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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Infinity Broadcasting ) File No. EB-01-IH-0633
Operations, Inc. ) NAL/Acct. No. 200432080013
) FRN 0003476074
Licensee of Station WKRK-FM ) Facility ID No. 9618
Detroit, Michigan )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 8, 2004 Released: March 18, 2004
By the Commission: Commissioner Martin concurring and issuing a
statement; Commissioner Adelstein issuing a statement; and
Commission Copps dissenting and issuing a statement.
I. INTRODUCTION
1. In this Notice of Apparent Liability For Forfeiture
(``NAL''), issued pursuant to section 503(b) of the
Communications Act of 1934, as amended (the ``Act'') and section
1.80 of the Commission's rules,1 we find that Infinity
Broadcasting Operations, Inc., licensee of Station WKRK-FM,
Detroit, Michigan, aired program material during the ``Howard
Stern Show'' on July 26, 2001, that apparently violates the
federal restrictions regarding the broadcast of indecent
material.2 Based upon our review of the facts and circumstances
of this case, we conclude that Infinity is apparently liable for
a monetary forfeiture in the amount of Twenty-Seven Thousand Five
Hundred Dollars ($27,500.00), the statutory maximum in this
context, for broadcasting indecent material in apparent violation
of 18 U.S.C. § 1464 and section 73.3999 of the Commission's
rules.
II. BACKGROUND
2. The Enforcement Bureau received a complaint alleging
that Station WKRK-FM aired indecent material during the ``Howard
Stern Show,'' on July 26, 2001, between 6:30 and 7:30 a.m. The
complainant submitted an audio tape of this broadcast.3
3. The Enforcement Bureau sent Infinity a letter of
inquiry,4 and attached a transcript of a portion of the material
included in the audio tape.5 In its response, Infinity states
that ``The Howard Stern Show'' was aired on WKRK(FM) on July 26,
2001, and that it ``has no knowledge at this time that the
transcripts are materially different from what was actually
broadcast by WKRK on July 26, 2001,'' but because the station did
not retain a tape or transcript of the actual broadcast, it
cannot state conclusively whether the material reproduced in the
complainant's tape and in the transcript were broadcast over the
station.6 Infinity maintains, however, that the aired material
was not actionably indecent and did not contain any description
or depiction of sexual or excretory organs or activities in a
patently offensive manner.7 In addition, Infinity argues that
the Commission's generic indecency definition is
unconstitutional.
III. DISCUSSION
4. The Federal Communications Commission is authorized to
license radio and television broadcast stations and is
responsible for enforcing the Commission's rules and applicable
statutory provisions concerning the operation of those stations.
The Commission's role in overseeing program content is very
limited. The First Amendment to the United States Constitution
and section 326 of the Act prohibit the Commission from censoring
program material and from interfering with broadcasters' freedom
of expression.8 The Commission does, however, have the authority
to enforce statutory and regulatory provisions restricting
indecency and obscenity. Specifically, it is a violation of
federal law to broadcast obscene or indecent programming. Title
18 of the United States Code, section 1464 prohibits the
utterance of ``any obscene, indecent or profane language by means
of radio communication.''9 In addition, section 73.3999 of the
Commission's rules provides that radio and television stations
shall not broadcast obscene material at any time, and shall not
broadcast indecent material during the period 6 a.m. through 10
p.m.
5. Under section 503(b)(1) of the Act, any person who is
determined by the Commission to have willfully or repeatedly
failed to comply with any provision of the Act or any rule,
regulation, or order issued by the Commission shall be liable to
the United States for a forfeiture penalty.10 In order to impose
such a forfeiture penalty, the Commission must issue a notice of
apparent liability, the notice must be received, and the person
against whom the notice has been issued must have an opportunity
to show, in writing, why no such forfeiture penalty should be
imposed.11 The Commission will then issue a forfeiture if it
finds by a preponderance of the evidence that the person has
violated the Act or a Commission rule.12 As we set forth in
greater detail below, we conclude under this standard that
Infinity is apparently liable for a forfeiture for its apparent
willful violation of 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules.
