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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
EMMIS COMMUNICATIONS ) NAL/Acct. No. 200432080193
CORPORATION ) FRN No. 0004161410
)
EMMIS RADIO LICENSE CORPORATION ) FRN No. 0001529346
)
Licensee of Station WKQX(FM), ) Facility ID No. 19525
Chicago, Illinois )
) NAL/Acct. No. 200132080029
Forfeiture Order released )
January 8, 2002 (DA 02-26)1 ) NAL/Acct. No. 200232080008
Forfeiture Order released )
November 1, 2002 ) NAL/Acct. No. 200232080014
(DA 02-2937)2 )
Forfeiture Order released
February 18, 2004
(DA 04-386)3
ORDER
Adopted: August 10, 2004 Released:
August 12, 2004
By the Commission: Commissioner Copps concurring and issuing
a statement; Commissioner Adelstein issuing a statement.
1. The Commission has been investigating whether
Emmis Communications Corporation and its direct and indirect
subsidiaries that hold FCC authorizations (collectively
``Emmis'') may have violated restrictions on the broadcast
of obscene, indecent or profane material.4
2. The Commission and Emmis have negotiated the terms
of the Consent Decree, a copy of which is attached hereto
and incorporated by reference.
3. After reviewing the terms of the Consent Decree,
we find that the public interest would be served by
approving the Consent Decree and terminating all pending
proceedings against Emmis relating to restrictions on the
broadcast of obscene, indecent or profane material.
4. Based on the record before us, in particular
Emmis's admission that some of the material it broadcast was
indecent in violation of 47 C.F.R. § 73.3999, and the
remedial efforts to which Emmis has agreed, we conclude that
there are no substantial and material questions of fact in
regard to these matters as to whether Emmis possesses the
basic qualifications, including its character
qualifications, to hold or obtain any FCC licenses or
authorizations.
5. Accordingly, IT IS ORDERED, pursuant to Sections
4(i), 4(j), and 503(b) of the Communications Act of 1934, as
amended,5 that the attached Consent Decree IS ADOPTED.
6. IT IS FURTHER ORDERED that the Secretary SHALL
SIGN the Consent Decree on behalf of the Commission.
7. IT IS FURTHER ORDERED that the above-captioned
Commission Forfeiture Orders and Memorandum Opinion and
Order against Emmis regarding violations of 18 U.S.C. §1464
and 47 C.F.R. § 73.3999 ARE RESCINDED, VACATED and
CANCELLED, all Enforcement Bureau investigations regarding
possible violations by Emmis of 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999 ARE TERMINATED, and all third-party
Complaints against Emmis for possible violations of 18
U.S.C. § 1464 and 47 C.F.R. § 73.3999 pending before the
Enforcement Bureau as of the date of the Consent Decree ARE
DISMISSED WITH PREJUDICE.
8. IT IS FURTHER ORDERED that the July 16, 2004,
Petition for Reconsideration of David Edward Smith
IS DENIED.6
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Consent Decree
I.1. The Federal Communications Commission and Emmis
Communications Corporation, for itself and on behalf of its
direct and indirect owned or controlled subsidiaries that
hold FCC authorizations, hereby enter into this Consent
Decree for the purpose of resolving and terminating certain
forfeiture proceedings, investigations and complaints
currently being conducted by, or pending before, the
Commission relating to possible violations of the Indecency
Laws by Emmis Stations.
I.2. For purposes of this Consent Decree the following
definitions shall apply:
1)a. "Act" means the Communications Act of 1934, as
amended, 47 U.S.C. § 151 et seq.;
1)b. "Adopting Order" means an order of the FCC
adopting this Consent Decree, without any modifications
adverse to Emmis or any Emmis Station;
1)c. "Bureau" means the FCC's Enforcement Bureau;
1)d. "Emmis Station" and "Emmis Stations" means one or
more broadcast stations licensed to Emmis;
1)e. "Emmis" means Emmis Communications Corporation and
all of its direct and indirect owned or controlled
subsidiaries that hold authorizations issued by the
FCC;
1)f. "Commission" or "FCC" means the Federal
Communications Commission;
1)g. "Complaints" means third-party complaints received
by, or in the possession of, the Bureau or the
Commission, alleging violations of the Indecency Laws
by Emmis Stations, including (but not limited to)
complaints that have previously been dismissed and
complaints that have resulted in letters of inquiry
from the Bureau (``LOIs'').
