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Separate Statement of Commissioner Copps, Dissenting
Separate Statement of Commissioner Martin
Separate Statement of Commissioner AdelStein
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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB-02-IH-0685
) NAL/Acct. No. 2004 3208
0004
INFINITY BROADCASTING OPERATIONS, ) FRN #0003476074
INC. )
)
Licensee of Stations )
WNEW(FM), New York, New York ) Facility ID # 25442
WYSP(FM), Philadelphia, Pennsylvania ) Facility ID #
28628
KYCY(AM), San Francisco, California ) Facility ID #
25458
)
INFINITY RADIO OPERATIONS, INC. ) FRN #0004036711
)
Licensee of Stations )
WBUF(FM), Buffalo, New York ) Facility ID # 53699
KSFN(AM), North Las Vegas, Nevada ) Facility ID # 47745
WXTM(FM), Cleveland Heights, Ohio ) Facility ID # 74473
WAZU(FM), Circleville, Ohio ) Facility ID # 64717
KUPL(AM), Portland, Oregon1 ) Facility ID # 26926
)
INFINITY RADIO SUBSIDIARY ) FRN #0002052751
OPERATIONS, INC. )
)
Licensee of Station )
KXOA(FM), Roseville, California ) Facility ID # 11273
)
INFINITY BROADCASTING CORPORATION ) FRN #00061661032
OF DALLAS )
)
Licensee of Station )
KLLI(FM), Dallas, Texas2 ) Facility ID # 1087
)
INFINITY BROADCASTING CORPORATION ) FRN #0002147528
OF WASHINGTON, DC )
)
Licensee of Station )
WJFK-FM, Manassas, Virginia ) Facility ID # 28625
INFINITY HOLDINGS CORPORATION OF) FRN #0001800705
ORLANDO )
)
Licensee of Station )
WCKG(FM), Elmwood Park, Illinois) Facility ID # 71283
)
HEMISPHERE BROADCASTING ) FRN #0003617933
CORPORATION )
)
Licensee of Station )
WBCN(FM), Boston, Massachusetts ) Facility ID # 26897
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 30, 2003 Released: October 2,
2003
By the Commission: Commissioner Martin concurring and
issuing a separate statement; Commissioner Adelstein issuing
a separate statement; Commissioner Copps dissenting and
issuing a separate statement.
I. INTRODUCTION
1. In this Notice of Apparent Liability For
Forfeiture (``NAL''), issued pursuant to section 503(b) of
the Communications Act of 1934, as amended (the ``Act'') and
section 1.80 of the Commission's rules,3 we grant, in part,
and deny, in part, complaints from the Catholic League for
Religious and Civil Rights and Robert E. Amling4 alleging
that, during its broadcast of the ``Opie & Anthony Show''
program on August 15, 2002, over Station WNEW(FM), New York,
New York, the station licensee, Infinity Broadcasting
Operations, Inc. (``Infinity Broadcasting ''), aired program
material that violates the federal prohibition against the
broadcast of obscene material and/or the restrictions
regarding the broadcast of indecent material.5 Based upon
our review of the facts and circumstances of this case, we
conclude that Infinity Broadcasting and the above-captioned
affiliated licensees (collectively ``Infinity'') are
apparently liable for a monetary forfeiture in the amount of
Three Hundred Fifty-Seven Thousand Five Hundred Dollars
($357, 500.00) for broadcasting indecent material in
apparent violation of 18 U.S.C. § 1464 and section 73.3999
of the Commission's rules over the above-captioned 13
stations.
II. BACKGROUND
2. The complainants allege, and Infinity does not
dispute, that Station WNEW(FM) aired the ``Opie & Anthony
Show,'' on August 15, 2002, during which the hosts conducted
a contest entitled ``Sex for Sam'' which involved
participants having sex in ``risky locations'' throughout
New York City, including St. Patrick's Cathedral,6 a zoo,
Rockefeller Center, the Disney Store, and the FAO Schwarz
toy store.7 According to the transcript of the broadcast
that Infinity provided to the Enforcement Bureau, the
contest was a competition among five couples8 who were vying
for the opportunity to accompany station personnel to the
Sam Adams Brewery in Boston, Massachusetts, for a live
broadcast.9 The object of the contest was for the couples
to earn the most number of points by having sex in as many
of the places specified by the station as possible.10 Each
couple was accompanied by a station ``spotter,'' who
assigned his couple points based upon the nature of the
location and the activities in which the couple engaged.11
For example, two points were awarded for ``a balloon-knot
action,'' and the on-air personalities referred repeatedly
to the accomplishment of achieving those two points for the
``balloon-knot action'' as a ``two-point conversion.''12
The station aired the contest over at least a one-hour
period, during which the hosts and the ``spotters'' engaged
in descriptions and discussions of the sexual activities of
five participating couples in a variety of publicly visible
locations.13
3. The complainants allege that the broadcast
material contains either obscene and/or indecent references,
that it was intended to titillate, pander to, or shock the
audience, and that the Commission should levy strong
sanctions against Infinity for the station's broadcast of
the subject contest.14 One complainant submitted a 14-
minute transcript excerpt of the contest portion of the show
and argues that it demonstrates that Station WNEW(FM)'s
program hosts made broadcast references to specific apparent
sexual activity in the Cathedral.15
4. The full transcript of the broadcast that Infinity
submitted to the Commission provides the context of this
particular segment and reveals that the hosts of the ``Opie
& Anthony Show'' participated in extended discussions about
sexual activity with the station ``spotters.''16 Of
relevance to the instant complaints, the transcript
indicates that one participating couple engaged in actual or
simulated sexual activity inside St. Patrick's Cathedral
while the program hosts and ``spotter,'' Paul Mercurio,
discussed that activity on the air.17 The on-air banter and
discussion was a running commentary that continued well
after the sexual activity appears to have ended. Mercurio
described the couple's sexual activity in the Cathedral with
detailed and specific comments. The station also broadcast
dialogue of a confrontation at the Cathedral between a
security or law officer and Mercurio which also included
descriptions of, or references to, sexual activity.18 The
full transcript also memorializes, among other things, the
commentary of one ``spotter'' describing the sexual activity
of a couple at a zoo and of another spotter observing a
couple preparing for sexual activity in an elevator at
Rockefeller Center when four children entered the
elevator.19
5. The Enforcement Bureau sent Infinity a letter of
inquiry on August 22, 2002.20 In its responses dated
September 20 and October 11, 2002, Infinity acknowledges
that Station WNEW(FM) broadcast the contest in question
during the hours of 3 through 7 p.m. on August 15, 2002, and
aired that broadcast over WNEW(FM) and 12 other affiliated
stations.21 Infinity also admits that the show's hosts ``at
least made it appear to the listeners that a participating
couple had engaged in some sort of sexual activity in St.