A. Indecency Analysis
6. Any consideration of government action against
allegedly indecent programming must take into account the fact
that such speech is protected under the First Amendment.13 The
federal courts consistently have upheld Congress's authority to
regulate the broadcast of indecent material, as well the
Commission's interpretation and implementation of the governing
statute.14 Nevertheless, the First Amendment is a critical
constitutional limitation that demands that, in indecency
determinations, we proceed cautiously and with appropriate
restraint.15
7. The Commission defines indecent speech as language
that, in context, depicts or describes sexual or excretory
activities or organs in terms patently offensive as measured by
contemporary community standards for the broadcast medium.16
Indecency findings involve at least two
fundamental determinations. First, the
material alleged to be indecent must fall
within the subject matter scope of our
indecency definition¾that is, the material
must describe or depict sexual or excretory
organs or activities. . . . Second, the
broadcast must be patently offensive as
measured by contemporary community
standards for the broadcast medium.17
8. As an initial matter, Infinity disputes that it aired
material describing or depicting sexual and excretory activities
and organs.18 Specifically, Infinity argues that the material
contains ``brief and non-descriptive references to sexual
practices that employ only clinical terms such as ``evacuating''
and ``oral sex.''19 We disagree. Infinity's argument cites only
one of the sexual practices described in the complained-of
material.20 In any event, the material at issue clearly
describes named sexual practices21 and also describes features of
an excretory organ.22 The material, therefore, warrants further
scrutiny to determine whether or not it was patently offensive as
measured by contemporary community standards for the broadcast
medium.23
9. In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''24 Three principal factors
are significant to this contextual analysis: (1) the explicitness
or graphic nature of the description; (2) whether the material
dwells on or repeats at length descriptions of sexual or
excretory organs or activities; and (3) whether the material
appears to pander or is used to titillate or shock.25 In
examining these three factors, we must weigh and balance them to
determine whether the broadcast material is patently offensive
because ``[e]ach indecency case presents its own particular mix
of these, and possibly, other factors.''26 In particular cases,
one or two of the factors may outweigh the others, either
rendering the broadcast material patently offensive and
consequently indecent,27 or, alternatively, removing the
broadcast material from the realm of indecency.28 In this case,
we note that the complained-of material is similar to material
broadcast by the same station that we previously found to be
patently offensive as measured by contemporary community
standards for the broadcast medium.29 This finding was based
upon an examination of all three factors and a finding that each
weighed in favor of a determination that the broadcast material
was patently offensive. We find no reason to conclude that our
analysis of the three principal factors should yield a different
result with respect to the other material broadcast over Station
WKRK-FM that is at issue here.
10. First, contrary to Infinity's argument, in context,
the description of the sexual and excretory organs and activities
in the complained-of material is graphic and explicit. There are
descriptions of how specifically named sexual practices are
performed, including references to an oral sexual practice that
also involves excretory activity.30 To the extent that the
colloquial terms used, in part, to describe sexual activity
involved in one of the sexual practices could be described as
innuendo, they are nonetheless sufficient to render the material
actionably indecent because the sexual import of the reference
was ``unmistakable.''31 Given the detailed and explicit manner
in which the broadcast described the sexual and excretory organs
and activities, there is no non-sexual meaning that a listener
could possibly have attributed to the colloquial terms.32
11. Second, the broadcast contained repeated descriptions
of sexual and excretory organs and activities.33 Moreover,
contrary to Infinity's argument that some of the descriptions
used clinical terms,34 the overall context in which the material
was presented was used to pander, titillate and shock. The tone
of the material is vulgar and lewd, not clinical.
12. We also reject Infinity's contention that this material
cannot be found indecent because there are other cases
referencing topics such as masturbation, and anal and oral sex in
which no enforcement action was taken. In support of this
argument, Infinity cites two unpublished Enforcement Bureau staff
decisions, in which there were references to ``giving head''35
and ``finger banging your boyfriend.''36 However, the material
at issue here is more graphic and explicit than the language
cited from these complaints. Moreover, the use of the term
``finger banging'' was brief and fleeting, which is not the case
with the material at issue here.37 Infinity also cites material
at issue in an unpublished internal staff memorandum and
unpublished staff decisions where the Mass Media Bureau, the
predecessor to the Media Bureau, found that certain material was
not actionably indecent.38 To the extent that the staff may
have erred by determining that the material in those cases was
not indecent, these unpublished decisions are not binding on the
Commission.39 That is particularly the case here, where
published decisions, including those cited in the Commission's
Indecency Policy Statement, provide guidance indicating that
material such as that contained in this case is indecent.
