Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-00-IH-0401
)
Emmis FM License Corp. of Chicago ) NAL/Acct. No.
200132080029
) FRN: 0001-5293-87
Licensee of Station WKQX(FM), ) Facility ID #19525
Chicago, Illinois )
FORFEITURE ORDER
Adopted: January 7, 2002 Released: January 8,
2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we impose a forfeiture of
$14,000 on Emmis FM License Corp. of Chicago (``Emmis''),
licensee of Station WKQX(FM), Chicago, Illinois, for willful
and repeated violations of 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999. We take this action pursuant to 47 U.S.C. §
503(b)(1)(D) and 47 C.F.R. § 1.80(f)(4).
II. BACKGROUND
·
2. The Commission received letters dated March 20,
2000, and May 15, 2000, complaining about material aired on
Station WKQX(FM) on each of those dates during the ``Mancow
Morning Madhouse'' (``Mancow'') program. The March
complaint alleged that the station broadcast a conversation
between 8:13 a.m. and 8:16 a.m., which the complainant
deemed indecent. The May complaint alleged that the station
broadcast interviews between 7:45 a.m. and 8:00 a.m., which
the complainant believed indecent. After reviewing the
complaints, Enforcement Bureau (``Bureau'') staff issued a
letter of inquiry to Emmis, licensee of the station
involved. In its response to the staff's inquiry, Emmis
stated that it had neither a tape nor a transcript and could
not determine whether the alleged material actually aired.
Emmis does not deny that the material aired as stated in the
complaints.
3. On April 6, 2001, the Bureau issued a Notice of
Apparent Liability (``NAL''),1 which found that the material
apparently violated the Commission's indecency rule. To
redress the apparent rule violations, we concluded that a
monetary sanction in the base forfeiture amount of $7,000
appeared appropriate with respect to each broadcast.
Accordingly, the NAL proposed a forfeiture of $14,000.
4. Emmis challenges the NAL's findings. Emmis argues
that the factual record is inadequate because it lacks
objective evidence as to what was actually broadcast. Emmis
notes that the complaints do not include a tape or
transcript, and it contends that the information actually
provided can only be characterized as a summary or brief
description. Emmis argues that the complaint's descriptions
contain even less detail and context than the majority of
the segments appearing in the Commission's indecency
guidelines,2 which, as Emmis notes, the Commission
``intended only as a research tool'' and not as a
``meaningful selection of words and phrases to be evaluated
for indecency purposes without the fuller context that the
tapes or transcripts provide.'' Indecency Policy Statement,
supra, 16 FCC Rcd at 8003 ¶ 11. Emmis concludes that our
finding of apparent liability, based on the complainant's
characterizations, has effectively shifted the burden of
proof to the licensee, contrary to the Administrative
Procedure Act and due process. In light of the above, Emmis
requests cancellation of the forfeiture.
III. DISCUSSION
5. It is a violation of federal law to broadcast
obscene or indecent programming. Specifically, 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.'' Congress
has given the Federal Communications Commission the
responsibility for administratively enforcing 18 U.S.C. §
1464. In doing so, the Commission may, among other things,
impose a monetary forfeiture, pursuant to Section 503(b)(1)
of the Communications Act (the ``Act''), 47 U.S.C. §
503(b)(1), for broadcast of indecent material in violation
of 18 U.S.C. § 1464. Federal courts have upheld Congress's
authority to regulate obscene speech and, to a limited
extent, indecent speech. Specifically, the U.S. Supreme
Court has determined that obscene speech is not entitled to
First Amendment protection. Accordingly, Congress may
prohibit the broadcast of obscene speech at any time.3 In
contrast, federal courts have held that indecent speech is
protected by the First Amendment.4 Nonetheless, 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.5 However, the First Amendment is a critical
constitutional limitation that demands we proceed cautiously
and with appropriate restraint.6 Consistent with a
subsequent statute and case law,7 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.
6. In enforcing its indecency rule, the Commission has
defined indecent speech as
language that first, in context, depicts or describes sexual
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.8 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.9
7. The Commission's indecency enforcement is based on
complaints from the public. Once a complaint is before the
Commission, we evaluate the facts of the particular case and
apply the standards developed through Commission case law
and upheld by the courts. Indecency Policy Statement,
supra, 16 FCC Rcd at 8015, ¶ 24. ``Given the sensitive
nature of these cases and the critical role of context in an
indecency determination, it is important that the Commission
be afforded as full a record as possible to evaluate
allegations of indecent programming.'' Id. In evaluating
the record to determine whether the complained of material
is patently offensive, three factors 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, supra, 16 FCC Rcd at 8003 ¶ 10.
