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1. Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
Emmis Radio License Corporation ) File Nos. EB-01-IH-0124, EB-
) 01-IH-0319, and EB-01-IH-
Licensee of Station WKQX(FM), ) 0408
Chicago, Illinois ) NAL/Acct. No. 200232080008
) FRN 0001-5293-46
) Facility ID # 19525
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 20, 2002 Released: March 21, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Emmis Radio License Corporation
(``Emmis''), licensee of Station WKQX(FM), Chicago, Illinois,
apparently violated 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999, by
willfully and repeatedly broadcasting indecent language on three
occasions. See Attachment. Based upon our review of the facts
and circumstances in this case, we conclude that Emmis is
apparently liable for a forfeiture in the amount of twenty-one
thousand dollars ($21,000).
II. BACKGROUND
2. The Commission received complaints that WKQX(FM)
broadcast indecent material on March 6, 2001, March 7, 2001 and
May 17, 2001 between 8:00 a.m. and 9:00 a.m. during the
``Mancow's Morning Madhouse'' (``Mancow'') program. The
complainant submitted a tape of each of the Mancow programs
containing the allegedly indecent material. After reviewing the
complainant's tapes, we issued letters of inquiry to the licensee
that included transcripts of the tapes submitted by the
complainant. See Attachment.1
3. In its response, Emmis states that WKQX(FM) does not
routinely archive tapes or transcripts of its broadcasts and did
not retain tapes or transcripts of the programming aired on the
dates cited in these complaints. Accordingly, Emmis states that
it cannot verify the accuracy of the transcripts. Nevertheless,
Emmis argues that even assuming the accuracy of the transcripts,
the programming at issue is not actionably indecent.
Specifically, Emmis contends that the material broadcast is not
patently offensive as measured by contemporary community
standards for the broadcast medium.
III. DISCUSSION
4. 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.2 In contrast, federal
courts have held that indecent speech is protected by the First
Amendment.3 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.4 However, the First Amendment is
a critical constitutional limitation that demands we proceed
cautiously and with appropriate restraint.5 Consistent with a
subsequent statute and case law,6 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.7 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.8
6. 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. 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 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.
7. The material in each of these three complaints, in
context, refers to sexual organs and activity, and thus warrants
scrutiny. See Attachment. We find that the material, in
context, is patently offensive when considered under the three
factors set out in the Indecency Policy Statement.
8. The first key factor concerns whether the material is
explicit or graphic. The March 7, 2001 broadcast concerns the
use of a sexual stimulant by a female cast member as well as her
appearance in a video, and includes explicit and graphic
references to sexual organs and activities. This material is
similar to other material with graphic and explicit sexual
references that has been found indecent.9 The material broadcast
on March 6, 2001 is a discussion of sexual and excretory
responses to viewing pornography and contains sexual references
that rely on innuendo. Likewise, the sexual references in the
material broadcast on May 17, 2001 - a discussion by a female
cast member and a number of women guests in the ``lava lamp love
lounge''- relies in part on innuendo. Emmis argues that because
the March 6 broadcast relies on innuendo, the sexual import of
the material is ``not even immediately apparent.'' Emmis also
argues that this material is vague and oblique and therefore less
explicit than broadcasts in which no enforcement action was
taken.10
9. We disagree with Emmis' arguments. Although material
that is more graphic is generally more likely to be found
indecent, the context in which material is offered is essential
to making a determination as to whether material is indecent. The
Commission has repeatedly held that ``innuendo may be patently
offensive within the meaning of our indecency definition if it is
understandable and clearly capable of a specific sexual or
excretory meaning, which, in context, is inescapable.''11 The
material broadcast on WKQX(FM) on March 6, 2001 and May 17, 2001,
in context, has a sexual meaning that is unmistakable and is
similar to other material found to have clearly understandable
sexual references.12
10. The second key factor is whether there is repetition of
and persistent focus on the sexual references. The complained of
material broadcast on March 6, 2001 dwells on sexual innuendo,
including references to oral sex, male and female genitalia,
masturbation, ejaculation, and excretory activities. Contrary to
Emmis' argument, material with an unmistakable sexual meaning can
be evaluated under this factor even if the sexual descriptions
are based upon innuendo.13 Emmis also argues that the excerpt in
the transcript of the March 6, 2001 broadcast represents between
30 and 45 seconds of on-air discussion during the 20-minute time
period cited in the complaint. However, the sexual references in
the excerpt are not fleeting and the excerpt itself provides
sufficient context to determine whether it is patently offensive.
