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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
WQAM License Limited Partnership )
Licensee, WQAM(AM) ) File No. 918 ED 030
Miami, Florida )
Facility ID # 64002 )
For a Forfeiture )
Adopted: January 24, 2000 Released: January 28,
By the Commission:
1. In this Order, we impose a forfeiture of $35,000 on
WQAM License Limited Partnership (``licensee''), licensee of
Station WQAM(AM), Miami, Florida, for willful and repeated
violations of 18 U.S.C. Section 1464, which prohibits the
broadcast of indecent material.1 This action is taken
pursuant to Sections 312(a)(6) and 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. Sections
312(a)(6) and 503(b), and Section 1.80(f)(4) of the
Commission's Rules, 47 C.F.R. Section 1.80(f)(4).
2. By Notice of Apparent Liability (``NAL''), FCC 99-
187, released July 22, 1999, we determined that certain
material apparently broadcast over WQAM on five days in May
1998 was indecent. Inasmuch as the material was apparently
aired between the hours of 10 a.m. and 2 p.m., we concluded
that the broadcasts occurred at a time when there was a
reasonable risk that children might be in the audience. See
Section 73.3999 of the Commission's Rules, 47 C.F.R. Section
73.3999. After considering the circumstances in light of our
forfeiture guidelines,2 which provide a base forfeiture for
indecency of $7,000, we proposed a forfeiture of $35,000 for
the five days of indecent broadcasts. The licensee has
submitted a response, which we address below.
3. Initially, the licensee argues that our definition of
indecency3 is unconstitutionally vague. The licensee notes
that in Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court
struck down an indecency standard for the Internet, which is
similar to the one we use for broadcasting. However, in so
doing, the Court did not question the constitutionality of our
broadcast indecency standard. Instead, 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.
Id. at 868-70.
4. Next, the licensee complains that the manner in which
the Commission has implemented indecency regulation is
constitutionally suspect. In this regard, the licensee notes
that the Commission has not published ``industry guidance''
relating to broadcast indecency, and it argues that the
Commission's failure to so act renders unreasonable any
expectation that licensees can know where to ``draw the
line.'' We disagree. Our definition of indecency has
remained unchanged for years, and in rulemaking proceedings as
well as in the context of specific rulings, we have amply
illustrated what broadcasters may and may not do. That these
rulings are not all in one place does not render
constitutionally vague the definition of indecency or the
Commission's specific applications of the definition.
5. With respect to the particular material cited in the
NAL, the licensee contends that the Commission's staff
previously dismissed a complaint based on one of the segments
-- a song parody inspired by an interview of a Miami Dolphins
football player -- that the NAL found to be indecent. The
licensee argues that, in light of the earlier action, the
NAL's determination regarding the May 22, 1998, broadcast
confirms the arbitrariness of the Commission's indecency
enforcement scheme. We disagree. A comparison of the two
broadcasts indicates that the one found not actionably
indecent had significant portions ``bleeped'' out, whereas the
segment aired on WQAM on May 22, 1998, audibly included the
patently offensive references to sexual activities (fellatio)
and excretory activities. In our view, the differences are
significant enough to justify contrary enforcement outcomes.
6. The licensee also claims that prior Commission rulings
have found that material virtually identical to that aired on
WQAM was not actionably indecent. Citing Infinity
Broadcasting Corporation of Pennsylvania, 3 FCC Rcd 930 (1987)
(``Infinity''), the licensee contends that a forfeiture is
inappropriate because such rulings could have led the licensee
to conclude that its broadcasts were permissible.
Specifically, the licensee points to other material ``found
nonactionable by the Commission,'' (Response at p. 19)
including material from the ``Neil Rogers Show.'' See Mr.
Michael J. Flaherty, 6 FCC Rcd 3704 (MMB 1989). Among other
things, the licensee points to two examples where the staff
concluded that the material allegedly broadcast was not
actionably indecent. The first concerned erections and
fantasy scenarios, while the second contained a song parody
alluding to the subject of oral sex. In addition, the
licensee provides numerous other examples of program material,
both from radio and television, which were not found indecent
by the staff. In the licensee's opinion, the cited material
is indistinguishable in character from the excerpts cited in
7. At the time of the Infinity decision, the Commission
had not yet built up a body of case law under the new
enforcement standard announced in 1987.4 Accordingly, it did
not initiate a forfeiture proceeding for indecency in that
case. Since then, a body of case law has been developed.5
Furthermore, as explained in Infinity,6 indecency
determinations are contextual and thus are necessarily fact
intensive. They require consideration of such factors as
whether the material is explicitly graphic, whether the
material dwells on or repeats at length the sexual or
excretory organs or activities, whether the material appears
to pander or titillate, and whether the material appears to
have been broadcast for shock value. Moreover, we note that,
in addition to concluding that certain complained of material
did not ``establish a basis for Commission action,'' Flaherty
found five different program segments from a ``Neil Rogers
Show'' to be indecent. Like the broadcast excerpts cited in
the NAL, the broadcast excerpts from the ``Neil Rogers Show''
cited in Flaherty referenced sexual activities in a patently
offensive manner through the use of songs, some of which were
apparently original and one of which was apparently a parody
of an existing song. If anything, the excerpts cited in
Infinity and Flaherty should have provided ample notice to the
licensee as to what material would be considered indecent.
