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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
WQAM LICENSE LIMITED ) File Nos. EB-03-IH-0402
PARTNERSHIP ) EB-03-IH-
) 0403
Licensee of Station )
WQAM(AM), Miami, Florida ) NAL/Acct. No. 200432080201
) FRN No. 0003768769
Facility ID No. 64002
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 22, 2004 Released: November 23, 2004
By the Commission: Commissioner Copps concurring and
issuing a statement; Commissioner Martin approving in part,
concurring in part and issuing a 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,1 we grant two
complaints2 and find that WQAM License Limited Partnership
(``WQAM''), licensee of Station WQAM(AM), Miami, Florida,
apparently violated 18 U.S.C. § 1464 and 47 C.F.R. §
73.3999, by willfully and repeatedly airing indecent
material over the station on September 9 and 10, 2003.
Based upon our review of the facts and circumstances in this
case, we conclude that WQAM is apparently liable for a
monetary forfeiture in the amount of Fifty-Five Thousand
Dollars ($55,000.00).
II. BACKGROUND
2. The Commission received complaints alleging that
Station WQAM(AM) aired indecent material on the ``Scott
Ferrall Show'' between 8:40 and 9:05 a.m. on September 9,
2003, and between 8:05 and 9:55 a.m. on September 10, 2003.3
Because the Complaints contained potentially indecent
material that aired between 6 a.m. and 10 p.m., the
Enforcement Bureau (``Bureau'') issued a letter of inquiry
to the licensee.4 In its response to the Bureau's inquiry,
Beasley Group, the parent company of WQAM, states that it
has neither a tape nor a transcript of the complained-of
broadcasts and cannot determine whether it actually aired
the complained-of material.5 Nevertheless, Beasley Group
does not deny that the material aired as stated in the
Complaints, and maintains instead that, even if it aired the
material, it was not actionably indecent.6 Specifically,
Beasley Group states that the material provided ``no
surrounding context . . . instead noting particular words or
phrases in isolation,'' and that ``[w]ithout a sufficient
transcript'' of the broadcast, ``the Commission cannot
objectively determine what in fact aired on the Station and
whether the terms were used in the context of sexual or
excretory description.''7
III. DISCUSSION
3. 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.8 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.''9 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, consistent with a
subsequent statute and court decision,10 shall not broadcast
indecent material during the period 6 a.m. through 10 p.m.11
4. 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.12 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.13
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.14 As we set forth in greater
detail below, we conclude under this standard that WQAM is
apparently liable for a forfeiture for its apparent willful
violations of 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules.
A. Indecency Analysis
5. Any consideration of government action against
allegedly indecent programming must take into account the
fact that such speech is protected under the First
Amendment.15 The federal courts consistently have upheld
Congress's authority to regulate the broadcast of indecent
material, as well as the Commission's interpretation and
implementation of the governing statute.16 Nevertheless,
the First Amendment is a critical constitutional limitation
that demands that, in indecency determinations, we proceed
cautiously and with appropriate restraint.17
6. 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.18
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.19
7. As an initial matter, contrary to Beasley Group's
contention, we conclude that the material quoted below does
describe or depict sexual or excretory activities or organs.
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.20
8. In our assessment of whether broadcast material is
patently offensive, ``the full context in which the material
appeared is critically important.''21 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.22 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.''23 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,24 or, alternatively, removing the
broadcast material from the realm of indecency.25 We turn
now to our analysis of the three principal factors in our
decision.
9. First, the comments and dialogue of the program
host during the September 9 broadcast related in Complaint I
contained graphic and explicit references to sexual
activities, including repeated discussion and depiction of
coerced or forced sexual relations including forced sexual
intercourse and oral sex. The broadcast contains a call
from an angry male caller to the radio program, which
provoked a heated response from the program host.26 The
complainant states that he heard the host threaten the
caller with confinement in prison. The complainant then
says that Mr. Ferrall also said the following:
1. That the caller would be raped and
sodomized in prison.
