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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Infinity Broadcasting ) Control No. 97050319
Corporation of Los Angeles ) NAL/Acct. No. 818ed0017
)
Licensee of Station KROQ-FM )
Pasadena, California )
Facility ID # 28622 )
MEMORANDUM OPINION AND ORDER
Adopted: March 20, 2001 Released: March 22, 2001
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, we deny a
petition for reconsideration filed on July 13, 2000, by Infinity
Broadcasting Corporation of Los Angeles (``Infinity''), licensee
of Station KROQ(FM), Los Angeles, California. Infinity seeks
reconsideration of a Forfeiture Order1 which issued a monetary
forfeiture in the amount of two thousand dollars ($2,000) against
Infinity for willful violation of 18 U.S.C. § 1464, which
prohibits the broadcast of indecent material.
I. BACKGROUND
2. On August 24, 1998, the Mass Media Bureau, by delegated
authority, issued a Notice of Apparent Liability for Forfeiture
to Infinity in the amount of two thousand dollars ($2,000), for
the broadcast of indecent material. Infinity Broadcasting
Corporation of Los Angeles (KROQ-FM), 13 FCC Rcd 25349 (Mass
Media Bur. 1998) (``NAL''). Specifically, the Mass Media Bureau
found that the broadcast of ``You Suck'' by the group
Consolidated on March 28, 1997, at approximately 9:10 p.m.,
violated 18 U.S.C. § 1464. Infinity filed a response to the NAL
on September 23, 1998. Thereafter, in the Forfeiture Order, we
found, after considering the licensee's response, that the
issuance of the proposed forfeiture was warranted.
3. In its response to the NAL, Infinity admitted that a
version of the ``You Suck'' song was aired at approximately 9:10
p.m. on March 28, 1997. It asserted that Station KROQ-FM
possessed at least two versions of the song, one of which
Infinity contended does not contain any indecent material. One of
the versions possessed by KROQ(FM) was the original version, a
transcript of which is attached to the NAL. A second version was
made by the station because an announcer ``thought the unedited
version was not acceptable for broadcast.'' Infinity asserted
that it was unable to determine which version of the song was
aired. In support of its position, Infinity filed an affidavit
from a station announcer who admitted that he played some version
of the ``You Suck'' song on the day in question. The announcer
stated that he did not recall which version of the recording he
aired and that he did not actually listen to the entire recording
when it aired. The announcer and the station's General Manager
also indicated that it was their opinion that numerous complaints
would have been forthcoming if the unedited version had been
played. However, they stated, no complaints other than that of
the complainant were received. Further, Infinity states that the
station does not retain copies of its broadcasts. The record
reflects that the difference between the versions consists of the
deletion of the words ``pubic,'' ``dick,'' ``pussy,'' and
``clit'' in the edited version. The licensee did not dispute the
finding of the NAL that the unedited version of the song would be
indecent.
4. Because the Mass Media Bureau did not have a tape or
transcript of the actual broadcast, on April 1, 1998, before it
issued the NAL, it sent a letter to the complainant with a copy
of the edited version of the ``You Suck'' song. The Mass Media
Bureau asked the complainant to confirm whether she heard the
edited version or the version on the CD that was submitted with
her complaint (the original unedited version). The Mass Media
Bureau also asked her to explain the basis of her belief as to
which version she heard broadcast on Station KROQ-FM. The
complainant responded by a signed written statement indicating
that she recalled hearing the words ``pubic,'' ``dick,''
``pussy,'' and ``clit'' in the broadcast she heard, none of which
were contained in the edited version of the song provided by
Infinity. The complainant's response was not referenced in the
NAL and the licensee was not asked to comment on it. It was
first discussed in the Forfeiture Order.
5. In its petition for reconsideration, the licensee
argues that it was denied due process because the NAL was issued
on the basis of information supplied by the complainant that was
not disclosed to the licensee until after the issuance of the
Forfeiture Order, thereby depriving it of the opportunity to
rebut the additional evidence. It contends that the Forfeiture
Order erred in relying on the untested recollection of an
individual whose character, demeanor, memory, and motivation are
unknown. It further urges that the Forfeiture Order improperly
ignored the countervailing evidence proffered by it. Infinity
also reiterates its contention advanced in response to the NAL
that no forfeiture is appropriate because no tape, transcript or
significant excerpt of the song as actually broadcast by KROQ(FM)
was provided, as, it contends, is required by Commission policy.
The licensee argues that a tape, transcript or significant
excerpt is a requirement to protect licensees against
unsubstantiated or spurious indecency complaints. It also
characterizes the action here as reflecting a new policy insofar
as it dispenses with the tape, transcript, or significant excerpt
requirement. It therefore urges that at most a warning, and not
a forfeiture, is warranted, citing Infinity Broadcasting
Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987). In that
case, the Commission found actionable indecency, but issued only
a warning because prior rulings might have suggested that it had
a different view of what would be considered indecent.
II. DISCUSSION
6. First, we will address the licensee's arguments
pertaining to the complainant's supplemental response indicating
that she heard the unedited version of the song because the
licensee was unaware of this fact prior to the Forfeiture Order.
Given that we will now fully consider the licensee's comments
concerning this matter, the question as to whether it was denied
due process by virtue of the failure to elicit its comments at an
earlier stage of this proceeding is moot.
