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


In the Matter of                 )
                                )
Infinity Broadcasting            )    File No. EB-01-IH-0633
Operations, Inc.                 )    NAL/Acct. No. 200432080013
                                )    FRN 0003476074
Licensee of Station WKRK-FM      )    Facility ID No. 9618
Detroit, Michigan                )
                                )
                                )


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  March 8, 2004              Released:  March 18, 2004

By the Commission:  Commissioner Martin concurring and issuing a 
statement; Commissioner Adelstein issuing a statement; and 
Commission Copps dissenting 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   find  that   Infinity 
Broadcasting  Operations,  Inc.,  licensee  of  Station  WKRK-FM, 
Detroit, Michigan,  aired program  material during  the  ``Howard 
Stern Show''  on  July 26,  2001,  that apparently  violates  the 
federal  restrictions   regarding  the   broadcast  of   indecent 
material.2  Based upon our review of the facts and  circumstances 
of this case, we conclude that Infinity is apparently liable  for 
a monetary forfeiture in the amount of Twenty-Seven Thousand Five 
Hundred Dollars  ($27,500.00),  the  statutory  maximum  in  this 
context, for broadcasting indecent material in apparent violation 
of 18  U.S.C. §  1464  and section  73.3999 of  the  Commission's 
rules. 

II.  BACKGROUND

     2.   The Enforcement  Bureau received  a complaint  alleging 
that Station WKRK-FM aired indecent material during the  ``Howard 
Stern Show,'' on July 26, 2001,  between 6:30 and 7:30 a.m.   The 
complainant submitted an audio tape of this broadcast.3  

     3.   The  Enforcement  Bureau  sent  Infinity  a  letter  of 
inquiry,4 and attached a transcript of a portion of the  material 
included in the  audio tape.5  In  its response, Infinity  states 
that ``The Howard Stern Show'' was aired on WKRK(FM) on July  26, 
2001, and  that it  ``has  no knowledge  at  this time  that  the 
transcripts are  materially  different  from  what  was  actually 
broadcast by WKRK on July 26, 2001,'' but because the station did 
not retain  a tape  or  transcript of  the actual  broadcast,  it 
cannot state conclusively whether the material reproduced in  the 
complainant's tape and in the transcript were broadcast over  the 
station.6  Infinity maintains, however,  that the aired  material 
was not actionably indecent and  did not contain any  description 
or depiction of  sexual or  excretory organs or  activities in  a 
patently offensive manner.7   In addition,  Infinity argues  that 
the    Commission's    generic     indecency    definition     is 
unconstitutional.

 III.   DISCUSSION

     4.   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 shall  not 
broadcast indecent material during the  period 6 a.m. through  10 
p.m.  

     5.   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.10  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.11  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.12   As we  set forth  in 
greater detail  below,  we  conclude  under  this  standard  that 
Infinity is apparently liable for  a forfeiture for its  apparent 
willful violation of 18 U.S.C. § 1464 and section 73.3999 of  the 
Commission's rules.

             A.     Indecency Analysis

     6.   Any  consideration   of   government   action   against 
allegedly indecent programming  must take into  account the  fact 
that such speech is protected  under the First Amendment.13   The 
federal courts consistently have  upheld Congress's authority  to 
regulate  the  broadcast  of  indecent  material,  as  well   the 
Commission's interpretation and  implementation of the  governing 
statute.14  Nevertheless,  the  First  Amendment  is  a  critical 
constitutional  limitation  that   demands  that,  in   indecency 
determinations,  we  proceed  cautiously  and  with   appropriate 
restraint.15  

     7.   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.16  


           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.17

     8.   As an initial matter,  Infinity disputes that it  aired 
material describing or depicting sexual and excretory  activities 
and organs.18  Specifically,  Infinity argues  that the  material 
contains  ``brief  and   non-descriptive  references  to   sexual 
practices that employ only clinical terms such as  ``evacuating'' 
and ``oral sex.''19  We disagree.  Infinity's argument cites only 
one of  the  sexual  practices  described  in  the  complained-of 
material.20   In  any  event,  the  material  at  issue   clearly 
describes named sexual practices21 and also describes features of 
an excretory organ.22  The material, therefore, warrants  further 
scrutiny to determine whether or not it was patently offensive as 
measured by contemporary  community standards  for the  broadcast 
medium.23  

