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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
) FRN: 0001-5460-19
Licensee of Station KROQ-FM )
Pasadena, California )
Facility ID # 28622
MEMORANDUM OPINION AND ORDER
Adopted: May 9, 2002 Released: May 24, 2002
By the Commission: Commissioners Abernathy, Copps and Martin
issuing separate statements
1. In this Memorandum Opinion and Order, we deny an
Application for Review timely filed on April 20, 2001, by
Infinity Broadcasting Corporation of Los Angeles (``Infinity''),
licensee of Station KROQ(FM), Pasadena, California. Infinity
seeks review pursuant to 47 C.F.R. § 1.115 of a Memorandum
Opinion and Order1 of the Chief, Enforcement Bureau,
(``Reconsideration Order'') which denied reconsideration of a
monetary forfeiture in the amount of two thousand dollars
($2,000) against Infinity for violation of 18 U.S.C. § 1464,
which prohibits the broadcast of indecent material.
I. BACKGROUND
2. In the NAL, the Mass Media Bureau found, in response to
a listener complaint, that the broadcast on KROQ-FM of the song
``You Suck'' by the group Consolidated on March 28, 1997, at
approximately 9:10 p.m., violated 18 U.S.C. § 1464. 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 the versions possessed by
KROQ(FM) was the unedited 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 on March 28,
1997. 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 original, unedited version of the song includes
the words ``pubic,'' ``dick,'' ``pussy,'' and ``clit,'' which are
deleted in the edited version. The licensee did not dispute the
finding of the NAL that the unedited version of the song would be
indecent.
3. 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 supplied by the
station. 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,
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, which
found that the forfeiture proposed in the NAL was warranted.
4. Initially, the Reconsideration Order rejected the
licensee's contention that it was denied due process because the
NAL had not referenced the complainant's response, which was
first disclosed to the licensee in the Forfeiture Order, because
its comments concerning the complainant's response would be fully
considered in the Reconsideration Order. It noted that the
licensee did not submit any new evidence in light of the
complainant's response.
5. The Reconsideration Order found that the complainant's
recollection of having heard the words ``pubic,'' ``dick,''
``pussy,'' and ``clit'' in the KROQ(FM) broadcast provided
sufficient probative evidence to conclude that the unedited
version of the song was broadcast, particularly in the absence of
evidence to the contrary. The Reconsideration Order found that
the licensee's ignorance as to which version of the song was
broadcast did not constitute evidence that it in fact broadcast
the edited version. Moreover, it noted that the licensee was
aware of the inappropriate nature of the unedited version of the
song and therefore should have taken precautions to ensure that
the unedited version was not inadvertently broadcast. It also
found the opinions of KROQ(FM) staff members that numerous
complaints would likely have resulted from the broadcast of the
unedited version of the song to be speculative, particularly
because the basis for the opinions was not explained. The
Reconsideration Order accordingly found that the licensee had
provided no evidence effectively rebutting the complainant's
recollection that she heard words included only in the unedited
version of the song.
6. The Reconsideration Order further rejected the
licensee's contention that the complaint should have been
rejected because the initial complaint was not supported by a
tape or transcript of the broadcast. It found that, by
submitting a copy of the unedited version of the song as obtained
from a CD, the complainant substantially complied with the
requirement by providing a ``significant excerpt'' from the
broadcast, even though she had not transcribed the excerpt
herself. Additionally, it noted that the submission of a tape,
transcript, or significant excerpts is not a requirement, but a
general practice used by the Commission to assist in the
evaluation of indecency complaints.2
7. The Reconsideration Order also disagreed with the
licensee's contention that the complainant's recollection should
not have been accepted because it had not been tested at hearing.