2. While the caller was in prison he, Ferrell
(sic), would ``stuff his package into the
caller's wife's mouth.''
3. He would ``do her daily.''
4. Then get his girlfriend to do her. . . 27
Similarly, the September 10, 2003, broadcast included the
graphic and explicit description of child molestation
``[m]olested in the ass as children . . . hot candles in the
ass.''28 To the extent that colloquial terms that the
program host used to describe sexual activities could be
described as innuendo rather than as direct references, they
are nonetheless sufficient to render the material actionably
indecent because the sexual import of those terms was
``unmistakable.''29 Given the explicit references and
graphic manner in which the broadcasts described the
threatened actions that the host made to the caller and the
reference to anal sex with a child, there is no non-sexual
meaning that a listener could possibly have attributed to
these terms.30 Therefore, we find that the broadcasts at
issue described sexual activities through the use of direct
references and/or innuendo that were sufficiently explicit
or graphic to be deemed patently offensive as measured by
contemporary community standards for the broadcast medium.
10. Second, the sexual discussions and references were
not so fleeting or isolated as to lead us to conclude that
the material at issue was not indecent. Rather, discussions
about and references to rape and other forced sexual
activity were repeated during the broadcast, and were the
subject of the complained-of portion of the September 9
broadcast. The language concerning child molestation,
contained in the September 10 broadcast, was in the context
of a program that included other offensive sexual references
as well, albeit none as offensive as this one. Moreover,
the Commission has previously held that even relatively
fleeting references to sexual activity with children may be
found to be patently offensive.31
11. Finally, and perhaps most significantly, several
characteristics of the manner in which the station presented
this material establish that WQAM broadcast it to pander to
and shock listeners. With respect to the September 9
broadcast, the program host's references to forced sexual
activities, such as rape and sodomy, clearly evince the
pandering nature and shock value of the material with regard
to the listening audience. For example, the host
specifically states that the caller will be ``raped and
sodomized in prison.'' The host then threatens that, while
the caller is confined in prison, he will ``stuff his
package into the caller's wife's mouth.''32 The host also
threatens that he will ``do her daily'' (referring to sexual
intercourse with the caller's wife) and get his girlfriend
to do her (referring to the host's girlfriend and the
caller's wife).33 All of the threatened activities strongly
imply the use of force in order to accomplish the host's
objective of inducing the caller's wife to engage in various
sexual activities presumably in retaliation for the caller's
angry communication with the station. The host concludes by
stating that he would ``bash her brains in with a baseball
bat'' (referring to the caller's wife) and ``light the
caller's children on fire.''34 Although these last two
references do not fall within our indecency definition
because they do not describe sexual activities or organs,
they are indicative of the strong tone of depravity and
brutality of the program host that run through the entire
program segment in order to shock the listening audience.
By dwelling on the coerced and brutal nature of the sexual
activities described during the broadcast in a pandering and
offensive manner, the program host sets out to pander and to
shock listeners. Further, the broadcast occurred at or
about 9 a.m., when there was a reasonable risk that
children, whom the government has a recognized and
compelling interest to shield from indecent material,35
would be in the audience, on their way to or getting ready
for school. For these reasons, we find that the September 9
and 10, 2003, broadcasts described in the Complaints were
patently offensive as measured by contemporary community
standards for the broadcast medium.