1)h. "Effective Date" means the date on which the FCC
releases the Adopting Order;
1)i. "Final Order" means the status of the Adopting
Order after the period for administrative and judicial
review has lapsed;
1)j. ``Forfeiture Orders'' means those certain
Forfeiture Orders respecting Station WKQX released (a)
Jan. 8, 2002 (File No. EB-00-IH-0401, DA 02-26), (b)
Nov. 1, 2002 (File Nos. EB-01-IH-0124, -0319, -0408, DA
02-2937) and (c) February 18, 2004 (File No. EB-01-IH-
0121, DA 04-386).
1)k. "Indecency Laws" means 18 U.S.C. § 1464 and 47
C.F.R. § 73.3999;
1)l. "Inquiries" means investigations of alleged
violations of the Indecency Laws by Emmis Stations that
have resulted in LOIs to Emmis, or to other licensees
that relate to Emmis Stations;
1)m. ``MO&O'' means that certain Memorandum Opinion and
Order of the Commission released April 8, 2004 (File
No. EB-00-IH-0401, FCC 04-62);
1)n. "NAL" means a Notice of Apparent Liability issued
pursuant to Section 1.80(f) of the Rules;
1)o. "Parties" means Emmis and the Commission;
1)p. "Rules" means the Commission's regulations found
in Title 47 of the Code of Federal Regulations.
II. BACKGROUND
II.1. Both the Commission and Emmis acknowledge that any
proceedings that might result from the Forfeiture Orders,
the MO&O, the Inquiries and/or the Complaints will be time-
consuming and will require substantial expenditure of public
and private resources.
II.2. In order to conserve such resources, and to
promote compliance by Emmis with the Indecency Laws, the
Commission and Emmis are entering into this Consent Decree,
in consideration of the mutual commitments made herein.
III. AGREEMENT
III.1. The Parties agree that the provisions of this
Consent Decree shall be subject to approval by the
Commission by incorporation of such provisions by reference
in an Adopting Order.
III.2. The Parties agree that this Consent Decree shall
become effective on the date on which the Commission
releases the Adopting Order. Upon release, the Adopting
Order and this Consent Decree shall have the same force and
effect as any other orders of the Commission and any
violation of the terms of this Consent Decree shall
constitute a violation of a Commission order, entitling the
Commission to exercise any rights and remedies attendant to
the enforcement of a Commission order.
III.3. Emmis agrees that the Commission has jurisdiction
over the matters contained in this Consent Decree and the
authority to enter into and adopt this Consent Decree.
III.4. As part of the Adopting Order, the Commission
shall rescind, vacate and cancel the MO&O and the Forfeiture
Orders, shall terminate the Inquiries, and shall dismiss
with prejudice the Complaints. From and after the Effective
Date, the Commission shall not, either on its own motion or
in response to any petition to deny or other third-party
objection, initiate any inquiries, investigations,
forfeiture proceedings, hearings, or other sanctions or
actions against Emmis, any Emmis Station, or any pending or
future application to which Emmis is a party (including,
without limitation, any application for a new station, for
renewal of license, for assignment of license, or for
transfer of control), based in whole or in part on (i) the
Forfeiture Orders, (ii) the Inquiries, (iii) the Complaints,
(iv) any other similar complaints alleging violation by any
Emmis Station of the Indecency Laws with respect to any
broadcast occurring prior to the Effective Date, or (v) the
allegations contained in any of the foregoing. Without
limitation to the foregoing, the FCC shall not use the facts
of this Consent Decree, the Forfeiture Orders, the
Inquiries, the Complaints, any other similar complaints
alleging violation by any Emmis Station of the Indecency
Laws with respect to any broadcast occurring prior to the
Effective Date, or the underlying facts, behavior, or
broadcasts that relate to any of the foregoing, for any
purpose relating to Emmis or any Emmis Station, and shall
treat all such matters as null and void for all purposes.
III.5. Within five (5) business days after the Adopting
Order becomes a Final Order, without any modifications to
this Consent Decree adverse to Emmis or to any Emmis
Station, Emmis will withdraw all pending pleadings seeking
review or reconsideration of the MO&O and the Forfeiture
Orders.
III.6. Emmis represents that it has adopted, and will
modify in accordance with the Attachment hereto, a company-
wide compliance plan for the purpose of preventing the
broadcast of material violative of the Indecency Laws. A
summary of that plan is set forth in the attachment. Emmis
agrees, to the extent it has not already done so, to
implement this compliance plan within thirty (30) days of
the Effective Date and to keep such compliance plan in
effect for three (3) years after the Effective Date. Emmis
reserves the right to revise the plan from time to time,
provided that the Commission shall be given not less than
thirty (30) days advance written notice of any revisions to
the plan.