Patrick's Cathedral.''22 Infinity maintains, however, that
the aired material was not obscene and did not contain ``any
description of sexual or excretory activity that would fit
within the Commission's indecency definition.''23 Infinity
acknowledges that it found the station's broadcast of the
``Sex for Sam'' program ``fundamentally unacceptable'' and
contrary to its own programming standards.24 Infinity
represents that, as a result of Station WNEW(FM)'s
broadcast, it immediately cancelled the ``Opie & Anthony
Show'' program and suspended those personnel responsible for
the station's broadcast of the ``Sex for Sam'' contest.25
III. DISCUSSION
6. The Federal Communications Commission is
authorized to license radio and television broadcast
stations and is responsible for enforcing the Commission's
rules and applicable statutory provisions concerning the
operation of those stations. The Commission's role in
overseeing program content is very limited. The First
Amendment to the United States Constitution and section 326
of the Act prohibit the Commission from censoring program
material and from interfering with broadcasters' freedom of
expression.26 The Commission does, however, have the
authority to enforce statutory and regulatory provisions
restricting indecency and obscenity. Specifically, it is a
violation of federal law to broadcast obscene or indecent
programming. Title 18 of the United States Code, Section
1464 prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.''27 In
addition, section 73.3999 of the Commission's rules provides
that radio and television stations shall not broadcast
obscene material at any time, and shall not broadcast
indecent material during the period 6 a.m. through 10 p.m.
7. Under section 503(b)(1) of the Act, any person who
is determined by the Commission to have willfully or
repeatedly failed to comply with any provision of the Act or
any rule, regulation, or order issued by the Commission
shall be liable to the United States for a forfeiture
penalty.28 In order to impose such a forfeiture penalty,
the Commission must issue a notice of apparent liability,
the notice must be received, and the person against whom the
notice has been issued must have an opportunity to show, in
writing, why no such forfeiture penalty should be imposed.29
The Commission will then issue a forfeiture if it finds by a
preponderance of the evidence that the person has violated
the Act or a Commission rule.30 As we set forth in greater
detail below, we conclude under this standard that Infinity
is apparently liable for a forfeiture for its apparent
willful and repeated violations of 18 U.S.C. § 1464 and
section 73.3999 of the Commission's rules.
A. Indecency Analysis
8. Any consideration of government action against
allegedly indecent programming must take into account the
fact that such speech is protected under the First
Amendment.31 The federal courts consistently have upheld
Congress's authority to regulate the broadcast of indecent
material, as well the Commission's interpretation and
implementation of the governing statute.32 Nevertheless,
the First Amendment is a critical constitutional limitation
that demands that, in indecency determinations, we proceed
cautiously and with appropriate restraint.33
9. The Commission defines indecent speech as language
that, in context, depicts or describes sexual or excretory
activities or organs in terms patently offensive as measured
by contemporary community standards for the broadcast
medium.34
Indecency findings involve at least
two fundamental determinations.
First, the material alleged to be
indecent must fall within the subject
matter scope of our indecency
definition¾that is, the material must
describe or depict sexual or excretory
organs or activities. . . . Second,
the broadcast must be patently
offensive as measured by contemporary
community standards for the broadcast
medium.35
As an initial matter, Infinity does not dispute that it
aired material describing or depicting sexual and excretory
activities and organs.36 That material, therefore, warrants
further scrutiny to determine whether or not it was patently
offensive as measured by contemporary community standards
for the broadcast medium.37
10. In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''38 Three principal
factors are significant to this contextual analysis: (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.39 In examining these three factors, we
must weigh and balance them to determine whether the
broadcast material is patently offensive because ``[e]ach
indecency case presents its own particular mix of these, and
possibly, other factors.''40 In particular cases, the
weight of one or two of the factors may outweigh the others,
either rendering the broadcast material patently offensive
and consequently indecent,41 or, alternatively, removing the
broadcast material from the realm of indecency.42 In this
case, we examine all three factors and determine that each
weighs in favor of a finding that the broadcast material was
patently offensive. We note that, in particular, the
station's presentation of the material in a manner that was
pandering, titillating, and shocking weighs heavily in this
determination.43 We turn now to our analysis of the three
principal factors in our decision.
11. First, those reporting over the air on the
broadcast contest made graphic and explicit references to
sexual and excretory organs and activity.44 For example,
during the Cathedral episode, the station's on-air hosts and
``spotter,'' Paul Mercurio, reported the couple's sexual
activities in graphic and explicit terms. Specifically,
Mercurio reported ``we're in St. Pat's and he's doing the
balloon knot inside,''45 causing one host to award the
participants ``twenty-seven points. Twenty-five points, a
two-point conversion, and eternal damnation.''46 The hosts
engaged in further discussion of the couple's activities in
the Cathedral involving balloon-knot sex later in the
broadcast, as well.47 Specifically, they noted about the
contestants: ``allegedly they may have had balloon-knot sex,
um, in St. Patrick's Cathedral;''48 and ``I don't notice any
balloon-knot action. Seems your son doesn't like sticking
it where the sun don't shine.''49 Elsewhere in the
broadcast, a ``spotter'' and another observer of one
couple's sexual activities took note of the man's ``ruby red
bag,'' an obvious reference to his scrotum.50 A spotter also
reported that one couple was in an elevator at Rockefeller
Center, and, as the woman prepared for sexual activity, ``as
soon as the skirt went down,'' a family from England with
four children walked in.51 After another ``spotter''
reported that a couple had sexual activity at a zoo, one of
the program's hosts asked whether ``there [was] a little
blond kid trying to check out his Dad's mule at the zoo.''52
12. To the extent that the colloquial terms that the
participants used to describe organs and activities could be
described as innuendo rather than as direct references, they
are nonetheless sufficient to render the material actionably
indecent because the ``sexual [and] excretory import'' of
those references was ``unmistakable.''53 Given the detailed
and explicit manner in which the broadcast described the
contest and the activities of the participants, there is no
non-sexual meaning that a listener could possibly have
attributed to these terms.54 Therefore, we find that the
``Sex for Sam'' broadcast contest made references to sexual
and excretory organs and activity in the use of direct
references and/or colloquial expressions that were
sufficiently graphic or explicit to be deemed patently
offensive as measured by contemporary community standards
for the broadcast medium.
