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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                        )    File No. 
99090433
                              )
INFINITY RADIO LICENSE, INC.1      )    NAL/Acct. No. 
2001320800008
                              )    FRN: 0004-0367-11
Licensee of Station WLLD(FM),      )    Facility ID # 18527
Holmes Beach, Florida                   )

                   MEMORANDUM OPINION AND ORDER

Adopted: August 6, 2004                         Released: 
August 23, 2004  

By  the  Commission:   Commissioner  Martin  concurring  and 
issuing a statement.

I. INTRODUCTION

     1.  In this Memorandum Opinion and Order, we deny a 
Petition for Reconsideration filed on April 19, 2004, by 
Infinity, licensee of Station WLLD(FM), Holmes Beach, 
Florida (``Petition'').  Infinity seeks reconsideration of 
the Commission's denial of Infinity's October 28, 2002, 
Application for Review.2  In its Application for Review, 
Infinity sought review of a Memorandum Opinion and Order3 
issued by the Chief, Enforcement Bureau (``Bureau''), which 
denied Infinity's Petition for Reconsideration of a 
Forfeiture Order4 that imposed a monetary forfeiture in the 
amount of Seven Thousand Dollars ($7,000.00) against it for 
willful violation of 18 U.S.C. § 1464 and 47 C.F.R. § 
73.3999, the latter of which prohibits the broadcast of 
indecent material between 6 a.m. and 10 p.m.

II. BACKGROUND

     2.  The facts and circumstances resulting in the 
forfeiture are discussed at length in the 2004 Commission 
MO&O and Bureau orders noted above and will not be repeated 
here.  In its Petition, Infinity repeats arguments 
previously made in this proceeding and advances two 
additional arguments, both of which, it maintains, warrant 
reconsideration and reversal of the 2004 Commission MO&O.  
First, Infinity contends that the 2004 Commission MO&O 
raises questions as to whether the Commission's 
ascertainment and understanding of contemporary community 
standards relative to broadcast indecency are adequate.5  
Second, Infinity argues that five Commission decisions6 
released contemporaneously with the Commission MO&O further 
undermine the constitutionality of the Commission's 
indecency enforcement scheme.  Infinity maintains that, 
until the Commission brings clarity to the purportedly 
unconstitutionally vague standards employed in enforcing the 
prohibition against broadcast indecency and reintroduces 
procedural and substantive restraints consistent with the 
First Amendment, it cannot penalize any broadcaster for 
airing allegedly indecent material.7    

III. DISCUSSION

     3.  Reconsideration is appropriate only where the 
petitioner either shows a material error or omission in the 
original order or raises additional facts not known or 
existing until after the petitioner's last opportunity to 
present such matters.8  A petition that simply repeats 
arguments previously considered and rejected will be 
denied.9  To the extent that the Petition repeats 
constitutional arguments regarding the indecency standard 
which we have already considered and rejected,10 denial of 
reconsideration is warranted.  Moreover, as we explain 
below, neither additional argument raised by Infinity in its 
Petition warrants reconsideration of the 2004 Commission 
MO&O.     

     4.  Applying our long-standing definition of 
indecency11 in the 2004 Commission MO&O, we affirmed the 
Bureau's determination that the utterance at issue aired by 
Station WLLD(FM) was indecent.  Nothing in Infinity's 
Petition suggests that Station WLLD(FM) did not air the 
cited utterance between the hours of 6 a.m. and 10 p.m.  
Moreover, neither the 2004 Commission MO&O's discussion of 
how the Commission determines contemporary community 
standards in indecency cases nor the Commission decisions 
cited by Infinity, either singly or in combination, 
constitute a changed fact or circumstance that justifies 
reconsideration.  The 2004 Commission MO&O did not modify 
the definition of ``contemporary community standards'' nor 
the agency's methodology for ascertaining those standards.12  
Likewise, none of the five recent Commission decisions cited 
by Infinity altered the Commission's definition of indecency 
or the safe harbor parameters prescribed in 47 C.F.R. § 
73.3999 or addressed issues pertinent to the case now before 
us.  Thus, Infinity's arguments about the sufficiency of a 
complainant's evidence as to what was broadcast,13 
unpublished staff decisions as relevant precedent,14 or the 
validity of finding that a particular utterance could be 
profane as well as indecent15 are irrelevant.  As discussed 
at length in our prior decision, the cited utterance 
broadcast by Station WLLD(FM), which described a sexual 
activity in patently offensive terms, was indecent,16 and 
this finding was consistent with precedent.17  Consequently, 
nothing raised in the Petition constitutes new facts or 
changed circumstances that warrant further reconsideration 
of the forfeiture penalty assessed against Infinity for the 
material at issue here.  Rather, Infinity's Petition 
contains arguments that the Commission has already 
considered or that have absolutely nothing to do with the 
issues in this proceeding.  We therefore deny Infinity's 
Petition.  

IV. ORDERING CLAUSES

     5.  ACCORDINGLY, IT IS ORDERED that, pursuant to 47 
U.S.C. § 405 and 47 C.F.R. § 1.106(b)(3), the Petition for 
Reconsideration filed on April 19, 2004, by Infinity Radio 
License, Inc. IS DENIED.
     
     6.  IT IS FURTHER ORDERED that a copy of this 
Memorandum Opinion and Order shall be sent by certified 
mail, return receipt requested, to counsel for Infinity, 
Steven A. Lerman, 
Esq., Leventhal Senter & Lerman PLLC, 2000 K Street, N.W., 
Suite 600, Washington, D.C. 20006-1809.


