Separate Statement of Commissioner Kevin J. Martin

Re:	Infinity Broadcasting Corporation of Los Angeles, Licensee of Station KROQ-FM, 
Pasadena, California, Memorandum Opinion and Order (adopted May 9, 2002)

Today we take an important step in clarifying our indecency rule, easing the burden on 
consumers, and protecting listeners and viewers from offensive broadcast programming.  The 
attached Order upholds the forfeiture assessed upon Infinity Broadcasting, and in so doing, it 
provides important guidance for the industry and consumers.

The FCC plays an important role in protecting Americans—particularly children—from 
obscene and indecent material.  We have been charged by Congress to implement its ban against 
broadcasting obscene or indecent programming, and I take this responsibility seriously.  

The Courts have determined that we may prohibit indecent programming between the 
hours of 6:00 a.m. to 10:00 p.m. without running afoul of the First Amendment.   The Order we 
release today does not alter our indecency rule or our official indecency policy.   It does, 
however, provide much-needed guidance regarding how the rule should be implemented and 
increases the effectiveness of our rules by clarifying the burden listeners and viewers must meet 
when filing a complaint.

Many consumers have expressed frustration with how we have applied our indecency 
rule.  They have argued that the Commission has placed too high a burden on viewers and 
listeners by requiring that they include with any complaint a tape or transcript of the program in 
question.  The result, they say, is an indecency rule that is too rarely enforced.  While the 
Commission's indecency policy has no strict tape or transcript requirement, whether it was 
Commission practice to require a tape or transcript is unclear.   I am glad that today we put this 
controversy to rest – and in a way that decreases the burden on consumers.

As we explain in the Order, the Commission will not dismiss a complaint for failure to 
include a tape or transcript.  As long we have sufficient detail and context to determine whether 
an identified program is indecent, we will process the complaint.  This clarification should 
facilitate consumers' ability to file a complaint when they hear or view programming they 
believe to be indecent.

Moreover, if we determine that a violation may have occurred, it is then up to the 
broadcaster to provide contrary evidence.  If the broadcaster fails to provide such evidence, we 
may (as we do today) find that complainant's evidence is sufficient to determine that a violation 
has occurred.  This burden shifting should further alleviate some of the concerns that have been 
raised by consumers while still providing broadcasters with ample opportunity to defend their 
programming.

I support this process, as it will facilitate consumers' ability to file indecency complaints, 
maintain broadcasters' ability to dispute claims that their programming was indecent, and enable 
the Commission to enforce our rules more effectively.  Accordingly, I support this Order, both 
for the conclusions it makes and the guidance it provides.
  	The courts also have approved the Commission's definition of "indecent."  See Action for Children's 
Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988); Action for Children's Television v. FCC, 932 F.2d 1504 (D.C. 
Cir. 1991), cert. denied, 112 S. Ct. 1282 (1992); Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 
1995), cert. denied, 116 S. Ct. 701 (1996).  
  	See 47 C.F.R. §73.3999; Industry Guidance of the Commission's Case Law Interpreting 18 U.S.C. §1464 
and Enforcement Policies Regarding Broadcast Indecency, Policy Statement, 16 FCC Rcd 7999 (2001). 
  	Our policy states that a complaint "must generally include a full or partial tape or transcript or significant 
excerpts of the program."  See id.  Notably, many in the industry (such as the licensee in this case) referred to this as 
"the tape or transcript requirement."