13. Infinity argues that due to profound changes in social
mores, the range of acceptable topics and words for broadcast
discussion has changed dramatically, especially in light of
widespread media coverage of sex scandals involving President
Clinton and the Roman Catholic Church. Although contemporary
community standards may change over time, the material at issue
here is nevertheless patently offensive as measured by current
contemporary community standards for the broadcast medium and is
similar to other material that has been found to be patently
offensive. We thus reject Infinity's argument that the material
broadcast over Station WKRK-FM on July 26, 2001, is consistent
with contemporary community standards for the broadcast medium.
14. It is undisputed that the complained-of material was
broadcast within the 6 a.m. to 10 p.m. time frame relevant to an
indecency determination under section 73.3999 of the Commission's
rules. Thus, because there was a reasonable risk that children
may have been in the audience at the time that the material at
issue was broadcast on July 26, 2001, the material broadcast is
legally actionable.40 By broadcasting this material, Infinity
apparently violated the prohibitions in 18 U.S.C. § 1464 and the
Commission's rules against broadcast indecency.
B. Proposed Forfeiture
15. Based upon our review of the record in this case, we
conclude that Infinity is apparently liable for the willful
violation of our rules. The Commission's Forfeiture Policy
Statement sets a base forfeiture amount of $7,000 for
transmission of indecent or obscene materials.41 The Forfeiture
Policy Statement also specifies that the Commission shall adjust
a forfeiture based upon consideration of the factors enumerated
in section 503(b)(2)(D) of the Act, 47 U.S.C. § 503(b)(2)(D),
such as ``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.''42 In this case,
taking all of these factors into consideration, we find that an
upward adjustment of the forfeiture amount to the statutory
maximum of $27,500.00 is warranted. Infinity's recent history of
indecent or apparently indecent broadcasts justifies the upward
adjustment. We reiterate our previous statements that we may
sanction a broadcaster for apparent, repeated violations of the
indecency rules for separate utterances within one program43 and
that ``additional serious violations by Infinity may well lead to
a license revocation proceeding.''44
IV. ORDERING CLAUSES
16. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b)
of the Communications Act of 1934, as amended, and section 1.80
of the Commission's rules,45 that Infinity Broadcasting
Operations, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of Twenty-Seven Thousand Five Hundred
Dollars ($27,500.00) for willfully violating 18 U.S.C. § 1464 and
section 73.3999 of the Commission's rules.
17. IT IS FURTHER ORDERED, pursuant to section 1.80 of the
Commission's rules, that within thirty (30) days of the release
of this NAL, Infinity SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
18. 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. The payment MUST INCLUDE
the FCC Registration Number (``FRN'') referenced above and also
should note the NAL/Account Number referenced above.
19. The response, if any, must be mailed to William H.
Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W, Room 3-B443, Washington D.C. 20554 and MUST INCLUDE
the NAL/Acct. No. referenced above.
20. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the respondent submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the respondent's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
21. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.46
22. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If Infinity qualifies as a
small entity and if it wishes to be treated as a small entity for
tracking purposes, it should so certify to us within thirty (30)
days of this NAL, either in its response to the NAL or in a
separate filing to be sent to the Investigations and Hearings
Division. The certification should indicate whether Infinity,
including its parent entity and its subsidiaries, meet one of the
definitions set forth in the list provided by the FCC's Office of
Communications Business Opportunities (``OCBO'') set forth in
Attachment B of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Infinity's
response or failure to respond to this question will have no
effect on its rights and responsibilities pursuant to Section
503(b) of the Communications Act. If Infinity has questions
regarding any of the information contained in Attachment B, it
should contact OCBO at (202) 418-0990.
23. Accordingly, IT IS ORDERED, that the complaint filed
against Station WKRK-FM's broadcast of the ``Howard Stern Show''
on July 26, 2001, IS GRANTED to the extent indicated herein, AND
IS OTHERWISE DENIED, and the complaint proceeding IS HEREBY
TERMINATED.47
24. IT IS FURTHER ORDERED, that a copy of this NAL 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; to
Infinity's counsel, Steven A. Lerman, Esq., Dennis P. Corbett,
Esq., and David S. Keir, Esq., Leventhal, Senter and Lerman
P.L.L.C., 2000 K Street, N.W., Suite 600, Washington, D.C.
