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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Infinity Broadcasting )
Operations, Inc. ) File No. EB-02-IH-0109
) NAL/Acct. No. 200332080010
Licensee of Station WKRK-FM ) FRN 0003476074
Detroit, Michigan ) Facility ID # 9618
)
)
FORFEITURE ORDER
Adopted: November 24, 2003 Released: December 8,
2003
By the Commission: Chairman Powell and Commissioner Adelstein
issuing separate statements, Commissioner Martin concurring and
issuing a separate statement, and Commissioner Copps dissenting
and issuing separate statements.
I. INTRODUCTION
1. In this order, we impose a monetary forfeiture of
twenty-seven thousand five hundred dollars ($27,500) against
Infinity Broadcasting Operations, Inc. (``Infinity''), licensee
of Station WKRK-FM, Detroit, Michigan, for the willful broadcast
of indecent language, in violation of 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999, during the ``Deminski and Doyle Show'' on
January 9, 2002 between 4:30 p.m. and 5:00 p.m.
II. BACKGROUND
2. In response to a complaint, we issued a Notice of
Apparent Liability (``NAL'') on April 3, 2003.1 We found the
material broadcast, attached hereto in the Appendix, to be
apparently indecent. In particular, applying the standards
described in the Commission's Indecency Policy Statement2, we
said:
The inquiry under the first key factor relevant to
a determination of patent offensiveness is whether
the sexual and excretory references are graphic or
explicit. The complained of broadcast of the
``Deminski & Doyle Show'' invited listeners to
call in to discuss sexual practices. There were
separate discussions with nine individuals who
called the show to talk about sexual activities.
Callers and the show's hosts described in detail
how specifically named sexual acts are performed.
The broadcast included explicit and graphic sexual
references, including references to anal and oral
sex, as well as explicit and graphic references to
sexual practices that involve excretory
activities.
With respect to the second factor, the complained
of material dwelled on sexual and excretory organs
and activities and the sexual and excretory
references were repeated. Thus, the sexual and
excretory references cannot be considered
fleeting. Under the third factor, we find that
the graphic and explicit descriptions of the
sexual practices at issue in the broadcast, which
were identified in descriptive, non-clinical
terms, and the comments of the on-air
personalities demonstrate that the material, in
context, appears to have been used to pander,
titillate and shock. The tone of the material
broadcast is extremely vulgar and extremely lewd,
and is similar to other program that has found to
be indecent or apparently indecent.3
Because of the egregious nature of the apparent violation,
we proposed a forfeiture for the statutory maximum --
$27,500:
Based upon our review of the entire record, we
believe that imposition of a forfeiture that is
higher than the base amount is warranted. The
violation was egregious in that the indecent
material was extensive, and included discussions
with nine callers. 4
3. In addition to proposing a forfeiture for the broadcast
at issue in this case, we provided future guidance on two
subjects. First, we indicated that, in the future, we may treat
situations like this as multiple, repeated violations with the
accompanying increase in forfeitures. In addition, we stated
that given the egregiousness of this violation, additional
serious violations by Infinity may well lead to the initiation of
a revocation proceeding. Moreover, we placed other broadcasters
on notice that the Commission will not hesitate to adopt strong
enforcement actions in the future, including the potential
initiation of revocation proceedings. See, e.g., 47 U.S.C. §
312(a).5
4. Infinity responded to the NAL on June 4, 2003.6
Infinity does not challenge that it broadcast the language that
is the subject of the NAL. It also does not challenge that the
language it broadcast is indecent under 18 U.S.C. § 1464.
Rather, with respect to whether a forfeiture should be imposed in
this case, it claims only that the Commission's long-standing
indecency standard is unconstitutional on its face under the
First Amendment. With respect to the amount of the forfeiture,
Infinity claims that the increase from the $7,000 base amount in
the Forfeiture Policy Statement7 to the statutory maximum of
$27,500 is not justified. Infinity also claims that the
Commission has adopted a new ``serious violation standard.''
With respect to future cases, it also claims that the guidance
provided by the Commission regarding multiple violations within a
program and regarding revocation is unconstitutional.
III. DISCUSSION
A. This Case
5. Imposition of the Forfeiture: As noted above, Infinity
does not dispute that it broadcast the material or that the
material meets the Commission's well-established indecency
definition. Accordingly, and for the reasons set forth in the
NAL, we conclude that Infinity willfully violated 18 U.S.C. §
1464 and 47 C.F.R. § 73.3999. We also reject Infinity's argument
that the Commission's definition of indecency is unconstitutional
under the First Amendment. This issue has already been decided
in the Commission's favor by the courts. See, e.g., FCC v.