12. We disagree with WQAM's contention that the
language contained in these broadcasts was not patently
offensive or actionably indecent because the material
submitted in the complaints is ``incomplete'' and
``disconnected,'' and so provides ``no surrounding context''
from which to make a determination of indecency. In this
regard, WQAM also maintains that the brevity of the
complainant's submissions prevents a determination that the
language was ``dwelled on'' or repeat[ed] at length'' in the
course of the broadcast.36 We find that the complaints in
this matter provide sufficient context for us to conclude
that the broadcasts at issue were indecent. As discussed
above, the material at issue includes unmistakable repeated
references to sexual activity that are sufficiently graphic
and intended to titillate the listening audience such that a
finding of indecency is warranted, the brevity of said
references notwithstanding.37
13. We also disagree with WQAM's contention that the
cited phrases are ``merely declarative or interrogative,''
and ``without descriptive detail'' that would warrant a
finding of indecency.38 We find that the broadcasts' usage
of such phrases as ``stuff his package in the caller's
wife's mouth,'' ``do her daily,'' and ``molested in the ass
as children'' in the context of the described conversation
clearly relay sexual images that are patently offensive.39
WQAM also argues that, because the complained-of material
makes use of ``innuendo and double entendre'' it would not
have an ``inescapable and understandable sexual or excretory
import'' to children, and cannot therefore give rise to a
finding of indecency.''40 We disagree. Our examination
necessarily includes ``a review of the manner in which the
language or depictions are portrayed'' and a ``consideration
of the ability of the medium of expression to separate
adults from children.''41 In the instant case, we find that
many of the minors who may have listened to the subject
broadcasts would have readily understood the meaning of the
terms used in the context of the discussion.42 Further, as
previously stated, colloquial terms which could be described
as innuendo or double entendre are sufficient to render the
material actionably indecent when the sexual import of those
terms is ``unmistakable.''43 In this regard, WQAM argues
that certain excerpts from programming that the staff had
previously determined not to be indecent, in unpublished
decisions, are similar to the excerpts at issue here, and
so, should not be treated differently, under the doctrine of
Melody Music.44 To the extent that the staff may have erred
in some unpublished decisions, those decisions are not
binding on the Commission, and we decline to follow them.45
That is particularly the case here, where published
decisions, including those cited in the Commission's
Indecency Policy Statement, provide guidance indicating that
material such as that contained here is indecent.
14. Finally, we find no merit in Beasley Group's
argument that the Complaints should be dismissed because the
complained-of broadcasts are ``consistent with contemporary
community standards for the broadcast medium'' and therefore
not patently offensive.46 Beasley Group misconstrues the
decisions in Infinity Recon. Order and Hamling v. U.S. as
authority for this proposition.47 In Hamling v. U.S., the
Supreme Court determined that ``[a] juror is entitled to
draw on his own knowledge of the views of the average person
in the community . . . for making the required
determination'' regarding community standards. 48 In the
Infinity Recon. Order, the Commission decided that, in an
indecency proceeding, the Commission, as the ``decision-
maker,'' applies its ``views of the average person in the
community'' to ensure that material is judged neither on the
basis of a decision-maker's personal opinion, nor by its
effect on a particularly sensitive or insensitive person or
group.''49 In applying this standard in the instant
proceeding, we find the broadcast material at issue to be
patently offensive as determined by contemporary community
standards for the broadcast medium.50
15. In sum, by broadcasting this material on September
9 and 10, 2003, within the 6 a.m. to 10 p.m. time period
relevant to an indecency determination under section 73.3999
of the Commission's rules, WQAM apparently violated both 18
U.S.C. § 1464 and section 73.3999 of the Commission's rules.
B. Proposed Forfeiture
16 Based upon our review of the record in this case,
we conclude that WQAM is apparently liable for a forfeiture
for two willful violations of our rules for broadcasting
indecent material over its station on two occasions. The
Commission's Forfeiture Policy Statement sets a base
forfeiture amount of $7,000.00 for transmission of indecent
materials.51 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.''52 In this
case, taking all of these factors into consideration, we
find that WQAM is apparently liable for a forfeiture
reflecting the proposed imposition of the statutory maximum
of $27,500 for each of the two broadcasts of apparently
indecent material over Station WQAM(AM). Specifically, we
find the facts of this case particularly egregious given the
graphic and pandering nature and shock value of the material
(i.e., threatened rape by the station employee and others
and graphic description of child molestation). We therefore
believe that an upward adjustment of the forfeiture amount
is warranted under the circumstances presented here. We
reiterate our recent statement that multiple serious
violations of our indecency rule by broadcasters may well
lead to license revocation proceedings.53 We also remind
broadcasters that separate utterances within a single
broadcast may be considered separate violations for purposes
of determining forfeitures under our indecency rules.54
IV. ORDERING CLAUSES
17. 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,55 that WQAM License
Limited Partnership is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of Fifty-Five
Thousand Dollars ($55,000.00) for willfully and repeatedly
violating 18 U.S.C. § 1464 and section 73.3999 of the
Commission's rules.
