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

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

                   MEMORANDUM OPINION AND ORDER

     Adopted:  March 4, 2004            Released:  March 18, 
2004

By the Commission:  Commissioner Martin concurring and 
issuing a statement; Commissioner Adelstein issuing a 
statement; and Commissioner Copps dissenting and issuing a 
statement.

I. INTRODUCTION

     1.  In this Memorandum Opinion and Order, we deny an 
Application for Review, filed on October 28, 2002, by 
Infinity Radio License, Inc. (``Infinity''), licensee of 
Station WLLD(FM), Holmes Beach, Florida.  Infinity seeks 
review, pursuant to 47 C.F.R. § 1.115, of a Memorandum 
Opinion and Order1 (``MO&O'') issued by the Chief, 
Enforcement Bureau (``Bureau'').  The MO&O denied Infinity's 
Petition for Reconsideration of a Forfeiture Order2 that 
imposed a monetary forfeiture penalty in the amount of Seven 
Thousand Dollars ($7,000.00) against Infinity for a willful 
violation of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999, which 
prohibit the broadcast of indecent material between 6 a.m. 
and 10 p.m. 

II. BACKGROUND

     2.  On September 11, 1999, Station WLLD(FM) 
(``Station'') broadcast a live rap/hip-hop concert called 
``The Last Damn Show.''  The broadcast generated a 
complaint, which included a tape recording of the entire 
show, as well as a transcript and related tape recording of 
those portions of the program which the complainant deemed 
most offensive.  The Bureau ultimately imposed, and affirmed 
on reconsideration, a forfeiture for the Station's broadcast 
of repeated graphic references to oral sex: 

     God damn, where are my pussy eating niggers?  Any my 
     niggers into eating pussy?  Y'll make some noise.  Hey, 
     where are my girls?  If you're eating pussy, where you 
     at?  That's it. Oh, they all like it.  I ain't eating 
     no pussy tonight.  If you all don't like it, fuck it.  
     I ain't going to beg you.  You like it?  

     3.  In its Application for Review, Infinity contends 
that the MO&O provided no support for rejecting without 
comment Infinity's argument that the sexual import of the 
material was not inescapable to children.  Infinity also 
asserts that the MO&O ignored critical contextual factors, 
the consideration of which would have supported a finding 
that the material was not indecent.  Infinity faults the 
MO&O for not explaining why changing contemporary community 
standards do not render acceptable the material broadcast on 
Station WLLD(FM).  Finally, Infinity argues that Supreme 
Court decisions in Reno v. ACLU3 and Ashcroft v. Free Speech 
Coalition4 render the Commission's generic indecency 
definition facially unconstitutional, and, at the least, 
require proof of a proximate link between broadcast 
indecency and harm to children.      

III. DISCUSSION

     4.  After reviewing Infinity's Application for Review 
and the record in this matter, we find no reason to reverse 
the MO&O.   Applying our indecency standard,5 we agree with 
the Bureau that the material cited in the MO&O was indecent.  
Consequently, we deny the Application for Review and affirm 
the forfeiture assessed by the Bureau.

     A. The Cited Material Had an Inescapable Sexual 
Meaning.

     5.  We reject Infinity's argument that the cited 
material did not have an inescapable sexual meaning.6  The 
phrase ``eating pussy'' has but one meaning in common 
parlance; it refers to a specific oral sexual activity.  
Infinity does not suggest any other meaning, much less a 
non-sexual one.  Having reviewed the tape and transcript, we 
believe it beyond argument that the cited material described 
a sexual activity.  We therefore reject Infinity's 
contention that the Station WLLD(FM) and Station WRLR(FM)7 
broadcasts are ``similarly situated'' and warrant the same 
treatment.  

