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


In the matter of                 )
                                )
INFINITY BROADCASTING            )    File No. EB-02-IH-0109
OPERATIONS, INC.                 )    NAL/Acct. No. 200332080010
                                )    FRN 0003476074
Licensee of Station WKRK-FM      )    Facility ID #9618
Detroit, Michigan                )
                                )
                                )

                  MEMORANDUM OPINION AND ORDER

   Adopted:   September 22, 2004        Released:  October 18, 
2004

By the Commission:  Commissioners Copps and Martin concurring and 
issuing separate statements.                        

     1.   In this Memorandum Opinion and Order (``Order''), we 
deny a petition for reconsideration filed by Infinity 
Broadcasting Operations, Inc. (``Infinity''), licensee of Station 
WKRK-FM, Detroit, Michigan, of a Memorandum Opinion and Order 
(``Reconsideration Order'')1   denying reconsideration of a 
Forfeiture Order (``Infinity Forfeiture Order'')2 assessing a 
monetary forfeiture in the amount of $27,500 against Infinity for 
the willful broadcast of indecent material in violation of 18 
U.S.C. § 1464 and 47 C.F.R. § 73.3999, during the ``Deminski and 
Doyle Show'' on January 9, 2002 between 4:30 p.m. and 5:00 p.m.   
We also dismiss the Petition to Intervene and for a Rehearing 
filed by Carl E. Person, seeking reconsideration of the Infinity 
Forfeiture Order and the Reconsideration Order.3

     2.   Infinity for the fourth time in this proceeding asserts 
its argument that the Commission's indecency standard is 
unconstitutional.4 In addition, Infinity cites four Commission 
decisions5 issued after the Reconsideration Order to support its 
claim that its reconsideration petition relies on changed 
circumstances and thus is appropriate under section 
1.106(b)(2)(i) of the Commission's rules.6  Specifically, 
Infinity argues that these four decisions further undermine the 
constitutionality of the Commission's indecency enforcement 
scheme. Thus, Infinity maintains that until the Commission 
addresses the constitutional and procedural issues raised in 
these subsequent decisions, it cannot impose a sanction for the 
material aired on WRKR-FM.7 

     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.  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).  A petition 
that simply repeats arguments previously considered and rejected 
will be denied.  Bennett Gilbert Gaines, 8 FCC Rcd 3986 (Rev. Bd. 
1993).  Infinity's petition repeats its constitutional argument 
regarding the indecency standard, which we have already 
considered and rejected.8 Although Infinity cites recent 
Commission decisions, the issues raised in those cases do not 
constitute new facts or changed circumstances that warrant 
further reconsideration of the forfeiture penalty assessed 
against Infinity for the material at issue here.  In this regard, 
Infinity has never challenged our determination that it broadcast 
the relevant material during the ``Deminski and Doyle Show'' on 
January 9, 2002, that the material meets the Commission's 
indecency definition and that it is indecent under section 1464. 
Thus, Infinity's arguments concerning the sufficiency of a 
complainant's documentation as to what was broadcast,9 relevant 
precedent governing indecency determinations,10 and the 
Commission's standard for determining ``contemporary community 
standards for the broadcast medium''11 are not relevant.  
Infinity did not dispute the complainant's allegations, supported 
by an audio tape, as to the actual language used during the 
relevant broadcast, did not challenge the Commission's finding 
that this material is indecent as not consistent with precedent, 
and did not dispute that this material is patently offensive as 
measured by contemporary community standards for the broadcast 
medium.  Moreover, Infinity's arguments concerning profanity are 
irrelevant because there was no finding that the material 
broadcast over WKRK-FM was profane.12  Review of Infinity's 
petition and the Forfeiture Order reveals no material error or 
omission in the Forfeiture Order.  We therefore deny Infinity's 
petition.

     4.   In his Petition to Intervene, Mr. Person states that he 
regularly listens to the ``Howard Stern Show'' and that he has 
purchased advertising time on radio stations in New York and 
elsewhere.  He claims that based upon the forfeiture assessed in 
this proceeding, Infinity may decide to discontinue broadcasting 
the ``Howard Stern Show,'' and if this occurs, he will lose an 
outlet for his infomercial advertisements and will not have 
access to material broadcast by Mr. Stern.13  

     5.   A non-party petitioner seeking reconsideration of a 
Commission order in an adjudicatory proceeding must demonstrate 
(1) that the petitioner's ``interests are adversely affected by 
the order,'' and (2) the petitioner has ``good reason why it was 
not possible for [the petitioner] to participate in the earlier 
stages of the proceeding.''14   Mr. Person has failed to 
demonstrate that he meets either of these requirements.  The 
Reconsideration Order assessed a monetary forfeiture penalty 
against Infinity based upon material that aired over a Detroit, 
Michigan radio station during the ``Deminski and Doyle Show,'' 
and not the ``Howard Stern Show.''  In any event, Mr. Person's 
speculative and unsupported allegations that Infinity may 
discontinue broadcasting the ``Howard Stern Show'' are 
insufficient to demonstrate that the Reconsideration Order 
adversely affects him within the meaning of section 405(a) of the 
Act and section 1.106(b)(1) of our rules.15  