Under these circumstances, the fact that the excerpt cited on
March 6, 2001 is a segment of a longer program is not
decisionally significant.14
11. Under the second key factor, the March 7, 2001
broadcast dwells at length on sexual activity, especially with
respect to the female cast member's use of a sexual stimulant and
its effect on her. Moreover, the material at issue in the May 17,
2001 complaint dwells on and repeats at length descriptions of
male and female genitalia, masturbation, penis size and the taste
of semen.
12. The inquiry under the third key factor of the Indecency
Policy Statement is whether the material appears to pander, or is
used to titillate or shock. The complained of material broadcast
on March 6, 2001, in context, appears to have been used to pander
to and titillate or shock the audience and is similar to other
material that has been found to be patently offensive.15 The
tone of the complained of material broadcast on March 7, 2001 is
lewd, and also appears to be used to pander to and titillate or
shock.16
13. With respect to the analysis of the complained of
material on May 17, 2001 under the third factor, Emmis cites
warnings included in the broadcast about the material, i.e.,
``[the Mancow program] is a show done by adults for adults,'' and
warning those who are easily offended to ``please turn off the
radio.'' Emmis argues that the presence of such warnings was
found to be significant in other indecency cases. However, the
cases cited by Emmis involved sexual references and the repeated
use of expletives that were not used to pander to, to shock or to
titillate.17 Despite the warnings, the material broadcast on
WKQX(FM), in context, appears to have been used to pander to and
titillate or shock the audience and is similar to other material
that has been found to be patently offensive.18 The presence of
the warnings, considering the overall context of the broadcast,
is not a sufficient basis on which to conclude that the sexual
references are not patently offensive.19
14. Moreover, we reject Emmis's argument that the material
broadcast on the Mancow program on the three dates cited in the
complaints is not patently offensive as measured by contemporary
community standards. In this regard, Emmis contends that ``WKQX
has been airing Mancow's Morning Madhouse'' since July of 1998,
and had received no inquiries from the Commission concerning the
program's content until late last year.'' Emmis also speculates
that the complaints about the Mancow program, including the
complaints at issue here, were initiated by a single individual
or group whose standards do not accurately reflect those of the
national community as a whole. The identity of the complainant
and whether the complainant is the source of other complaints
about the Mancow program is not material to our determination
under the factors set out in the Indecency Policy Statement. The
purpose of using ``contemporary community standards'' is to
ensure that material is not judged by its effect on a
particularly sensitive or insensitive person or group.20 In this
regard, looking to a national community standard that references
the average broadcast listener, we find that the material
broadcast on WKQX(FM), in context, is patently offensive.21 Emmis
does not dispute that the complained of material was broadcast
when there was a reasonable risk that children may have been in
the audience. By broadcasting this material on three separate
occasions - on March 6, 2001, March 7, 2001, and May 17, 2001-
WKQX(FM) apparently violated the prohibitions against broadcast
indecency.
15. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
section 1.80(a) of the Commission's rules, 47 C.F.R § 1.80, both
state that any person who willfully or repeatedly fails to comply
with the provisions of the Act or the rules shall be liable for a
forfeiture penalty. For purposes of section 503(b) of the Act,
the term ``willful'' means that the violator knew it was taking
the action in question, irrespective of any intent to violate the
Commission's rules., and ``repeatedly'' means more than once.22
Based on the material before us, it appears that Emmis willfully
and repeatedly violated 18 U.S.C. § 1464 and section 73.3999 of
the Commission's rules, by airing indecent programming on
WKQX(FM) on March 6, 2001, March 7, 2001 and March 17, 2001.
16. The Commission's Forfeiture Policy Statement sets a
base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.23 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.''24 After reviewing all of the
circumstances, we believe a $21,000 forfeiture is appropriate in
this case for the apparent broadcast of indecent material on
three separate occasions.
IV. ORDERING CLAUSES
17. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b)
of the Communications Act of 1934, as amended, and Sections
0.111, 0.311, and 1.80 of the Commission's rules,25 that Emmis
Radio License Corporation is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of twenty-one thousand
dollars ($21,000) for willfully and repeatedly violating 18
U.S.C. § 1464 and section 73.3999 of the Commission's rules.