13. Second, the broadcast contest dwelled at length on
and referred repeatedly to sexual and excretory activity and
organs. The contest portion of the broadcast, over an hour
in duration and reproduced in a 203-page transcript provided
by Infinity, contains numerous references to sexual and
excretory activity and organs.55 The contest involved the
program hosts' awarding of points to five participating
couples for having sex in or near identified locations in
New York City, with a prize going to the couple that
attained the highest point total.56 Moreover, the on-air
banter between the show's hosts, ``spotters,'' and
participants continuously focused on the contest's sexual
theme and the participants' ongoing sexual activities.57
The descriptions of sexual and excretory activity and organs
were not in any way isolated or fleeting.58 Indeed, the
entire broadcast contest was devoted to sexual activity, and
the graphic and explicit discussion of sexual and excretory
activity and organs was repeated to such an extent that this
discussion constituted the sum and substance of the
broadcast. The sexual discussions and references were more
than sufficiently dwelled upon and repeated to constitute
patently offensive material as measured by contemporary
standards for the broadcast medium.59
14. Finally, two characteristics of the manner in
which the station presented this material establish that the
program was intended to pander, titillate, and shock its
listeners. As an initial matter, the contest was a well-
planned marketing event.60 Large numbers of station and
program employees and managers participated in the advance
planning and/or approval of the contest.61 Indeed,
Infinity admits that earlier versions of the ``Sex for Sam''
contest, which also encouraged participants to engage in
public sex in exchange for prizes, were first planned by the
hosts of the ``Opie & Anthony Show'' as early as 2000 and
subsequently aired three times: on July 21, 2000, August 3,
2001, and by the subject broadcast.62 In short, this
contest was a well-proven marketing tactic that the station
used repeatedly. The premeditated nature of the decision to
encourage sexual activity in locations that would surprise
and shock passersby and attract attention at risk to the
participants, evidenced by the station's formulation of
appropriate locales and assignment of points to each based
upon how provocative and/or offensive sexual conduct in
those locations might be, was plainly reflective of a
transparent effort to pander and titillate for marketing
purposes.63
15. Moreover, the execution of segments of the contest
in locations plainly chosen to expose sexual conduct to
unwitting, unwilling, and potentially vulnerable observers
was a transparent attempt to shock those witnesses and, in
turn, the program's listeners. For example, performing or
simulating sex acts in a religious institution at a time
when it was filled with worshippers64 was likely to shock
not only unwilling observers on the scene but also
listeners. Both groups were subjected to the sex acts, and,
in addition, listeners were subjected to the ensuing
confrontation with police, which also included explicit
sexual references. Particularly by encouraging participants
to engage in or simulate sex acts in a locale in which they
were uninvited and unwelcome intruders, the station
deliberately attempted to pander to, titillate, and shock
listeners.65
16. Indeed, we find the calculated and callous nature
of Infinity's decision to impose this predictably offensive
conduct upon unwilling and potentially vulnerable observers
to be a particularly compelling and weighty aspect of our
indecency analysis in this case. The imposition of shocking
sexual content on unsuspecting listeners is a fundamental
factor that always weighs in our indecency analysis. Here,
the station set out to shock listeners to an even greater
degree by imposing sexual conduct on unsuspecting people who
were otherwise going about their business.66 For example,
encouraging couples to engage in sexual activity in a zoo
and in a toy store was obviously calculated to expose
children to the scene.67 And one spotter reported on the
broadcast as a female participant dropped her skirt in an
elevator in Rockefeller Center and a family with four
children entered the elevator.68 This result was clearly
foreseeable and was the type of event the program was
designed to create. This deliberate attempt to increase the
shock value of the aired sexual and excretory references is
of particular concern to us, and is significant in our
finding that this broadcast material was intended to pander,
titillate, and shock.69 For these reasons, we find that the
resulting broadcast was patently offensive as measured by
contemporary community standards for the broadcast medium.
17. It is undisputed that the complained-of material
was broadcast within the 6 a.m. to 10 p.m. time frame
relevant to an indecency determination under section 73.3999
of the Commission's rules. Thus, because there was a
reasonable risk that children may have been in the audience
at the time that the material at issue was broadcast on
August 15, 2002, the material broadcast is legally
actionable.70 By broadcasting this material, Infinity
apparently violated the prohibitions in 18 U.S.C. § 1464 and
the Commission's rules against broadcast indecency.
B. Obscenity Analysis
18. To be obscene, material must meet a three-prong
test: (1) the average person, applying contemporary
community standards, must find that the material, as a
whole, appeals to the prurient interest; (2) the material
must depict or describe, in a patently offensive way, sexual
conduct specifically defined by applicable law; and (3) the
material, taken as a whole, must lack serious literary,
artistic, political or scientific value.71 Applying that
test, we find that the material that Infinity broadcast on
August 15, 2002, was not obscene. Although the material
included sexual references, it was not sufficiently graphic
or explicit to be deemed obscene under pertinent federal law
and precedent.72 Because the broadcast does not meet the
obscenity standard under Miller, it is subject to the
protections of the First Amendment,73 and we deny the
complaints alleging that the broadcast was obscene.