7. The licensee does not submit any new evidence in light
of the complainant's statement. It rather contends that we
should not accord it any evidentiary significance because of the
untested nature of the complainant's claim. However, it is
undisputed that the licensee had both the edited and the unedited
versions of the song. It is also uncontested that the
distinction between the versions is the inclusion in the unedited
version of the words ``pubic,'' ``dick,'' ``pussy,'' and
``clit.'' In the circumstances of this case, the complainant's
uncontradicted statement that she in fact heard those words in
the song broadcast is probative evidence that the unedited
version was broadcast. The circumstances here are unlike those
in Mr. Steve Bridges, 9 FCC Rcd 1681 (Mass Media Bur. 1994),
relied upon by Infinity. That case involved a brief, live and
unscripted comment by a caller. The complainant provided a
transcript, but not a tape, of the alleged broadcast. The
licensee contended that the entire transcript had not been
broadcast, which was not contradicted. Under the circumstances
of that case, the Mass Media Bureau found that the evidence was
insufficient to determine the precise nature of the caller's
arguably indecent remark. Here there are two versions of the
song distinguished by the presence or absence of the pertinent
words. We believe that the complainant's recollection that she
heard those words provides sufficient probative evidence to
conclude that the unedited version of the song was broadcast,
particularly in the absence of any evidence to the contrary.
8. It is, of course, true that the complainant's statement
is ``untested,'' in that no evidentiary hearing has been held.
However, the Communications Act of 1934, as amended (``Act'')
permits the imposition of a forfeiture without an evidentiary
hearing.2 The Act also protects the rights of parties subject
to a forfeiture assessed without a hearing by providing that such
a forfeiture cannot be used to the prejudice of the party unless
it is paid or a court of competent jurisdiction has issued a
final order after a trial de novo requiring that the forfeiture
be paid.3
9. We also find that the licensee has offered no evidence
contradicting the complainant's statement. It relies principally
on its ignorance as to which version of the song was broadcast.
However, the licensee's ignorance as to what was broadcast on its
station does not constitute evidence that the station in fact
broadcast the edited version. Moreover, the station was aware of
the inappropriate nature of the unedited version of the song.
Indeed, that is why an edited version existed. Given this fact,
the licensee should have taken precautions to ensure that the
version of the song that the licensee itself recognized to be
inappropriate was not inadvertently broadcast. A licensee is
ultimately responsible for the programming of its station. Mr.
Steve Bridges, supra; Trustees of the University of Pennsylvania,
69 FCC 2d 1394, 1397 (1978). Under these circumstances, it
would be particularly inappropriate to accord evidentiary weight
to the licensee's ignorance that was the product of its failure
to take precautions to prevent the inadvertent broadcast of the
unedited version of the song, let alone to give the licensee's
ignorance greater weight than the signed statement of a listener.
10. The licensee further relies upon the opinions of
station personnel that there likely would have been multiple
complaints if the station had aired the unedited version.
However, we find this claim to be speculative, especially since
the station personnel do not explain the basis for their
opinions. Accordingly, we do not find that this argument amounts
to evidence contradicting the complainant's recollection.
11. Finally, we disagree with the licensee's contention
that, by not requiring a tape, transcript or significant excerpt,
the Forfeiture Order creates new policy that makes the assessment
of a forfeiture inappropriate. First, we note that the case law
cited by the licensee stated that the Commission would ordinarily
require a complainant to provide a tape, transcript or
significant excerpts of the programming.4 The complainant
substantially complied with this procedure. Specifically, the
complainant provided a copy of the unedited version of the CD
including the language that she alleged to have heard during the
broadcast. The complainant's submission constituted a
``significant excerpt'' of the programming that she alleged to be
indecent, albeit not one that she transcribed herself. This,
along with the date and time of the broadcast and the call sign
of the station in question, provided a sufficient basis for
identifying a violation of the indecency prohibition. In any
event, we note that our practice that complainants provide a
tape, transcript or significant excerpt is not a requirement, but
a general practice used by the Commission to assist in the
evaluation of indecency complaints.
12. We have fully considered Infinity's contentions
concerning the complainant's statement confirming her
recollection as to the version of the song she heard. However,
we do not find that the licensee has raised any new matter, or
demonstrated any material error or omission, that warrants
modification of the result reached in the Forfeiture Order.
Therefore, we will deny its petition for reconsideration.
III. ORDERING CLAUSES
13. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
405 of the Act5 and Section 1.106 of the Rules,6 Infinity
Broadcasting Corporation of Los Angeles' petition for
reconsideration IS DENIED.
14. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules7 within thirty (30)
days of the release of this Order. If the forfeiture is not paid
within the specified period, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.8 Payment may be made 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
NAL/Acct. No. 818ed0017. Requests for full payment under an
installment plan should be sent to: Chief, Credit and Debt
Management Center, 445 12th Street, S.W., Washington, D.C.
20554.9
15. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail, return receipt requested, to counsel
for Infinithy., Steven A. Lerman, Esq., Leventhal, Senter and
Lerman, P.L.L.C., 2000 K Street, N.W., Suite 600, Washington,
D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Infinity Broadcasting Corporation of Los Angeles, 15 FCC
Rcd 10667 (Enf. Bur. 2000).
2 Section 503(b) of the Act, 47 U.S.C. § 503(b).
3 Section 504(a) and (c) of the Act, 47 U.S.C. § 504(a) and
(c).
4 See Infinity Broadcasting Corporation of Pennsylvania, 3
FCC Rcd 930, 938 n. 49 (1987).
5 47 U.S.C. § 405.
6 47 C.F.R. § 1.106.
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 504(a).
9 See 47 C.F.R. § 1.1914.