It noted that the Communications Act of 1934, as amended
(``Act'') permits the imposition of a forfeiture without a
hearing.3 It further noted that the Act 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.4
8. In its Application for Review, the licensee renews its
objection to the alleged departure from what it generally refers
to as the ``tape or transcript requirement.'' It urges that this
requirement is not a matter of administrative convenience, but a
bedrock procedural requirement necessary to ensure due process
because the Commission acts as both prosecutor and judge in
imposing a forfeiture. It further contends that the Bureau's
action was inconsistent with prior actions in Nationwide
Communications, Inc., 6 FCC Rcd 3695 (Mass Media Bur. 1990)
(``Nationwide'') and Mr. Steve Bridges, 9 FCC Rcd 1681 (Mass
Media Bur. 1994) (``Bridges''). It also claims that there is an
absence of announced procedures for resolving factual disputes
involving indecency complaints; hence, the staff cannot lawfully
impose a forfeiture where no tape or transcript of the actual
broadcast exists. According to the licensee, imposing a
forfeiture under the circumstances of this case amounts to use of
a ``new standard,'' which is not a lawful exercise of agency
power. In support, the licensee cites Infinity Broadcasting
Corporation of Pennsylvania, 2 FCC Rcd 2705, 2706 (1987)
(subsequent history omitted) for the proposition that a change in
approach to indecency enforcement obligated the Commission to
issue a warning, not a forfeiture.
9. The licensee also contends in its Application for
Review that reliance on the untested recollection of the
complainant puts the Commission in the position of choosing
between the complainant's and the licensee's ``conflicting
version of the facts.'' It cites the ``opinion of KROQ's
experienced radio personnel'' that the playing of the unedited
version of the song would likely have resulted in numerous
complaints. The licensee does not dispute the Reconsideration
Order's finding that these opinions were unexplained, but
suggests that the staff should have sought clarification from the
licensee as it did by requesting the complainant's reaction to
the edited version of the song. The licensee also urges that
reliance on the complainant's recollection was improper in the
absence of a hearing or other opportunity to test the credibility
of her recollection.
10. The licensee further contends that it was injured
because the Mass Media Bureau did not disclose its reliance on
the complainant's response in the NAL. It urges that the
Enforcement Bureau's consideration of its comments on the
complainant's response in the Reconsideration Order was
inadequate because of the passage of time.
11. The licensee finally requests in a footnote that we
review the Bureau's rejection in the Forfeiture Order5 of its
contention that the indecency standard is unconstitutional in
light of Reno v. ACLU, 521 U.S. 844 (1997) (``Reno''). The
licensee asserts that the indecency standard is vague, overbroad
and unenforceable.
II. DISCUSSION
12. Based upon our review of Infinity's Application for
Review and the record in this matter, we find no reason to
reverse the Bureau's decision in this case. We will therefore
deny the Application for Review and affirm the forfeiture in the
amount of two thousand dollars ($2,000) assessed in this
proceeding.
13. We disagree with the licensee's contention that the
Bureau departed from our practice that a complaint should include
a significant excerpt or full or partial tape or transcript of
the allegedly indecent program.6 The Reconsideration Order
concluded that the complainant substantially complied with our
general practice by providing a ``significant excerpt'' from the
broadcast at issue.7 Infinity's Application for Review focuses
on the complainant's failure to provide a tape or transcript.
Thus, it ignores the actual conclusion of the Reconsideration
Order that the complainant provided a ``significant excerpt.''
It accordingly fails to articulate any reason for reversing that
conclusion.
14. In making indecency determinations, context is key.
Accordingly, it is imperative that the Commission have sufficient
information regarding the words and language used during an
alleged indecent broadcast and the meaning and context of those
words and language. Our general practice of requesting a
significant excerpt or a full or partial tape or transcript is a
way in which the Commission attempts to ensure that it has
sufficient information regarding what was said. With this in
mind, we agree with the Bureau that the transcript of the song
obtained from a commercial recording provided sufficient context
to warrant further consideration of the complaint. In this
regard, the transcript provided information regarding what was
said in the broadcast in question.
15. Nor do we find the fact that the complainant did not
provide a tape or transcript of the actual broadcast fatal. The
provision of a tape or transcript is not required in support of
an indecency complaint. In Nationwide, the initial complaint
included a tape of a song that was not recorded directly from the
broadcast complained of but from an album containing the song.
