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                          Before the
                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                        )

                         FORFEITURE ORDER

   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 
the NAL.  

     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. 
Section 1464.9  

     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.


                         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.