18. IT IS FURTHER ORDERED, pursuant to section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, Emmis SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
19. 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/Acct. No. referenced above.
20. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W,
Room 3-B443, Washington DC 20554 and MUST INCLUDE the NAL/Acct.
No. referenced above.
21. 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.
22. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.26
23. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, 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
ATTACHMENT
EB-01-IH-0319
Radio Station: WKQX(FM), Chicago, Illinois
Date/Time Broadcast: March 6, 2001, between 8:05 a.m and 8:25
a.m.
Material Broadcast: Mancow's Morning Madhouse
The Yelling Guy (Y)
Y: Hey this is Anger Anderson, the yelling guy and I want to
talk about how my spunk-a-thons are always killed by manly mugs.
When I flog my beef stick while watching some pink in a porno, I
don't wanna see some guy's face, seriously people am I right?
Guys in pornos are butt ugly, and right when I'm ready to shoot
airborne like number 23 in his heyday, I gotta see some porno
dude's face. God, the guys in pornos look like they want to kill
these broads. Their faces are so contorted they look like they
just smelled a fart, you know the kind of fart right after you've
eaten chimichangas, and right before you take a big sh-(beep to
cover the word ``shit''). Focus on the girl, I don't want to see
shaved porno guy luggage either. Show me the pink and all the
porno guys are just dripping sweat. Hell, I don't like to work
that hard when I box-bang. Oh, also I don't like those endless
shots of girls smoking pole. It makes me feel like a homo, get
to the sex and keep the camera on the pink, Spielberg.
*** *** ***
EB-01-IH-0124
Radio Station: WKQX(FM), Chicago, Illinois
Date/Time Broadcast: March 7, 2001, between 8:00 a.m and 8:46
a.m.
Material Broadcast: Mancow's Morning Madhouse
M: Mancow
FV1: Female Guest
FV2: Female Cast Member
MV1: First Male Cast Member
MV2: Second Male Cast Member
*** *** ***
M: Alright listen. Yeah, that's right. Yeah. I see his point.
Let's go to Laurie. Laurie, Hello.
FV1: How are you?
M: Hi Laurie. Is this stuff legal?
FV1: Yes it is.
M: Okay. Here's what I want you to do.
FV1: Yeah.
M: Not you, Laurie. Prison Bitch (First Male Cast Member) I
want you to go over there and I want you just to rub, rub
her bottom.
MV1 : Alright.
FV2: Oh no, oh my gosh.
MV2: How does he get the good jobs here?
M: Is it okay? Does he have permission to rub your bottom?
FV2: Yeah. I suppose he has permission. Woah.
MV2: All those months of smelling your finger it's finally
paid off for you.
MV1: Which hand?
M: Okay. Use both hands. Just stand behind her and just kind
of rub her a little. How many of these bottles have you
had?
FV2: I've had two. Woah. Oh my gosh.
M: Is it like ecstasy? Have you done ``ex'' before?
FV2: Mancow, I've never done ex before but...
M: Now be serious.
FV2: I'm feeling this constant rush.
M: Okay.
FV2: Honestly.
M: Well, is it possible that it is just packed with caffeine?
What are you doing? Rub her ass.
MV1: I'm rubbing.
[Background laughter]
FV2: He is rubbing.
MV2: He's doin' it. He is doin' it.
FV2: [Laughing]. Oh my gosh...
M: And you don't stop. By the way that's the greatest... Do
you want me to show you how to rub it?
MV2: He's rubbing her ass like it's his husband Robert in front
of him.
MV1: Yeah.
M: Yeah they're in the prison cell, Prison Bitch. Yeah.
[FV2 laughing]
FV2: No, but seriously this really works. I'm feeling
Duncan Hines right now.
M: Now wait, you're feeling wet and gooey?
FV2: Yes.
M: Is it possible...
FV2: Yeah.
M: Is it possible that it's psychosomatic? Well let me tell
you the drink is called ``Niagra.'' We've heard a lot about
this and uh other women have told me that it works. What
are you doing?
FV2: [laughing such that what she is saying is
unintelligible].
MV2: He's rubbing her butt.
M: Don't stop, don't stop dude.
FV2: Really I think that I have to go home and take care of
this problem right now.