     6.  Infinity argues that we must produce evidence that 
the broadcasts had an inescapable sexual meaning to 
children.8  We disagree.  The courts have held that the 
Commission is justified in concluding that the government's 
interest in protecting children from exposure to indecent 
material extends to minors of all ages, who are defined as 
under the age of 18 years.9  Given the explicit references 
and the graphic manner in which the material described 
sexual activity, there is no non-sexual meaning that a 17 
year-old listener, who is within the class of ``children'' protected by our indecency rule, could have attributed to 
these terms.10   

     B. The  Context of  the Broadcast  Does Not  Render the 
Material Not Indecent.    

     7.  With respect to context, Infinity submits, without 
offering any support whatsoever, that, by carrying the 
concert live and uncut, Station WLLD(FM) did not intend to 
shock, pander or titillate, but rather sought to convey the 
street legitimacy of the various artists.  In addition, 
Infinity asserts that the Station's broadcast of ``The Last 
Damn Show'' is less problematic than the broadcast of a tape 
recording of John Gotti's expletive-laced conversation, 
which the Commission found not to be indecent.11
       
     8. As the Forfeiture Order accurately observed, ``the 
speaker [broadcast over Station WLLD(FM)] repeatedly and 
unmistakably asks the audience in patently offensive terms 
whether they perform or enjoy a type of oral sex.''12  The 
utterances, although apparently spontaneous and not related 
to the performance of any song, occurred during a live 
rap/hip-hop concert, during which artists and other speakers 
repeatedly used expletives.  The Station apparently took no 
precautions with respect to this material but opted to 
broadcast all material uttered at the concert regardless of 
its suitability for broadcast.13  In light of these 
circumstances, we conclude that, regardless of what the 
speaker may have intended to convey to the concert's 
audience, the licensee should not have broadcast before 10 
p.m. repeated indecent utterances.  In the instant case, the 
cited material clearly and repeatedly refers to an oral 
sexual activity; thus it was neither fleeting nor 
isolated.14  Further, the language broadcast describes the 
sexual activity in a graphic, explicit, crude and vulgar 
manner.  Consequently, even if we were to conclude that the 
licensee's apparent purpose for broadcasting the cited 
material was not to pander, titillate or shock - which we do 
not - we note that ``the absence of a pandering or 
titillating nature ... will not necessarily prevent an 
indecency determination....''15      

     9.  We thus disagree with Infinity's contention that, 
because the cited material was aired during a live event, 
the material became not indecent.  Unquestionably, the 
material described a sexual activity.  The description was 
not clinical or educational; rather, it was graphic and 
vulgar.16  Infinity could have prevented, but did not 
prevent, its broadcast.  By comparison, the utterances cited 
in Branton were not presented in a vacuum, but during a news 
story concerning organized crime.  Listeners were warned 
about the rough language and informed, inter alia, that Mr. 
Gotti's words came from a wiretap recording of material that 
the government had used as evidence at Mr. Gotti's trial.  

     C. The Arguable Social Merit of the Broadcast Does Not 
Preclude an Indecency Finding.

     10.  Infinity also argues that the MO&O ignored a 
second important contextual factor - the merits of the 
concert.  Infinity contends that ``The Last Damn Show'' was 
a major artistic and cultural event in Tampa and that the 
Commission is constitutionally barred from drawing a 
distinction between the cited material and material that the 
Commission believes may be of greater cultural or 
``serious'' merit.17  Infinity appears to claim both that 
the Bureau ignored the concert's relative merit and that, 
nevertheless, the Commission is constitutionally forbidden 
from drawing a distinction between the merit of the ``The 
Last Damn Show'' and some other, arguably more serious, 
material.  We do not read the cases cited by Infinity to 
support these apparently contradictory propositions of law.  
Neither Hustler nor Cohen involved broadcast indecency.  The 
former concerned the possible liability of a magazine and 
its publisher for the tort of intentional infliction of 
emotional distress when the person allegedly attacked in 
print was a public figure.  The latter concerned the 
constitutionality of a criminal conviction for wearing a 
jacket bearing offensive wording in a public setting.  The 
court's holdings in each case clarified the limitations 
imposed by the First Amendment18 on a state's power to 
punish offensive speech in two non-broadcast contexts.  By 
comparison, it is well settled that broadcasters do not have 
unlimited rights to air indecent material, even if the 
material has ``merit.''19  