18. IT IS FURTHER ORDERED, pursuant to section 1.80
of the Commission's rules, that within thirty (30) days of
the release of this Notice, WQAM License Limited Partnership
SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
19. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment MUST INCLUDE the FCC Registration Numbers
(``FRN'') referenced above and also should note the
NAL/Account Number referenced above.
20. The response, if any, must be mailed to William H.
Davenport, 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.
21. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
respondent's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
submitted.
22. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.56
23. 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 WQAM 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 WQAM, 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 NAL. This information will be used for tracking
purposes only. WQAM'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 WQAM has questions regarding any of
the information contained in Attachment B, it should contact
OCBO at (202) 418-0990.
24. Accordingly, IT IS ORDERED, that the complaints
filed against Station WQAM(AM)'s broadcasts of September 9,
and 10, 2003, ARE GRANTED, and the complaint proceeding IS
HEREBY TERMINATED.57
25. 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 WQAM License
Limited Partnership, 3033 Riviera Drive, Naples, FL. 33940,
with copies to its counsel, Steven A. Lerman, Esquire,
Dennis P. Corbett, Esquire, and David S. Keir, Esquire, 2000
K Street, N.W., Suite 600, Washington, DC 20006-1809, and to
the Complainants.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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)
CONCURRING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS,
Re: WQAM License Limited Partnership, Licensee of
Station WQAM(AM), Miami, FL, Notice of Apparent Liability
for Forfeiture
I concur in the decision to find these broadcasts
indecent in violation of the statute. I note that the
broadcaster in this instance claims that it has neither a
tape nor a transcript and that, without such a record, the
Commission cannot determine if the material violates the
statute. Many broadcasters have argued that the
Commission's proposal to require broadcasters to keep a tape
or transcript of what they air is unnecessary, yet this
broadcaster claims that such a record is necessary for a
finding of indecency. In this instance, the complainant was
able to provide a significant excerpt and I believe a case
could be made that there were separate indecent utterances
within these broadcasts.
SEPARATE STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
APPROVING IN PART, CONCURRING IN PART
Re: WQAM License Limited Partnership, Licensee of Station
WQAM(AM), Miami, FL, Notice of Apparent Liability for
Forfeiture
Consistent with my past statements, I believe we should
be fining broadcasters on a ``per utterance'' basis.58 In
this instance, we could have found several violations within
the broadcasts at issue and therefore could have assessed a
larger fine.
_________________________
1 47 U.S.C. § 503(b) (2002); 47 C.F.R. § 1.80 (2002).
2 See Letter from Complainant I to Federal Communications
Commission dated September 9, 2003 (``Complaint I''); Letter
from Complainant II to Federal Communications Commission,
dated September 15, 2003 (``Complaint II'') (collectively,
``Complaints'').
3 See Complaints.
4 See Letter from Maureen F. Del Duca, Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal
Communications Commission, to WQAM License Limited
Partnership, dated December 3, 2003.
5 See Letter from Steven A. Lerman, Dennis P. Corbett, and
David S. Keir, counsel for Beasley Broadcast Group, Inc.
(``Beasley Group''), to Mary Turner, Investigations and
Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated January 13, 2004 (``Beasley
Group Response'').
6 See id. at 7.
7 Id. Beasley Group also argues that the Commission's
indecency definition is ``unconstitutionally vague and
overbroad'' and that it has not been established that there
is a compelling government interest in protecting children
from indecency. See Beasley Group Response at 3, n.4
(citing Reno v. ACLU, 521 U.S. 844 (1997); Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002)). The cases cited by
Beasley Group for this proposition are inapposite. The
Commission previously has rejected constitutional challenges
to our broadcast indecency standards based on the Reno case
which invalidated an indecency standard for the Internet.