III.7. Within five (5) business days after the Adopting
Order becomes a Final Order, without any modifications to
this Consent Decree adverse to Emmis or to any Emmis
Station, Emmis shall make a voluntary contribution to the
United States Treasury in the amount of Three Hundred
Thousand Dollars ($300,000). Emmis must make this payment
by check, wire transfer or money order drawn to the order of
the Federal Communications Commission, and the check, wire
transfer or money order shall refer to Acct. No.
200432080193 and FRN No. 0004161410. If Emmis makes this
payment by check or money order, it must mail the check or
money order to: Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 606073-7482. If Emmis makes this payment
by wire transfer, it must wire such payment in accordance
with Commission procedures for wire transfers.
III.8. Emmis waives any and all rights it may have to
seek administrative or judicial reconsideration, review,
appeal or stay, or to otherwise challenge or contest the
validity of this Consent Decree and the Adopting Order,
provided no modifications are made to the Consent Decree
adverse to Emmis or any Emmis Station. If the Commission,
or the United States acting on its behalf, brings a judicial
action to enforce the terms of the Adopting Order or this
Consent Decree, or both, Emmis will not contest the validity
of this Consent Decree or of the Adopting Order and will
waive any statutory right to a trial de novo. If Emmis
brings a judicial action to enforce the terms of the
Adopting Order or this Consent Decree, or both, the
Commission will not contest the validity of this Consent
Decree or of the Adopting Order.
III.9. Emmis admits, solely for the purpose of this
Consent Decree and for FCC civil enforcement purposes, and
in express reliance on the provisions of Paragraph 8 hereof,
that the broadcast material at issue in the Forfeiture
Orders and certain of the broadcast material at issue in the
Inquiries is indecent in violation of 47 C.F.R. § 73.3999,
assuming construction of this term as it is construed by the
Commission as of the date hereof. Notwithstanding any other
provision of this Consent Decree, it is expressly agreed and
understood that if this Consent Decree, or Paragraph 8
hereof, or both, are breached by the Commission, or are
invalidated or modified to Emmis' prejudice by the
Commission or by any court, then and in that event the
provisions of the immediately-preceding sentence shall be of
no force or effect whatever, and Emmis shall not, by virtue
of that sentence or any other provision of this Consent
Decree, be deemed to have made any admission concerning any
material broadcast on any Emmis Station.
III.10. In the event that this Consent Decree is rendered
invalid in any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in
any legal proceeding.
III.11. Emmis hereby agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5
U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating to the
matters addressed in this Consent Decree.
III.12. Each party represents and warrants to the other
that is has full power and authority to enter into this
Consent Decree.
III.13. This Consent Decree may be executed in
counterparts.
FEDERAL COMMUNICATIONS COMMISSION
By: _________________________________________
Marlene H. Dortch
Secretary
Date:
EMMIS COMMUNICATIONS CORPORATION
(For itself and on behalf of its direct and indirect owned
or controlled subsidiaries that hold FCC authorizations)
By: _______________________________________
Gary L. Kaseff
Executive Vice-President and General Counsel
Date:
Attachment
Compliance Plan
1. Emmis will conduct training on obscenity and
indecency for all on-air TV and radio talent and
employees who materially participate in programming
decisions, which will include tutorials regarding
material that the FCC does not permit broadcasters to
air. Training will be provided to all such employees,
except those who have already received such training
within the past twelve (12) months, within thirty (30)
days of the Effective Date of this Plan. Training will
also be provided to all such new employees promptly
after they commence their duties. Refresher training
will be provided to all employees described above at
least every twelve (12) months.
2. If Emmis receives a Notice of Apparent Liability
or other proposed action for a broadcast occurring
after the adoption of this Plan that the Commission
believes to be obscene or indecent, the following steps
will be taken:
(a) The employees accused of airing or materially
participating in the decision to air obscene or
indecent content will be suspended and an
investigation will immediately be undertaken;
(b) Such employees will be required to undergo
remedial training on FCC obscenity and indecency
regulations and policies and satisfy station
management that they understand where the line
between acceptable and unacceptable programming
falls before resuming their duties; and
(c) If any such employee who is on-air talent is
permitted to return to the air, his or her
broadcasts will be subject to a significant time
delay - up to five minutes - so that a program
monitor will have the ability to interrupt a
broadcast if its content crosses the line.
3. If a Notice of Apparent Liability or other
proposed action issued by the FCC is finally
adjudicated and Emmis is finally found to have aired or
decided to air an obscene or indecent program that
results in enforcement action by the Commission, the
offending employees will be terminated without delay.