C. Proposed Forfeiture
19. Based upon our review of the record in this case,
we conclude that Infinity is apparently liable for 13
willful and repeated violations of our rules, one for each
of the 13 Infinity stations that carried the broadcast.74
The Commission's Forfeiture Policy Statement sets a base
forfeiture amount of $7,000 for transmission of indecent or
obscene materials.75 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.''76 In
this case, taking all of these factors into consideration,
we find that Infinity is apparently liable for a forfeiture
of $357,500.00, reflecting the proposed imposition of the
maximum forfeiture amount for each of the 13 violations (13
x $27,500). Based upon our review of the entire record, we
believe that this upward adjustment to the statutory maximum
is warranted. The contest was a well-planned event executed
and approved by the station's managers. The material
broadcast was specifically calculated to produce offensive
conduct and the contest portion of the broadcast, over an
hour in duration, was extensive. Accordingly, we believe
the egregious nature of the violations and the degree of
culpability justifies an increase to the full amount.
Additionally, Infinity's recent history of indecent or
apparently indecent broadcasts justifies imposition of the
maximum forfeiture amount.77 We reiterate our recent
statement that ``additional serious violations by Infinity
may well lead to a license revocation proceeding.''78
IV. ORDERING CLAUSES
20. ACCORDINGLY, IT IS ORDERED, pursuant to section
503(b) of the Communications Act of 1934, as amended, and
section 1.80 of the Commission's rules,79 that Infinity
Broadcasting Operations, Inc. and the other above-listed
entities are hereby NOTIFIED of their APPARENT LIABILITY FOR
FORFEITURE in the amount of Three Hundred Fifty-Seven
Thousand Five Hundred Dollars ($357,500.00) for willfully
violating 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules.80
21. IT IS FURTHER ORDERED, pursuant to section 1.80
of the Commission's rules, that within thirty (30) days of
the release of this Notice, Infinity SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
22. 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 Numbers
(``FRN'') referenced above and also should note the
NAL/Account Number referenced above.
23. The response, if any, must be mailed to Maureen F.
Del Duca, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W, Room 3-B443, Washington D.C. 20554 and
MUST INCLUDE the NAL/Acct. No. referenced above.
24. 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.
25. 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. 20554.81
26. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If Infinity
qualifies as a small entity and if it wishes to be treated
as a small entity for tracking purposes, it should so
certify to us within thirty (30) days of this NAL, either in
its response to the NAL or in a separate filing to be sent
to the Investigations and Hearings Division. The
certification should indicate whether Infinity, including
its parent entity and its subsidiaries, meet one of the
definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (``OCBO'')
set forth in Attachment A of this Notice of Apparent
Liability. This information will be used for tracking
purposes only. Infinity's response or failure to respond to
this question will have no effect on its rights and
responsibilities pursuant to Section 503(b) of the
Communications Act. If Infinity has questions regarding any
of the information contained in Attachment A, it should
contact OCBO at (202) 418-0990.
27. Accordingly, IT IS ORDERED, that the complaints
filed against Station WNEW(FM)'s broadcast of the ``Opie &
Anthony Show'' program on August 15, 2002, ARE GRANTED to
the extent indicated herein, AND ARE OTHERWISE DENIED, and
the complaint proceeding IS HEREBY TERMINATED.82
28. IT IS FURTHER ORDERED, that a copy of this Notice
of Apparent Liability For Forfeiture shall be sent by
Certified Mail Return Receipt Requested to Stephen A.
Hildebrandt, Vice President, Infinity Broadcasting
Operations, Inc., 2000 K Street, N.W., Suite 725,
Washington, D.C. 20006; to Infinity's counsel, Dennis P.
Corbett, Esq., Leventhal, Senter and Lerman, P.L.L.C., 2000
K Street, N.W., Suite 600, Washington, D.C. 20006-1809, and
to William A. Donohue, Ph.D., President of the Catholic
League for Religious and Civil Rights, 450 Seventh Avenue,
New York, N.Y. 10123, and by e-mail to Robert E. Amling,
ramling1@earthlink.net.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
October 2002
ATTACHMENT A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
SEPARATE STATEMENT OF
COMMISSIONER MICHAEL J. COPPS,
DISSENTING
Re: Infinity Broadcasting Operations, Inc., Licensee of
Stations WNEW(FM), New York, New York; WYSP(FM),
Philadelphia, Pennsylvania; KYCY(AM), San Francisco,
California; Infinity Radio Operations, Inc., Licensee of
Stations WBUF(FM), Buffalo, New York; KSFN(AM), North Las
Vegas, Nevada; WXTM(FM), Cleveland Heights, Ohio; WAZU(FM),
Circleville, Ohio; KUPL(AM), Portland, Oregon; Infinity
Radio Subsidiary Operations, Inc., Licensee of Station
KXOA(FM), Roseville, California; Infinity Broadcasting
Corporation of Dallas, Licensee of Station KLLI(FM), Dallas,
Texas; Infinity Broadcasting Corporation of Washington,
D.C., Licensee of Station WJFK-FM, Manassas, Virginia;
Infinity Holdings Corporation, Licensee of Station WCKG(FM),
Elmwood park, Illinois; Hemisphere Broadcasting Corporation,
Licensee of Station WBCN(FM), Boston, Massachusetts, Notice
of Apparent Liability for Forfeiture; AMFM Radio Licenses,
Licensee of Station WWDC-FM, Washington, D.C., Notice of
Apparent Liability for Forfeiture
I dissent from the Commission's decisions to provide no
more than a slap on the wrist to Infinity (owned by Viacom)
and Clear Channel rather than take serious action to address
indecency on our airwaves. Today, the majority proposes a
$27,500 fine for each incident of airing what the majority
agrees appears to be indecent programming at a time when
children likely composed a significant portion of the
audience.