See, e.g., WQAM License Limited Partnership, Forfeiture
Order, 15 FCC Rcd 2518, para. 3 (2000) (noting that the
Supreme Court in Reno indicated that broadcast indecency
regulations were justified based on significant differences
between the Internet and the broadcast medium and between
the standard in the statute at issue and the Commission's
broadcast indecency standard). See also Infinity
Broadcasting Operations, Inc. (WKRK-FM), Notice of Apparent
Liability, 18 FCC Rcd 6915 (2003) (``Infinity Broadcasting
NAL'') (same); Forfeiture Order, 18 FCC Rcd 26360 (2003),
recon. denied, 19 FCC Rcd 4216 (2004). Further, the
compelling governmental interest in protecting children from
indecent speech has been widely recognized by federal
courts. See, e.g., Action for Children's Television v. FCC,
852 F.2d 1332, 1344 (D.C. Cir. 1988); Action for Children's
Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991),
cert. denied, 503 U.S. 914 (1992); Action for Children's
Television v. FCC, 58 F. 3d 654 (D.C. Cir. 1995) (en banc),
cert. denied, 516 U.S. 1072 (1996) (affirming restrictions
prohibiting the transmission of indecent material between
the hours of 6 a.m. and 10 p.m. when children are most
likely to be in attendance).
8 See U.S. CONST., Amend. I; 47 U.S.C. § 326.
9 18 U.S.C. § 1464.
10 Public Telecommunications Act of 1992, Pub. L. No. 102-
356, 106 Stat. 949 (1992) (setting the current safe harbor
of 10 p.m. to 6 a.m. for the broadcast of indecent
material); see also ACT III, 58 F. 3d 654 (D.C. Cir. 1995)
(en banc), cert. denied, 516 U.S. 1072 (1996) (affirming
restrictions prohibiting the transmission of indecent
material between the hours of 6 a.m. and 10 p.m.).
11 See 47 C.F.R. § 73.3999.
12 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, 16 FCC
Rcd 1359 (2001) (``Callais Cablevision Inc.'') (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.
13 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
14 See, e.g., SBC Communications, Inc., Forfeiture Order, 17
FCC Rcd 7589, 7591, ¶ 4 (2002) (forfeiture paid).
15 U.S. CONST., Amend. I; see ACT I, 852 F.2d at 1344 (D.C.
Cir. 1988).
16 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; ACT II, 932 F.2d
at 1508; ACT III, 58 F. 3d at 657.
17 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
id. at 1340 n.14 (`` . . . the potential chilling effect of
the FCC's generic definition of indecency will be tempered
by the Commission's restrained enforcement policy.'').
18 Infinity Broadcasting Corporation of Pennsylvania,
Memorandum Opinion and Order, 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)).
19 Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency, Policy Statement, 16 FCC Rcd
7999, 8002, ¶¶ 7-8 (2001) (``Indecency Policy Statement'')
(emphasis in original).
20 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 Indecency Policy Statement,
16 FCC Rcd at 8002, ¶ 8 and n. 15.
21 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.
See AMFM Radio Licenses LLC (WWDC(FM)), Notice of Apparent
Liability, 18 FCC Rcd 19917 (2003) (forfeiture paid) (``AMFM
Radio WWDC(FM) NAL'').
22 Indecency Policy Statement, 16 FCC Rcd at 8002-15, ¶¶ 8-
23.
23 Id., at 8003, ¶ 10.
24 Id., at 8009, ¶ 19 (citing Tempe Radio, Inc (KUPD-FM),
Notice of Apparent Liability, 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)),
Notice of Apparent Liability, 12 FCC Rcd 4147 (MMB 1997)
(forfeiture paid) (same)).
