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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
Emmis Radio License Corporation ) File No. EB-01-IH-0315, EB-
) 01-IH-0357,
Licensee of Station WKQX(FM), ) EB-01-IH-0409
Chicago, Illinois ) Facility ID # 19525
)
)
MEMORANDUM OPINION AND ORDER
Adopted: August 1, 2002 Released: August
2, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we dismiss as
untimely David Edward Smith's request for reconsideration of
two decisions issued January 28, 2002 and January 29, 2002,
denying his indecency complaints against WKQX(FM), Chicago,
Illinois.1 In addition, we deny Mr. Smith's request for
reconsideration of a third decision issued February 5, 2002
denying his indecency complaint against WKQX(FM).
II. BACKGROUND
2. The Commission received three complaints from Mr.
Smith alleging that WKQX(FM) broadcast indecent material on
April 23, 2001, May, 2, 2001, May 10, 2001 between 8:00 a.m.
and 8:35 a.m. during the ``Mancow's Morning Madhouse''
(``Mancow'') program. Mr. Smith submitted tapes of the
Mancow program containing the allegedly indecent material
broadcast on these dates. WKQX(FM) broadcast on-air
discussions about ``Viacreme,'' a product that is designed
to improve a female's sexual response and performance. We
denied Mr. Smith's complaints, finding that the complained
of material is not patently offensive as measured by
contemporary community standards for the broadcast medium.
Mr. Smith filed a consolidated appeal of our denial of these
complaints, which Emmis opposed.2
3. January 2002 Letters. Mr. Smith had 30 days from
the dates of the January 2002 letters to request
reconsideration of those decisions. The 30-day period for
requesting reconsideration is a statutory requirement and is
set forth in Section 405 of the Communications Act of 1934,
as amended (the ``Act'').3 47 U.S.C. § 405. See also 47
C.F.R. § 1.106(f), which implements section 405 of the Act.
The Commission has consistently held that it has no
authority to waive or extend this statutory period, even for
as little as one day, absent extraordinary circumstances,
which Mr. Smith has not demonstrated.4 Because Mr. Smith's
request for reconsideration was filed on March 1, 2002, more
than 30 days from the dates of both the January 2002
letters, it is untimely and will be dismissed with respect
to the complaints denied in those decisions. However, Mr.
Smith's request for reconsideration of our February 5, 2002
letter was filed within the 30 day period for requesting
reconsideration, and we will address the merits of his
request with respect to the denial of his indecency
complaint for material that aired on April 23, 2001.
III. DISCUSSION
4. February 2002 Letter. As we noted in our February
5, 2002 decision, it is a violation of federal law to
broadcast obscene or indecent programming. See 18 U.S.C. §
1464. Congress has given the Federal Communications
Commission the responsibility for enforcing section 1464.
Although the federal courts have held that indecent speech
is protected by the First Amendment,5 the federal courts
consistently have upheld Congress's authority to regulate
the broadcast of indecent speech, as well as the
Commission's interpretation and implementation of the
statute.6 However, the First Amendment is a critical
constitutional limitation that demands we proceed cautiously
and with appropriate restraint.7 Consistent with a
subsequent statute and case law,8 under the Commission's
rules, no radio or television licensee shall broadcast
obscene material at any time, or broadcast indecent material
during the period 6 a.m. through 10 p.m. See 47 C.F.R. §
73.3999.
5. In enforcing its indecency rule, the Commission has
defined indecent speech as language that first, in context,
depicts or describes sexual or excretory organs or
activities. Second, the broadcast must be ``patently
offensive as measured by contemporary community standards
for the broadcast medium.'' 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)). This definition has been
specifically upheld by the federal courts.9 The
Commission's authority to restrict the broadcast of indecent
material extends to times when there is a reasonable risk
that children may be in the audience. ACT I, supra. As
noted above, current law holds that such times begin at 6
a.m. and conclude at 10 p.m.10
6. We evaluated Mr. Smith's complaint and applied the
standards developed through Commission case law and upheld
by the courts. See 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, 8015 ¶ 24 (2001).
Specifically, in determining whether the on-air discussion
of Viacreme was patently offensive, we considered the record
in light of three factors that are particularly relevant:
(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. See Indecency Policy Statement, 16 FCC
Rcd at 8003 ¶ 10. Based on this analysis, we concluded the
discussion of Viacreme was not patently offensive. In this
regard, we found that even though the sexual references
concerning the use of Viacreme were explicit and repeated,
in context, the presentation of this material was not
pandering and does not appear to have been used to titillate
or shock. The broadcast is similar to other material with
explicit sexual references that nevertheless were not
pandering or used to titillate or shock.11 Thus, we
determined that, in context, the on-air discussion of
Viacreme was not patently offensive as measured by
contemporary community standards.12
7. In seeking reconsideration, Mr. Smith challenges
our conclusion that the sexual references in the on-air
discussion of Viacreme, in context, were not pandering or
used to titillate or shock. Mr. Smith asserts that the
Mancow program is not about providing useful information,
but ``survives on its shock value, which is often pandering
and titillating.'' Moreover, in Mr. Smith's view, we
``refuse[d] to act because each broadcast was examined
individually, rather than being considered as part of the
larger and continued situation.'' In this regard, Mr. Smith
argues that we should consider ``the entire history and
context of the program's broadcasts in question.''
8. We find that Mr. Smith's arguments fail to
demonstrate any error of law or fact that would warrant
reconsideration. See 47 C.F.R. § 1.106(d). Any
consideration of government action against allegedly
indecent programming must take account of the fact that such
speech is protected under the First Amendment. Moreover, in
making indecency determinations, context is key. The
Commission evaluates the facts of a particular complaint
based upon the actual words and language used during the
broadcast. See Indecency Policy Statement. Thus, in
applying the indecency definition, we ascertain the meaning
and context of those words and language as used during the
broadcast, not other material broadcast on other occasions.