In the case of Infinity/Viacom, thirteen stations ran
the ``Opie & Anthony Show'' which contained a broadcast of
sexual activity at St. Patrick's Cathedral in New York as
part of an on-air stunt. In this stunt, called ``Sex for
Sam,'' couples received points for having sex in public
places. In addition to St. Patrick's Cathedral, the
broadcast described sexual activity at restaurants, at the
Disney Store and at FAO Schwartz. In the case of Clear
Channel, one of its stations, WWDC-FM, broadcast an ``Elliot
in the Morning'' show which included a station-sponsored
promotion to which female high school students called in for
the opportunity to audition to dance in a cage at an
upcoming rock concert. The show's hosts questioned the
girls about their sexual activities at their school --
Bishop Denis J. O'Connell High School -- actively solicited
other high school students to call, and made repeated and
graphic references to oral sex.
Neither of these cases is a difficult call. Both are
outrageous and both were run by stations whose owners knew
better and whose parent companies have had previous indecent
broadcasts brought before this Commission. I believe we
should designate these cases for a hearing on the possible
revocation of these stations' licenses, as provided for by
section 312(a)(6) of the Communications Act.
I am particularly troubled by the decision on the
``Opie and Anthony Show.'' I defy anyone to read the
transcript and argue that this broadcast does not violate
the statutory prohibition against airing indecent material.
And I defy anyone to argue that a $27,500 fine to each of
the stations owned by a multi-billion dollar conglomerate is
adequate to address this clear violation of federal law.
Infinity/Viacom could pay this entire fine by tacking
just one more commercial onto one of its prime-time TV shows
and probably pocket a profit to boot. Some punishment!
The majority admits that each of these stations appears
to have egregiously and extensively violated the statutory
ban on broadcast of indecent material. The majority claims
further to recognize the seriousness of the offense. And it
even concedes that the Commission has the option of the
license revocation process. But then it turns timid and
decides that the appropriate recourse for this filth is a
$27,500 fine against each station. In other words, the
majority determines that these stations deserve yet another
chance before the Commission even considers revoking a
license. When, I ask, will this end?
This is not the first action against a station owned by
Infinity. Infinity stations paid $1.7 million in 1995 to
settle a series of indecency cases. As part of that
settlement, Infinity agreed to take steps to prevent further
broadcast of indecent material. More complaints involving
other Infinity broadcasts followed. Last April, this
Commission issued another tepid proposed fine against
another station owned by this same company - WKRK-FM in
Detroit - which had aired some of the most vulgar and
disgusting indecency that I have had the misfortune to
examine. In that decision, the majority warned that
repeated serious violations by Infinity could result in the
revocation of station licenses. The majority repeats that
same warning again in this decision.
Yet, two months prior to the airing of ``Sex for Sam''
on the ``Opie and Anthony Show,'' this agency cited the same
show for three separate apparent violations of the indecency
statutes. These shows aired between November 2000 and
January 2001. In one instance, a graphic song about a
father having oral sex with his young daughter was
broadcast. In the second instance, the ``Opie and Anthony
Show'' aired another graphic song by a man seeking girls
between the ages of two and three for sex. In the third
instance, the show provided detailed instructions to a
teenager and then broadcast her rubbing a telephone between
her legs.
If this situation does not meet the majority's test for
repeated violators, I fail to understand what would. The
message to licensees is clear. Even egregious repeated
violations will not result in revocation of a license.
Rather, they will result only in a financial penalty that
doesn't even rise to a serious cost of doing business.
I wonder when this Commission will finally take a firm
stand against the ``race to the bottom'' on our airwaves.
The time has come for us to send a message that we are
serious about enforcing the indecency laws of our country
and that we will be especially vigilant about the actions of
repeat offenders such as those cases before us here.
Instead we turn an apparently incurable deaf ear to millions
of Americans who are fed up with the patently offensive
programming sent into their homes so regularly. Today's
decision does nothing to discourage such programming.
It all comes down to this: station owners aren't given
licenses to use the public's airwaves to peddle smut. They
are given licenses to serve the public interest.
SEPARATE STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
Re: Infinity Broadcasting Operations, Inc., Licensee of
Stations WNEW(FM), New York, New York; WYSP(FM),
Philadelphia, Pennsylvania; KYCY(AM), San Francisco,
California; Infinity Radio Operations, Inc., Licensee of
Stations WBUF(FM), Buffalo, New York; KSFN(AM), North Las
Vegas, Nevada; WAZU(FM), Circleville, Ohio; WXTM(FM),
Cleveland Heights, Ohio; KUPL(AM), Portland, Oregon;
Infinity Radio Subsidiary Operations, Inc., Licensee of
Station KXOA(FM), Roseville, California; Infinity
Broadcasting Corporation of Dallas, Licensee of Station
KLLI(FM), Dallas, Texas; Infinity Broadcasting Corporation
of Washington, DC Licensee of Station WJFK-FM, Manassas,
Virginia; Infinity Holdings Corporation of Orlando, Licensee
of Station WCKG(FM), Elmwood park, Illinois; Hemisphere
Broadcasting Corporation, Licensee of Station WBCN(FM),
Boston, Massachusetts, Notice of Apparent Liability for
Forfeiture
I support the finding in this Notice of Apparent Liability
that the licensee apparently violated our rule against the
broadcast of indecent content, but I would have proposed a
higher fine. I note both that we have taken issue with this
licensee in past broadcasts of this radio show and that the
licensee subsequently removed the show.83 As I have said in
similar cases, we could have found that each time the show's
hosts started talking about an indecent topic or had a
separate distinct conversation, the ensuing conversation
constituted a separate violation.84 In prior cases, the
Commission has acknowledged that we have the discretion to
consider each indecent utterance a separate violation.85
SEPARATE STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Infinity Broadcasting Operations, Inc., Notice of
Apparent Liability for Forfeiture
This Notice sends the unmistakable message to Infinity
and other broadcasters who violate our indecency rules: We
are stepping up our enforcement. Once again, we give fair
warning that the Commission can and will avail itself of a
range of enforcement sanctions, including the initiation of
proceedings that could result in the revocation of these
stations' licenses. I will not hesitate to consider such
revocation proceedings for serious violations that occur
after the explicit notice we provided in April in WKRK-FM,
another case involving Infinity. Similarly, as broadcasters
were explicitly notified in April, I will also support on a
going-forward basis an approach that treats each indecent
utterance, such as distinct conversations or program
segments, as a separate violation under our rules. This
will substantially increase our fines, which by statute are
capped at an inadequate level, so they will be more
commensurate with the offenses.