     11.  The Indecency Guidelines advise that the full 
context in which broadcast material appears is critically 
important in determining whether that material is patently 
offensive.20  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.21  In examining 
these three factors, it is necessary to 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....''22  In particular cases, one or two of 
the factors may outweigh the others, either rendering the 
broadcast material patently offensive and consequently 
indecent,23 or, alternatively, removing the broadcast 
material from the realm of indecency.24  The ``merit'' of a 
work is one of many variables that make up a work's context; 
however, the presence of artistic or social merit does not 
preclude a finding that material is indecent.25  Thus, 
regardless of whether there was artistic or social merit to 
``The Last Damn Show,'' we may still find that the material 
broadcast by Station WLLD(FM) was indecent if, after 
weighing and balancing all pertinent factors, we conclude 
that the material is patently offensive.26  Because we agree 
with the Bureau that the cited material was explicit, 
graphic and repeated, we also conclude that, even after 
factoring in the concert's merit, as described by Infinity, 
the Bureau correctly determined that the material was 
patently offensive.   
      
     D. The Bureau Applied the Proper Test of Contemporary 
Community Standards.

     12.  We find no error in the MO&O's decision not to 
address again the Forfeiture Order's observation that the 
relevant test for determining contemporary community 
standards is not the popularity of the speakers or the event 
but whether the material is patently offensive for the 
broadcast medium.27  We also disagree with Infinity's 
apparent belief that it can broadcast with impunity anything 
uttered during ``The Last Damn Show'' because such 
utterances were acceptable to the attendees of the concert 
and those who chose to listen to the performance's 
broadcast.  Our Indecency Guidelines advise that the 
community standard for the broadcast medium is ``that of the 
average broadcast viewer or listener.''28  We rely on our 
collective experience and knowledge, developed through 
constant interaction with lawmakers, courts, broadcasters, 
public interest groups and ordinary citizens, to keep 
abreast of contemporary community standards for the 
broadcast medium.  Applying the test of the average 
broadcast listener to the material at issue, we are 
satisfied that he or she would find it patently offensive 
for the broadcast medium.29  Thus, we conclude that the 
nation's ever-changing contemporary community standards have 
not yet reached the point where the cited material is 
acceptable broadcast fare.      E. The Commission's Indecency Standard Is 
Constitutional.

     13.  Infinity argues that the Commission's indecency 
standard is facially unconstitutional, citing Reno v. ACLU30 
and Ashcroft v. Free Speech Coalition.31  The courts, 
however, have repeatedly found otherwise.32  Moreover, as we 
have previously indicated, neither Reno nor Ashcroft alters 
this conclusion nor requires that we prove actual harm to 
children before we can impose a forfeiture for broadcasting 
indecent material outside of the safe harbor hours of 10 
p.m. to 6 a.m.33  

IV. ORDERING CLAUSES

     14.  ACCORDINGLY, IT IS ORDERED that, pursuant to 47 
C.F.R. § 1.115(g), the Application for Review filed on 
October 28, 2002, by Infinity Radio License, Inc. IS DENIED.
     
     15.  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 Federal 
Communications Commission, P.O. Box 73482, Chicago, Illinois 
60673-7482.  The payment MUST INCLUDE the FCC Registration 
Number (FRN: 0004-0367-11) referenced above, and also should 
note the NAL/Acct. No. (2001320800008).  If the forfeiture 
is not paid within thirty (30) days of the release of this 
Memorandum Opinion and Order, the case may be referred to 
the Department of Justice for collection pursuant to 47 
U.S.C. § 504(a).

     16.  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. 20554.34


     17.  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
                   DISSENTING STATEMENT OF 
                COMMISSIONER MICHAEL J. COPPS


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

     In this decision, the majority upholds the Enforcement 
Bureau's decision to fine Infinity $7000 for airing graphic 
and explicit sexual content that clearly violates the 
statutory prohibition on broadcasting obscene, indecent, or 
profane language.    

     This decision highlights serious problems with way the 
Commission carries out its statutory enforcement 
responsibilities.  The timeline of this complaint 
demonstrates clearly why many consider the Commission's 
enforcement to be ineffective.  Many complaints languish for 
a year or more without any action.  But this case shows that 
even after the first Notice is issued, the delays are just 
beginning:       

·  September 1999 -- the program aired.  

