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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) EB-04-IH-0660
Emmis Communications Corporation
) NAL/Acct. No. 200432080193
Emmis Radio License Corporation
) FRN No. 0004161410
Licensee of Station WKQX(FM),
Chicago, Illinois ) FRN No. 0001529346
Forfeiture Order rel. Jan. 8, 2002 ) Facility ID No. 19525
(DA 02-26)
) NAL/Acct. No. 200132080029
Forfeiture Order rel. Nov. 1, 2002
(DA 02-2937) ) NAL/Acct. No. 200232080008
Forfeiture Order rel. Feb. 18, 2004 ) NAL/Acct. No. 200232080014
(DA 04-386)
)
)
)
ORDER ON RECONSIDERATION
Adopted: October 10, 2006 Released: October 17, 2006
By the Commission:
1. In this Order on Reconsideration, we deny a Petition jointly filed by
David Smith, the Illinois Family Institute, the Illinois Chapter of
Concerned Women for America, and Julie Cordry (collectively, the
"Petitioners"), seeking reconsideration of our Order approving a
Consent Decree settling enforcement actions against Emmis
Communications Corporation and its subsidiaries that hold FCC
authorizations for possible violation of broadcast indecency
restrictions.
I. Background
2. Emmis is the Commission licensee of various radio broadcast stations.
The Commission received complaints that Emmis stations had broadcast
indecent material over many of those stations, in violation of federal
law and the Commission's rules. As a result of these complaints, the
Commission issued three forfeiture orders against Emmis, assessing
monetary forfeitures against it for violation of the Commission's
indecency rule. Subsequently, the Commission and Emmis entered into
the Consent Decree resolving the three forfeiture orders, as well as
other pending indecency complaints and ongoing indecency
investigations against Emmis.
3. Pursuant to the Consent Decree, Emmis admitted that the programming at
issue in the forfeiture orders, and certain programming that was the
subject of the pending complaints and ongoing investigations, is
indecent, in violation of section 73.3999, agreed to make a voluntary
contribution of $300,000 to the United States Treasury, and adopted a
"company-wide compliance plan for the purpose of preventing the
broadcast of material violative of the Indecency Laws." In addition,
Emmis waived "any and all rights" to contest the validity of the
Consent Decree or the Order. In return, the Commission agreed to
rescind, vacate and cancel the forfeiture orders, terminate its
pending inquiries into possible indecency violations by Emmis
stations, and dismiss any pending indecency complaints against Emmis.
The Commission also agreed not to use the facts of the Consent Decree,
the forfeiture orders, the pending inquiries or complaints, "or any
similar complaints" regarding programming aired before the Consent
Decree's effective date for any purpose relating to Emmis or its
stations, and to treat all such matters as null and void.
4. On August 12, 2004, the Commission released its Order adopting the
Consent Decree. The Commission found that "the public interest would
be served by approving the Consent Decree and terminating all pending
proceedings against Emmis" relating to possible indecency violations.
Based upon its examination of the record, the Commission also
concluded that there were "no substantial and material questions of
fact in regard to these matters as to whether Emmis possesses the
basic qualifications, including its character qualifications, to hold
or obtain any FCC licenses or authorizations."
5. Petitioners argue that the Commission "essentially allowed Emmis to
purchase a finding of basic character qualifications." More
specifically, they contend that the Order is ultra vires because it
prevents the Commission from considering Emmis's apparent indecency
violations in making the statutory determination whether grant of
Emmis's pending renewal applications would serve the public interest.
They also maintain that the Order is arbitrary and capricious, and
inconsistent with Commission precedent, because it requires the agency
to "ignore a portion of [Emmis's] record in the license term
immediately preceding a renewal application."
II. discussion
6. We disagree with Petitioners' contention that we lack the requisite
authority to have settled our indecency enforcement actions against
Emmis. As a general matter, an agency is presumed to have the
discretion to settle or dismiss an enforcement action. In addition,
the Communications Act of 1934, as amended (the "Act"), provides the
Commission "broad discretion" to settle enforcement actions. Here, we
properly exercised that discretion by means of the Consent Decree,
under which Emmis admitted that its stations had broadcast indecent
material in violation of the Commission's rules and agreed to
substantial remedial obligations, including making a $300,000
voluntary payment to the United States Treasury and adoption and
implementation of a multi-year compliance plan designed to prevent
future indecency violations. Our agreement in return to terminate the
pending enforcement actions against Emmis, and not to consider the
facts related to such actions in connection with other Emmis
applications, "simply represents the quid pro quo that the agency
found necessary to procure" Emmis's agreement to resolve these
matters. These undertakings were within our broad discretion to settle
enforcement actions. Thus, the Order represents a valid and
appropriate exercise of our authority to settle enforcement actions.