     9.   In our  assessment  of whether  broadcast  material  is 
patently offensive,  ``the full  context  in which  the  material 
appeared is  critically important.''24   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.25   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.''26  In particular  cases, 
one or  two  of  the  factors may  outweigh  the  others,  either 
rendering  the   broadcast   material  patently   offensive   and 
consequently  indecent,27   or,   alternatively,   removing   the 
broadcast material from the realm of indecency.28  In this  case, 
we note that  the complained-of material  is similar to  material 
broadcast by  the same  station that  we previously  found to  be 
patently  offensive   as  measured   by  contemporary   community 
standards for  the broadcast  medium.29  This  finding was  based 
upon an examination of all three factors and a finding that  each 
weighed in favor of a  determination that the broadcast  material 
was patently offensive.  We find  no reason to conclude that  our 
analysis of the three principal factors should yield a  different 
result with respect to the other material broadcast over  Station 
WKRK-FM that is at issue here.  

     10.   First, contrary  to Infinity's  argument, in  context, 
the description of the sexual and excretory organs and activities 
in the complained-of material is graphic and explicit.  There are 
descriptions of  how  specifically  named  sexual  practices  are 
performed, including references to  an oral sexual practice  that 
also involves  excretory  activity.30   To the  extent  that  the 
colloquial terms  used,  in  part, to  describe  sexual  activity 
involved in one  of the  sexual practices could  be described  as 
innuendo, they are nonetheless sufficient to render the  material 
actionably indecent because  the sexual import  of the  reference 
was ``unmistakable.''31  Given the  detailed and explicit  manner 
in which the broadcast described the sexual and excretory  organs 
and activities, there  is no non-sexual  meaning that a  listener 
could possibly have attributed to the colloquial terms.32  

     11.  Second, the broadcast  contained repeated  descriptions 
of sexual  and  excretory  organs  and  activities.33   Moreover, 
contrary to  Infinity's argument  that some  of the  descriptions 
used clinical terms,34 the overall context in which the  material 
was presented was used to  pander, titillate and shock. The  tone 
of the material is vulgar and lewd, not clinical. 

     12.  We also reject Infinity's contention that this material 
cannot  be  found   indecent  because  there   are  other   cases 
referencing topics such as masturbation, and anal and oral sex in 
which no  enforcement  action  was  taken.  In  support  of  this 
argument, Infinity cites two unpublished Enforcement Bureau staff 
decisions, in which  there were references  to ``giving  head''35 
and ``finger banging your  boyfriend.''36  However, the  material 
at issue  here is  more graphic  and explicit  than the  language 
cited from  these  complaints.  Moreover, the  use  of  the  term 
``finger banging'' was brief and fleeting, which is not the  case 
with the material at issue here.37  Infinity also cites  material 
at  issue  in  an  unpublished  internal  staff  memorandum   and 
unpublished staff  decisions where  the  Mass Media  Bureau,  the 
predecessor to the Media Bureau, found that certain material  was 
not actionably indecent.38    To the  extent that  the staff  may 
have erred by determining  that the material  in those cases  was 
not indecent, these unpublished decisions are not binding on  the 
Commission.39   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 in this case is indecent.  

     13.  Infinity argues that due to profound changes in  social 
mores, the range  of acceptable  topics and  words for  broadcast 
discussion has  changed  dramatically,  especially  in  light  of 
widespread media  coverage of  sex scandals  involving  President 
Clinton and  the Roman  Catholic Church.   Although  contemporary 
community standards may change over  time, the material at  issue 
here is nevertheless  patently offensive as  measured by  current 
contemporary community standards for the broadcast medium and  is 
similar to  other material  that has  been found  to be  patently 
offensive.   We thus reject Infinity's argument that the material 
broadcast over Station  WKRK-FM on July  26, 2001, is  consistent 
with contemporary community standards for the broadcast medium. 