8. In the NAL, we found that the material allegedly
aired was apparently indecent. With respect to the March
20, 2000 broadcast, based on the uncontradicted facts set
forth in the complaint, the Mancow program featured a
telephone conversation with a porn star. The program talked
in graphic detail about ``fisting,'' which, according to the
complainant, the porn star described as a procedure by which
a female is sexually gratified by having an entire hand
inserted into her sexual organ. With respect to the May 15,
2000 broadcast, the Mancow program featured interviews with
three women about their sex lives. The interviewer asked
each woman (and each answered) whether she ``spit or
swallowed'' her partner's sperm. During the questions and
answers, the station played in the background sounds of
women moaning.
9. There is no question that the material broadcast
referred to sexual activities and that it aired between 6
a.m. and 10 p.m. As discussed below, the uncontradicted
excerpts and descriptions provided by the complainant lead
us to conclude that both broadcasts violated the
Commission's indecency rule.
10. March 20, 2000 broadcast. With respect to the key
factors set out in the Indecency Policy Statement, we
conclude that the language aired was sufficiently graphic or
explicit to meet the patently offensive standard. The
complainant's unchallenged assertions reflect that the
station aired a telephone conversation with a porn star;
that the show talked in graphic detail about ``fisting;''
and that the porn star described ``fisting'' as noted above.
The information provided makes plain that the activity
described left nothing to the imagination as to how the
people involved interacted and that the purpose of such
interaction was sexual gratification. With regard to the
second factor, we further conclude that we have sufficient
information to determine that the material broadcast dwelled
on the sexual activity identified as ``fisting'' as opposed
to being a mere fleeting reference. Again, the information
before us reveals that the activity was not merely adverted
to, but described in such detail that one knew exactly not
only what ``fisting'' was but what it was intended to do.
Finally, there is nothing in the record that suggests that
the context of the program was educational.10 Indeed, the
fact that a porn star was involved suggests that the
material was pandering, titillating and/or presented for
shock value. We thus conclude that Emmis' March 20, 2000
broadcast included indecent material in violation of our
rules. See Citicasters Co. (KEGL(FM)), 16 FCC Rcd 7546
(Enforcement Bureau 2001) (interviews with porn stars);
Citicasters Co. (KSJO(FM)), 15 FCC Rcd 19095, 19096
(Enforcement Bureau 2000); Regent Licensee of Flagstaff,
Inc. (KZGL(FM)), 15 FCC Rcd 17286 (Enforcement Bureau 2000).
11. May 15, 2000 broadcast. Again, the complainant's
assertions are unchallenged. They reflect that the station
broadcast interviews with three women about their sex lives.
The interviews included conversations about oral sex. The
interviewer asked each woman whether she ``spit or
swallowed'' her partner's sperm after engaging in oral sex.
During the segment in which the women were asked whether
they spit or swallowed, the station played sounds of women
moaning in the background. In light of the direct and plain
nature of the questions asked and answers provided, we
conclude that the material broadcast was sufficiently
graphic or explicit to meet the patently offensive standard.
Likewise, considering that the station posed the question
about spitting or swallowing to three different women, we
further conclude that the material was repeated and not
fleeting in nature. Finally, in light of the subject
matter, the specific question posed, and the accompanying
sound effects, we find that the material was meant to pander
or titillate. We thus conclude that Emmis' May 15, 2000
broadcast included indecent material in violation of our
rules. See Citicasters Co. (KEGL(FM)), supra (conversation
with female regarding her methods and frequency of
masturbation); Citicasters Co. (KSJO(FM)), supra.