7. We also disagree with Petitioners' contention that we abused our
discretion by approving the Consent Decree. First, we did not agree to
ignore the character issues raised by Emmis's apparent indecency
violations, as Petitioners suggest. Rather, we fully considered all
potential character qualifications issued raised by Emmis's apparent
indecency violations and specifically determined that they did not
raise substantial and material questions of fact as to whether Emmis
possesses the requisite qualifications necessary to be a Commission
licensee. Had we not so concluded, we could not have agreed to the
provisions of the Consent Decree regarding our use of the facts here
in connection with future applications. Having already fully
considered those matters, we need not reexamine the same issues in a
different proceeding. Moreover, our determination was consistent with
the record before us. Generally, the Commission's concern in
evaluating the impact of wrongdoing on a licensee's character is the
licensee's probable future behavior. Emmis's acknowledgment in the
Consent Decree of responsibility for violating indecency restrictions
is a step towards ensuring that it does not repeat such violations.
Likewise, the company-wide compliance plan that Emmis agreed to
implement as part of the Consent Decree will help to avoid future
violations.
III. ORDERING CLAUSES
8. IT IS ORDERED, that the Petition for Reconsideration jointly filed by
David Smith, the Illinois Family Institute, the Illinois Chapter of
Concerned Women for America, and Julie Cordry is hereby DENIED.
9. IT IS FURTHER ORDERED, that copies of this Order on Reconsideration
shall be sent by Certified Mail, Return Receipt Requested, to Dennis
J. Kelly, Esquire, counsel for David Smith, Illinois Family Institute,
Illinois Chapter of Concerned Women for American and Julie Cordry,
Post Office Box 41177, Washington, DC, 20018, and John E. Fiorini,
III, Esquire and Eve Klindera Reed, Esquire, counsel for Emmis
Communications Corp., Wiley Rein & Fielding LLP, 1776 K Street, N.W.,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Petition for Reconsideration jointly filed by David Smith, et al.
(September 13, 2004) (Petition).
Emmis Communications Corp., Order, 19 FCC Rcd 16003 (2004) ("Order"). The
Consent Decree is attached to and incorporated by reference in the Order.
We collectively refer to Emmis Communications Corporation and all of its
direct and indirect subsidiaries that hold Commission broadcast licenses
herein as "Emmis."
See 18 U.S.C. S 1464 (prohibiting the utterance of "any obscene, indecent,
or profane language by means of radio communication"); 47 C.F.R. S
73.3999.
Emmis FM License Corp. of Chicago, Forfeiture Order, DA 02-26, released
January 8, 2002 (File No. EB-00-IH-0401), review denied, Emmis Radio
License Corp., Memorandum Opinion and Order, FCC 04-62, released April 8,
2004; Emmis Radio License Corp., Forfeiture Order, DA 04-386, released
February 18, 2004 (File No. EB-01-IH-0121); Emmis Radio License Corp.,
Forfeiture Order, released November 1, 2002 (File Nos. EB-01-IH-0124,
EB-01-IH-0319, and EB-01-IH-0408, DA 02-2937).
Consent Decree, 19 FCC Rcd at 16008, P 13.
Id. at 16007, P 11.
Id. at 16007, P 10. A summary of the Compliance Plan is attached to the
Consent Decree.
Id. at 16008, P 12.
Id. at 16007, P 8.
Id. The Commission further agreed not to "initiate any inquiries,
investigations, forfeiture proceedings, hearing, or other sanctions or
actions against Emmis, any Emmis Station, or any pending or future
application to which Emmis is a party" based on the FOs, the inquiries, or
the complaints pending prior to the Consent Decree's effective date. Id.
Petitioners are concerned about two license renewal applications pending
before the Commission for Emmis stations: that for Station WKQX(FM),
Chicago, Illinois, File No. BRH-20040802AQH, and that for Station
KPNT(FM), Ste. Genevieve, Missouri, File No. BRH-20041001AHL. Petition at
3; see infra, n. 17.
Order, 19 FCC Rcd 16004, P 3.
Id. at 16004, P 4.
Petition at 2.