The initial complaint here followed a substantially identical
procedure. It sufficed to alert the licensee of the song at
issue and enabled it to prepare a response. We thus do not find
the Reconsideration Order inconsistent with Nationwide.
16. Because we find that consideration of the complaint was
consistent with the Commission's general practice, we disagree
with Infinity's suggestion that a forfeiture should not be
imposed under what it contends is a new policy. In any event,
its reliance on Infinity Broadcasting Corporation of Pennsylvania
is misplaced. In that case, we issued a warning rather than a
forfeiture where we utilized a substantive definition of
indecency that arguably differed from the definition previously
utilized. Here, even if Infinity were correct that we have
modified the tape, transcript or significant excerpts
requirement, that requirement is merely a procedural practice
pertaining to the initial processing of indecency complaints. A
change in that practice would not alter the substantive policies
governing our assessment of the broadcast at issue and thus would
not militate in favor of a warning rather than imposition of a
forfeiture.
17. We also do not find any error in the Reconsideration
Order's finding that Infinity broadcast the unedited version of
the song. The preponderance of the evidence supports this
conclusion in light of the complainant's recollection that she
heard the pertinent words that are present only in the unedited
version of the song and the absence of any countervailing
evidence. We concur with the Reconsideration Order's refusal to
accord evidentiary weight to the unsubstantiated and speculative
opinion of station personnel as to the likelihood that the
broadcast of the unedited version of the song would have
generated multiple complaints. Moreover, the staff did not err
in failing to request additional information in order to enable
Infinity to buttress its claim. This was not inconsistent with
the staff's request for additional information from the
complainant, which was designed to elicit her response to new
evidence submitted by Infinity concerning the existence of an
edited version of the song, not to enable her to correct a
deficiency in her original complaint. Finally, we are not
choosing between ``conflicting versions of the facts'' because
Infinity has presented no version of the facts supported by any
evidence beyond its ignorance as to what was broadcast on its
station.8
18. We also find no inconsistency between the
Reconsideration Order's resolution of this case and Bridges. In
Bridges, although the complainant submitted a transcript, the
licensee denied that it broadcast the material on the transcript
as supplied by the complainant, and the complainant did not have
a tape recording of the broadcast to support his claim as to what
was actually aired. The staff in Bridges correctly concluded
that there was an irreconcilable conflict between the complainant
and the licensee, which warranted denial of that part of the
complaint for failure of proof. In the case now before us, there
is no genuine factual dispute between the complainant and the
licensee because the licensee here can say only that it does not
know which version of the song was broadcast. That is, unlike the
licensee in Bridges, Infinity has submitted no evidence from
someone with personal knowledge of what was actually broadcast.
Moreover, as noted in the Reconsideration Order,9 the licensee
was aware of the inappropriate nature of the unedited version of
the song but failed to take precautions to prevent its
inadvertent broadcast, an issue that Infinity's Application for
Review does not address. We concur that the licensee should not
obtain an evidentiary benefit as a result of this failure. As we
have previously stated, a licensee may not avoid liability ``by
claiming that he doesn't know what did or did not go out over his
station.'' Community Broadcasters, Inc., 55 FCC 2d 28, 35
(1975). Infinity has provided no support, in the indecency
context or any other context, for its proposition that if a
complainant alleges certain facts and a licensee says it has no
idea whether the complainant is correct, the licensee should win.
19. We further reject the licensee's claim that no
forfeiture should have been issued without first affording it the
opportunity to cross-examine the complainant. As indicated in
the Reconsideration Order, the Act permits the assessment of a
forfeiture without a hearing.10 The Act protects the rights of
parties subject to a forfeiture assessed without a hearing by
providing that the 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.11 Infinity's Application for Review does not
address the Reconsideration Order's conclusion in this respect.
20. We also do not find that the fact that the
complainant's supplemental statement was not disclosed in the NAL
warrants the grant of review. Infinity had the opportunity to
present its views, which were fully considered by the staff and
by us. It has demonstrated no actual injury as a result of the
procedure followed.