25 Indecency Policy Statement, 16 FCC Rcd 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'').
26 See Complaint I.
27 Id.
28 See Complaint II.
29 See Indecency Policy Statement, 16 FCC Rcd at 8003-04, ¶
12; see also Telemundo of Puerto Rico License Corp. (WKAQ-
TV), Notice of Apparent Liability, 16 FCC Rcd 7157 (Enf.
Bur. 2001) (forfeiture paid); Citcasters Co. (KEGL(FM)),
Notice of Apparent Liability, 15 FCC Rcd 19091 (Enf. Bur.
2000) (forfeiture paid).
30 See Sagittarius Broadcast Corporation, Memorandum Opinion
and Order, 7 FCC Rcd 6873, 6874 (Mass Media Bur. 1972)
(subsequent history omitted).
31 See Indecency Policy Statement 16 FCC Rcd at 8010, ¶ 19,
and cases cited therein.
32 See Complaint I.
33 Id.
34 Id.
35 See ACT III, 58 F.3d at 660-63.
36 See Beasley Group Response at 8-9.
37 See Emmis Radio License Corporation, WKQX(FM), Memorandum
Opinion and Order, 19 FCC Rcd 6452, 6455, n. 24 (2004); see
also supra, n.24 and accompanying text.
38 See Beasley Group Response at 10.
39 See Infinity Broadcasting Corp. of Pennsylvania,
Memorandum Opinion and Order, 3 FCC Rcd 930, 933 (1987)
(subsequent history omitted) (``Infinity Recon. Order'').
40 See Beasley Group Response at 12.
41 See Infinity Recon. Order at ¶ 16 (citations omitted).
42 See Act III, 58 F. 3d 654, 664 (D.C. Cir. 1995) (en
banc), cert. denied, 516 U.S. 1072 (1996) (affirming
compelling government interest in protecting children under
the age of 18 from exposure to indecent broadcasts).
43 See Indecency Policy Statement, 16 FCC Rcd at 8003-04, ¶
12; see also supra, n. 29.
44 See Melody Music, Inc. v. FCC, 345 F. 2d 730, 732
(similarly situated cases should not be treated
dissimilarly); Beasley Group Response at 12 (citing, inter
alia., Letter from Maureen F. Del Duca, Chief,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, to Mr. David Edward
Smith, dated December 5, 2003 and Letter from Charles W.
Kelley, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, to
Mindy Pierce, dated April 22, 2002).
45 See, e.g., Amor Family Broadcasting Group v. FCC, 918 F.
2d 960, 962 (D.C. Cir. 1990), citing Homemakers North Shore,
Inc. v. Bowen, 832 F.2d 408, 413 (7th Cir. 1987). See also
Lorenzo Jelks v. FCC, 146 F.3d 878, 881 (D.C. Cir. 1998).
46 See Beasley Group Response at 13.
47 See id.
48 Hamling v. United States, 418 U.S. 87, 107 (1974).
49 See Infinity Recon. Order, 3 FCC Rcd at 934.
50 See id. (Commission applies a concept of "contemporary
community standards for the broadcast medium," to apply the
standard of an average broadcast viewer or listener).
51 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).
52 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, ¶
27.
53 See Infinity Broadcasting NAL, 18 FCC Rcd at 6919, ¶ 13;
see also AMFM Radio WWDC(FM) NAL, 18 FCC Rcd at 19923 - 924,
¶ 16.
54 See Infinity Broadcasting NAL, 18 FCC Rcd at 6919, ¶ 13.
55 47 C.F.R. § 1.80.
56 See 47 C.F.R. § 1.1914.
57 Consistent with section 503(b) of the Act and with
Commission practice, for the purposes of the forfeiture
proceeding initiated by this NAL, WQAM shall be the only
party to this proceeding.
58 See, e.g., Separate Statement of Commissioner Martin,
Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK-FM, Detroit, Michigan, Notice of Apparent Liability, 18
FCC Rcd. 6915, 6939 (2003) (urging the Commission to fine
violators ``per utterance'').