20006-1809, and to the complainant.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
ATTACHMENT A
Program Transcript
Radio Station: WKRK-FM, Detroit, MI
Date/Time of Broadcast: July 26, 2001, 6:30 a.m. to 7:30 a.m.
Material Broadcast: The Howard Stern Show
HS: Howard Stern
RQ: Robin Quivers
MV: Male Cast Member
HS: I said to Mark Wahlberg yesterday, had he ever gotten a
blumpkin from a girl and everyone around here is acting like they
don't know what it is.
RQ: You're the only nutcase who does.
MV: I said ``blumpkin'' on the ``Norm Show'' and the network
censor, we told him we just made the word up. He goes, ``that's
definitely not a real word right?'' We go, no,no,no. And I said
it, I yelled out at a hooker in a cab.
HS: What do you say to her, ``how about a blumpkin?''
MV: I go ``honey, how much for a blumpkin?''
HS: Right.
MV: And uh the network censor never heard of it. And he goes if
you just made it up it's fine but if it's a real thing we can't
have it. So it's aired, it's been on ABC, it's like the dirtiest
thing ever on television.
HS: Yeah, but nobody knows what it is. A blumpkin... I can
explain it cleanly.
RQ: There's nothing clean about a blumpkin.
HS: Well, a blumpkin is receiving oral sex while you're sitting
on a toilet bowl if you are a man. You're sitting on a toilet
bowl and uh, while you're evacuating you receive your oral.
RQ: Ick.
HS: And uh, then, what did I say yesterday too you didn't
understand? Balloon knot?
RQ: Yes, I don't know what that is. Somebody said to me ``is
that the funniest thing ever?'' and I was like ``what is that?''
HS: A balloon knot...
RQ: I didn't want to show my ignorance, I laughed too.
HS: A balloon knot... I'm gonna post these on a web site...
RQ: Yeah, we need a dictionary for this show.
HS: A balloon knot is when you bend over and I can see up right
up your old...
RQ: Up the wazoo?
HS: Up the wazoo and uh, you know that's a balloon knot that you
see. That's called a ``balloon knot.''
RQ: Really, I did not know that.
HS: Think about it, it looks like a balloon knot.
RQ: I don't know. Oh... you know what...
HS: Tie up a balloon.
RQ: I'm just thinking of a balloon knot...
MV: It all makes sense, Robin, come on.
HS: And uh, what else did I say? ``Nasty Sanchez,'' you didn't
know what that was.
RQ: Oh, I don't even want to know half the time what these
things are...
HS: That I'd have to post on the internet.
RQ: `Cause there've been a number of terms used lately. Would
you do... `cause KC's always blurtin' them out.
HS: ``Strawberry shortcake''
RQ: ``Strawberry shortcake'' I've never heard of. ``Dirty
Sanchez''
HS: ``Nasty Sanchez.''
RQ: What is the others KC?
MV: I heard a new one the other day. It was the ``David
Copperfield.''
HS/RQ: That's right.
MV: Okay, do you want to explain it, since I... When you're
goin' like a dog...
HS: Right.
MV: ...and you're about to finish and instead you don't finish,
you spit on her and then you turn around and when she turns her
face around then you go... So it's kind of like an illusion...
HS: Right.
MV: to David Copperfield.
RQ: Sleight of hand.
HS: Misdirection.
MV: Classic misdirection.
HS: You trick her. There's a million of them, but uh, I'll post
them on the web.
RQ: Yes, because people need to know. These aren't in the
regular dictionary.
*** ***
October 2002
ATTACHMENT B
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
DISSENTING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Infinity Broadcasting Operations Inc., licensee of WKRK-FM,
Detroit Michigan, Notice of Apparent Liability for Forfeiture
I dissent from the Commission's decision today to provide a
slap on the wrist rather than take serious action to address the
indecency on our airwaves. In this decision, the Commission
proposes a fine of $27,500 against this multi-billion dollar
media conglomerate.
