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



In the Matter of                  )
                                 )
Infinity Broadcasting             )     Control No. 97050319
Corporation of Los Angeles        )     NAL/Acct. No. 818ed0017
                                 )
Licensee of Station KROQ-FM       )
Pasadena, California              )
Facility ID # 28622               )




                           FORFEITURE ORDER



Adopted:  June 12, 2000                 Released:  June 13, 2000

By the Enforcement Bureau:

In this Forfeiture Order, we issue a monetary forfeiture in the 
amount of two thousand dollars ($2,000) against Infinity 
Broadcasting Corporation of Los Angeles (``Infinity''), licensee 
of Station KROQ-FM, Pasadena, CA, for willful violation of 18 
U.S.C.  1464, which prohibits the broadcast of indecent 
material.


                         I.   BACKGROUND


On August 24, 1998, the Mass Media Bureau, by delegated 
authority, issued a Notice of Apparent Liability for Forfeiture 
to Infinity in the amount of two thousand dollars ($2,000), for 
the broadcast of indecent material.  Infinity Broadcasting 
Corporation of Los Angeles (KROQ-FM), 13 FCC Rcd 25349 (MMB 
1998).  Specifically, the Mass Media Bureau found that the 
broadcast of ``You Suck'' by the group Consolidated on March 28, 
1997, at approximately 9:10 p.m., violated 18 U.S.C.  1464.  
Infinity filed a response to the NAL on September 23, 1998.


Infinity admits that a version of the ``You Suck'' song was aired 
at approximately 9:10 p.m. on March 28, 1997.  However, it 
asserts that because the complainant submitted a commercial CD of 
the song in question and not a tape or transcript of the song as 
broadcast, it is inconsistent with Commission policy to assess a 
forfeiture against it, particularly since Station KROQ-FM owned 
more than one version of the song in question at the time of the 
broadcast.  Infinity also argues that in light of the Supreme 
Court's ruling in Reno v. ACLU, 521 U.S. 844 (1997), the 
Commission's indecency standard is constitutionally suspect.


                         II.  DISCUSSION

     I.A.      Sufficiency of Allegation that the Station Aired 
     Indecent Material

Infinity asserts that Station KROQ-FM possesses at least two 
versions of the song, one of which it contends does not contain 
any indecent material.  It asserts that it is unable to determine 
which version of the song was aired.  In support of its position, 
Infinity filed an affidavit from the station announcer who 
admitted that he played some version of the ``You Suck'' song on 
the day in question.  The announcer states that he does not 
recall which version of the recording he aired and that he did 
not actually listen to the recording when it aired.  Further, 
Infinity states that the station does not retain copies of its 
broadcasts.  In such circumstances, absent ``objective evidence'' 
that the version cited in the NAL was aired, Infinity contends 
that issuance of an NAL is contrary to Commission precedent.


Infinity made these same arguments in response to the Mass Media 
Bureau's letter of inquiry regarding the complaint and supplied 
an edited version of ``You Suck'' which ``may'' have been the 
version that was aired.  Because the Mass Media Bureau did not 
have a tape or transcript of the actual broadcast, on April 1, 
1998, before it issued the NAL, it sent a letter to the 
complainant with a copy of the edited version of the ``You Suck'' 
song.  The Mass Media Bureau asked the complainant to confirm 
whether she heard the edited version or the version on the CD 
that was submitted with her complaint.  The Mass Media Bureau 
also asked her to explain the basis of her belief as to which 
version she heard broadcast on Station KROQ-FM.  The complainant 
responded that she recalls hearing the words ``pubic,'' ``dick,'' 
``pussy,'' and ``clit'' broadcast, none of which were contained 
in the edited version of the song provided by Infinity.


