "or any similar
complaints" regarding programming aired before the Consent Decree's
effective date for any purpose relating to Viacom or its stations, and
to treat all such matters as null and void.
4. On November 23, 2004, the Commission released its Order adopting the
Consent Decree. The Commission found that "the public interest would
be served by approving the Consent Decree and terminating all pending
proceedings against Viacom" relating to possible indecency violations,
with the exception of the Super Bowl NAL noted above. Based upon its
examination of the record, the Commission also concluded that there
were "no substantial and material questions of fact in regard to these
matters as to whether Viacom possesses the basic qualifications,
including its character qualifications, to hold or obtain any FCC
licenses or authorizations."
5. Petitioners argue that the Commission "essentially allowed Viacom to
purchase a finding of basic character qualifications." More
specifically, they contend that the Order was ultra vires because it
prevented the Commission from considering Viacom's apparent indecency
violations in making the statutory determination whether grant of
Viacom's pending renewal applications would serve the public interest.
They also maintain that the Order was illegal as inconsistent with
Commission precedent, because it required the agency to "ignore a
significant portion of [Viacom's] record during the relevant renewal
period in passing on a renewal application."
6. We disagree with Petitioners' contention that we lack the requisite
authority to have settled our indecency enforcement actions against
Viacom by means of the Consent Decree. As a general matter, an agency
is presumed to have the discretion to settle or dismiss an enforcement
action. In addition, the Act provides the Commission "broad
discretion" to settle enforcement actions. Here, we appropriately
exercised that discretion by means of the Consent Decree, under which
Viacom admitted that its stations had broadcast indecent material in
violation of the Commission's rules and agreed to substantial remedial
obligations, including making a $3,500,000 voluntary payment to the
United States Treasury and adopting and implementing a multi-year
compliance plan designed to prevent future indecency violations. Our
agreement in return to terminate the pending enforcement actions
against Viacom, and not to consider the facts related to such actions
in connection with other Viacom applications, "simply represents the
quid pro quo that the agency found necessary to procure" Viacom's
agreement to resolve these matters. These undertakings were within our
broad discretion to settle enforcement actions. Thus, the Order
represents a valid and appropriate exercise of our authority to settle
7. We reject Petitioners' contention that the Consent Decree is "illegal"
because the Commission "ignore[d] a significant portion of a
broadcaster's record during the relevant renewal period. . .". First,
in entering into the Consent Decree, we did not ignore the potential
character issues raised by Viacom's apparent indecency violations, as
Petitioners suggest. Rather, we fully considered all potential basic
qualifications issues raised by Viacom's apparent indecency violations
and specifically determined that they did not raise substantial and
material questions of fact as to whether Viacom possesses the
requisite qualifications necessary to be a Commission licensee. Had
we not so concluded, we could not have agreed to the provisions of the
Consent Decree regarding our use of the facts here in connection with
future applications. Having already fully considered those matters,
we need not reexamine these issues in a different proceeding.
Moreover, our determination was consistent with the record before us.
Generally, our decision is also consistent with past Commission
practice because our concern in evaluating the impact of wrongdoing on
a licensee's character is the licensee's probable future behavior.
Viacom's acknowledgment in the Consent Decree of responsibility for
violating indecency restrictions is a step towards ensuring that it
does not repeat such violations. Likewise, the company-wide Compliance
Plan which Viacom agreed to implement as part of the Consent Decree
will help to avoid such violations.
IV. ORDERING CLAUSE
8. IT IS ORDERED that the Petition for Reconsideration jointly filed by
Right to Decency, Inc. and the American Decency Association is hereby
9. IT IS FURTHER ORDERED, that copies of this Order on Reconsideration
shall be sent by Certified Mail, Return Receipt Requested, to Dennis
J. Kelly, Esq., counsel for Right to Decency, Inc. and the American
Decency Association, Post Office Box 41177, Washington, DC, 20018, and
Dennis P. Corbett, counsel for Viacom, Inc., Leventhal Senter & Lerman
PLLC, 2000 K Street, N.W., Suite 600, Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Petition for Reconsideration jointly filed by Right to Decency, Inc. and
the American Decency Association (December 23, 2004) ("Petition").
Viacom, Inc., et al., Order, 19 FCC Rcd. 23100 (2004) ("Order"). The
Consent Decree is attached to and incorporated by reference in the Order.
As of December 31, 2005, Viacom, Inc. effected a corporate reorganization
in which the name of the ultimate parent company of the licensees of the
CBS Stations was changed to CBS Corporation. See Complaints Against
Various Television Licensees Concerning Their February 1, 2004, Broadcast
of the Super Bowl XXXVIII Halftime Show, Forfeiture Order, 21 FCC Rcd.
2760, n.2. (2006), recon. denied, Order on Reconsideration, 21 FCC Rcd
6653 (2006), appeal pending sub. nom. CBS Corporation, et al. v. FCC &
USA, No. 06-3575 (3^rd Cir. 2006). For purposes of this decision, we will
refer to the company and its licensee affiliates by their names at the
time of the Order.
See 18 U.S.C. S 1464 (prohibiting the utterance of "any obscene, indecent,
or profane language by means of radio communication"); 47 C.F.R. S
Infinity Radio License, Inc. (WLLD(FM)), Forfeiture Order, 16 FCC Rcd 4825
(Enf. Bur. 2001), recon. denied, Memorandum Opinion and Order, 17 FCC Rcd
18339 (Enf. Bur. 2002), review denied, Memorandum Opinion and Order, 19
FCC Rcd 5022 (2004), recon. denied, Memorandum Opinion and Order, FCC
04-198 (rel. Aug. 23, 2004).; Infinity Broadcasting Operations, Inc.