Id. at 7. See 47 U.S.C. S 309(a).
Petition at 2; see id. at 7-8.
Petitioners Smith and Cordry have standing before us to seek
reconsideration, having filed indecency complaints against Emmis Stations
WKQX(FM), Chicago, Illinois and KPNT(FM), Ste. Genevieve, Missouri, that
have been dismissed by operation of the Consent Decree. Petition at 3;
see Order, 19 FCC Rcd at 16004, n. 7. Accordingly, we need not address
whether the other Petitioners have standing before us based on their
expressed intent to file a petition to deny the license the Emmis renewal
application for Station WKQX(FM). Petition at 3.
Heckler v. Chaney, 470 U.S. 821, 831 (1985) ("This Court has recognized on
several occasions over many years that an agency's decision not to
prosecute or enforce, whether through civil or criminal process, is a
decision generally committed to an agency's absolute discretion.")
(citations omitted); Schering Corp. v. Heckler, 779 F.2d 683, 685 (D.C.
Cir. 1985) (FDA's decision to take a voluntary dismissal of an enforcement
action and to agree not to file a new action for eighteen months "f[ell]
squarely within the confines of Chaney.").
Parents Television Council, Inc. v. FCC, 2004 WL 2931357 (D.C. Cir. 2004)
(holding that decision to enter into the Consent Decree at issue in that
case was a nonreviewable exercise of agency discretion); NY State Dep't of
Law v. FCC, 984 F.2d 1209, 1215 (1993) (citing S.Rep. No. 580, 95^th
Cong., 1^st Sess. 25 (1977)).
See Consent Decree, 19 FCC Rcd at 16007-08, P 10-13.
Schering Corp. v. Heckler, 779 F.2d 683, 687 (D.C. Cir. 1985).
We note that Petitioners' suggestion that the settlement discussions
leading to the Consent Decree violated the Commission's ex parte rules
lacks merit. Petition at 3-4. The settlement discussions fall within the
exception to the general prohibition of ex parte communications in
restricted proceedings for communications "requested by (or made with the
advance approval of) the Commission or staff for the clarification or
adduction of evidence or for the resolution of issues, including possible
settlement." 47 C.F.R. S 1.1204(a)(10); see NY State Dep't of Law, 984
F.2d at 1217-18.
Order, 19 FCC Rcd at 16004, P 4.
See Stockholders of Infinity Broadcasting Corp., Memorandum Opinion and
Order, 12 FCC Rcd 5012, 5057 n.1 (1996) (challenges to the applicant's
character qualifications based on past apparent indecency violations were
moot where the Commission previously determined that such violations were
not disqualifying and agreed to expunge them from the applicant's record
for all purposes under the terms of an agreement settling indecency
enforcement proceedings).
See Policy Regarding Character Qualifications in Broadcast Licensing,
Report, Order, and Policy Statement, 102 FCC 2d 1179, 1183, P 7 (1986)
recon. denied, 1 FCC Rcd 421 (1986), appeal dismissed sub nom. National
Association for Better Broadcasting v. FCC, No. 86-1179 (D.C. Cir. Jun.
11, 1987) ("Character Policy Statement"). (character inquiries "focus on
the likelihood that an applicant will . . . comply with the Communications
Act and our rules and policies."); id. at 1189, P 21 (character inquiries
"should be narrowly focused on specific traits which are predictive of an
applicant's propensity to . . . comply with the Communications Act or the
Commission's rules and policies.") See also Policy Regarding Character
Qualifications in Broadcast Licensing, Amendment of Part 1, the Rules of
Practice and Procedure, Relating to Written Responses to Commission
Inquiries and the Making of Misrepresentation to the Commission by
Applicants, Permittees, and Licensees, and the Reporting of Information
Regarding Character Qualifications, Policy Statement and Order, 5 FCC Rcd
3252 (1990), recon.granted in part, denied in part, 6 FCC Rcd 3448 (1991),
modified, 7 FCC Rcd 6564 (1992) ("1990 Modifications of Character Policy
Statement").
See id. at 1129, P 106 ("rehabilitation is significant. We find that the
factors which we have already determined to consider, including . . .
efforts to remedy the situation, are good evidence of whether
rehabilitation has occurred.").
See id. at 1227-28, P 102 (whether corrective action has been taken is an
appropriate factor for analysis in character inquiries).
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Federal Communications Commission FCC 06-152
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Federal Communications Commission FCC 06-152