I am troubled by several aspects of this decision that
demonstrate the Commission is not yet taking a strong stand
against indecency on the airwaves. First, the Commission fined
this very same station last year for airing some of the most
vulgar and disgusting material I have had the misfortune to
examine since I joined the Commission. In both that decision and
this Order, the Commission warned Infinity that additional
violations may well lead to the initiation of a license
revocation proceeding. Some may argue that the program at issue
today pre-dated the broadcast addressed last year, which only
serves to demonstrate the need to consider complaints in a more
timely manner. Moreover, the statute does not require notice to
begin a license revocation hearing.
Second, the Commission recently reaffirmed that its
indecency enforcement will address not only the station that is
the subject of a complaint, but also any other station that aired
the same programming. Yet here, the Commission proposes a fine
against only WKRK-FM in Detroit notwithstanding that this program
airs on numerous stations across the country.
The time has come for the Commission to send a message that
it is serious about enforcing its indecency rules.
CONCURRING STATEMENT OF
COMMISSIONER KEVIN J. MARTIN,
Re: Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK(FM), Detroit, MI, Notice of Apparent Liability for
Forfeiture
This Order emphasizes the importance of the Commissioner
responding to complaints in a more timely fashion. This is the
same licensee that we have previously fined for ``egregious''
indecency violations and warned against future violations.48
This broadcast, however, actually pre-dates the broadcast that
incurred those warnings.
STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Infinity Broadcasting Operations, Inc., Licensee
of Station WKRK-FM, Detroit, Michigan; Notice of
Apparent Liability for Forfeiture
I support this Notice of Apparent Liability for the
broadcast of indecent material at a time when children may be in
the audience. This NAL furthers our responsibility to enforce
statutory and regulatory provisions restricting broadcast
indecency. While this case predates another case in which this
station aired some of the most egregious broadcast indecency that
I have yet encountered, we impose the statutory maximum fine here
and remind broadcasters that the Commission can and will avail
itself of a range of enforcement sanctions. I am also concerned
that the Commission did not take more steps to address other
stations which likely aired the same programming.
Since I arrived at the Commission, we have greatly stepped
up our enforcement against indecent broadcasts. I expect that
these stepped-up actions will convince broadcasters that they
cannot ignore their responsibility to serve the public interest
and to avoid the broadcast of indecent material over the public
airwaves.
_________________________
1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
2 See 18 U.S.C. § 1464, 47 C.F.R. § 73.3999 and 47 U.S.C. §
503(b).
3 Letter from complainant to Federal Communications Commission,
dated October 11, 2001.
4 Letter from the Chief, Investigations and Hearings Division,
Enforcement Bureau, to Infinity Broadcasting Operations, Inc.,
dated June 3, 2003.
5 See Program Transcript, Attachment A.
6 See Letter from Steven A. Lerman, Dennis P. Corbett, and David
S. Keir, Counsel to Infinity Broadcasting Operations, Inc., to
the Investigations and Hearings Division, Enforcement Bureau,
dated July 17, 2003 (``Infinity Response''), at 5. As part of
its response, Infinity indicated that it did not know whether
other Infinity stations broadcast the language alleged by the
complainant. Because the only evidence in the record relates to
WKRK-FM, we limit our action here to that station.
7 Id. at 8-9.
8 See 47 U.S.C. § 326.
9 18 U.S.C. § 1464.
10 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also 47
U.S.C. § 503(b)(1)(D)(forfeitures for violation of 18 U.S.C. §
1464). Section 312(f)(1) of the Act defines willful as ``the
conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate'' the law. 47 U.S.C. §
312(f)(1). The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both
sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97th
Cong. 2d Sess. 51 (1982), and the Commission has so interpreted
the term in the section 503(b) context. See, e.g., Application
for Review of Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern
California Broadcasting Co.''). The Commission may also assess a
forfeiture for violations that are merely repeated, and not
willful. See, e.g., Callais Cablevision, Inc., Grand Isle,
Louisiana, Notice of Apparent Liability for Monetary Forfeiture,
16 FCC Rcd 1359 (2001) (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal
leakage). ``Repeated'' merely means that the act was committed
or omitted more than once, or lasts more than one day. Southern
California Broadcasting Co., 6 FCC Rcd at 4388, ¶ 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
11 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
12 See, e.g., SBC Communications, Inc., Apparent Liability for
Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
(forfeiture paid).
13 U.S. CONST., amend. I; See Action for Children's Television v.
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (``ACT I'').
14 Title 18 of the United States Code, section 1464 (18 U.S.C. §
1464), prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.'' FCC v.