     6.   In addition, Mr. Person did not participate, nor did he 
seek to participate, earlier in this proceeding.  Mr. Person 
asserts that he was unaware of the forfeiture proceeding and its 
purported impact on the ``Howard Stern Show'' until the March 5, 
2004, broadcast of the show.  This is insufficient to demonstrate 
a ``good reason,'' within the meaning of section 1.106(b)(1) of 
our rules, for Mr. Person to refrain from seeking to participate 
earlier in this proceeding.16  We therefore dismiss Mr. Person's 
Petition to Intervene and for a Rehearing.

     7.   ACCORDINGLY, IT IS ORDERED that, pursuant to Section 
405 of the Communications Act of 1934, as amended (``Act'')17 and 
Section 1.106 of the Commission's Rules,18 Infinity Broadcasting 
Operations, Inc.'s petition for reconsideration of the 
Reconsideration Order IS DENIED.

     8.   IT IS FURTHER ORDERED that, pursuant to Section 405 of 
the Communications Act of 1934, as amended (``Act'')19 and 
Section 1.106 of the Commission's Rules,20 Carl E. Person's  
Petition to Intervene and for a Rehearing IS DISMISSED.

     9.   Payment of the forfeiture shall be made in the manner 
provided for in Section 1.80 of the Commission's Rules21 within 
30 days of the release of this Order.  If the forfeiture is not 
paid within the period specified, the case may be referred to the 
Department of Justice for collection pursuant to Section 504(a) 
of the Act.22  Payment by check or money order may be mailed to 
Forfeiture Collection Section, Finance Branch, Federal 
Communications Commission, P.O. Box 73482, Chicago, Illinois 
60673-7482.  Payment by overnight mail may be sent to Bank One/LB 
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.  
Payment by wire transfer may be made to ABA Number 071000013, 
receiving bank Bank One, and account number 1165259.  The payment 
MUST INCLUDE the FCC Registration Number (FRN) referenced above 
and also should note the NAL/Acct. No. referenced above. 

     10.  IT IS FURTHER ORDERED that a copy of this Order shall 
be sent by Certified Mail Return Receipt Requested to Stephen 
Hildebrandt, Vice President, Infinity Broadcasting Operations, 
Inc., 2000 K Street, NW, Suite 725, Washington, DC 20006, and to 
Carl E. Person, Esquire, 325 W. 45th Street, Suite 201, New York, 
NY 10036-3803, with a copy to Infinity's counsel, Steven A. 
Lerman, Esquire, Dennis P. Corbett, Esquire, and Philip A. 
Bonomo, Esquire, Leventhal, Senter & Lerman PLLC, 2000 K Street, 
N.W. Suite 600, Washington, D.C.  20006.

                         FEDERAL COMMUNICATIONS COMMISSION

                         

                         Marlene H. Dortch                       
Secretary














                     CONCURRING STATEMENT OF
                  COMMISSIONER MICHAEL J. COPPS


Re:  Infinity Broadcasting Operations, Inc., Licensee of Station 
WKRK-FM, Detroit, Michigan, Memorandum Opinion and Order

     In this second reconsideration decision, I once again concur 
in the decision to reject Infinity's arguments that enforcement 
of the indecency statutes is unconstitutional.  Nonetheless, I 
continue to believe that the majority's fine of $27,500 is 
insufficient and not even a slap on the wrist to Infinity.     








                     CONCURRING STATEMENT OF 
                  COMMISSIONER KEVIN J. MARTIN


Re:  Infinity Broadcasting Operations, Inc., Licensee of Station 
WKRK-FM, Detroit, Michigan, Memorandum Opinion and Order.

     In this second Petition for Reconsideration, I again concur 
in the Commission's approach to this proceeding.23  I agree that 
Infinity Broadcasting Operations, Inc. violated our indecency 
regulations during the broadcast of the ``Deminski and Doyle 
Show'' on January 9, 2002.  I continue to believe, however, that 
the fine of $27,500 is inadequate.  I would have found several 
violations within this program and assessed the statutory maximum 
for each violation, for a total fine of over $200,000.