This will ensure that those employees who break the law
by broadcasting, or by materially participating in a
decision to broadcast, obscene or indecent material
will not work for Emmis.
4. Emmis will fully participate in industry efforts
that may emerge to develop a voluntary industry-wide
response to indecency and violence.
CONCURRING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Emmis Communications Corporation
Recently, when the Commission entered into a settlement
agreement with Clear Channel Communications, I dissented
because we had not investigated dozens of pending complaints
or even sought information about those broadcasts as part of
the settlement discussions. Today, on the other hand, the
Commission enters into a consent decree with Emmis
Communications in which it has taken at least initial action
on the pending citizen complaints.
I am, however, troubled by certain aspects of the
settlement agreement. I am most concerned about the effect
of today's decision on the Commission's license renewal
process. The totality of a broadcasters' record is
pertinent and should be considered when licenses are
renewed. Today's decision takes an entire part of the
record off the table. It is bad enough that our re-
licensing process has degenerated to the point where the
Commission generally does not even look at a station's
public file or inquire further into the station's service to
its community unless a citizen of that particular community
brings an issue to our attention. Today, the Commission
tells those citizens that some information is no longer
relevant in evaluating a broadcaster's overall performance
in its community. If we are not actually changing the rules
of the game, we are at a minimum sending a wrong and
discouraging signal to those citizens upon whom we rely in
implementing the law.
For the foregoing reasons, I only concur in this
decision to settle pending indecency complaints against
Emmis. Going forward, I urge my colleagues to accord prompt
and vigorous attention to any future listener complaints
against this licensee.
STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Emmis Communications Corporation et al., Order
I am pleased that as we enter into this settlement
agreement, we have conducted at least a preliminary
investigation of all pending indecency complaints against
the company. Citizens who have taken the time to notify us
of offensive material heard on radio or television should
know that we have considered their complaints in resolving
the matters before us.
_________________________
1 Emmis FM License Corporation of Chicago, DA 02-26,
released January 8, 2002; review denied, Emmis Radio License
Corporation, Memorandum Opinion and Order, FCC 04-62,
released April 8, 2004 (File No. EB-00-IH-0401) (Petition
for Reconsideration, filed May 10, 2004, pending). Emmis FM
License Corporation of Chicago (FRN No. 0001529387) and
Emmis Radio License Corporation, its successor-in-interest
as licensee of Station WKQX(FM), are each subsidiaries of
Emmis Communications Corporation.
2 Emmis Radio License Corporation, Forfeiture Order, DA 02-
2937, released November 1, 2002 (File Nos. EB-01-IH-0124,
EB-01-IH-0319 and EB-01-IH-0408). On March 19, 2004, Emmis
filed an Application for Review of the Enforcement Bureau's
Memorandum Opinion and Order denying reconsideration of the
Forfeiture Order, which imposed a monetary forfeiture
penalty of Twenty-One Thousand Dollars ($21,000) against it
for willful and repeated violations of 18 U.S.C. § 1464 and
47 C.F.R. § 73.3999. See Emmis Radio License Corporation,
Forfeiture Order, DA 04-387, released February 18, 2004.
3 Emmis Radio License Corporation, Forfeiture Order, DA 04-
386, released February 18, 2004 (File No. EB-01-IH-0121)
(Petition for Reconsideration, filed March 19, 2004,
pending).
4 18 U.S.C. § 1464; 47 C.F.R. § 73.3999.
5 47 U.S.C. §§ 154(i), 154(j), 503(b).
6 Therein, Mr. Smith seeks reconsideration of the
Enforcement Bureau's June 16, 2004, letter disposing of
certain of his indecency complaints against Emmis, the
further consideration of which is rendered moot by the
attached Consent Decree. With regard to Mr. Smith's request
in the Petition that the Commission designate for revocation
or denial of the renewal application for Emmis's license for
Station WKQX(FM), Chicago, Illinois, due to the filing of a
lawsuit against him involving his indecency complaints by
Erich (``Mancow'') Muller before the Circuit Court of Cook
County, Illinois (Case No. 04-CH-5015), we note that the
lawsuit was dismissed by the Court, with prejudice, on July
26, 2004. Moreover, with its July 29, 2004, Opposition to
the Petition, Emmis provides the Declaration of Charles
DuCoty, General Manager of the station, who represents that
Emmis had no role, and provided no encouragement or
assistance to Mr. Muller, in connection with the lawsuit.