21. Finally, we find no basis for addressing Infinity's
passing request that we review the rejection in the Forfeiture
Order of Infinity's constitutional arguments. The disposition of
those arguments is consistent with our prior ruling in WQAM
License Limited Partnership, 15 FCC Rcd 2518 (2000), recon.
denied 15 FCC Rcd 13549 (2000).
III. ORDERING CLAUSES
22. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
1.115 of the Rules,12 Infinity Broadcasting Corporation of Los
Angeles' Application for Review IS DENIED.
23. 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 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.
(818ed0017). If the forfeiture is not paid within thirty (30)
days of the release of the Memorandum Opinion and Order, the case
may be referred to the Department of Justice for collection
pursuant to 47 U.S.C. § 504(a).
24. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail, return receipt requested, to counsel
for Infinity, 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
Marlene H. Dortch
Secretary KROQ-FM Los Angeles, California
March 28, 1997 approximately 9:10 p.m.
``You Suck'' by Consolidated
Conversation between a man and a woman:
Woman: I know you're really proud cause you think you're well
hung but I think it's time you learn how to use your tongue. You
say you want things to be even and you want things to be fair but
you're afraid to get your teeth caught in my pubic hair. If
you're lying there expecting me to suck your dick, you 're going
to have to give me more than just a token lick. Well, you may
not like it but you better learn how, cause it's your
turn now. Now, you suck, suck it hard. Go down baby, you suck,
lick it hard and move your tongue around. If you're worried
about babies, you can lower your risk, by giving me that special
cunnilingus kiss. It's on your face that I'm going to sit. You
can wiggle, you can jiggle your tongue on my clit. Don't worry
about making me have an orgasm. Just take your time and do it
with enthusiasm. I can tell it's making you scared, just
thinking of it, but you better learn to love it. Now, you suck,
suck it hard. Go down baby, you suck, lick it hard and move your
tongue around. Now, you suck, suck it hard. Go down baby, you
suck, lick it hard and move your tongue around. When you hear
safe sex, snicker under your breath. We got to take cover, we're
flirting with death. AIDS is our problem, we've got to talk.
Break out your dental dam and your latex sock. I'm your latex
lover wrapped like a gift. Got my microwave plastic wrap heating
up my clit. Dinner's on, get busy with my booty, got a couple of
flavors, sweet licorice and fruity. I know your sad luscious
pussy with a cover. I'm aching too, can't taste each other.
There's no slacking off with an unprotected stroke. This ain 't
no joke. Sisters, sisters, you've got the power, use it!
You brought a condom right?
Man: Huh?
Woman: I'm unprotected.
Man: Ain't you on the pill?
Woman: Oh, that was great and everything but you know I think
it's your turn to go down on me.
Man: I'm tired, I'm tired.
Woman: What do you mean you're tired? Come on baby, come on baby,
come on baby, oh.
Man: No, no that's awful. Oh, that tastes terrible.
Woman: You asshole, you shit. I know you think it's a real drag,
to suck my cunt when I'm on the rag. Quit making up stories,
just give me a break cause I really don't believe that you've got
a headache. You tell me it's gross to suck my yeast infection.
How do you think I feel when I gag on your erection? Uh. You're
wasting your tongue, with lame excuses and lies, get your face
between my thighs. Now, you suck, suck it hard. Go down baby,
you suck, lick it hard and move your tongue around. Now, you
suck, suck it hard. Go down baby, you suck, lick it hard and move
your tongue around. Now, you suck. SEPARATE STATEMENT OF
COMMISSIONER KATHLEEN ABERNATHY
RE: INFINITY BROADCASTING CORPORATION OF LOS ANGELES, MEMORANDUM
OPINION AND ORDER
I support today's decision to uphold the forfeiture against
Infinity for broadcast of indecent material. We at the
Commission must engage in stringent enforcement of our rules if
we are to breed respect of, and deference to, our regulations.