M: Can he rub up front a little bit?
FV2: [laughing] I don't know about that.
M: Listen. Listen. Let me say something to you. Hey little
girl...
MV2: That doesn't sound like a ``no'' to me.
M: You can see what she looks like at Mancow.com. Can I just
say something to you little girl?
FV2: Yeah Mancow.
M: Don't think it's the ugly big nosed dork behind you. Just
imagine it's me right there.
FV2: Okay. Why can't it be you?
M: Close your eyes.
FV2: Okay.
M: When was the last time that you had some action?
FV2: Um, actually last night, Mancow. Um my a boyfriend -
I'm not very sexually experienced you know- and my
boyfriend, he wanted to get me up to two fingers but I was
kind of reluctant. And um he did it. And uh it was
incredible. But um I had some of this Niagra stuff and I
was pretty moist and um...
M: Okay. All right, all right. You must have just gotten out
of the shower. Your whole body was wet.
FV2: Right.
M: Seriously, do you really think it's real or is it
psychosomatic?
FV2: No, Mancow.
M: How nice is that ass?
MV2: That's a nice ass.
MV1: Okay, wait a minute. Look, look...
[Laughter]
M: He's got a woody. He's got a woody. Prison Bitch has a
woody. Prison Bitch has a woody.
FV2: No he doesn't ...
MV1: I do too.
M: But how could you not ? How could you not? How could you
not? How could you not? How could you not?
MV2: But you're saying is this stuff for real. Look at
Prison Bitch's face. He looks like... He looks like that
Gonzo from the muppets. Look at that nose on him. There's
no way that you could get turned on by him normally.
FV2: Seriously, I think that this stuff really does work.
M: Laurie, Laurie is the creator of a of Niagra.
MV2: He's slapping her ass. He's spanking her.
M: Don't slap it, rub it nice.
FV2: He's getting violent.
M: Laurie, Laurie, talk to me about this stuff.
FV1: Yes. This is a herb drink that comes from Sweden and
it's got the main ingredient that is a sexual stimulant for
the women is the domiana amate.
M: Those were uh two people that were on ``Survivor'' several
years ago.
FV1: Exactly. [Laughs].
M: And uh, talk to me about this. Okay. So, so it really does
work?
FV1. Yes it does work.
M: How can people get this stuff?
FV1: Okay. Right now we are the national distributors for
the United States, Canada...
M: Gotcha. How can they get it?
FV1: They can call our number at (501) xxx- xxxx.
M: How many uh drinks does it take before uh a stranger be
willing to open her legs for me?
FV1: Uh, one drink and within twenty minutes you'll feel it
in your body.
FV2: That's true. Right after twenty minutes...
MV2: She just raised her hand when you said that.
FV2: Exactly. Right after twenty minutes I was just feeling
it.
FV1: Right.
FV2: I was feeling so excited and invigorated. It was
amazing.
M: When you say excited are you talking about in a uh sexual
way?
FV2: In a sexual way, Mancow. I mean, I felt it.
M: Well let me tell you something. I haven't had a sip of this
stuff and I am... I'm turned on right now. `Cause you got,
you got a hot little body. She does have a great body.
MV2: I'm turned on just by seeing Prison Bitch with wood.
MV1: She's got a smokin' little can.
M: What? What?
MV1: Your can smokes.
FV2: Thanks, Prison Bitch. I appreciate that.
M: She's got a smokin' ass.
MV1: She's got a smokin' little can.
FV2: And he's still rubbing my butt.
M: Yeah. Keep rubbing it.
FV2: Get him to rub something else.
MV1: See these real hands. We're making real love
[Music]
Who are you?
My name is Kucky, Kucky Galore
My name is Kucky, Kucky Galore
M: Look at her giggling, leaning forward. Her face all
flushed. Oh, I want me some of that.
[Music]
Who are you?
My name is Kucky, Kucky Galore.
My name is Kucky, Kucky Galore.
*** *** ***
[Back to the dialogue with FV2, who drank ``Niagra.'']
M: So you did this drink?
FV2: Yes, Niagra.
M: They're saying it really does... And you are legit... It's
not just caffeine, you're horny.
FV2: Mancow, I swear on my life, this really turns me on.
M: Are you gonna... Are you gonna act like you did on that
``Spring Break'' video when you went down, down, down with
that girl...
