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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 )
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
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.
I.A. Sufficiency of Allegation that the Station Aired
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
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
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-
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.