Pacifica Foundation, 438 U.S. 726 (1978). See also ACT I, 852
F.2d at 1339; Action for Children's Television v. FCC, 932 F.2d
1504, 1508 (D.C. Cir. 1991), cert. denied, 503 U.S. 914 (1992)
(``ACT II''); Action for Children's Television v. FCC, 58 F. 3d
654 (D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996) (``ACT
III''). Moreover, we have previously rejected Infinity's
constitutional challenges of the Commission's indecency
definition. See, e.g., Infinity Broadcasting Operations,
Inc.(WKRK-FM), Apparent Liability for Forfeiture, Forfeiture
Order, 18 FCC Rcd 26360 (2003), recon. denied, Memorandum Opinion
and Order, FCC 04-34 (rel. Mar. 5, 2004) (rejecting argument the
indecency definition is vague and overbroad based upon Reno v.
ACLU, 521 U.S. 844 (1997) and rejecting argument that the
indecency definition is constitutionally invalid because no
causal link has been demonstrated between indecency and harm to
children based upon Ashcroft v. Free Speech Coalition, 122 S.Ct.
1389 (2002) a case invalidating provision of the Child
Pornography Prevention Act of 1996). We also reject Infinity's
citation to Interactive Digital Software Association v. St. Louis
County, Missouri, 329 F.3d 954 (8th Cir. 2003) in support of its
argument that no causal link has been established between
indecency and harm to children. This case invalidated an
ordinance prohibiting certain sales, rental and provision of
access to minors to graphically violent video games because there
was no support that there was a strong likelihood of harm to the
psychological well being of minors as a result of playing violent
video games.
15 ACT I, 852 F.2d at 1344 (``Broadcast material that is indecent
but not obscene is protected by the First Amendment; the FCC may
regulate such material only with due respect for the high value
our Constitution places on freedom and choice in what people may
say and hear.''). See id. at 1340 n.14 (`` . . . the potential
chilling effect of the FCC's generic definition of indecency will
be tempered by the Commission's restrained enforcement
policy.'').
16 Infinity Broadcasting Corporation of Pennsylvania, 2 FCC Rcd
2705 (1987)(subsequent history omitted), citing Pacifica
Foundation, 56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v.
Pacifica Foundation, 438 U.S. 726 (1978).
17 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,
8002, ¶¶ 7-8 (2001) (emphasis in original).
18 Infinity Response at 9-10.
19 Infinity Response at 10.
20 Id. Infinity claims that discussion of a ``blumpkin'' involves
only ``brief and non-descriptive references to sexual practices
that employ only clinical terms such as `evacuating' and `oral
sex.'''
21 See Program Transcript, Attachment A, at 9-10, describing a
``blumpkin'' and at 10-11, describing the ``David Copperfield.''
See also, note 30, infra.
22 See Program Transcript, Attachment A at 9-10, describing a
``balloon knot'' as the anal opening.
23 The ``contemporary standards for the broadcast medium''
criterion is that of an average broadcast listener and with
respect to Commission decisions, does not encompass any
particular geographic area. See Indecency Policy Statement at
8002, ¶ 8 and n. 15.
24 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9 (emphasis
in original).
25 Id. at 8002-15, ¶¶ 8-23.
26 Id. at 8003, ¶ 10.
27 Id. at 8009, ¶ 19 (citing Tempe Radio, Inc (KUPD-FM), 12 FCC
Rcd 21828 (MMB 1997) (forfeiture paid) (extremely graphic or
explicit nature of references to sex with children outweighed the
fleeting nature of the references); EZ New Orleans, Inc.
(WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997) (forfeiture paid) (same).
28 Id. at 8010, ¶ 20 (``the manner and purpose of a presentation
may well preclude an indecency determination even though other
factors, such as explicitness, might weigh in favor of an
indecency finding'').
29 See Infinity Broadcasting Operations, Inc., (WKRK-FM),
Apparent Liability for Forfeiture, Forfeiture Order, 18 FCC Rcd
26360 (2003), recon. denied, Memorandum Opinion and Order, FCC
04-34 (rel. Mar. 5, 2004) (broadcast on Station WKRK on January
9, 2002 during the ``Deminski & Doyle Show'' that ``described in
detail how specifically named sexual acts are performed'' and
that ``included explicit and graphic sexual references to anal
and oral sex, as well as explicit and graphic references to
sexual practices that involve excretory activities''). The
complained-of material at issue here was broadcast on an earlier
date, but includes similar descriptions of a ``blumpkin,'' and
the ``David Copperfield,'' sexual practices among those at issue
in the January 9, 2002, broadcast over Station WKRK-FM.