Pacifica Foundation, 438 U.S. 726 (1978); Action for Children's
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert.
denied, 516 U.S. 1072 (1996); Action for Children's Television v.
FCC, 852 F.2d 1332 (D.C. Cir. 1988). Infinity's reliance on the
more recent Supreme Court decision in Reno v. ACLU, 521 U.S. 844
(1997) is misplaced. In that case, the Supreme Court
specifically distinguished broadcast indecency in striking down
an Internet indecency statute.8
6. Amount of the Forfeiture: Infinity does challenge the
Commission's decision to increase the proposed forfeiture from
the $7,000 base amount set forth in the Commission's Forfeiture
Policy Statement to the statutory maximum of $27,500.9 Under
the Communications Act, in determining the amount of a
forfeiture, the Commission is instructed to take into account the
``nature, circumstances, extent, and gravity of the violation
and, with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other matters
as justice may require.''10 Consistent with the Forfeiture
Policy Statement, which includes an upward adjustment factor from
the base amounts for ``egregious misconduct,''11 the NAL proposed
a forfeiture of $27,500. We have little difficulty concluding
that this is an egregious violation justifying imposition of the
statutory maximum. The material that Infinity broadcast was
extremely graphic, lewd and offensive and continued over an
extended period of time and included conversations with nine
callers over a 30-minute period. While Infinity is correct that
other cases in recent years have involved a forfeiture of only
$7,000 for each indecent broadcast,12 we believe the egregious
nature of the violation here justifies a more severe sanction.
In addition, we disagree with Infinity that the fact that this is
the first cognizable indecency violation at WKRK justifies a
lower forfeiture.13 Whatever benefit should accrue to Infinity
from this fact is outweighed by the egregious nature of the
broadcast here. Finally, we disagree with Infinity that it is
unconstitutional under the First Amendment for the Commission to
increase the amount of an indecency forfeiture based on the
seriousness of the violation.14 The Communications Act permits
a forfeiture of up to $27,500 for a single indecency violation
and we find nothing in the case law cited by Infinity to suggest
that the First Amendment requires that, unless the Commission
articulates detailed standards regarding the appropriate sanction
in specific circumstances, it may never issue an indecency
forfeiture for $27,500. Accordingly, we reiterate that,
depending on the facts, the Commission may impose a forfeiture of
up to the statutory maximum for indecency violations that are
``egregious'' and we find that this is such a violation.15
B. Future Cases
7. We do not address Infinity's arguments regarding the
constitutionality of revocation or imposition of separate
forfeitures for multiple violations because we do not impose
those sanctions in this case.
IV. CONCLUSION AND ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C.
§ 503(b), and 47 C.F.R. §§ 0.111, 0.311 and 1.80, Infinity
Broadcasting Operations, Inc. FORFEIT to the United States the
sum of twenty-seven thousand five-hundred dollars ($27,500) for
willfully and repeatedly violating 18 U.S.C. § 1464 and 47 C.F.R.
§ 73.3999.
9. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482, within thirty (30) days of
the release of this Forfeiture Order. See 47 C.F.R. § 504(a).
10. IT IS FURTHERED ORDERED THAT a copy of this FORFEITURE
ORDER shall be sent by Certified Mail Return Receipt Requested to
Stephen A. Hildebrandt, Vice President, Infinity Broadcasting
Operations, Inc., 2000 K Street, N.W., Suite 725, Washington,
D.C., 20006.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
STATEMENT OF
CHAIRMAN MICHAEL K. POWELL
Re: Infinity Broadcasting Operations, Inc., Licensee of Stations
WKRK-FM, Detroit, Michigan, Forfeiture Order
I fully support the Commission's decision to levy the
statutory maximum forfeiture amount against Infinity Broadcasting
Operations for the broadcasting of indecent language stemming
from the Deminski and Doyle show out of WKRK-FM in Detroit. The
blatant broadcasting of filth of this extreme nature has no place
on our nation's airwaves. Broadcasters should take this latest
action as yet another sign that the Commission will continue to
rigorously enforce our indecency regulations. SEPARATE STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
DISSENTING
Re: Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK-FM, Detroit, Michigan, Forfeiture Order
I dissent from this forfeiture order because I believe it is
inadequate to address the serious nature of this station's
actions. As I stated in the attached dissent when we issued the
Notice of Apparent Liability, a fine of $27,500 is not even a
slap on the wrist to Infinity for airing what can only be
described as vulgar and disgusting indecency. This Commission
should have conducted a hearing on revocation of this station's
license.