                         FEDERAL COMMUNICATIONS COMMISSION




                         Marlene H. Dortch
                         Secretary                   CONCURRING STATEMENT OF 
                COMMISSIONER KEVIN J. MARTIN

Re:  Infinity Radio License, Inc., Licensee of Station 
     WLLD(FM), Holmes Beach, FL, Memorandum Opinion and 
     Order

     This Order denies a Petition for Reconsideration of an 
Order we released in March of this year.  I concur in this 
Order for the same reason I concurred in the underlying 
Order:  the broadcast included numerous indecent utterances; 
Infinity, the licensee, has a long history of repeated 
violations; and thus each violation in this broadcast 
deserves a much higher fine.  The Bureau's proposed $7,000 
fine is therefore inadequate.  


_________________________

1 Commission records reflect that the licensee of Station 
WLLD(FM) is now Infinity Radio Inc., following grant of an 
application for approval of the pro forma assignment of the 
station's license on November 25, 2003.  See File No. BALH-
20031110AHJ.  We hereafter refer to the licensee as 
``Infinity.''

2 Infinity Radio License, Inc., 19 FCC Rcd 5022 (2004) 
(``2004 Commission MO&O'').

3 Infinity Radio License, Inc., 17 FCC Rcd 18339 (EB 2002).
4
 Infinity Radio License, Inc., 16 FCC Rcd 4825 (EB 2001) 
(``Forfeiture Order'').

5 Petition at 4-6.
6 The five decisions are: Clear Channel Broadcasting 
Licenses, Inc. et al., Notice of Apparent Liability for 
Forfeiture, 19 FCC Rcd 6773 (2004); Emmis Radio License 
Corporation, Memorandum Opinion and Order, 19 FCC Rcd 6452 
(2004) (``Emmis''); Infinity Broadcasting Operations, Inc., 
Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 5032 
(2004); Complaints Against Various Broadcast Licensees 
Regarding Their Airing of the ``Golden Globe Awards'' 
Program (Memorandum Opinion and Order), 19 FCC Rcd 4975 
(2004) (``Golden Globe''); and Capstar TX Limited 
Partnership (WAVW(FM) and WCZR(FM), Notice of Apparent 
Liability for Forfeiture, 19 FCC Rcd 4960 (2004) 
(``Capstar'').  Infinity also suggests that Infinity 
Broadcasting Operations, Inc., Notice of Apparent Liability 
for Forfeiture, 18 FCC Rcd 6915, 6919 (2003), which warned 
broadcasters about possible license revocations for future 
serious indecency violations and about possible forfeitures 
for multiple indecency violations within a single program, 
constitutes a changed circumstance that justifies 
reconsideration of the 2004 Commission MO&O.

7 Petition at 2, 6-13.

8 WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain 
Journal Co. v. FCC, 351 F. 2d 824 (D.C. Cir. 1965), cert. 
denied, 383 U.S. 967 (1966); 47 C.F.R. § 1.106(c).
9
 Bennett Gilbert Gaines, 8 FCC Rcd 3986 (Rev. Bd. 1993).
10
 2004 Commission MO&O, supra note 2, p. 6, ¶ 13; Forfeiture 
Order, supra note 4, 16 FCC Rcd at 4827, ¶ 9.  
   
11 See In the Matter of Industry Guidance on the 
Commission's Case Law Interpreting 18 U.S.C. § 1464 and 
Enforcement Policies Regarding Broadcast Indecency, 16 FCC 
Rcd 7999, 8000 ¶ 4 (2001) (``Indecency Guidelines'').  
Indecent material is ``language or material that, in 
context, depicts or describes, in terms patently offensive 
as measured by contemporary community standards for the 
broadcast medium, sexual or excretory activities or 
organs.''  See also 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)).
12 Compare 2004 Commission MO&O, 19 FCC Rcd at 5026, ¶ 12 
with Infinity Broadcasting Corporation of Pennsylvania 
(WYSP(FM)), 3 FCC Rcd 930, 933 ¶ 24 (1987) (subsequent 
history omitted).  To the extent we spelled out in more 
detail how we determine contemporary community standards, 
our statements were entirely consistent with prior 
Commission statements. 
13
 See Petition at 7, at which Infinity cites Capstar and 
argues that the Commission's initial reliance therein on a 
``complainant's sketchy, unsupported recollection ... strips 
away the procedural protections of the erstwhile `tape or 
transcript' requirement.''  In a similar vein, in the 
Petition at 7-8, Infinity finds fault with Emmis, 19 FCC Rcd 
at 6455-56, ¶ 10, for supposedly basing an indecency finding 
``solely on the complainant's `characterization' of the 
broadcast and the Commission's categorization of the 
speakers involved.''  In this proceeding, however, the 
complainant submitted both tapes and transcripts.  Infinity 
did not dispute that the material that the Commission found 
indecent was broadcast over Station WLLD(FM) between 6 a.m. 
and 10 p.m.  See CBS Radio License, Inc., 15 FCC Rcd 23881, 
¶ 4 (Enf. Bur. 2000).   
14
 See Petition at 9-10, at which Infinity maintains that, in 
Infinity Broadcasting Operations and Clear Channel, the 
Commission's determination that unpublished staff decisions 
are not binding on the Commission undermines the guidance 
set forth in Indecency Guidelines.
15
 See Petition at 10-13, at which Infinity argues that Golden 
Globe, supra note 6, 19 FCC Rcd at 4981-82, replaced 
established indecency regulation with a new regime of 
profanity regulation.  In this proceeding, Infinity was 
assessed a forfeiture because the broadcast in question was 
determined to be indecent, not because it was found to be 
profane.
16
 2004 Commission MO&O, 19 FCC Rcd at 5022-24. 
17
 WQAM License Limited Partnership, 15 FCC Rcd 2518, recon. 
denied, 15 FCC Rcd 13549 (2000); The Rusk Corporation 
(KLOL(FM)), 8 FCC Rcd 3228 (1993).