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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'').