The Commission reached the obvious conclusion in this
case that the broadcast material was indecent and Infinity
should be liable for the full statutory maximum forfeiture
amount. It took far too long for us to reach this
conclusion, and I hope we will act more swiftly in the
future to send a clear message.
Infinity's actions here were unquestionably willful and
egregious. Program hosts Opie & Anthony held numerous
conversations on the air with station spotters describing
and encouraging sexual activity. Station and program
employees participated actively in the ``Sex for Sam''
contest by planning the event, arranging the spotters,
encouraging the most provocative locations like toy stores
and churches likely to expose innocent children and
worshippers to unwelcome sexual conduct, and instructing the
contestants to go inside St. Patrick's Cathedral. These
callous actions show a high degree of culpability and a
deliberate attempt to heighten the shock to listeners. They
clearly offended community standards.
Unfortunately, the statutory constraints on our ability
to level fines are currently inadequate, as the low fines
can be considered by broadcasters as a cost of doing
business and not a serious deterrent. In this case, a fine
below the statutory maximum would not accurately reflect the
circumstances and Infinity's culpability. I believe
strongly that our fines, or other appropriate enforcement
actions, should be sufficient to deter broadcasters from
broadcasting indecent material on the public's airwaves at a
time when children are listening. Today's action, while an
important step in that direction, must be followed by more
stringent, swifter and stricter enforcement of our statutory
obligation to prevent indecent broadcasts over the public
airwaves.
_________________________
1 Formerly Station KUFO(AM).
2 Formerly Station KYNG(FM).
3 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
4 This Order also grants in part and denies in part the 523
e-mailed complaints about this broadcast that the
Enforcement Bureau received.
5 See 18 U.S.C. § 1464, 47 C.F.R. § 73.3999 and 47 U.S.C. §
503(b). Some complaints alleged that the broadcast
material was indecent. See, e.g., Letter from William A.
Donohue, Ph. D., President of the Catholic League for
Religious and Civil Rights to Chief, Investigations and
Hearings Division, Enforcement Bureau, dated August 19, 2002
(``Donohue Complaint''). Others also alleged in addition
that it was obscene. See, e.g., e-mail from Robert E.
Amling to Commissioner Michael J. Copps, dated August 19,
2002 (``Amling Complaint'').
6 See Donohue Complaint at 1.
7 See September 20 Response, program transcript at 12, 59,
65, and 79.
8 See Letter from Dennis P. Corbett, counsel for Infinity
Broadcast Operations, Inc., to Chief, Investigations and
Hearings Division, Enforcement Bureau, dated September 20,
2002. (``September 20 Response'').
9 September 20 Response, program transcript at 19-20, 41,
136, 186 and 193.
10 See generally September 20 Response. Specific point
amounts were assigned to each location selected by the
station. September 20 Response, program transcript at 7.
Some of the locations, and specific point amounts assigned
were: a church, 25 points; a theme restaurant, 15 points;
Carnegie Hall, 20 points; another radio station's van, 30
points; a zoo, 15 points; a movie theatre, 10 points.
September 20 Response, program transcript at 83,120,139; 52,
69; 48, 48, 50; 165; 140; 172. In addition, couples were to
be awarded 75 extra points if a ``stranger bangs your girl''
and 100 points ``if this stranger happens to be one of our
pals from the NYPD or one of our pals from the Fire
Department.'' Id. at 11. Fifty additional points were to
be awarded if the sexual act occurred on live television.
Id. at 13.
11 Id. at 7-13.
12 Id. at 10-11, 31, 35, 45-52, 58-60, 73, 80, 82-83, 86-87,
94-96, 103, 108, 113-14, 124-26, 160, 172.
13 See generally September 20 Response.
14 See Donohue and Amling Complaints.
15 See Donohue Complaint at 1.
16 See September 20 Response, program transcript, passim.
17 September 20 Response, program transcript at 32, 66, 74,
80-83, 87-94, 96-103.
18 Id. at 80-82, 84-85, 87-99, 96-103. Later in the
program, the hosts played a recording of Mercurio's
contemporaneous description of the events at the Cathedral,
including the sexual activity and his confrontation with the
authorities. Id. at 149-51.
19 See infra at ¶ 11.
20 Letter from the Chief, Investigations and Hearings
Division, Enforcement Bureau, to Infinity Broadcasting
Operations, Inc., dated August 22, 2002.
21 See Letter from Stephen A. Hildebrandt, Vice President,
Infinity Broadcast Operations, Inc., to Chief,
Investigations and Hearings Division, Enforcement Bureau,
dated October 11, 2002 (``October 11 Response''), at 8.
Infinity acknowledges that Station WNEW(FM) aired the
contest during the afternoon, outside the ``safe harbor''
hours of 10 p.m. to 6 a.m. Id. at 2.
22 October 11 Response, at 10.
23 Id. at 10 n.11.
24 Id. at 10.
25 Id.
26 See 47 U.S.C. § 326.
27 18 U.S.C. § 1464.
28 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see
also 47 U.S.C. § 503(b)(1)(D)(forfeitures for violation of
14 U.S.C. § 1464). Section 312(f)(1) of the Act defines
willful as ``the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to
violate'' the law. 47 U.S.C. § 312(f)(1). The legislative
history to section 312(f)(1) of the Act clarifies that this
definition of willful applies to both sections 312 and
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess.
51 (1982), and the Commission has so interpreted the term in
the section 503(b) context. See, e.g., Application for
Review of Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern
California Broadcasting Co.''). The Commission may also
assess a forfeiture for violations that are merely repeated,
and not willful. See, e.g., Callais Cablevision, Inc.,
Grand Isle, Louisiana, Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage).
``Repeated'' merely means that the act was committed or
omitted more than once, or lasts more than one day.