As the Supreme Court has emphasized, indecency
determinations must be confined to the specific facts of a
particular broadcast. FCC v. Pacifica Foundation, 438 U.S.
726, 742 (1978)(indecency must be evaluated in context, and
cannot be adequately judged in the abstract). Thus, Mr.
Smith's generalized contentions concerning the Mancow
program do not warrant reconsideration of our February 5,
2002 denial of his complaint.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to
Section 405 of the Communications Act of 1934, as amended,
(``Act'')13 and Section 1.106 of the Commission's Rules,14
the request for reconsideration filed March 1, 2002 by David
Edward Smith IS HEREBY DISMISSED as untimely with respect to
our January 28, 2002 and January 29, 2002 letters denying
his indecency complaints, File Nos. EB-01-IH-0409 and EB-01-
IH-0357.
10. IT IS FURTHER ORDERED that, pursuant to Section
405 of the Communications Act of 1934, as amended,
(``Act'')15 and Section 1.106 of the Commission's Rules,16
the request for reconsideration filed March 1, 2002 by David
Edward Smith IS HEREBY DENIED with respect to our February
5, 2002 letter denying his indecency complaint, File No. EB-
01-IH-0315.
11. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to David Edward Smith, 10940 S. Prospect Avenue, Chicago,
Illinois, 60643, to J. Scott Enright, Vice President,
Associate General Counsel and Assistant Secretary, Emmis
Radio License Corporation, 40 Monument Circle, Indianapolis,
Indiana 46204 and to Emmis's counsel, Eve J. Klindera,
Esq., Wiley Rein & Fielding LLP, 1776 K Street, N.W.,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Our January 28, 2002 letter denied Mr. Smith's
indecency complaint based on material aired on May 10,
2001. EB-01-IH-0409. Our January 29, 2002 letter denied
Mr. Smith's indecency complaint based on material that
aired May 2, 2001. EB-01-IH-0357. Our February 5, 2002
letter denied Mr. Smith's indecency complaint based on
material that aired April 23, 2001. EB-01-IH-0315.
2 Mr. Smith's pleading states that he is appealing the
denial of these three complaints and is directed to the
Investigations and Hearings Division of the Enforcement
Bureau, which issued the denials. For this reason, we will
treat his appeal as a petition for reconsideration. See 47
C.F.R. § 1.106(a)(1).
3 See 47 U.S.C. § 405, which requires a petition for
reconsideration to be filed within thirty days from the
date of public notice of the Commission's action. Here,
because our denial letters were not published in the
Federal Register, were not released to the public, and were
not announced in a public notice, the date appearing on the
letters is the date of public notice. See 47 C.F.R. §
1.4(b)(5).
4 The exception for ``extraordinary circumstances'' is
a narrow one, and applies when the Commission fails to
follow its procedural rules for providing notice of its
decision. See Gardner v. FCC, 530 F.2d 1086, 1091 (D.C. Cir
1976). Mr. Smith did not allege that there was defective
notice that made it reasonably impossible for him to meet
the filing deadline for requesting reconsideration with
respect to the January 2002 decisions. See, e.g., Adelphia
Communications Corporation, 12 FCC Rcd 10759, 10760 note 9
(1997), citing Gardner, 530 F.2d at 1091-92 note 24.
5 Sable Communications of California, Inc. v. FCC, 492
U.S. 115 (1989).
6 FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
See also Action for Children's Television v. FCC, 852 F.2d
1332, 1339 (D.C. Cir. 1988) (``ACT I''); Action for
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C.
Cir. 1991), cert denied, 112 S.Ct. 1282 (1992) (``ACT
II''); Action for Children's Television v. FCC, 58 F.3d 654
(D.C. Cir. 1995), cert denied, 116 S.Ct. 701 (1996) (``ACT
III'').
7 ACT I, supra note 6, 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 say and
hear.''). See also United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 813-15 (2000).
8 Public Telecommunications Act of 1992, Pub. L. No.
356, 102nd Cong., 2nd Sess. (1992); ACT III, supra note 6.
9 In FCC v. Pacifica Foundation, supra, the Court
quoted the Commission's definition of indecency with
apparent approval. FCC v. Pacifica Foundation, supra, 438
U.S. at 732. In addition, the D.C. Circuit Court of
Appeals upheld the definition against constitutional
challenges. ACT I, supra note 6, 852 F.2d at 1339; ACT II,
supra note 6, 932 F.2d at 1508; ACT III, supra note 6, 58
F.3d at 657.
10 ACT III, supra note 6.
11 Compare Indecency Policy Statement 16 FCC Rcd at
8011-12, and cases cited therein with Citicasters Co., 15
FCC Rcd 19095 (EB 2000)(forfeiture paid)(discussion of
sexual techniques lead by sex therapist, which included
comments such as ``oh yeah, baby'' is pandering and
titillating and therefore patently offensive).
12 We also found that the program's introduction
contains fleeting and isolated remarks that do not warrant
Commission sanction, particularly in light of the overall
context of the on-air discussion of Viacreme which
followed. See, e.g., L.M. Communications of South Carolina,
Inc.(WYBB(FM)), 7 FCC Rcd 1595 (MMB 1992).
13 47 U.S.C. § 405.
14 47 C.F.R. § 1.106.
15 47 U.S.C. § 405.
16 47 C.F.R. § 1.106.