     14.  It is undisputed  that the  complained-of material  was 
broadcast within the 6 a.m. to 10 p.m. time frame relevant to  an 
indecency determination under section 73.3999 of the Commission's 
rules.  Thus, because there was  a reasonable risk that  children 
may have been in  the audience at the  time that the material  at 
issue was broadcast on July  26, 2001, the material broadcast  is 
legally actionable.40   By broadcasting  this material,  Infinity 
apparently violated the prohibitions in 18 U.S.C. § 1464 and  the 
Commission's rules against broadcast indecency.

               B.        Proposed Forfeiture 

     15.  Based upon our review  of the record  in this case,  we 
conclude that  Infinity  is  apparently liable  for  the  willful 
violation of  our  rules.   The  Commission's  Forfeiture  Policy 
Statement  sets   a  base   forfeiture  amount   of  $7,000   for 
transmission of indecent or obscene materials.41  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.''42   In this  case, 
taking all of these factors  into consideration, we find that  an 
upward adjustment  of  the  forfeiture amount  to  the  statutory 
maximum of $27,500.00 is warranted.  Infinity's recent history of 
indecent or apparently indecent  broadcasts justifies the  upward 
adjustment.  We  reiterate our  previous statements  that we  may 
sanction a broadcaster for  apparent, repeated violations of  the 
indecency rules for separate utterances within one program43  and 
that ``additional serious violations by Infinity may well lead to 
a license revocation proceeding.''44

IV.        ORDERING CLAUSES

     16.  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,45  that   Infinity   Broadcasting 
Operations, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR 
FORFEITURE in the  amount of Twenty-Seven  Thousand Five  Hundred 
Dollars ($27,500.00) for willfully violating 18 U.S.C. § 1464 and 
section 73.3999 of the Commission's rules.

     17.  IT IS FURTHER ORDERED, pursuant to section 1.80 of  the 
Commission's rules, that within thirty  (30) days of the  release 
of this NAL, Infinity SHALL PAY  the full amount of the  proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

     18.  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 Number  (``FRN'') referenced above and  also 
should note the NAL/Account Number referenced above.

     19.  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.

     20.  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.

     21.  Requests for payment  of the  full amount  of this  NAL 
under an installment plan should  be sent to: Chief, Revenue  and 
Receivables Operations Group, 445 12th Street, S.W.,  Washington, 
D.C. 20554.46 

     22.  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 Infinity  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  Infinity, 
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  B  of  this  Notice  of  Apparent  Liability.    This 
information will be used for tracking purposes only.   Infinity'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 Infinity  has  questions 
regarding any of  the information contained  in Attachment B,  it 
should contact OCBO at (202) 418-0990.

     23.  Accordingly, IT IS  ORDERED, that  the complaint  filed 
against Station WKRK-FM's broadcast of the ``Howard Stern  Show'' 
on July 26, 2001, IS GRANTED to the extent indicated herein,  AND 
IS OTHERWISE  DENIED,  and  the complaint  proceeding  IS  HEREBY 
TERMINATED.47

     24.  IT IS FURTHER ORDERED, that a copy of this NAL shall be 
sent by Certified  Mail Return  Receipt Requested  to Stephen  A. 
Hildebrandt, Vice  President, Infinity  Broadcasting  Operations, 
Inc., 2000 K Street, N.W., Suite 725, Washington, D.C. 20006;  to 
Infinity's counsel, Steven  A. Lerman, Esq.,  Dennis P.  Corbett, 
Esq., and  David  S. Keir,  Esq.,  Leventhal, Senter  and  Lerman 
P.L.L.C., 2000  K  Street,  N.W.,  Suite  600,  Washington,  D.C.  
20006-1809, and to the complainant.  