Southern California Broadcasting Co., 6 FCC Rcd at 4388, ¶
5; Callais Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
29 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
30 See, e.g., SBC Communications, Inc., Apparent Liability
for Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4
(2002)(forfeiture paid).
31 U.S. CONST., amend. I; See Action for Children's
Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988)
(``ACT I'').
32 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.'' FCC v. Pacifica Foundation, 438 U.S. 726
(1978). See also ACT I, 852 F.2d at 1339; Action for
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir.
1991), cert. denied, 503 U.S. 914 (1992) (``ACT II'');
Action for Children's Television v. FCC, 58 F. 3d 654 (D.C.
Cir. 1995), cert. denied, 516 U.S. 1043 (1996) (``ACT
III'').
33 ACT I, 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 may say and hear.'') See
also United States v. Playboy Entertainment Group, Inc., 529
U.S. 803, 813-15 (2000).
34 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)).
35 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, 8002, ¶¶ 7-8 (2001) (emphasis
in original).
36 October 11 Response at 9-10.
37 The ``contemporary standards for the broadcast medium''
criterion is that of an average broadcast listener and with
respect to Commission decisions, does not encompass any
particular geographic area. See id. at ¶ 8 and n. 15.
38 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9
(emphasis in original). In this regard, in order for us to
be in a position to judge the context of particular
material, once a complainant makes a prima facie case, it is
appropriate for the staff to seek from the licensee a tape
or transcript not only of the relevant material, but also of
a reasonable amount of preceding and subsequent material.
39 Id. at 8002-15, ¶¶ 8-23.
40 Id. at 8003, ¶ 10.
41 Id. at 8009, ¶ 19 (citing Tempe Radio, Inc (KUPD-FM), 12
FCC Rcd 21828 (MMB 1997) (forfeiture paid) (extremely
graphic or explicit nature of references to sex with
children outweighed the fleeting nature of the references);
EZ New Orleans, Inc. (WEZB(FM)), 12 FCC Rcd 4147 (MMB 1997)
(forfeiture paid) (same).
42 Id. at 8010, ¶ 20 (``the manner and purpose of a
presentation may well preclude an indecency determination
even though other factors, such as explicitness, might weigh
in favor of an indecency finding'').
43 See id. at 8010, ¶ 20 (citing Rusk Corporation
(KLOL(FM)), 5 FCC Rcd 6332 (MMB 1990)(forfeiture paid)
(manner of presentation was critical to indecency finding);
Jacor Broadcasting Corporation (WEBN(FM)), 13 FCC Rcd 4152
(MMB 1997), aff'd 13 FCC Rcd 5825 (MMB 1997) (forfeiture
paid) (same).
44 September 20 Response, program transcript at 10-11, 51,
83, 109 and 134.
45 Id. at 80; see also id. at 82, 149.
46 Id. at 83.
47 Id. at 103.
48 Id.
49 Id. at 160.
50 Id. at 109.
51 Id. at 187. Upon hearing of the activity at Rockefeller
Center, one of the show's hosts commented, ``[w]ow, that's
great. What a great view. Little Argentinian ass.''
52 Id. at 140.
53 Indecency Policy Statement, 16 FCC Rcd at 8002-04, ¶¶ 9-
12 (2001). See also, Emmis Radio License Corporation
(WKQX(FM)), 17 FCC Rcd 5263 (EB 2002) (NAL); 17 FCC Rcd
21697 (EB 2002) (FO) (petition for reconsideration pending)
(where innuendo's ``unmistakably sexual'' meanings and
contexts were established by lengthy surrounding discussion,
the material was found to be actionably indecent). In this
regard, ``balloon-knot action'' and ``two point
conversion,'' referred to anal sex. September 20 Response,
program transcript at 10-11; passim. The hosts made
inescapable the sexual meaning of their repeated references
to ``two point conversions'' in evaluating the contestants'
performances. Id. at 10. (``You got to spin her around and
-and that will give you two additional points.'').
54 See Sagittarius Broadcast Corporation, 7 FCC Rcd 6873,
6874 (1992) (subsequent history omitted).
55 The station apparently aired the contest portion of the
broadcast during the afternoon, outside the ``safe harbor''
hours of 10 p.m. to 6 a.m. See October 11 Response, at 2;
note 21, supra.
56 October 11 Response, at 9.
57 September 20 Response, program transcript, passim.
58 See Infinity Broadcasting Operations, Inc.(WKRK-FM),
Notice of Apparent Liability for Monetary Forfeiture, 18 FCC
Rcd 6915 (2003) (response pending).
59 See Indecency Policy Statement, 16 FCC Rcd 7999, 8002.
60 October 11 Response, at 3-6.
61 Id.
62 Id. at 7, 9. Infinity claims that the earlier contests
encouraged participating couples to ``exercise judgment to
stay either entirely out of public view or in settings where
they would not cause public controversy.'' Id. at n.9.
63 October 11 Response, at 2-10; id., program transcript at
41 ((``And you need a girl who could take a good F'ing.'');
Id., program transcript at 41. id. at 68 (``[a] Fire
Department gang-bang would be devastating.''). Id. at 68.
64 See Donohue Complaint at 1. See also September 20
Response, program transcript at 139 (``we also did a house
of worship. And out front, it said, uh, `Church open all
day for prayer, meditation'¾and I guess now for banging,
too.''). September 20 Response, program transcript at 139.
65 See Indecency Policy Statement, 16 FCC Rcd at 8010, ¶ 20
(citing FCC v. Pacifica Foundation, 438 U.S. 726, 757 (1978)
(Powell, J., concurring in part, and concurring in judgment:
``[T]he language employed is, to most people, vulgar and
offensive. It was chosen specifically for this quality, and
it was repeated over and over as a sort of verbal shock
treatment.'')).
66 As the couple and Mercurio walked up the steps of the
Cathedral, Mercurio commented on the air, ``And we are
getting looks like you wouldn't (inaudible). It's
unbelievable. One woman yelled out, `That's a church. You
should be ashamed of yourself.''' September 20 Response,
program transcript at 65.
