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If you need the complete document, download the Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) WQAM License Limited Partnership ) ) Licensee, WQAM(AM) ) File No. 918 ED 030 Miami, Florida ) Facility ID # 64002 ) ) For a Forfeiture ) FORFEITURE ORDER Adopted: January 24, 2000 Released: January 28, 2000 By the Commission: 1. In this Order, we impose a forfeiture of $35,000 on WQAM License Limited Partnership (``licensee''), licensee of Station WQAM(AM), Miami, Florida, for willful and repeated violations of 18 U.S.C. Section 1464, which prohibits the broadcast of indecent material.1 This action is taken pursuant to Sections 312(a)(6) and 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 312(a)(6) and 503(b), and Section 1.80(f)(4) of the Commission's Rules, 47 C.F.R. Section 1.80(f)(4). 2. By Notice of Apparent Liability (``NAL''), FCC 99- 187, released July 22, 1999, we determined that certain material apparently broadcast over WQAM on five days in May 1998 was indecent. Inasmuch as the material was apparently aired between the hours of 10 a.m. and 2 p.m., we concluded that the broadcasts occurred at a time when there was a reasonable risk that children might be in the audience. See Section 73.3999 of the Commission's Rules, 47 C.F.R. Section 73.3999. After considering the circumstances in light of our forfeiture guidelines,2 which provide a base forfeiture for indecency of $7,000, we proposed a forfeiture of $35,000 for the five days of indecent broadcasts. The licensee has submitted a response, which we address below. 3. Initially, the licensee argues that our definition of indecency3 is unconstitutionally vague. The licensee notes that in Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court struck down an indecency standard for the Internet, which is similar to the one we use for broadcasting. However, in so doing, the Court did not question the constitutionality of our broadcast indecency standard. Instead, the Court indicated that our broadcast indecency regulations were justified because of the significant differences between the Internet and the broadcast medium and between the standard employed in the statute under attack and our broadcast indecency standard. Id. at 868-70. 4. Next, the licensee complains that the manner in which the Commission has implemented indecency regulation is constitutionally suspect. In this regard, the licensee notes that the Commission has not published ``industry guidance'' relating to broadcast indecency, and it argues that the Commission's failure to so act renders unreasonable any expectation that licensees can know where to ``draw the line.'' We disagree. Our definition of indecency has remained unchanged for years, and in rulemaking proceedings as well as in the context of specific rulings, we have amply illustrated what broadcasters may and may not do. That these rulings are not all in one place does not render constitutionally vague the definition of indecency or the Commission's specific applications of the definition. 5. With respect to the particular material cited in the NAL, the licensee contends that the Commission's staff previously dismissed a complaint based on one of the segments -- a song parody inspired by an interview of a Miami Dolphins football player -- that the NAL found to be indecent. The licensee argues that, in light of the earlier action, the NAL's determination regarding the May 22, 1998, broadcast confirms the arbitrariness of the Commission's indecency enforcement scheme. We disagree. A comparison of the two broadcasts indicates that the one found not actionably indecent had significant portions ``bleeped'' out, whereas the segment aired on WQAM on May 22, 1998, audibly included the patently offensive references to sexual activities (fellatio) and excretory activities. In our view, the differences are significant enough to justify contrary enforcement outcomes. 6. The licensee also claims that prior Commission rulings have found that material virtually identical to that aired on WQAM was not actionably indecent. Citing Infinity Broadcasting Corporation of Pennsylvania, 3 FCC Rcd 930 (1987) (``Infinity''), the licensee contends that a forfeiture is inappropriate because such rulings could have led the licensee to conclude that its broadcasts were permissible. Specifically, the licensee points to other material ``found nonactionable by the Commission,'' (Response at p. 19) including material from the ``Neil Rogers Show.'' See Mr. Michael J. Flaherty, 6 FCC Rcd 3704 (MMB 1989). Among other things, the licensee points to two examples where the staff concluded that the material allegedly broadcast was not actionably indecent. The first concerned erections and fantasy scenarios, while the second contained a song parody alluding to the subject of oral sex. In addition, the licensee provides numerous other examples of program material, both from radio and television, which were not found indecent by the staff. In the licensee's opinion, the cited material is indistinguishable in character from the excerpts cited in the NAL. 7. At the time of the Infinity decision, the Commission had not yet built up a body of case law under the new enforcement standard announced in 1987.4 Accordingly, it did not initiate a forfeiture proceeding for indecency in that case. Since then, a body of case law has been developed.5 Furthermore, as explained in Infinity,6 indecency determinations are contextual and thus are necessarily fact intensive. They require consideration of such factors as whether the material is explicitly graphic, whether the material dwells on or repeats at length the sexual or excretory organs or activities, whether the material appears to pander or titillate, and whether the material appears to have been broadcast for shock value. Moreover, we note that, in addition to concluding that certain complained of material did not ``establish a basis for Commission action,'' Flaherty found five different program segments from a ``Neil Rogers Show'' to be indecent. Like the broadcast excerpts cited in the NAL, the broadcast excerpts from the ``Neil Rogers Show'' cited in Flaherty referenced sexual activities in a patently offensive manner through the use of songs, some of which were apparently original and one of which was apparently a parody of an existing song. If anything, the excerpts cited in Infinity and Flaherty should have provided ample notice to the licensee as to what material would be considered indecent. Notwithstanding those determinations, the licensee chose to broadcast the segments cited in the NAL. We therefore conclude that the licensee, unlike those affected in the Infinity decision, did not establish that it had a basis for believing that its programming was not indecent. 