12. As noted above, Emmis contends that the NAL is
based on an inadequate factual record because the
complainant did not, in either case, submit a tape,
transcript or significant excerpt. We disagree, finding
that the excerpts are significant enough, when viewed in
combination with the descriptions provided by the
complainant and the lack of contradiction by Emmis, to be
consistent with our practice. In any event, ``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.'' Infinity Broadcasting Corporation of Los
Angeles (KROQ-FM), 16 FCC Rcd 6867, 6870 ¶ 11 (Enforcement
Bureau 2001). We base our decision to investigate on
whether the complainant provided sufficient information for
us to determine that the station may have broadcast indecent
material contrary to the Commission's rule. We base our
decision to impose a forfeiture on whether the record as a
whole contains sufficient excerpts and description to
support a finding that a violation occurred. As explained
above, the complainant provided the dates and times of the
broadcasts, the call sign of the station, and sufficient
detail and context about what was broadcast to determine
that Emmis broadcast prohibited indecent material.11 Emmis
submitted no evidence to rebut the complainant's
allegations. We therefore reject Emmis' contention that the
record is inadequate. For the same reasons, we reject its
contention that our action is contrary to the Administrative
Procedure Act or due process. We have based our decision
on the information provided by both the complainant and
Emmis, a procedure that is consistent with 47 U.S.C. §
503(b) and 47 C.F.R. §1.80. Should Emmis choose not to pay
the forfeiture, 47 U.S.C. § 504 protects its rights by
providing that a forfeiture imposed without an evidentiary
hearing cannot be used to the prejudice of that entity
unless a court of competent jurisdiction has issued a final
order after a trial de novo requiring payment of the
forfeiture. See Infinity Broadcasting Corporation of Los
Angeles (KROQ-FM), supra, 16 FCC Rcd at 6869.
13. Section 503(b) of the Act and 47 C.F.R. § 1.80
both state that any person who willfully or repeatedly fails
to comply with the Act or the Commission's rules shall be
liable for a forfeiture penalty. For purposes of 47 U.S.C.
§ 503(b), the term ``willfully'' means that the violator
knew that it was taking the action in question, irrespective
of any intent to violate the Commission's rules, while
``repeatedly'' means more than once.12 In assessing a
forfeiture, we 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.13
14. The Commission's Forfeiture Guidelines set a base
forfeiture amount of $7,000 for transmission of
indecent/obscene materials.14 After considering all the
facts and circumstances, we conclude that the base
forfeiture amount is the appropriate sanction for each of
the two violations described above and that neither an
upward nor downward adjustment should be made.
IV. ORDERING CLAUSES
15. 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,
Emmis FM License Corp. of Chicago FORFEIT to the United
States the sum of fourteen thousand dollars ($14,000) for
willfully and repeatedly violating 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999.
16. 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. § 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).
17. IT IS FURTHER ORDERED THAT a copy of this
FORFEITURE ORDER shall be sent by Certified Mail Return
Receipt Requested to Emmis FM License Corp. of Chicago, c/o
Doyle L. Rose, President, Emmis Radio, 15821 Ventura Blvd.,
Suite 685, Encino, California
91436-29155; with a copy to John E. Fiorini, III, Esq.,
Wiley, Rein & Fielding, 1776 K Street, N.W., Washington,
D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Emmis FM License Corp. of Chicago, Notice of Apparent
Liability, 16 FCC Rcd 7829 (Enforcement Bureau 2001).
2 See Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 FCC Rcd 7999 (2001)
(``Indecency Policy Statement'').
3 See Miller v. California, 413 U.S. 15 (1973), rehearing
denied, 414 U.S. 881 (1973); Sable Communications of
California, Inc. v. FCC, 492 U.S. 115 (1989).
4 Sable Communications of California, Inc. v. FCC, supra
note 3, 492 U.S. at 126.
5 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'').
6 ACT I, supra note 5, 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).
7 Public Telecommunications Act of 1992, Pub. L. No. 356,
102nd Cong., 2nd Sess. (1992); ACT III, supra note 5.
8 In FCC v. Pacifica Foundation, the Court quoted the
Commission's definition of indecency with apparent approval.
FCC v. Pacifica Foundation, supra note 5, 438 U.S. at 732.
In addition, the D.C. Circuit Court of Appeals upheld the
definition against constitutional challenges. ACT I, supra
note 5, 852 F.2d at 1339; ACT II, supra note 5, 932 F.2d at
1508; ACT III, supra note 5, 58 F.3d at 657.
9 ACT III, supra note 5.
10 See Indecency Policy Statement, supra, 16 FCC Rcd at
8012 (Letter from Chief, Complaints and Investigations
Branch, Enforcement Division, Mass Media Bureau, to Gerald
P. McAtee, dated October 26, 1989, concerning the ``Geraldo
Rivera Show'' (Unlocking the Great Mysteries of Sex) on
KTVI-TV, St. Louis, Missouri).
11 See Infinity Broadcasting Corporation of Los Angeles
(KROQ-FM), supra, 16 FCC Rcd at 6868 (accepting a
complainant's uncontradicted statement that she heard
certain words as probative evidence that a particular
version of a song was played).
12 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
13 47 U.S.C. § 503(b)(2)(D). See also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC
Rcd 17087, 17100-01 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Guidelines'').
14 Forfeiture Guidelines, supra note 13, 12 FCC Rcd at
17113.