[Mancow plays the video. The audio portion of the video can be
heard from the studio.]
[There is the sound of water splashing.]
Male voice on video: You better get in the water.
M: Here's a little video she didn't want us to find but the
rest of American's seen it. ``Girls Gone Wild At Mardi
Gras''
Second Male voice on video: It's my turn.
Male voice: We want it down lower, lower...
Female voice on video: Here? Here?
M [over the audio portion of the video]: Here's Freak's Niece...
Male voice: No, we want it down. We want it here, here...
Female voice: Ready?
Male voice: Go deep.
Female voice: Get your mouth down there. Here it comes.
Male voice: Lower...
M: I love little whores like her. Young stupid little whores...
Male Voice: Now go deep. [Sound of cheering in the audio
portion of the video] M: There she is, her mouth is filled...
*** *** ***
EB-01-IH-0408
Radio Station: WKQX(FM), Chicago, Illinois
Date/Time Broadcast: May 17, 2001, between 8:03 a.m and 8:49
a.m.
Material Broadcast: Mancow's Morning Madhouse
Mancow - M
Doyle - D
Freak's Niece - F (a female member of the cast of Mancow's
Morning Madhouse)
Girls - G
M: Let's go to Doyle, Doyle hello.
D: Hey Mancow, how are ya?
M: Good man, what can I do for you?
D: Well, uh, every time I bang my fiancée, I realize that I
can't possibly get off unless I fantasize about ex-
girlfriends or women I'd like to be with, and I just want
your advice. I just want to know if you think this is
innocent or if it's cheating. I mean you might want to hear
some of my fantasies, and you can judge for yourself if I've
got a problem here.
M: Okay, first of all, first of all, I want to tell everybody
that this is a show done by adults for adults, uh, banging
girlfriends and all of this. If we are going to have a
serious conversation I'd like to make it somewhat medical.
Freak's Niece is gathered in the lava lamp love lounge.
F: That's right Mancow.
M: We've got 35 girls, something like, sittin on beanbags.
F: Like 40 women just chilling on beanbags.
M: Doyle...
D: Okay, maybe I should rephrase it. Okay, when I'm reaming my
bitch...
***Girls say collectively, Oh no.
M: No, no, that is not appropriate, and I want to apologize to
our listeners. Listen Freak's Niece....
*** *** ***
F: Janet Jackson's a size Queen, does size matter?
G: Yes....
F: I am so sick of hearing it doesn't, you know matter how...
G: The motion of the ocean.
F: Yeah, please, it doesn't matter how big it is, it matters
how you use it baby, please - NO... no.
G: It does matter how big it is.
F: It does. What's the biggest you've ever?
G: Salami girth...
F: Italian salami?
G: Go girl!
G: A pro football player was huge.
F: How big was huge?
G: Um... a forearm.
F: Wow -- lucky you.
G: My forearm, I have small forearms.
F: Still lucky you.
G: I was dating a guy who was on the crew team for Yale, and
let's just say an oar's width.
F: I think that girth is so very important because it just, you
know... well, it just really feels very good. And it's
important, I think, you know... just a nice size.
G: Subway submarine - all protein and no fat grams.
F: Wait I have a question. I have a question though. Don't
you think that too big can be too big?
G: Yeah, it can be painful.
The straddle walk looking like a...
F: Yeah, that's not fun. That's not fun.
G: I don't think that size matters with back door sex though.
M: Okay, okay, alright. I'm going to shut it down here for a
minute. Listen, we uh absolutely have to keep it clean.
We're on the radio and again, if you're easily offended,
please turn off the radio. We are having a serious
conversation, and uh, hopefully medical terms about things
of a sexual nature. Uh, certainly a relationship nature.
*** *** ***
F: Do any of you ladies do the two finger swirly?
G: Yeah, all the time.
I don't just use two fingers though.
I'm doing it now.
F: How often do you jill off?
G: Once a day at least. In the morning before I go to work.
F: Wow, good for you.
G: I'm maybe once a month.
I had three yesterday.
Before I go to bed for a good night's sleep
F: For a good night's sleep, yeah.
G: Couple times a day just depending on how busy my workload is
G: I think that it depends on if there is a guy in my life.
Or the lack of guy in my life.
G: Do you do it like in the office?
