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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. 99090433
)
Infinity Radio License, Inc. ) NAL/Acct. No.
2001320800008
) FRN: 0004-0367-11
Licensee of Station WLLD(FM), ) Facility ID #18527
Holmes Beach, Florida )
MEMORANDUM OPINION AND ORDER
Adopted: September 26, 2002 Released: September
27, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny the
petition for reconsideration filed April 2, 2001, by
Infinity Radio License, Inc. (``Infinity''), licensee of
Station WLLD(FM), Holmes Beach, Florida. Infinity seeks
reconsideration of a Forfeiture Order, which imposed a
$7,000 forfeiture for a willful violation of 18 U.S.C. §
1464 and 47 C.F.R. § 73.3999, which prohibit the broadcast
of indecent material. Infinity Radio License, Inc., 16 FCC
Rcd 4825 (Enforcement Bureau 2001) (``Forfeiture Order'')
2. Reconsideration is appropriate only where the
petitioner either shows a material error or omission in the
original order or raises additional facts not known or not
existing until after the petitioner's last opportunity to
present such matters. WWIZ, Inc., 37 FCC 685, 686 (1964),
aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C.
Cir. 1965), cert. denied, 383 U.S. 967 (1966); 47 C.F.R. §
1.106(c). A petition that simply reiterates arguments
previously considered and rejected will be denied. Id.;
Gaines, Bennett Gilbert, 8 FCC Rcd 3986 (Rev. Bd. 1993).
Review of Infinity's petition and the Forfeiture Order
reveals that the Forfeiture Order contains no material error
or omission and that the petition by and large repeats
arguments already considered and rejected. Accordingly,
denial is warranted. Nevertheless, we believe two of
Infinity's arguments merit a brief discussion.
3. Infinity observes that in February 2001, the Bureau
dismissed an indecency complaint submitted against WRLR(FM),
Homewood, Alabama. Infinity notes that Commissioner
Tristani objected to this dismissal because, inter alia, the
complainant heard the word ``pussy'' used in a ``foul'' and
``obscene'' manner.1 Infinity believes that the Forfeiture
Order's finding that WLLD(FM) aired indecent material and
merits a forfeiture results in prohibited disparate
treatment.2 We disagree. As discussed in the Forfeiture
Order, the cited material repeatedly referred to a sexual
activity (cunnilingus) in a patently offensive manner
through repeated use of the phrase ``eating pussy.'' In
this regard, we found that the offensive sexual references
were both explicit, graphic and not fleeting. By
comparison, the dismissed complaint against WRLR(FM)
provided no information which could reasonably support a
conclusion that the use of the word ``pussy'' rendered the
material at issue actionably indecent. Unlike the tape
recording of the material broadcast by WLLD(FM) (see
Attachment), the description of the material supposedly
broadcast by WRLR(FM) did not even show as a threshold
matter that the offending word was actually referring to a
sexual organ or was used in connection with the description
of a sexual activity. Accordingly, we reject the contention
that, because we dismissed the complaint against WRLR(FM),
we were likewise compelled to dismiss the complaint against
WLLD(FM).
4. We also disagree with Infinity that the Commission's
decision in WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and
WTOM-TV), 15 FCC Rcd 1838 (2000) warrants dismissal of the
complaint. There, although the material at issue (scenes of
full frontal nudity) clearly depicted sexual organs, its
context - the subject matter of the film (Schindler's List),
the manner of its presentation, and the warnings that
accompanied the broadcast of the film - rendered the
material not patently offensive as measured by contemporary
community standards for the broadcast medium. 15 FCC Rcd at
1542. With respect to the utterances broadcast by WLLD(FM),
Infinity does not point to (nor can we perceive) anything we
have not already considered about the context of the
material that would render it acceptable for the broadcast
medium. In this regard, we disagree with Infinity that the
contextual analysis in Flambo Broadcasting, Inc., 9 FCC Rcd
1681 (Mass Media Bureau 1994), shields the WLLD(FM)
broadcast. In Flambo, the Bureau addressed a complaint
alleging that two crude jokes concerning oral sexual
activities were indecent. The Bureau chose not to take
further action relative to the first joke because it could
not resolve a conflict as to what exactly was broadcast. In
this regard, the licensee contended that it cut off the
caller immediately after the offensive words were uttered.
Thus, assuming that the joke had been cut off, the Bureau
concluded that no violation occurred because the offensive
broadcast at issue was brief, live, unscripted and came from
an outside source. By comparison, there is no dispute as to
what WLLD(FM) broadcast, and, even though the material was
apparently unscripted, live and from one of the concert's
performers, it was hardly brief. In addition, as noted
above, the material was graphic, explicit and offensive.
5. Accordingly, IT IS ORDERED, pursuant to Section 405
of the Communications Act of 1934, as amended, 47 U.S.C. §
405, and Section 1.106 of the Commission's rules, 47 C.F.R.
§ 1.106, that the petition for reconsideration filed April
2, 2001, by Infinity Radio License, Inc. IS DENIED.
6. 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 Order. See
47 C.F.R. § 1.80(h). The payment MUST INCLUDE the FCC
Registration Number (FRN) referenced above, and also should
note the NAL/Acct. No. referenced above. If the forfeiture
is not paid within that time, the case may be referred to
the Department of Justice for collection pursuant to 47
U.S.C. § 504(a).
7. IT IS FURTHER ORDERED THAT a copy of this Order
shall be sent by Certified Mail Return Receipt Requested to
Stephen A. Hildebrandt, Vice President, Infinity Radio
License, Inc., 2000 K Street, N.W., Suite 725, Washington,
D.C. 20006 and to Steven A. Lerman, Esq., Leventhal, Senter & 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
ATTACHMENT
Radio Station: WLLD(FM), Holmes Beach, Florida
Date/Time Broadcast: September 11, 1999, between 6 p.m.
and 10 p.m.
Material Broadcast: ``The Last Damn Show'' (Comments before
a large crowd)
MV: Male Voice
MV: We ain't going to have no more feedback problem. Fuck
it. We're going to go all the way back where you all feel
(Unintelligible) mother fucking noise. (Unintelligible)
God damn, where are my pussy eating niggers? Any my niggers
into eating pussy? Y'all make some noise. Hey, where are
the girls? If you're eating pussy, where you at? That's
it. Oh, they all like it. I ain't eating no pussy tonight.
If you all don't like it, fuck it. I ain't going to beg
you. You like it? [Edit] And my dog don't give a fuck and
we'll fuck you sucking up coke, you know. Trying to explain
this shit away, niggers. I don't think y'all heard me.
_________________________
1 See February 13, 2001, ``Press Statement of FCC
Commissioner Gloria Tristani.''
2 See Melody Music, Inc. v. FCC, 345 F.2d 750 (D.C. Cir.
1965).