Before the

Federal Communications Commission

Washington, D.C. 20554

+-----------------------------------+-----------------------------------+
| In the Matter of                  | )                                 |
|                                   |                                   |
| Infinity Broadcasting Corporation | )                                 |
| of Los Angeles                    |                                   |
|                                   | ) Control No. 97050319            |
| Licensee of Station KROQ-FM       |                                   |
|                                   | ) NAL/Acct. No. 818ed0017         |
| Pasadena, California              |                                   |
|                                   | )                                 |
| Facility ID \# 28622              |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | )                                 |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+

## FORFEITURE ORDER {#forfeiture-order .unnumbered}

**Adopted: June 12, 2000 Released: June 13, 2000**

By the Enforcement Bureau:

1.  In this Forfeiture Order, we issue a monetary forfeiture in the
    amount of two thousand dollars (\$2,000) against Infinity
    Broadcasting Corporation of Los Angeles ("Infinity"), licensee of
    Station KROQ-FM, Pasadena, CA, for willful violation of 18 U.S.C. §
    1464, which prohibits the broadcast of indecent material.

# Background

2.  On August 24, 1998, the Mass Media Bureau, by delegated authority,
    issued a Notice of Apparent Liability for Forfeiture to Infinity in
    the amount of two thousand dollars (\$2,000), for the broadcast of
    indecent material. *Infinity Broadcasting Corporation of Los Angeles
    (KROQ-FM)*, 13 FCC Rcd 25349 (MMB 1998). Specifically, the Mass
    Media Bureau found that the broadcast of "You Suck" by the group
    Consolidated on March 28, 1997, at approximately 9:10 p.m., violated
    18 U.S.C. § 1464. Infinity filed a response to the NAL on September
    23, 1998.

3.  Infinity admits that a version of the "You Suck" song was aired at
    approximately 9:10 p.m. on March 28, 1997. However, it asserts that
    because the complainant submitted a commercial CD of the song in
    question and not a tape or transcript of the song as broadcast, it
    is inconsistent with Commission policy to assess a forfeiture
    against it, particularly since Station KROQ-FM owned more than one
    version of the song in question at the time of the broadcast.
    Infinity also argues that in light of the Supreme Court's ruling in
    *Reno v. ACLU*, 521 U.S. 844 (1997), the Commission's indecency
    standard is constitutionally suspect.

# discussion

## Sufficiency of Allegation that the Station Aired Indecent Material

4.  Infinity asserts that Station KROQ-FM possesses at least two
    versions of the song, one of which it contends does not contain any
    indecent material. It asserts that it is unable to determine which
    version of the song was aired. In support of its position, Infinity
    filed an affidavit from the station announcer who admitted that he
    played some version of the "You Suck" song on the day in question.
    The announcer states that he does not recall which version of the
    recording he aired and that he did not actually listen to the
    recording when it aired. Further, Infinity states that the station
    does not retain copies of its broadcasts. In such circumstances,
    absent "objective evidence" that the version cited in the NAL was
    aired, Infinity contends that issuance of an NAL is contrary to
    Commission precedent.

5.  Infinity made these same arguments in response to the Mass Media
    Bureau's letter of inquiry regarding the complaint and supplied an
    edited version of "You Suck" which "may" have been the version that
    was aired. Because the Mass Media Bureau did not have a tape or
    transcript of the actual broadcast, on April 1, 1998, before it
    issued the NAL, it sent a letter to the complainant with a copy of
    the edited version of the "You Suck" song. The Mass Media Bureau
    asked the complainant to confirm whether she heard the edited
    version or the version on the CD that was submitted with her
    complaint. The Mass Media Bureau also asked her to explain the basis
    of her belief as to which version she heard broadcast on Station
    KROQ-FM. The complainant responded that she recalls hearing the
    words "pubic," "dick," "pussy," and "clit" broadcast, none of which
    were contained in the edited version of the song provided by
    Infinity.

6.  Although our usual practice is to require a tape or transcript of
    the allegedly indecent material as broadcast, where "the goals of
    this internal Commission procedure can be achieved by other means,
    we will not be diverted from pursuing an otherwise legitimate
    complaint by the lack of direct, off-air recordings or transcripts."
    *Nationwide Communications, Inc. (KLUC-FM)*, 6 FCC Rcd 3695 (MMB
    1990). In this case, the licensee admits that Station KROQ-FM does
    own a copy of the indecent version of the song "You Suck," and that
    it is possible that the indecent version of the song was broadcast.
    Thus, this case can be distinguished from the decision cited by
    Infinity, where an NAL was rescinded because the station's music
    library did not contain a copy of the unedited version of the song.
    *NPR Phoenix, L.L.C. (KPTY(FM))*, 13 FCC Rcd 14070, 14071 (MMB
    1998), *distinguishing Waterman Broadcasting Corp. of Texas
    (KTFM(FM))*, 11 FCC Rcd 14547 (MMB 1996) (NAL rescinded by letter
    dated April 15, 1997). Further, the complainant has affirmatively
    stated that she heard specific words in the version of "You Suck"
    which was broadcast by Station KROQ-FM, none of which were contained
    in the edited version provided by Infinity. Where the station cannot
    deny the broadcast of the unedited version and the complainant has
    provided us with specific information to support her belief that the
    unedited version was aired, we believe that an NAL was appropriately
    issued.

## Constitutionality of Indecency Standard

7.  Infinity argues that the definition of indecency is
    unconstitutionally vague and that the Supreme Court's decision in
    *Reno v. ACLU*, 521 U.S. 844 (1997), "articulates a basis for
    reexamination [in this proceeding]{.underline} of the FCC's generic
    'broadcast indecency' definition." Response at 7 (emphasis in
    original). Although Infinity admits that the Court in *Reno v. ACLU*
    was looking at the indecency standard for the Internet, it argues
    that the Internet definition is similar to the one used for
    broadcasting. The Commission ruled on a similar argument in *WQAM
    License Limited Partnership (WQAM(AM))*, 15 FCC Rcd 2518 (2000),
    *petition for reconsideration pending*. The Commission found that
    "the Court did not question the constitutionality of our broadcast
    indecency standard." Rather, the Commission said, "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." 15 FCC Rcd at
    2518-19, *citing* *Reno v. ACLU*, 521 U.S. at 868-70. Thus, we find
    no merit to Infinity's argument that *Reno v. ACLU* invalidates the
    "foundation of the NAL" assessed against it.

8.  Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended (the "Act"),[^1] and Sections
    0.111, 0.311 and 1.80(f)(4) of the Commission\'s rules,[^2] Infinity
    Broadcasting Corporation of Los Angeles IS LIABLE FOR A MONETARY
    FORFEITURE in the amount of two thousand dollars (\$2,000) for
    willfully violating 18 U.S.C. § 1464.

9.  Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Commission's rules[^3] within 30 days of the
    release of this Forfeiture Order. If the forfeiture is not paid
    within the period specified, the case may be referred to the
    Department of Justice for collection pursuant to Section 504(a) of
    the Act.[^4] Payment 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 NAL/Acct. No. referenced above. Requests for
    full payment under an installment plan should be sent to: Chief,
    Credit and Debt Management Center, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^5]

10. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
    sent by Certified Mail Return Receipt Requested to Infinity's
    counsel, Steven A. Lerman, Esq., Leventhal, Senter & Lerman,
    P.L.L.C., 2000 K Street, N.W., Suite 600, Washington, D.C.
    20006-1809.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 503(b).

[^2]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^3]: 47 C.F.R. § 1.80.

[^4]: 47 U.S.C. § 504(a).

[^5]: *See* 47 C.F.R. § 1.1914.