G: If there's a guy in my life, that really, and we're not
like...it's the preliminaries. And I'll go home.
G: Yeah. Definitely.
G: The warm up.
It increases when you start dating somebody, and then it
kind of decreases when you've been dating them for a while.
*** *** ***
F: What does stuff taste like? And you know what stuff I'm
talking about. The stuff...
G: It depends on what the man eats. Warm salt butter.
It's his nutrition it really is.
Protein--
It's good for your hair.
F: It's good for your hair (laughs). Honey, will you condition
my hair tonight?
G: I recently had a guy who was surprising sweet. Like I had
never experienced it before. It was like sugar, like
molasses.
F: Does he eat like a lot of oranges or...
G: He must be on some Vegan diet or...
Have you ever been with a guy who's eat'n like jalapeño
peppers or something like that - really spicy, and you are
like what, and it's just not right?
F: No, it's just pungent. Have you ever had the pungent one?
G: Oh definitely...
M: [Cuts off discussion] Okay, again it's a little um-hum... F: Ladies, keep it clean
*** *** ***
M: Alright, next question.
F: Alright. Guys like apparent panty lines. Guys like
apparent panty lines and camel toe. Do you know what camel toe
is? It's when the big front... uh.
M: [Ahem, clears his throat]
G: It's uncomfortable, it hurts, it's hard to sit.
If I was a guy, I wouldn't want to see panty lines
G: Yeah, panty lines are tacky.
[unintelligible] hanging out the side of them.
You would think that they wouldn't want to see panty lines
because you know that means that you aren't wearing any
underwear. If you can't see `em.
G: That's the whole reason behind thongs, so that you know, I
mean, thongs are sexy.
Pants off.
G: When you take your pants off, and you have a thong on, you
know that turns them on.
Totally, when you take your pants off right from behind and
that thong going down.
Personally, I like the panties that have a little stuff
missing down there... I'm not sure if I can say that here.
G: Crotchless.
Yeah, yeah.
Camel Toe Song
[Sound effects of rubber being squeezed and twisted]
Guy: Oh-my-God, look at the clam on that bitch.
Song: She's got a crack in the back and a crack in the front,
it's called camel toe/
Camel toe.
She's got a bulge like a man, but it's just her clam. Yeah
it's camel toe.
Camel toe.
She's so... damn tight.
***Music continues under
_________________________
1 The complainant alleged that four excerpts of the March
6, 2001 Mancow program contained indecent material. The
Attachment contains one of the complained of excerpts. We will
not pursue enforcement action regarding the other three excerpts
from the March 6, 2001 broadcast.
2 See Sable Communications of California, Inc. v. FCC, 492
U.S. 115 (1989); Miller v. California, 413 U.S. 15 (1973),
rehearing denied, 414 U.S. 881 (1973).
3 Sable Communications of California, Inc. v. FCC, supra
note 2, 492 U.S. at 126.
4 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'').
5 ACT I, supra note 4, 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).
6 Public Telecommunications Act of 1992, Pub. L. No. 356,
102nd Cong., 2nd Sess. (1992); ACT III, supra note 4.
7 In FCC v. Pacifica Foundation, the Court quoted the
Commission's definition of indecency with apparent approval.
FCC v. Pacifica Foundation, supra note 4, 438 U.S. at 732. In
addition, the D.C. Circuit Court of Appeals upheld the
definition against constitutional challenges. ACT I, supra note
4, 852 F.2d at 1339; ACT II, supra note 4, 932 F.2d at 1508; ACT
III, supra note 4, 58 F.3d at 657.
8 ACT III, supra note 4.
9 See, e.g.,Communicast Consultants, Inc.( KRXK(AM)), 15
FCC Rcd 18730, aff'd 15 FCC Rcd 19697 (EB 2000).
10 Emmis cites the following Mass Media Bureau actions:
Letter from Chief, Complaints and Political Programming Branch,
Enforcement Division, to Mrs. Barbara Onisko, 8310-TRW (May 15,
1997); Memorandum to WIOD(AM) Complaint File (Control No.