·  December 2000 -- the Enforcement Bureau issues the 
   initial Notice of Apparent Liability fifteen months 
   later.  

·  March 2001 -- the Bureau releases its Forfeiture Order 
   three months later.

·  September 2002 -- the Bureau takes another year and a 
   half to address Infinity's reconsideration petition.

·  March 2004 -- a year and a half after that, the 
   Commission is finally addressing this case - four and a 
   half years after this program was broadcast.   

     And when this agency finally acts, the penalties it 
imposes are woefully inadequate.  The vulgar and explicit 
nature of the indecency and profanity that was broadcast 
gives the FCC the obligation to take serious action.  
Instead, the majority upholds a fine of $7000.  Such a fine 
does not even rise to a cost of doing business for this 
multi-billion dollar conglomerate.  

It is small wonder that Americans across this country are 
dissatisfied with the Commission's enforcement of these 
statutes against obscenity, indecency, and profanity.   How 
do we change this situation?  First, we must begin to assess 
truly meaningful fines.  Second, the more outrageous cases 
should be sent to hearings for possible revocation of 
licenses.  Third, the Commissioners themselves, rather than 
the Bureau should be making these decisions.  Issues of 
indecency on the people's airwaves are important to millions 
of Americans.  I believe they merit, indeed compel, 
Commissioner-level action.  And finally, the Commission 
should set a deadline for action on all obscenity, 
indecency, and profanity complaints.  Congress has taken 
notice of this problem and is already moving forward to set 
such deadlines for the Commission.  The Energy and Commerce 
Committee of the United States House of Representatives 
voted just last week to require the Commission to act on 
complaints within 180 days and to issue forfeitures within 
270 days.  Although I applaud the decision to provide a 
deadline for Commission action, I urge my colleagues not to 
wait for legislation to get our indecency enforcement house 
in order.                     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 broadcast included numerous indecent utterances.  
Infinity, the licensee, has a long history of repeated 
violations.  The Bureau's proposed $7,000 fine is 
inadequate; each violation in this broadcast deserves a much 
higher fine.  We should have issued a new Notice of Apparent 
Liability today for a fine at least ten times higher.                        STATEMENT OF 
             COMMISSIONER JONATHAN S. ADELSTEIN


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


     I support this Order affirming a forfeiture for the 
broadcast of indecent material at a time when children may 
be in the audience.  Were I acting on a clean slate, I would 
have imposed a higher fine given the nature of the broadcast 
and the licensee's history.  Nevertheless, recognizing that 
four and a half years have already passed since this 
broadcast, I am reluctant to start the process anew.  The 
unnecessary delay in this case is regrettable.  Such delay 
can impede the Commission's ability to meet our obligation 
to enforce statutory and regulatory provisions restricting 
broadcast indecency.  

     Since I arrived at the Commission, we have greatly 
stepped up our enforcement against indecent broadcasts.  I 
expect that these stepped-up actions will convince 
broadcasters that they cannot ignore their responsibility to 
serve the public interest and to avoid the broadcast of 
indecent material over the public airwaves.    
_________________________