30 See Program Transcript, Attachment A at 9-11.
31 Indecency Policy Statement, 16 FCC Rcd at 8002-04, ¶¶ 9-12
(2001). See also, Emmis Radio License Corporation (WKQX(FM)),
Notice of Apparent Liability for Monetary Forfeiture, 17 FCC Rcd
5263 (EB 2002); Apparent Liability for Forfeiture, Forfeiture
Order, 17 FCC Rcd 21697 (EB 2002), recon. denied,, Memorandum
Opinion and Order, 19 FCC Rcd 2697 (EB 2004)(where innuendo's
``unmistakably sexual'' meanings and contexts were established by
lengthy surrounding discussion, the material was found to be
actionably indecent). In this regard, ``when you're goin' like a
dog...'' referred to the position employed during the ``David
Copperfield'' sexual practice. Program transcript, Attachment A
at 10.
32 See Sagittarius Broadcast Corporation, Memorandum Opinion and
Order, 7 FCC Rcd 6873, 6874 (1992) (subsequent history omitted).
33 See, e.g., Emmis Radio License Corporation (WKQX(FM)), Notice
of Apparent Liability for Monetary Forfeiture, 17 FCC Rcd 5263,
5266 ¶¶ 10-11; Forfeiture Order, 17 FCC Rcd at 21699 ¶ 9.
34 Infinity Response at 9-10.
35 See Infinity Response at 12 citing Letter from Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, dated April 22, 2002, EB-01-IH-0407.
36 See Infinity Response at 12 citing Letter from Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, dated February 12, 2002, EB-01-IH-0331.
37 Id. at 4-5.
38 See Memo from Thom Winkler to WIOD Complaint File, dated April
21, 1997, FCC Ref. No. 97010196; Letter from Norman Goldstein,
Chief, Complaints and Political Programming Branch, Enforcement
Division, Mass Media Bureau, dated May 15, 1997, FCC Ref. No.
94069521; Letter and Appendix from FCC Commissioner James H.
Quello to The Honorable Senator Alfonse M. D'Amato, dated April
29, 1994.
39 See, e.g., Amor Family Broadcasting Group v. FCC, 918 F. 2d
960, 962 (D.C. Cir. 1990), citing Homemakers North Shore, Inc. v.
Bowen, 832 F.2d 408, 413 (7th Cir. 1987). See also Lorenzo
Jelks v. FCC, 146 F.3d 878, 881 (D.C. Cir. 1998).
40 See ACT III, 58 F.3d at 660-63.
41 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied 15 FCC
Rcd 303 (1999) (``Forfeiture Policy Statement''); 47 C.F.R. §
1.80(b). The Commission amended its rules to increase the
maximum penalties to account for inflation since the last
adjustment of the penalty rates. The new rates apply to
violations that occur or continue after November 13, 2000. See
Order, In the Matter of Amendment of Section 1.80(b) of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 15 FCC Rcd 18221 (2000).
42 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, ¶ 27.
43 Infinity Broadcasting Operations, Inc., (WKRK-FM), Notice of
Apparent Liability for Monetary Forfeiture, 18 FCC Rcd 6915,
6918-19, ¶ 12 (2003), Apparent Liability for Forfeiture,
Forfeiture Order, 18 FCC 26360 (2003), recon. denied, Memorandum
Opinion and Order, FCC 04-34 (rel. Mar. 5, 2004).
44 Id. at 6919, ¶ 13. We note that the broadcast at issue here
took place prior to the release of the WKRK-FM NAL in which this
statement appeared.
45 47 C.F.R. § 1.80.
46 See 47 C.F.R. § 1.1914.
47 Consistent with section 503(b) of the Act and consistent
Commission practice, for the purposes of the forfeiture
proceeding initiated by this NAL, Infinity shall be the only
party to this proceeding.
48 Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK-FM, Detroit, Michigan, Notice of Apparent Liability, 18 FCC
Rcd. 6915, 6919 (2003).