8. The licensee next argues that, in any event, the excerpts cited in the NAL were not indecent. In this regard, the licensee first contends that the material for which it is cited is ``oblique'' and that the sexual import of the cited material is not inescapable. We disagree. The material broadcast on May 20, 1998, consists of a song ``Uterus Guy,'' which is unmistakably about oral sex. The song's sexual import is lewd, inescapable and understandable. The May 21 broadcast consists of a parody of the song ``New York, New York.'' The parody's tag line, ``Let's pork,'' considered in conjunction with the rest of the material, is a lewd, inescapable reference to sexual intercourse. The May 22 broadcast consists of a parody of the song, ``The Girl from Ipanema,'' and includes the interview of the Miami Dolphins football player discussed above. The May 25 broadcast consists of a song focusing on anal sex. The song is lewd, and the sexual reference is inescapable and unmistakable. Finally, the May 26 segment consists of a telephone conversation discussing anal sex and, specifically, how a male can avoid having his penis dirtied by his partner's feces. In short, we conclude that each of the cited segments contains material, which, in context, depicts or describes, in patently offensive terms, sexual or excretory activities or organs. 9. Finally, the licensee attacks our indecency conclusion because, it believes, the material would not be considered patently offensive under contemporary community standards for the broadcast medium. The licensee contends that the Commission has never explained the precise methodology by which it measures such contemporary standards, and it argues that, in any event, the contemporary standards concept is not static. In this regard, the licensee asserts that the standard has evolved as a consequence of discussions, analyses and jokes resulting from the sex scandal involving the President. As a consequence, the licensee argues, the broadcast medium has aired a great deal of material that is sexually graphic, and these broadcasts must be considered in evaluating the ``Neil Rogers Show.''7 With respect to contemporary community standards for the broadcast medium, we explained in Infinity, that we would judge such standards ``by the standard of an average broadcast viewer or listener.... In making the required determination of indecency, Commissioners draw on their knowledge of the views of the average viewer or listener, as well as their general expertise in broadcast matters.'' 8 Applying such knowledge to the broadcasts at issue, we reaffirm our determination that they are patently offensive. 10. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act, 47 U.S.C. Section 503(b), and Section 1.80(f)(4) of the Commission's Rules, 47 C.F.R. Section 1.80(f)(4), that WQAM License Limited Partnership, licensee of Station WQAM, Miami, Florida, FORFEIT to the United States the sum of $35,000 (thirty-five thousand dollars) for willful and repeated violations of 18 U.S.C. Section 1464.9 11. IT IS FURTHER ORDERED that a copy of this Forfeiture Order be sent by Certified Mail/Return Receipt Requested to counsel for the licensee, Leventhal, Senter & Lerman, P.L.L.C., Attention: Steven A. Lerman, Esquire, 2000 K Street, N.W., Suite 600, Washington, D.C. 20006-1809. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary _________________________ 1 18 U.S.C. § 1464 provides: ``Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.'' 2 Amendment of Part 1 - Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, FCC 99-407, released December 28, 1999. 3 Indecent material is that, which, 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. See Infinity Broadcasting Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987). 4 See Public Notice, 2 FCC Rcd 2726 (1987). 5 E.g., Infinity Broadcasting Corporation, 9 FCC Rcd 6442 (1994); The Rusk Corporation, 8 FCC Rcd 3228 (1993); Pacifica and Southern Company, Inc., (KSD-FM), 6 FCC Rcd 3689 (MMB 1990); Great American Television (WFBQ(FM)), 6 FCC Rcd 3692 (MMB 1990); Legacy Broadcasting of Detroit, Inc. (WLLZ-FM), 6 FCC Rcd 3698 (MMB 1989). 6 3 FCC Rcd at 931-32. 7 In furtherance of its point, the licensee lists more than 35 sexually-oriented topics that have been broadcast on television between 1991 and the present. The licensee also contends that Neil Rogers has been a fixture in Miami radio for over 20 years, and it asserts that he is ``easily the most popular local radio figure in Miami.'' The licensee further observes that Mr. Rogers' popularity in Miami should be contrasted with the relative dearth of listener complaints about his show. With respect to the assertion that sexually- oriented topics have frequently appeared on television, we note that discussions of sexual matters or relationships is not now and never has been per se prohibited. What is subject to sanction is the broadcast of indecent material. As to the latter assertions, we find it sufficient to observe that a show's general popularity cannot insulate it from a determination that certain material it broadcast was indecent. 8 Infinity, 3 FCC Rcd at 933. 9 Payment of the forfeiture may be made by credit card through the Commission's Credit and Debt Management Center at (202) 418-1995 or 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 should note the file number referenced above.