Although our usual practice is to require a tape or transcript of 
the allegedly indecent material as broadcast, where ``the goals 
of this internal Commission procedure can be achieved by other 
means, we will not be diverted from pursuing an otherwise 
legitimate complaint by the lack of direct, off-air recordings or 
transcripts.''  Nationwide Communications, Inc. (KLUC-FM), 6 FCC 
Rcd 3695 (MMB 1990).  In this case, the licensee admits that 
Station KROQ-FM does own a copy of the indecent version of the 
song ``You Suck,'' and that it is possible that the indecent 
version of the song was broadcast.  Thus, this case can be 
distinguished from the decision cited by Infinity, where an NAL 
was rescinded because the station's music library did not contain 
a copy of the unedited version of the song.  NPR Phoenix, L.L.C. 
(KPTY(FM)), 13 FCC Rcd 14070, 14071 (MMB 1998), distinguishing 
Waterman Broadcasting Corp. of Texas (KTFM(FM)), 11 FCC Rcd 14547 
(MMB 1996) (NAL rescinded by letter dated April 15, 1997).  
Further, the complainant has affirmatively stated that she heard 
specific words in the version of ``You Suck'' which was broadcast 
by Station KROQ-FM, none of which were contained in the edited 
version provided by Infinity.  Where the station cannot deny the 
broadcast of the unedited version and the complainant has 
provided us with specific information to support her belief that 
the unedited version was aired, we believe that an NAL was 
appropriately issued.


     I.B.      Constitutionality of Indecency Standard

Infinity argues that the definition of indecency is 
unconstitutionally vague and that the Supreme Court's decision in 
Reno v. ACLU, 521 U.S. 844 (1997), ``articulates a basis for 
reexamination in this proceeding of the FCC's generic `broadcast 
indecency' definition.''  Response at 7 (emphasis in original).  
Although Infinity admits that the Court in Reno v. ACLU was 
looking at the indecency standard for the Internet, it argues 
that the Internet definition is similar to the one used for 
broadcasting.  The Commission ruled on a similar argument in WQAM 
License Limited Partnership (WQAM(AM)), 15 FCC Rcd 2518 (2000), 
petition for reconsideration pending.  The Commission found that 
``the Court did not question the constitutionality of our 
broadcast indecency standard.''  Rather, the Commission said, 
``the Court indicated that our broadcast indecency regulations 
were justified because of the significant differences between the 
Internet and the broadcast medium and between the standard 
employed in the statute under attack and our broadcast indecency 
standard.''  15 FCC Rcd at 2518-19, citing Reno v. ACLU, 521 U.S. 
at 868-70.  Thus, we find no merit to Infinity's argument that 
Reno v. ACLU invalidates the ``foundation of the NAL'' assessed 
against it.

Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of 
the Communications Act of 1934, as amended (the ``Act''),1 and 
Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's rules,2 
Infinity Broadcasting Corporation of Los Angeles IS LIABLE FOR A 
MONETARY FORFEITURE in the amount of two thousand dollars 
($2,000) for willfully violating 18 U.S.C.  1464.


Payment of the forfeiture shall be made in the manner provided 
for in Section 1.80 of the Commission's rules3 within 30 days of 
the release of this Forfeiture Order.  If the forfeiture is not 
paid within the period specified, the case may be referred to the 
Department of Justice for collection pursuant to Section 504(a) 
of the Act.4 Payment may be made by credit card through the 
Commission's Credit and Debt Management Center at (202) 418-1995 
or 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 should note the NAL/Acct. No. referenced 
above.  Requests for full payment under an installment plan 
should be sent to: Chief, Credit and Debt Management Center, 445 
12th Street, S.W., Washington, D.C. 20554.5


IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall 
be sent by Certified Mail Return Receipt Requested to Infinity's 
counsel, Steven A. Lerman, Esq., Leventhal, Senter & Lerman, 
P.L.L.C., 2000 K Street, N.W., Suite 600, Washington, D.C. 20006-
1809.

                    FEDERAL COMMUNICATIONS COMMISSION



                    David H. Solomon
                    Chief, Enforcement Bureau
_________________________

1 47 U.S.C.  503(b).

2 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

3 47 C.F.R.  1.80.

4 47 U.S.C.  504(a).

5 See 47 C.F.R.  1.1914.