                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         Marlene H. Dortch
                         Secretary

                          ATTACHMENT A
                       Program Transcript

Radio Station:  WKRK-FM, Detroit, MI
Date/Time of Broadcast:  July 26, 2001, 6:30 a.m. to 7:30 a.m.
Material Broadcast:  The Howard Stern Show

HS:  Howard Stern
RQ:  Robin Quivers
MV:  Male Cast Member

HS:  I said to Mark Wahlberg yesterday, had he ever gotten a 
blumpkin from a girl and everyone around here is acting like they 
don't know what it is.  

RQ:  You're the only nutcase who does.  

MV:  I said ``blumpkin'' on the ``Norm Show'' and the network 
censor, we told him we just made the word up.  He goes, ``that's 
definitely not a real word right?''  We go, no,no,no. And I said 
it, I yelled out at a hooker in a cab.

HS:  What do you say to her, ``how about a blumpkin?''

MV:  I go ``honey, how much for a blumpkin?''

HS:  Right.

MV:  And uh the network censor never heard of it.  And he goes if 
you just made it up it's fine but if it's a real thing we can't 
have it.  So it's aired, it's been on ABC, it's like the dirtiest 
thing ever on television.

HS:  Yeah, but nobody knows what it is.  A blumpkin... I can 
explain it cleanly.

RQ:  There's nothing clean about a blumpkin.   

HS:  Well, a blumpkin is receiving oral sex while you're sitting 
on a toilet bowl if you are a man.  You're sitting on a toilet 
bowl and uh, while you're evacuating you receive your oral.  

RQ:  Ick.  

HS:  And uh, then, what did I say yesterday too you didn't 
understand?  Balloon knot?

RQ:  Yes, I don't know what that is.  Somebody said to me ``is 
that the funniest thing ever?'' and I was like ``what is that?''

HS:  A balloon knot...

RQ:  I didn't want to show my ignorance, I laughed too.  

HS:   A balloon knot...  I'm gonna post these on a web site...

RQ:  Yeah, we need a dictionary for this show.  

HS:  A balloon knot is when you bend over and I can see up right 
up your old...

RQ:  Up the wazoo? 

HS:  Up the wazoo and uh, you know that's a balloon knot that you 
see.  That's called a ``balloon knot.''

RQ:  Really, I did not know that.

HS:  Think about it, it looks like a balloon knot.

RQ:  I don't know.  Oh... you know what...

HS:  Tie up a balloon.

RQ:  I'm just thinking of a balloon knot...

MV:  It all makes sense, Robin, come on. 
 
HS:  And uh, what else did I say?  ``Nasty Sanchez,'' you didn't 
know what that was.

RQ:  Oh, I don't even want to know half the time what these 
things are...

HS:  That I'd have to post on the internet. 

RQ:  `Cause there've been a number of terms used lately.  Would 
you do...  `cause KC's always blurtin' them out.

HS:  ``Strawberry shortcake''

RQ:  ``Strawberry shortcake'' I've never heard of.  ``Dirty 
Sanchez'' 

HS:  ``Nasty Sanchez.''  

RQ:  What is the others KC?

MV:  I heard a new one the other day.  It was the ``David 
Copperfield.''

HS/RQ:  That's right.  

MV:  Okay, do you want to explain it, since I...  When you're 
goin' like a dog... 

HS:  Right.

MV:  ...and you're about to finish and instead you don't finish, 
you spit on her and then you turn around and when she turns her 
face around then you go...  So it's kind of like an illusion...  

HS:  Right.  

MV:  to David Copperfield.  

RQ:  Sleight of hand.

HS:  Misdirection.

MV:  Classic misdirection. 

HS:  You trick her.  There's a million of them, but uh, I'll post 
them on the web.

RQ:  Yes, because people need to know.  These aren't in the 
regular dictionary.

***  ***  
                                                     October 2002
                          ATTACHMENT B


                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)
                     DISSENTING STATEMENT OF
                  COMMISSIONER MICHAEL J. COPPS


Re:  Infinity Broadcasting Operations Inc., licensee of WKRK-FM, 
Detroit Michigan, Notice of Apparent Liability for Forfeiture

     I dissent from the Commission's decision today to provide a 
slap on the wrist rather than take serious action to address the 
indecency on our airwaves.  In this decision, the Commission 
proposes a fine of $27,500 against this multi-billion dollar 
media conglomerate.  

