Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                                                        
     VIACOM INC.                                                             
                                              )   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                    )                              




   Licensee of Station KLLI(FM), Dallas, Texas )  Facility ID No. 1087





   Licensee of Station WJFK-FM, Manassas, Virginia )  Facility ID No. 28625





   Licensee of Station WCKG(FM), Elmwood Park, ) Facility ID No. 71283

   Illinois )





   Licensee of Station WBCN(FM), Boston, ) Facility ID No. 26897

   Massachusetts )


   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."

   III discussion

    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
       enforcement actions.

    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.


    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.


   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,
   1217-18 (D.C.Cir.1993).

   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).

   (...continued from previous page)


   Federal Communications Commission FCC 06-153


   Federal Communications Commission FCC 06-153