97010196); Letter from Chief, Complaints and Political
Programming Branch, to Mr. R.D. Merkel, 8310-TRW (Jan. 23,
1997). In addition, Emmis cites the Enforcement Bureau's
actions dismissing complaints alleging the broadcast of indecent
material. See Letter from Chief, Investigations and Hearings
Division to Anne Shapleigh, complaint against KLOU(FM), EB-00-
IH-0350 (Feb. 7, 2001); Press Statement of Gloria Tristani re:
Enforcement Bureau Letter Ruling on KLOU(FM), St. Louis,
Missouri Indecency Complaint (Feb. 8, 2001); Letter from Chief,
Investigations and Hearings Division to Michael Palko, complaint
against WGR(AM), EB-00-IH-0221 (Feb.23, 2001)(the Bureau
subsequently issued a letter of inquiry to the licensee in this
case).
11 Citicasters Co.( KSJO(FM)), 15 FCC Rcd 19091, 19092 (EB
2000), citing San Francisco Century Broadcasting, L.P., 8 FCC
Rcd 498 (1993).
12 See, e.g., Telemundo of Puerto Rico License Corp.(WKAQ-
TV)), 16 FCC Rcd 7157 (EB 2001)(forfeiture paid); Three Eagles
of Columbus, Inc. (KROR(FM)), 15 FCC Rcd 13624 , forfeiture
reduced 15 FCC Rcd 18902 (EB 2000)(forfeiture paid); Great
American Television and Radio Company, Inc.(WFBQ(FM)/WNDE(AM)),
6 FCC Rcd 3692, 3693 (MMB 1990); Infinity Broadcasting
Corporation of Pennsylvania (WYSP(FM)), 3 FCC Rcd 930, 932
(1987).
13 See, e.g. Three Eagles of Columbus, Inc., supra note
12, 15 FCC Rcd at 13625 (``The cited language dwells at length
on sexual innuendoes and cannot be considered fleeting'').
14 Id (rejecting argument that the complained of material
was ``an isolated occurrence'' during one segment of a four-hour
program, noting that the language was not fleeting, and dwells
at length on sexual innuendo).
15 See, e.g.,Telemundo of Puerto Rico, supra note 12;
Three Eagles of Columbus, Inc., supra note 12.
16 See, e.g.,Citicasters Co.(KEGL(FM)), 16 FCC Rcd 7546
(EB 2001)(forfeiture paid); Communicast Consultants,
Inc.(KRXR(AM)), supra note 9; Citicasters Co.(WXTB(FM)), 13 FCC
Rcd 15381 (MMB 1998)(forfeiture paid).
17 Emmis cites the Indecency Policy Statement, supra, 16
FCC Rcd at 8011-12, and the discussion of Peter Branton, 6 FCC
Rcd 610 (1991)(subsequent history omitted)(explicit language,
including the repeated use of the words ``fuck'' or ``fucking''
in a wiretap of a telephone conversation, was integral part of
bona fide news story and not gratuitous, pandering, titillating
or otherwise patently offensive) and the Letter from Chief,
Complaints and Investigations Branch, Enforcement Division, Mass
Media Bureau to Chris Giglio (July 20, 1994)(Oprah Winfrey Show
(``How to Make Romantic Relations with Your Mate Better'')).
18 See, e.g.,Citicasters Co.(KEGL(FM)), supra note 16;
Three Eagles of Columbus, Inc., supra note 12; Goodrich
Broadcasting, Inc. (WVIC-FM), 6 FCC Rcd 2178, aff'd 6 FCC Rcd
7484 (MMB 1991); KFI, Inc.(KFI(AM)), 6 FCC Rcd 3699, 3700 (MMB
1989).
19 Citicasters Co. supra note 16, 16 FCC Rcd at 7547,
citing Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
20 Infinity Broadcasting Corporation of Pennsylvania
(WYSP(FM)), 3 FCC Rcd 930, 933 (1987) citing Hamling v. United
States, 418 U.S. 87, 107 (1974).
21 See, e.g., WQAM License Limited Partnership(WQAM(AM)),
15 FCC Rcd 2518, 2520 (2000)(explaining that the Commission uses
its expertise to apply a national community standard that
references the average broadcast viewer or listener). See also,
Indecency Policy Statement, supra, 16 FCC Rcd at 8002 note 15.
22 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
23 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).
24 Forfeiture Policy Statement, 12 FCC Rcd at 17110.
25 47 C.F.R. §§ 0.111, 0.311 and 1.80.
26 See 47 C.F.R. § 1.1914.