     I am troubled by several aspects of this decision that 
demonstrate the Commission is not yet taking a strong stand 
against indecency on the airwaves.  First, the Commission fined 
this very same station last year for airing some of the most 
vulgar and disgusting material I have had the misfortune to 
examine since I joined the Commission.  In both that decision and 
this Order, the Commission warned Infinity that additional 
violations may well lead to the initiation of a license 
revocation proceeding.  Some may argue that the program at issue 
today pre-dated the broadcast addressed last year, which only 
serves to demonstrate the need to consider complaints in a more 
timely manner.  Moreover, the statute does not require notice to 
begin a license revocation hearing.      

     Second, the Commission recently reaffirmed that its 
indecency enforcement will address not only the station that is 
the subject of a complaint, but also any other station that aired 
the same programming.  Yet here, the Commission proposes a fine 
against only WKRK-FM in Detroit notwithstanding that this program 
airs on numerous stations across the country.  

     The time has come for the Commission to send a message that 
it is serious about enforcing its indecency rules.  

                     CONCURRING STATEMENT OF
                  COMMISSIONER KEVIN J. MARTIN,


Re:  Infinity Broadcasting Operations, Inc., Licensee of Station 
     WKRK(FM), Detroit, MI, Notice of Apparent Liability for 
     Forfeiture

     This Order emphasizes the importance of the Commissioner 
responding to complaints in a more timely fashion.  This is the 
same licensee that we have previously fined for ``egregious'' 
indecency violations and warned against future violations.48  
This broadcast, however, actually pre-dates the broadcast that 
incurred those warnings.





















                          STATEMENT OF 
               COMMISSIONER JONATHAN S. ADELSTEIN

      Re:  Infinity Broadcasting Operations, Inc., Licensee 
     of Station WKRK-FM, Detroit, Michigan; Notice of 
     Apparent Liability for Forfeiture


     I support this Notice of Apparent Liability for the 
broadcast of indecent material at a time when children may be in 
the audience.  This NAL furthers our responsibility to enforce 
statutory and regulatory provisions restricting broadcast 
indecency.  While this case predates another case in which this 
station aired some of the most egregious broadcast indecency that 
I have yet encountered, we impose the statutory maximum fine here 
and remind broadcasters that the Commission can and will avail 
itself of a range of enforcement sanctions.  I am also concerned 
that the Commission did not take more steps to address other 
stations which likely aired the same programming.  