1 Infinity Radio License, Inc., 17 FCC Rcd 18339 (EB 2002).
2
 Infinity Radio License, Inc., 16 FCC Rcd 4825 (EB 2001) 
(``Forfeiture Order'').
3 521 U.S. 844 (1997).
4
 122 S. Ct. 1389 (2002).
5
 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.''  
6
 Application for Review, p. 4.
7
 The complaint against WRLR(FM) was dismissed because it 
provided no information that could reasonably support a 
conclusion that the alleged use of the word ``pussy'' 
referenced a sexual organ or was used in connection with a 
sexual activity.
8
 Application for Review, p. 3.
9
 See Action for Children's Television v. FCC, 58 F.3d 654, 
664 D.C. Cir. 1995), cert. denied, 516 U.S. (1043) (1996) 
(``ACT III'').
10 See Sagittarius Broadcast Corporation, 7 FCC Rcd 6873, 
6874, ¶ 9 (MMB 1992) (subsequent history omitted) (salient 
question is whether sexual import was inescapable and 
understandable not only to adults but especially to 
children). 
11
 See Peter Branton, 6 FCC Rcd 610 (1991) (subsequent history 
omitted) (Newscast concerning the criminal trial of an 
organized crime boss, featuring a taped conversation played 
during the trial, which used variations of the ``F-word'' 
repeatedly) (subsequent history omitted).  
12
 Forfeiture Order, supra note 2, 16 FCC Rcd at 4826, ¶ 7. 
13
 See CBS Radio License, Inc., 15 FCC Rcd 23881, 23883, ¶ 8 
(EB 2000). 
14
 By comparison, see Indecency Guidelines, supra note 5, 16 
FCC Rcd at 8008-09, ¶¶ 17-18. 
15
 Id., 16 FCC Rcd at 8014, ¶ 23. 
16
 By comparison, the Commission has cited as not indecent 
sexually explicit material that was presented in a clinical 
or instructional, as opposed to a pandering, titillating or 
vulgar, manner.  See id., 16 FCC Rcd at 8011-12, ¶ 21. 
17 Application for Review, p. 8, citing Hustler Magazine v. 
Falwell, 485 U.S. 46 (1988) and Cohen v. California, 403 
U.S. 15, 26 (1970). 
18
 U.S. CONST., amend. I. 
19
 See Indecency Guidelines, supra note 5, 16 FCC Rcd at 8000, 
¶ 4 and n. 8.  See also Infinity Broadcasting Corporation of 
Pennsylvania (WYSP(FM)), 3 FCC Rcd 930, 932, ¶ 17 (1987), 
aff'd in part, vacated in part on other grounds, remanded 
sub nom. Action for Children's Television v. FCC, 852 F.2d 
1332, 1340 (D.C. Cir. 1988) (``ACT I'') (``Some material 
that has significant social value may contain language and 
descriptions as offensive, from the perspective of parental 
control over children's exposure, as material lacking such 
value.  [Footnote omitted]  Since the overall value of a 
work will not necessarily alter the impact of certain words 
and phrases on children, the FCC's approach is permissible 
under controlling case law: merit is properly treated as a 
factor in determining whether material is patently 
offensive, but does not render such material per se not 
indecent.'').  
20
 Indecency Guidelines, supra note 5, 16 FCC Rcd at 8002, ¶ 
9.

21 Id., 16 FCC Rcd at 8003, ¶ 10.  
22 Id.
23
 Id., 16 FCC Rcd at 8009, ¶ 19 (citing Tempe Radio, Inc 
(KUPD-FM), 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)), 12 FCC Rcd 
4147 (MMB 1997) (forfeiture paid) (same). 
24
Indecency Guidelines, supra note 5, 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'').
25
 See note 19, supra. 

26 Infinity Broadcasting Corp. of Pennsylvania (WYSP(FM)), 
supra note 19, 3 FCC Rcd at 932, ¶ 17.
27
 Forfeiture Order, supra note 2, 16 FCC Rcd at 4827, ¶ 8.
28
 Indecency Guidelines, supra note 5, 16 FCC Rcd at 8002, ¶ 
8. 

29 We also note that, separate and apart from our affirmance 
of the Bureau forfeiture, the broadcast also included 
repeated use of the ``F-word.''  Had this issue been 
presented to the full Commission in the first instance, we 
would also have found that repeated use of the ``F-word'' in 
this context was indecent.
30 Supra note 3.

31 Supra note 4.
32
 FCC v. Pacifica Foundation, 438 U.S. 726, 750-51 (1978); 
ACT III, supra note 9, 58 F.3d at 657-59; ACT I, supra note 
19, 852 F.2d at 1338-40. 
33
 See Infinity Broadcasting Operations, Inc. (``WKRK-FM''), 
Apparent Liability for Forfeiture, Forfeiture Order, __ FCC 
Rcd __ ¶ 5 and n. 8 (2003). 
34
 See 47 C.F.R. § 1.1914.