The FCC has indecency regulations we are duty-bound to enforce:
broadcasters must not air ``language or material that, in
context, depicts or describes, in terms patently offensive as
measured by contemporary community broadcast standards for the
broadcast medium, sexual or excretory organs or activities''
between the hours of 6:00 a.m. and 10:00 p.m. The unedited
version of the song ``You Suck'' certainly falls within the
category of indecent material.
The Commission has significant justification for imposing a
forfeiture order in this matter. A transcript of the song
obtained from a commercial recording provided adequate context of
the words and language used to warrant further consideration of
the complaint. And the complainant's recollection of hearing
words found in the unedited version of the song is enough to
conclude that the unedited song was broadcast, in light of no
evidence to the contrary. Infinity relies on the argument that
airing the unedited song would have generated more consumer
complaints, but no member of its staff has provided affirmative
testimony that the edited version was in fact aired. We at the
Commission cannot allow a licensee to avoid liability by claiming
ignorance of what it broadcasts.
Our indecency rules strike a fair balance between First Amendment
rights and protection of our children, and I believe that our
enforcement mechanisms strike an appropriate balance between the
burdens placed on consumers and the industry.
Furthermore, I would have been inclined to impose a forfeiture
even if we found the station aired the edited version. Since the
parties in this proceeding were not put on notice of this issue,
the order does not speak to the edited version. If it had, I
would have been hard pressed to find that the edited version does
not also contain indecent material that describes sexual
activities in patently offensive terms.
SEPARATE STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
IN THE MATTER OF INFINITY BROADCASTING CORPORATION OF LOS ANGELES
APPLICATION FOR REVIEW OF INDECENCY FORFEITURE
Control No. 970503319
The Order adopted by the Commission today takes a
significant and welcome step toward clarifying a policy that has
disturbed me during my first year on the Commission: the general
practice that a complainant must provide a tape or a transcript
of the programming at issue in support of an indecency complaint.
I have often expressed the view that this policy places an
inordinate responsibility on the complaining citizen and that it
is the Commission's responsibility to investigate complaints that
the law has been violated, not the citizen's responsibility to
prove the violations.
Congress charged the FCC with enforcement of the laws
limiting the broadcast of ``obscene, indecent or profane ''
language and, pursuant to that charge, it is our responsibility
to ensure that indecent programming is not broadcast when
children are likely to be in the audience.
This Order clarifies that what the station refers to as the
``tape or transcript requirement'' is not a ``requirement'' but
rather ``a procedural practice.'' The Order further clarifies
that ``the fact that the complainant did not provide a tape or
transcript of the actual broadcast'' is not fatal and that ``the
provision of a tape or transcript is not required in support of
an indecency complaint."
This step should help correct some broadcasters' erroneous
view that without tapes they cannot be found liable on an
indecency complaint and that the retention of tapes can only
serve to buttress claims against them.
This case also makes clear that the retention of tapes would
be a valuable tool in determining what was broadcast and when,
information essential to the Commission's enforcement of the
indecency law.
I am very pleased to see the Commission begin to respond to
the increasingly clear call of the American people for more
responsive enforcement of the indecency laws. Today's decision
should serve as a wake-up call for those who have been fueling
programming's disturbing race to the bottom. SEPARATE STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
Re: Infinity Broadcasting Corporation of Los Angeles, Licensee
of Station KROQ-FM, Pasadena, California, Memorandum Opinion and
Order
Today we take an important step in clarifying our indecency
rule, easing the burden on consumers, and protecting listeners
and viewers from offensive broadcast programming. The attached
Order upholds the forfeiture assessed upon Infinity Broadcasting,
and in so doing, it provides important guidance for the industry
and consumers.
The FCC plays an important role in protecting
Americans¾particularly children¾from obscene and indecent
material. We have been charged by Congress to implement its ban
against broadcasting obscene or indecent programming, and I take
this responsibility seriously.
The Courts have determined that we may prohibit indecent
programming between the hours of 6:00 a.m. to 10:00 p.m. without
running afoul of the First Amendment.13 The Order we release
today does not alter our indecency rule or our official indecency
policy.14 It does, however, provide much-needed guidance
regarding how the rule should be implemented and increases the
effectiveness of our rules by clarifying the burden listeners and
viewers must meet when filing a complaint.