SEPARATE STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
DISSENTING
Re: Infinity Broadcasting Operations Inc., licensee of WKRK-FM,
Detroit Michigan, Notice of Apparent Liability for Forfeiture
In this case, WKRK-FM in Detroit aired some of the most
vulgar and disgusting indecency that I have had the misfortune to
examine since I joined the Commission. The station presented
graphic descriptions of violent sexual acts against women as
entertainment at a time when children likely composed a
significant portion of the audience. The extreme nature of this
broadcast - among the worst we have faced in the Commission's
history - and the fact that it was broadcast in the middle of the
day, gives the FCC the responsibility to take serious action. I
dissent from the majority's decision because I believe that a
financial slap on the wrist does not adequately reflect the
seriousness of the station's actions. To fulfill our duty under
the law, we should initiate a hearing to determine whether the
WKRK-FM license should be revoked.
I am deeply disappointed that the majority proposes a mere
$27,500 fine against this station. Such a fine will easily be
absorbed by the station as a ``cost of doing business.'' While I
am encouraged that the Commission has at least, and at last,
found such programming to be indecent, I am discouraged that it
does so little about it.
Would anyone who reads the transcript of this program argue
that the United States should subsidize such material by giving
WKRK-FM free spectrum through their broadcast license? Can
anyone read the indecency law that Congress has given us and
conclude that any station could broadcast such material on the
public's airwaves consistent with the law? The majority admits
that WKRK-FM appears to have violated egregiously and extensively
the statutory ban on the broadcast of indecent material. The
majority presumably recognizes the seriousness of the offense.
And, importantly, this Commission has agreed for the first time
that it may revoke the license of a station owner that broadcasts
indecent material. But the Commission does not take this step.
Our tepid action today will not dissuade these types of
broadcasts in the future. The message to licensees is clear:
Even egregious violations will not result in revocation of a
license. The majority does warn Infinity that another similar
action could result in a revocation hearing, but it fails to
mention that this is not the first action against a station owned
by Infinity. Infinity stations were fined $1.7 million by a
previous Commission in 1995 to settle a series of indecency
cases. As part of that settlement, Infinity agreed to take steps
to prevent further broadcast of indecent material. But more
complaints involving other broadcasts followed. Last August, for
example, another Infinity station aired the ``Opie & Anthony''
program allegedly involving sex acts performed in or near St.
Patrick's Cathedral. That investigation is still pending without
action by the Commission.
The majority may say that this is the largest fine we are
allowed to impose under our guidelines. But fines are not the
only tool Congress gave us to enforce the law. The Commission
would be more credible by moving immediately to a hearing to
determine whether the station's license should be revoked. We
would be well within our statutory authority to do this under
Section 312(a)(6) of the Communications Act, which specifically
provides such a remedy.
I wonder when this Commission will finally take a firm stand
against broadcast's ``race to the bottom'' as the level of
discourse on the public's airwaves gets progressively coarser and
more violent. The time has come for this Commission to send a
message that it is serious about enforcing its indecency rules.
Our enforcement actions should convince broadcasters that they
cannot ignore their responsibility to serve the public interest
and to protect children. The FCC's actions today fail to do so. SEPARATE STATEMENT
COMISSIONER KEVIN J. MARTIN
CONCURRING
Re: Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK-FM, Detroit, Michigan, Forfeiture Order
I am disappointed with today's decision.
I agree that Infinity Broadcasting Operations, Inc. violated
our indecency rule during the broadcast of the ``Deminski and
Doyle Show'' on January 9, 2002. As I noted when we issued the
Notice of Apparent Liability, however, I believe the fine of
$27,500 is inadequate, and therefore I concur in this Order.
As the attached Order explains, the indecent broadcast
included conversations with nine callers over a 30-minute period.
I believe each of these 9 calls could be separate ``utterances''
or ``material'' for purposes of the statute and our rules.16
Because of the extremely graphic, lewd and offensive nature of
this broadcast, I would have applied the statutory maximum fine
for each call, for a total of $247,500.
SEPARATE STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK-FM, Detroit, Michigan, Forfeiture Order
I strongly support the imposition of the statutory maximum
forfeiture amount against Infinity Broadcasting Operations, Inc.,
licensee of station WKRK-FM, Detroit, Michigan, for the willful
broadcast of grossly indecent language during the Deminski and
Doyle show. The egregious nature of the material broadcast
clearly warrants the statutory maximum fine.