(WKRK-FM), Forfeiture Order, 18 FCC Rcd 26360 (2003), recon. denied,
Memorandum Opinion and Order, 19 FCC Rcd 4216 (2004), further recon.
denied, Memorandum Opinion and Order, FCC 04-226 (rel. Oct. 18, 2004).
Order, 19 FCC Rcd at 23105, P 7.
Id. at 23106, P 9.
Id. at 23105-6, P 8.
Id. at 23107, PP 13, 16.
Id. at 23106-7, P 10. In the Consent Decree, the Commission agreed to
terminate all pending proceedings against Viacom relating to restrictions
on the broadcast of obscene, indecent or profane material except for its
decision in Complaints Against Various Television Licensees Concerning
Their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show,
Notice of Apparent Liability, 19 FCC Rcd 19230 (2004) ("Super Bowl NAL")
(subsequent history omitted). The Consent Decree also left in place the
general warnings to broadcasters set forth in paragraphs 12 and 13 of the
Commission's decision in Infinity Broadcasting Operations, Inc. (WKRK-FM),
Notice of Apparent Liability, 18 FCC Rcd 6915 (2003), that was otherwise
vacated by the Order.
Id. The Commission further agreed not to "initiate any inquiries,
investigations, forfeiture proceedings, hearing, or other sanctions or
actions" against Viacom, any Viacom Station, or any pending or future
application to which Viacom is a party based on the forfeiture orders, the
inquiries, or the dismissed complaints pending prior to the Consent
Decree's effective date. Id. Petitioners have opposed Viacom's pending
renewal application for Station WKRK-FM, Detroit, Michigan (File No.
BRH-20040601BHZ) based on matters that have been vacated by the Order as
well as material allegedly broadcast over Station WKRK-FM but not the
subject of complaints and material broadcast over other radio stations
controlled by Viacom. See Petition at iv, 11; Petition to Deny jointly
filed by Right to Decency, Inc. and the American Decency Association
(September 1, 2004).
Order, 19 FCC Rcd 23103, P 3.
Id., P 4.
Petition at 3, 7.
Id. at 7. See 47 U.S.C. S 309(a).
Petition at 9-10.
See Petition at 5-9.
Heckler v. Chaney, 470 U.S. 821, 831 (1985) ("This Court has recognized on
several occasions over many years that an agency's decision not to
prosecute or enforce, whether through civil or criminal process, is a
decision generally committed to an agency's absolute discretion.")
(citations omitted); Schering Corp. v. Heckler, 779 F.2d 683, 685 (D.C.
Cir. 1985) ("Schering Corp.") (FDA's decision to take a voluntary
dismissal of an enforcement action and to agree not to file a new action
for eighteen months "f[ell] squarely within the confines of Chaney.").
Parents Television Council, Inc. v. FCC, 2004 WL 2931357 (D.C. Cir. 2004)
(holding that decision to enter into the Consent Decree at issue in that
case was a nonreviewable exercise of agency discretion); New York State
Department of Law v. F.C.C., 984 F.2d 1209, 1215 (D.C.Cir. 1993) (citing
S.Rep. No. 580, 95^th Cong., 1^st Sess. 25 (1977)).
See Consent Decree, 19 FCC Rcd at 23105-6, PP 8-9.
Schering Corp., 779 F.2d at 687.
Petitioners' suggestion that the settlement discussions leading to the
Consent Decree violated the Commission's ex parte rules lacks merit.
Petition at 10-13. Those discussions fall within the exception to the
general prohibition of ex parte communications in restricted proceedings
for communications "requested by (or made with the advance approval of)
the Commission or staff for the clarification or adduction of evidence or
for the resolution of issues, including possible settlement." 47 C.F.R. S
1.1204(10); see New York State Department of Law v. F.C.C., 984 F.2d 1209,
See Petition at 9-10.
Order, 19 FCC Rcd at 23103, P 4.
See Infinity Broadcasting Corp., 12 FCC Rcd at 5057, n.1 (challenges to
the applicant's character qualifications based on past apparent indecency
violations were moot where the Commission previously determined that such
violations were not disqualifying and agreed to expunge them from the
applicant's record for all purposes under the terms of an agreement
settling indecency enforcement proceedings).
See Policy Regarding Character Qualifications in Broadcast Licensing,
Report, Order, and Policy Statement, 102 FCC 2d 1179, 1183 P 7 (1986),
recon. denied, 1 FCC Rcd 421 (1986), appeal dismissed sub nom. National
Association for Better Broadcasting v. FCC, No. 86-1179 (D.C. Cir. Jun.
11, 1987) (character inquiries "focus on the likelihood that an applicant
will . . . comply with the Communications Act and our rules and
policies."); id. at 1189, P 21 (character inquiries "should be narrowly
focused on specific traits which are predictive of an applicant's
propensity to . . . comply with the Communications Act or the Commission's
rules and policies."). See also Policy Regarding Character Qualifications
in Broadcast Licensing, Amendment of Part 1, the Rules of Practice and
Procedure, Relating to Written Responses to Commission Inquiries and the
Making of Misrepresentation to the Commission by Applicants, Permittees,
and Licensees, and the Reporting of Information Regarding Character
Qualifications, Policy Statement and Order, 5 FCC Rcd 3252 (1990),
recon.granted in part, denied in part, 6 FCC Rcd 3448 (1991), modified, 7
FCC Rcd 6564 (1992) ("1990 Modifications of Character Policy Statement").
See id. at 1129, P 106 ("rehabilitation is significant. We find that the
factors which we have already determined to consider, including . . .
efforts to remedy the situation, are good evidence of whether
rehabilitation has occurred.").
See id. at 1227-28, P 102 (whether corrective action has been taken is an
appropriate factor for analysis in character inquiries).
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Federal Communications Commission FCC 06-153
Federal Communications Commission FCC 06-153