Many consumers have expressed frustration with how we have
applied our indecency rule. They have argued that the Commission
has placed too high a burden on viewers and listeners by
requiring that they include with any complaint a tape or
transcript of the program in question. The result, they say, is
an indecency rule that is too rarely enforced. While the
Commission's indecency policy has no strict tape or transcript
requirement, whether it was Commission practice to require a tape
or transcript is unclear.15 I am glad that today we put this
controversy to rest - and in a way that decreases the burden on
consumers.
As we explain in the Order, the Commission will not dismiss
a complaint for failure to include a tape or transcript. As long
we have sufficient detail and context to determine whether an
identified program is indecent, we will process the complaint.
This clarification should facilitate consumers' ability to file a
complaint when they hear or view programming they believe to be
indecent.
Moreover, if we determine that a violation may have
occurred, it is then up to the broadcaster to provide contrary
evidence. If the broadcaster fails to provide such evidence, we
may (as we do today) find that complainant's evidence is
sufficient to determine that a violation has occurred. This
burden shifting should further alleviate some of the concerns
that have been raised by consumers while still providing
broadcasters with ample opportunity to defend their programming.
I support this process, as it will facilitate consumers'
ability to file indecency complaints, maintain broadcasters'
ability to dispute claims that their programming was indecent,
and enable the Commission to enforce our rules more effectively.
Accordingly, I support this Order, both for the conclusions it
makes and the guidance it provides.
_________________________
1 Infinity Broadcasting Corporation of Los Angeles, 16 FCC
Rcd 6867 (Enf. Bur. 2001). The Reconsideration Order denied
reconsideration of Infinity Broadcasting Corporation of Los
Angeles, 15 FCC Rcd 10667 (Enf. Bur. 2000) (``Forfeiture Order'')
which issued a forfeiture order after consideration of the
licensee's response to a notice of apparent liability for
forfeiture, Infinity Broadcasting Corporation of Los Angeles, 13
FCC Rcd 25349 (Mass Media Bur. 1998) (``NAL'').
2 We note that a significant excerpt is essentially the
same thing as a partial transcript, that is, enough words and
context of what was said and by whom to make a determination of
whether the material was indecent.
3 Section 503(b) of the Act, 47 U.S.C. § 503(b).
4 Section 504(a) and (c) of the Act, 47 U.S.C. § 504(a) and
(c).
5 15 FCC Rcd at 10668-69.
6 Infinity Broadcasting Corporation of Pennsylvania, 3 FCC
Rcd 930, 938 n. 49 (1987); Industry Guidance on the Commission's
Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 FCC Rcd 7999, 8015 at para. 24
(2001).
7 Reconsideration Order, 16 FCC Rcd at 6870.
8 Consequently, we do not address whether the edited
version of the song is indecent.
9 Reconsideration Order, 16 FCC Rcd at 6869.
10 Section 503(b) of the Act, 47 U.S.C. § 503(b).
11 Section 504(a) and (c) of the Act, 47 U.S.C. § 504(a)
and (c).
12 47 C.F.R. § 1.115.
13 The courts also have approved the Commission's
definition of ``indecent.'' See Action for Children's Television
v. FCC, 852 F.2d 1332 (D.C. Cir. 1988); Action for Children's
Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991), cert. denied,
112 S. Ct. 1282 (1992); Action for Children's Television v. FCC,
58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701
(1996).
14 See 47 C.F.R. §73.3999; Industry Guidance of the
Commission's Case Law Interpreting 18 U.S.C. §1464 and
Enforcement Policies Regarding Broadcast Indecency, Policy
Statement, 16 FCC Rcd 7999 (2001).
15 Our policy states that a complaint ``must generally
include a full or partial tape or transcript or significant
excerpts of the program.'' See id. Notably, many in the
industry (such as the licensee in this case) referred to this as
``the tape or transcript requirement.''