In addition, as I stated in April, the Commission has now
given fair notice to broadcasters that it can and will avail
itself of a range of enforcement sanctions when broadcasters
violate our indecency rules. These sanctions include the
potential initiation of revocation proceedings for serious,
repeated violations of our rules. Broadcasters are also on
notice that the Commission may find them liable for multiple
violations that occur in a single program where statements can be
viewed as separate indecent utterances. This approach could
result in substantially higher forfeiture amounts in the future.
I am disappointed that the licensee in this case continues
to challenge this sanction rather than accept responsibility for
such an extreme violation of our rules.
_________________________
1 Notice of Apparent Liability, 18 FCC Rcd 6915 (2003).
2 Industry Guidance on the Commission's Case Law Interpreting 18
U.S.C. § 1464 and Enforcement Policies Regarding Broadcast
Indecency (``Indecency Policy Statement''), 16 FCC Rcd 7999
(2001).
3 Id. at 6917 (footnote and citations omitted).
4 Id. at 6919.
5 Id. (quoting 14 U.S.C. § 1464).
6 Response to Notice of Apparent Liability for Forfeiture
(``Infinity Response'').
7 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement''), codified at 47
C.F.R. § 1.80(b)(4) Note.
8 In Reno, the court articulated three distinctions between
regulation of Internet indecency and broadcast indecency as
upheld in Pacifica: (1) unlike the situation with broadcast
indecency, the Internet statute at issue involved ``broad
categorical prohibitions [that] are not limited to particular
times and are not dependent on any evaluation by an agency
familiar with the unique characteristics of the Internet''; (2)
the Commission's action in Pacifica did not involve a criminal
prosecution; and (3) ``the Commission's order applied to a medium
which as a matter of history `had received the most limited First
Amendment protection,' [citation omitted], in large part because
warnings could not adequately protect the listener from
unexpected program content.'' 521 U.S. at 867. See also id. at
868. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), on
which Infinity also relies, is similarly distinguishable.
9 47 U.S.C. § 503(b)(2)(A).
10 Id. § 503(b)(2)(D).
11 47 C.F.R. § 1.80(b)(4) Note.
12 Infinity Response at 35.
13 Id. We note that, contrary to Infinity's suggestion, id., the
NAL did not increase the base forfeiture amount because of prior
indecent broadcasts by Infinity at other stations, although the
Commission could have done so. See Forfeiture Policy Statement
Reconsideration Order, 15 FCC Rcd 303 (1999).
14 Infinity Response at 35. On August 6, 2003, a group of
broadcasters and public interest groups filed ``Comments of the
First Amendment Coalition in Response to Notice of Apparent
Liability,'' similarly arguing that the Commission's indecency
standard violates the First Amendment. We will treat these
Comments as an amicus curiae brief. Nothing in the Comments
alters our decision here or leads us to conclude that the
Commission should initiate a broader proceeding to reconsider our
indecency policies in light of the First Amendment issues raised
by the Comments.
We will likewise treat as an amicus curiae brief comments filed
on September 15, 2003 by The Office of Communications of the
United Church of Christ, Inc. (OCI). In its comments, OCI also
argues that the Commission should initiate a broader proceeding
to reexamine the indecency standard, especially in light of our
statement in the underlying decision that in the future, for
egregious cases, we ``will not hesitate to adopt strong
enforcement actions ..., including the potential initiation of
revocation proceedings.'' See para. 3, supra. OCI argues that
one unintended consequence of the use of revocation in indecency
cases would be an increase in market barriers to new broadcast
entrants because, given the uncertainty potential revocation will
produce, lenders and investors will simply choose to invest their
money elsewhere. Again, nothing in these comments leads us to
conclude that a far-ranging reexamination of our indecency
policies is appropriate. We also note that on May 19, 2003,
Chairman Powell announced the formation of the Advisory Committee
on Diversity Communications to assist the agency in formulating
ways to create opportunities for new entrants in the
communications sector, including broadcasting. Issues
concerning barriers to entry will be appropriately considered in
that forum.
15 We note that an indecency forfeiture could be increased from
the $7,000 base amount for other reasons as well, e.g., a history
of prior violations.
16 See 18 U.S.C. § 1864 (``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''), 47 C.F.R. § 73.3999 (``No licensee of a radio or
television broadcast station shall broadcast on any day between 6
a.m. and 10 p.m. any material which is indecent'').