67 Id. at 140 (zoo); Id. at 79 (FAO Schwarz toy store).
68 Id. at 187.
69 Cf. The KBOO Foundation, 16 FCC Rcd 10731 (EB 2001)
(NAL), rescinded, 18 FCC Rcd 2472 (EB 2002) (In finding
material not indecent, Commission did not find that
references to sexual or excretory activities or organs were
intended to pander, titillate or shock, and did note that
artist performed song in high school by invitation.).
70 See ACT III, 58 F.3d at 660-63.
71 See Miller v. California, 413 U.S. at 24.
72 Cf. Harriscope of Chicago, Inc., et al., A Joint Venture
d/b/a VIDEO 44 (WSNS-TV), 8 FCC Rcd 2753, 2754 (1993)
(citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56
n.6 (1973) (in an obscenity adjudication, hard-core
pornography with singular focus on sexual organs and acts
``can and does speak for itself'')); Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 504-05 (1985) (where the
content of a pornographic film dwelled ``morbid[ly]'' on the
``mechanics of sex,'' that, as a whole, lacked any literary,
artistic political or social value, it was found to be
obscene); Jenkins v. Georgia, 418 U.S. 153 (1974)(close-up
and focused depictions of sex acts may be diagnostic of
obscenity); U.S. v. Bagnell, 679 F.2d 826 (11th Cir. 1982),
cert. denied, 103 S.Ct. 1449(1983)(films which depicted man
and woman engaged in oral, anal, and genital copulation,
lesbian and homosexual acts, mutual masturbation, and which
lacked plot or dialogue were obscene).
73 Sable v. FCC, 492 U.S. 116, 126 (1989).
74According to Infinity, the program was aired over 13
stations: WNEW(FM), KLLI(FM)(formerly KYNG(FM)), WYSP(FM),
WCKG(FM), WXTM(FM), WAZU(FM), KXOA(FM), KYCY(AM), WJFK-FM,
WBCN(FM), WBUF(FM), KUPL(AM)(formerly KUFO(AM)), and
KSFN(AM). October 11 Response, at 8.
75 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). The Commission recently
amended its rules to increase the maximum penalties to
account for inflation since the last adjustment of the
penalty rates. The new rates apply to violations that occur
or continue after November 13, 2000. See Order, In the
Matter of Amendment of Section 1.80(b) of the Commission's
Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 15 FCC Rcd 18221 (2000).
76 Forfeiture Policy Statement, 12 FCC Rcd at 17110.
77 See, e.g., Infinity Broadcasting Operations, Inc.(WKRK-
FM), Notice of Apparent Liability for Monetary Forfeiture,
18 FCC Rcd 6915, 6917 (2003) (response pending) (broadcast
on WKRK on January 9, 2002 that ``described in detail how
specifically named sexual acts are performed'' and that
``included explicit and graphic sexual references, including
references to anal and oral sex, as well as explicit and
graphic references to sexual practices that involve
excretory activities''); Infinity Broadcasting Corporation
of Los Angeles,(KROQ-FM), Memorandum Opinion and Order, 17
FCC Rcd 9892 (2002) (broadcast on KROQ-FM on March 28, 1997
of song ``You Suck'' ); Infinity Broadcasting Operations,
Inc.(WNEW(FM)), Notice of Apparent Liability for Monetary
Forfeiture, 17 FCC Rcd 10665, 10665-66 (EB 2002)(response
pending) (broadcasts on the Opie and Anthony Show on WNEW
November 15 and 16, 2000 and January 8, 2001 that included a
song in which a girl says she is her father's ``little
whore'' and says that ``I almost choked on your creamy
head,'' a segment in which the hosts ``asked a seventeen-
year old girl to remove her panties and rub the telephone on
her pubic hair,'' and a song sung by a man who is ``horny
for little girls,'' liked the girls' ``round butts'' and
``liked to ram them'').
We note that none of these prior broadcasts have led to
either a payment/admission by Infinity or a final
adjudication of indecency by a court of competent
jurisdiction. In addition, some of the proceedings remain
pending before the Commission and we make no final decision
on those pending proceedings. In this regard, we cite these
prior broadcasts only for their underlying facts, not
because of the existence of an NAL or forfeiture order.
Prior to any final adjudication of a forfeiture amount in
this case that is increased based on these prior broadcasts,
Infinity will have the right to a final adjudication
regarding whether these prior broadcasts were in fact
indecent. See Forfeiture Policy Statement Reconsideration
Order, 15 FCC Rcd 303, 304-05 (1999).
78 Infinity Broadcasting Operations, Inc. (WKRK-FM), 18 FCC
Rcd at 6919 (response pending). We note that the behavior
here took place prior to the release of the WKRK-FM NAL.
79 47 C.F.R. § 1.80.
80 The amount is allocated on a basis of $27,500.00 per
station.
81 See 47 C.F.R. § 1.1914.
82 Consistent with section 503(b) of the Act and consistent
Commission practice, for the purposes of the forfeiture
proceeding initiated by this NAL, Infinity shall be the only
party to this proceeding.
83 In June 2002, for example, the Enforcement Bureau issued
a Notice of Apparent Liability for $21,000 for the Opie and
Anthony Show willfully and repeatedly broadcasting indecent
language on several occasions. See Infinity Broadcasting
Operations, Inc., Licensee of Station WNEW(FM), New York,
New York, Notice of Apparent Liability for Forfeiture, 17
FCC Rcd 27711 (EB 2002). The final outcome of this case is
still pending.
84 See Separate Statement of Commissioner Kevin J. Martin,
Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK-FM, Detroit, Michigan, Notice of Apparent Liability for
Forfeiture, 18 FCC Rcd 6915 (2003) (Infinity Detroit NAL).
85 Infinity Detroit NAL at para. 13 (clarifying that the
Commission could pursue enforcement action for each indecent
utterance). See also 18 U.S.C. § 1464 (specifying that
``[w]hoever utters any obscene, indecent, or profane
language by means of radio communication shall be fined
under this title or imprisoned not more than two years, or
both.'').