     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 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
2 See 18  U.S.C. §  1464, 47  C.F.R. §  73.3999 and  47 U.S.C.  § 
503(b).  
3 Letter from complainant  to Federal Communications  Commission, 
dated October 11, 2001. 
4 Letter from  the Chief, Investigations  and Hearings  Division, 
Enforcement Bureau,  to Infinity  Broadcasting Operations,  Inc., 
dated June 3, 2003.  
5  See Program Transcript, Attachment A.  
6 See Letter from Steven A. Lerman, Dennis P. Corbett, and  David 
S. Keir, Counsel  to Infinity Broadcasting  Operations, Inc.,  to 
the Investigations  and  Hearings Division,  Enforcement  Bureau, 
dated July 17, 2003  (``Infinity Response''), at  5.  As part  of 
its response, Infinity  indicated that  it did  not know  whether 
other Infinity  stations broadcast  the language  alleged by  the 
complainant.  Because the only evidence in the record relates  to 
WKRK-FM, we limit our action here to that station.
7 Id. at 8-9.  
8 See 47 U.S.C. § 326.
9 18 U.S.C. § 1464. 
10 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  18 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 for Monetary  Forfeiture, 
16 FCC Rcd 1359  (2001) (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.    
11 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
12 See, e.g.,  SBC Communications, Inc.,  Apparent Liability  for 
Forfeiture, Forfeiture Order, 17 FCC  Rcd 7589, 7591, ¶ 4  (2002) 
(forfeiture paid). 
13 U.S. CONST., amend. I; See Action for Children's Television v. 
FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (``ACT I'').
14 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; Action for  Children's Television v. FCC, 932  F.2d 
1504, 1508 (D.C. Cir.  1991), cert. denied,  503 U.S. 914  (1992) 
(``ACT II''); Action for Children's  Television v. FCC, 58 F.  3d 
654 (D.C. Cir. 1995), cert.  denied, 516 U.S. 1043 (1996)  (``ACT 
III'').     Moreover,  we  have  previously  rejected  Infinity's 
constitutional   challenges   of   the   Commission's   indecency 
definition.   See,   e.g.,  Infinity   Broadcasting   Operations, 
Inc.(WKRK-FM),  Apparent  Liability  for  Forfeiture,  Forfeiture 
Order, 18 FCC Rcd 26360 (2003), recon. denied, Memorandum Opinion 
and Order, FCC 04-34 (rel. Mar. 5, 2004) (rejecting argument  the 
indecency definition is  vague and overbroad  based upon Reno  v. 
ACLU, 521  U.S.  844  (1997)  and  rejecting  argument  that  the 
indecency  definition  is  constitutionally  invalid  because  no 
causal link has been demonstrated  between indecency and harm  to 
children based upon  Ashcroft v. Free Speech Coalition, 122 S.Ct. 
1389  (2002)  a   case  invalidating  provision   of  the   Child 
Pornography Prevention Act of  1996).  We also reject  Infinity's 
citation to Interactive Digital Software Association v. St. Louis 
County, Missouri, 329 F.3d 954 (8th Cir. 2003) in support of  its 
argument  that  no  causal  link  has  been  established  between 
indecency  and  harm  to  children.   This  case  invalidated  an 
ordinance prohibiting  certain  sales, rental  and  provision  of 
access to minors to graphically violent video games because there 
was no support that there was a strong likelihood of harm to  the 
psychological well being of minors as a result of playing violent 
video games.  
15 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.'').
16 Infinity Broadcasting Corporation  of Pennsylvania, 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).  
17 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, 
8002, ¶¶ 7-8 (2001) (emphasis in original).
18 Infinity Response at 9-10.
19 Infinity Response at 10.  
20 Id. Infinity claims that discussion of a ``blumpkin'' involves 
only ``brief and non-descriptive  references to sexual  practices 
that employ only  clinical terms such  as `evacuating' and  `oral 
sex.'''  
21 See Program  Transcript, Attachment A,  at 9-10, describing  a 
``blumpkin'' and at 10-11, describing the ``David  Copperfield.'' 
See also, note 30, infra.  
22 See Program  Transcript, Attachment  A at  9-10, describing  a 
``balloon knot'' as the anal opening.
23  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  at 
8002, ¶ 8 and n. 15.      
24 Indecency Policy Statement, 16 FCC Rcd at 8002, ¶ 9  (emphasis 
in original).  
25 Id. at 8002-15, ¶¶ 8-23.  
26 Id. at 8003, ¶ 10.
27 Id. 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). 
28 Id. 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'').
29  See  Infinity   Broadcasting  Operations,  Inc.,   (WKRK-FM), 
Apparent Liability for Forfeiture,  Forfeiture Order, 18 FCC  Rcd 
26360 (2003), recon.  denied, Memorandum Opinion  and Order,  FCC 
04-34 (rel. Mar. 5, 2004)  (broadcast on Station WKRK on  January 
9, 2002 during the ``Deminski & Doyle Show'' that ``described  in 
detail how  specifically named  sexual acts  are performed''  and 
that ``included explicit  and graphic sexual  references to  anal 
and oral  sex, as  well  as explicit  and graphic  references  to 
sexual  practices  that  involve  excretory  activities'').   The 
complained-of material at issue here was broadcast on an  earlier 
date, but includes  similar descriptions of  a ``blumpkin,''  and 
the ``David Copperfield,'' sexual practices among those at  issue 
in the January 9, 2002, broadcast over Station WKRK-FM.   
30 See Program Transcript, Attachment A at 9-11.
31 Indecency Policy  Statement, 16  FCC Rcd at  8002-04, ¶¶  9-12 
(2001).  See also,  Emmis Radio  License Corporation  (WKQX(FM)), 
Notice of Apparent Liability for Monetary Forfeiture, 17 FCC  Rcd 
5263 (EB  2002); Apparent  Liability for  Forfeiture,  Forfeiture 
Order, 17 FCC  Rcd 21697  (EB 2002),  recon. denied,,  Memorandum 
Opinion and Order,  19 FCC  Rcd 2697  (EB 2004)(where  innuendo's 
``unmistakably sexual'' meanings and contexts were established by 
lengthy surrounding  discussion, the  material  was found  to  be 
actionably indecent). In this regard, ``when you're goin' like  a 
dog...'' referred  to the  position employed  during the  ``David 
Copperfield'' sexual practice.  Program transcript, Attachment  A 
at 10. 