_________________________

1 Infinity Broadcasting Operations, Inc. (WKRK-FM), Memorandum 
Opinion and Order, 19 FCC Rcd 4216 (2004).  
2 Infinity Broadcasting Operations, Inc. (WKRK-FM), Apparent 
Liability for Forfeiture, Forfeiture Order, 18 FCC Rcd 26360 
(2003).
3 Petition to Intervene and for a Rehearing of Carl E. Person, 
dated March 8, 2004 (``Petition of Carl E. Person'').  
4 See Petition for Reconsideration of Infinity Broadcasting 
Operations, Inc., dated April 5, 2004 (``Infinity Petition for 
Reconsideration''); Petition for Reconsideration of Infinity 
Broadcasting Operations, Inc., dated January 7, 2004 (``Infinity 
Petition for Reconsideration of Forfeiture Order''); Response to 
Notice of Apparent Liability for Forfeiture of Infinity 
Broadcasting Operations, Inc., dated June 4, 2003 (``Infinity NAL 
Response''); Letter from Stephen A. Hildebrandt, Vice President, 
Infinity Broadcasting Operations, Inc., to Charles W. Kelley, 
Chief, Investigations and Hearings Division, Enforcement Bureau, 
dated June 20, 2002 (``Infinity Response to Letter of Inquiry'').
5 Infinity Petition for Reconsideration of Forfeiture Order at 2.  
Infinity cites:  Infinity Broadcasting Operations, Inc. (WKRK-
FM), Notice of Apparent Liability for Monetary Forfeiture, 19 FCC 
Rcd 5032 (2004); Infinity Radio License, Inc. (WLLD(FM)), 
Memorandum Opinion and Order, 19 FCC Rcd 5022 (2004), recon. 
denied, Memorandum Opinion and Order, FCC 04-198 (rel. Aug. 23, 
2004);  Capstar TX Limited Partnership (WAVW(FM) and WCZR(FM)), 
Notice of Apparent Liability for Monetary Forfeiture, 19 FCC Rcd 
4960 (2004); Complaints Against Various Broadcast Licensees 
Regarding Their Airing Of The ``Golden Globe Awards'' Program, 19 
FCC Rcd 4253 (2004).  We note that the Capstar case was later 
vacated pursuant to a Consent Decree. Clear Channel 
Communications, Inc., Order, FCC 04-128 (rel. Jun. 9, 2004). 
6 47 C.F.R. § 1.106(b)(2)(i).  
7 Infinity Petition for Reconsideration at 10.  
8 Infinity Broadcasting Operations, Inc.(WKRK-FM), Notice of 
Apparent Liability for Monetary Forfeiture, 18 FCC Rcd 6915, 
6918,  ¶ 10 (2003); Apparent Liability for Forfeiture, Forfeiture 
Order, 18 FCC Rcd at 26362,  ¶ 5; recon. denied, 19 FCC Rcd 4216, 
at ¶ 2.   
9 Infinity cites Capstar TX Limited Partnership, 19 FCC Rcd at 
4960, and argues that complainant's sketchy, unsupported 
recollection of what was actually broadcast strips away 
procedural protections afforded broadcasters.  Infinity Petition 
for Reconsideration at 3-4. 
10 Infinity cites Infinity Broadcasting Operations, Inc., 19 FCC 
Rcd at 5032, and argues that the Commission's determination that 
unpublished staff decisions are not binding on the Commission 
undermines the guidance set forth in the 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 (2001).  Infinity Petition 
for Reconsideration at 4-5.  
11 Infinity cites Infinity Radio License, Inc., 19 FCC Rcd at 
5022, and argues that there is no evidence that the Commission's 
expertise and knowledge of contemporary community standards for 
the broadcast medium is developed through interaction with 
lawmakers, courts, public interest groups and citizens.  Infinity 
Petition for Reconsideration at 5-6.  
12 See Complaints Against Various Broadcast Licensees Regarding 
Their Airing Of The ``Golden Globe Awards'' Program, 19 FCC Rcd 
at 4253.  Infinity Petition for Reconsideration at 7-8.
13 Petition of Carl E. Person at 1-4.
14 47 C.F.R. § 1.106(b)(1).  See 47 U.S.C. § 405(a) (stating that 
a reconsideration petition may be filed by a non-party who is 
``aggrieved or whose interests are adversely affected'' by a 
Commission order).
15 AT&T Corp. and Sprint Communications Company, L.P. v. Business 
Telecom, Inc., Order on Reconsideration, 16 FCC Rcd 21750 (2001).  
16 See id.  
17 47 U.S.C. § 405.
18 47 C.F.R. § 1.106.
19 47 U.S.C. § 405.
20 47 C.F.R. § 1.106.
21 47 C.F.R. § 1.80.
22 47 U.S.C. § 504(a).
23 See, e.g., Infinity  Broadcasting Operations, Inc.  (WKRK-FM), 
Memorandum Opinion  and  Order,  19 FCC  Rcd  4216,  4219  (2003) 
(Separate Statement of Commissioner Martin, urging the Commission 
to fine violators ``per utterance'').