Notwithstanding those determinations, the licensee chose to
broadcast the segments cited in the NAL. We therefore
conclude that the licensee, unlike those affected in the
Infinity decision, did not establish that it had a basis for
believing that its programming was not indecent.
8. The licensee next argues that, in any event, the
excerpts cited in the NAL were not indecent. In this regard,
the licensee first contends that the material for which it is
cited is ``oblique'' and that the sexual import of the cited
material is not inescapable. We disagree. The material
broadcast on May 20, 1998, consists of a song ``Uterus Guy,''
which is unmistakably about oral sex. The song's sexual
import is lewd, inescapable and understandable. The May 21
broadcast consists of a parody of the song ``New York, New
York.'' The parody's tag line, ``Let's pork,'' considered in
conjunction with the rest of the material, is a lewd,
inescapable reference to sexual intercourse. The May 22
broadcast consists of a parody of the song, ``The Girl from
Ipanema,'' and includes the interview of the Miami Dolphins
football player discussed above. The May 25 broadcast
consists of a song focusing on anal sex. The song is lewd,
and the sexual reference is inescapable and unmistakable.
Finally, the May 26 segment consists of a telephone
conversation discussing anal sex and, specifically, how a male
can avoid having his penis dirtied by his partner's feces. In
short, we conclude that each of the cited segments contains
material, which, in context, depicts or describes, in patently
offensive terms, sexual or excretory activities or organs.
9. Finally, the licensee attacks our indecency
conclusion because, it believes, the material would not be
considered patently offensive under contemporary community
standards for the broadcast medium. The licensee contends
that the Commission has never explained the precise
methodology by which it measures such contemporary standards,
and it argues that, in any event, the contemporary standards
concept is not static. In this regard, the licensee asserts
that the standard has evolved as a consequence of discussions,
analyses and jokes resulting from the sex scandal involving
the President. As a consequence, the licensee argues, the
broadcast medium has aired a great deal of material that is
sexually graphic, and these broadcasts must be considered in
evaluating the ``Neil Rogers Show.''7 With respect to
contemporary community standards for the broadcast medium, we
explained in Infinity, that we would judge such standards ``by
the standard of an average broadcast viewer or listener....
In making the required determination of indecency,
Commissioners draw on their knowledge of the views of the
average viewer or listener, as well as their general expertise
in broadcast matters.'' 8 Applying such knowledge to the
broadcasts at issue, we reaffirm our determination that they
are patently offensive.
10. Accordingly, IT IS ORDERED, pursuant to Section
503(b) of the Communications Act, 47 U.S.C. Section 503(b),
and Section 1.80(f)(4) of the Commission's Rules, 47 C.F.R.
Section 1.80(f)(4), that WQAM License Limited Partnership,
licensee of Station WQAM, Miami, Florida, FORFEIT to the
United States the sum of $35,000 (thirty-five thousand
dollars) for willful and repeated violations of 18 U.S.C.
11. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order be sent by Certified Mail/Return Receipt Requested to
counsel for the licensee, Leventhal, Senter & Lerman,
P.L.L.C., Attention: Steven A. Lerman, Esquire, 2000 K Street,
N.W., Suite 600, Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
1 18 U.S.C. § 1464 provides: ``Whoever utters any obscene,
indecent, or profane language by means of radio communication
shall be fined under this title or imprisoned not more than
two years, or both.''
2 Amendment of Part 1 - Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, FCC 99-407, released December 28,
Indecent material is that, which, in context, depicts or
describes, in terms patently offensive as measured by
contemporary community standards for the broadcast medium,
sexual or excretory activities or organs. See Infinity
Broadcasting Corporation of Pennsylvania, 2 FCC Rcd 2705
4 See Public Notice, 2 FCC Rcd 2726 (1987).
E.g., Infinity Broadcasting Corporation, 9 FCC Rcd 6442
(1994); The Rusk Corporation, 8 FCC Rcd 3228 (1993); Pacifica
and Southern Company, Inc., (KSD-FM), 6 FCC Rcd 3689 (MMB
1990); Great American Television (WFBQ(FM)), 6 FCC Rcd 3692
(MMB 1990); Legacy Broadcasting of Detroit, Inc. (WLLZ-FM), 6
FCC Rcd 3698 (MMB 1989).
3 FCC Rcd at 931-32.
7 In furtherance of its point, the licensee lists more than
35 sexually-oriented topics that have been broadcast on
television between 1991 and the present. The licensee also
contends that Neil Rogers has been a fixture in Miami radio
for over 20 years, and it asserts that he is ``easily the most
popular local radio figure in Miami.'' The licensee further
observes that Mr. Rogers' popularity in Miami should be
contrasted with the relative dearth of listener complaints
about his show. With respect to the assertion that sexually-
oriented topics have frequently appeared on television, we
note that discussions of sexual matters or relationships is
not now and never has been per se prohibited. What is subject
to sanction is the broadcast of indecent material. As to the
latter assertions, we find it sufficient to observe that a
show's general popularity cannot insulate it from a
determination that certain material it broadcast was indecent.
8 Infinity, 3 FCC Rcd at 933.
Payment of the forfeiture 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
file number referenced above.