32 See Sagittarius Broadcast Corporation, Memorandum Opinion  and 
Order, 7 FCC Rcd 6873, 6874 (1992) (subsequent history omitted).
33 See, e.g., Emmis Radio License Corporation (WKQX(FM)),  Notice 
of Apparent Liability for Monetary  Forfeiture, 17 FCC Rcd  5263, 
5266 ¶¶ 10-11; Forfeiture Order, 17 FCC Rcd at 21699 ¶ 9.  
34 Infinity Response at 9-10.  
35 See  Infinity Response  at 12  citing Letter  from Charles  W. 
Kelley, Chief, Investigations and Hearings Division,  Enforcement 
Bureau, dated April 22, 2002, EB-01-IH-0407. 
36 See  Infinity Response  at 12  citing Letter  from Charles  W. 
Kelley, Chief, Investigations and Hearings Division,  Enforcement 
Bureau, dated February 12, 2002, EB-01-IH-0331.
37 Id. at 4-5.
38 See Memo from Thom Winkler to WIOD Complaint File, dated April 
21, 1997, FCC  Ref. No. 97010196;  Letter from Norman  Goldstein, 
Chief, Complaints and  Political Programming Branch,  Enforcement 
Division, Mass Media  Bureau, dated  May 15, 1997,  FCC Ref.  No. 
94069521; Letter  and Appendix  from  FCC Commissioner  James  H. 
Quello to The Honorable Senator  Alfonse M. D'Amato, dated  April 
29, 1994.
39 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).    

40 See ACT III, 58 F.3d at 660-63.    
41 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).  The  Commission  amended  its  rules  to  increase  the 
maximum  penalties  to  account  for  inflation  since  the  last 
adjustment  of  the  penalty  rates.   The  new  rates  apply  to 
violations that occur or continue  after November 13, 2000.   See 
Order, In  the Matter  of  Amendment of  Section 1.80(b)  of  the 
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect 
Inflation, 15 FCC Rcd 18221 (2000).
42 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, ¶ 27.
43 Infinity Broadcasting Operations,  Inc., (WKRK-FM), Notice  of 
Apparent Liability  for Monetary  Forfeiture,  18 FCC  Rcd  6915, 
6918-19,  ¶  12  (2003),   Apparent  Liability  for   Forfeiture, 
Forfeiture Order, 18 FCC 26360 (2003), recon. denied,  Memorandum 
Opinion and Order, FCC 04-34 (rel. Mar. 5, 2004). 
44 Id. at 6919, ¶ 13.  We  note that the broadcast at issue  here 
took place prior to the release of the WKRK-FM NAL in which  this 
statement appeared.
45 47 C.F.R. § 1.80.
46 See 47 C.F.R. § 1.1914.
47 Consistent  with  section 503(b)  of  the Act  and  consistent 
Commission  practice,  for   the  purposes   of  the   forfeiture 
proceeding initiated  by this  NAL, Infinity  shall be  the  only 
party to this proceeding.
48 Infinity Broadcasting  Operations, Inc.,  Licensee of  Station 
WKRK-FM, Detroit, Michigan, Notice of Apparent Liability, 18  FCC 
Rcd. 6915, 6919 (2003).