Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File Nos. EB-01-IH-0124,     |
|                                  | * | EB-01-IH-0319, and           |
| Emmis Radio License Corporation  | ) | EB-01-IH-0408                |
|                                  | * |                              |
| Licensee of Station WKQX(FM),    | * | NAL/Acct. No. 200232080008   |
|                                  |   |                              |
| Chicago, Illinois                | * | FRN 0001-5293-46             |
|                                  | * |                              |
|                                  | ) | Facility ID \# 19525         |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** March 20, 2002 **Released:** March 21, 2002

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    that Emmis Radio License Corporation ("Emmis"), licensee of Station
    WKQX(FM), Chicago, Illinois, apparently violated 18 U.S.C. § 1464
    and 47 C.F.R. § 73.3999, by willfully and repeatedly broadcasting
    indecent language on three occasions. *See* Attachment. Based upon
    our review of the facts and circumstances in this case, we conclude
    that Emmis is apparently liable for a forfeiture in the amount of
    twenty-one thousand dollars (\$21,000).

    **II. BACKGROUND**

2.  The Commission received complaints that WKQX(FM) broadcast indecent
    material on March 6, 2001, March 7, 2001 and May 17, 2001 between
    8:00 a.m. and 9:00 a.m. during the "*Mancow's Morning Madhouse*"
    ("*Mancow")* program. The complainant submitted a tape of each of
    the *Mancow* programs containing the allegedly indecent material.
    After reviewing the complainant's tapes, we issued letters of
    inquiry to the licensee that included transcripts of the tapes
    submitted by the complainant. *See* Attachment.[^1]

3.  In its response, Emmis states that WKQX(FM) does not routinely
    archive tapes or transcripts of its broadcasts and did not retain
    tapes or transcripts of the programming aired on the dates cited in
    these complaints. Accordingly, Emmis states that it cannot verify
    the accuracy of the transcripts. Nevertheless, Emmis argues that
    even assuming the accuracy of the transcripts, the programming at
    issue is not actionably indecent. Specifically, Emmis contends that
    the material broadcast is not patently offensive as measured by
    contemporary community standards for the broadcast medium.

    **III. DISCUSSION**

4.  It is a violation of federal law to broadcast obscene or indecent
    programming. Specifically, 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." Congress has given the Federal Communications
    Commission the responsibility for administratively enforcing 18
    U.S.C. § 1464. In doing so, the Commission may, among other things,
    impose a monetary forfeiture, pursuant to Section 503(b)(1) of the
    Communications Act (the "Act"), 47 U.S.C. § 503(b)(1), for broadcast
    of indecent material in violation of 18 U.S.C. § 1464. Federal
    courts have upheld Congress's authority to regulate obscene speech
    and, to a limited extent, indecent speech. Specifically, the U.S.
    Supreme Court has determined that obscene speech is not entitled to
    First Amendment protection. Accordingly, Congress may prohibit the
    broadcast of obscene speech at any time.[^2] In contrast, federal
    courts have held that indecent speech is protected by the First
    Amendment.[^3] Nonetheless, the federal courts consistently have
    upheld Congress's authority to regulate the broadcast of indecent
    speech, as well as the Commission's interpretation and
    implementation of the statute.[^4] However, the First Amendment is a
    critical constitutional limitation that demands we proceed
    cautiously and with appropriate restraint.[^5] Consistent with a
    subsequent statute and case law,[^6] under the Commission's rules,
    no radio or television licensee shall broadcast obscene material at
    any time, or broadcast indecent material during the period 6 a.m.
    through 10 p.m. *See* 47 C.F.R. § 73.3999.

5.  In enforcing its indecency rule, the Commission has defined indecent
    speech as language that first, in context, depicts or describes
    sexual or excretory organs or activities. Second, the broadcast must
    be "patently offensive as measured by contemporary community
    standards for the broadcast medium." *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)). This definition has been specifically upheld by the federal
    courts.[^7] The Commission's authority to restrict the broadcast of
    indecent material extends to times when there is a reasonable risk
    that children may be in the audience. *ACT I, supra*. As noted
    above, current law holds that such times begin at 6 a.m. and
    conclude at 10 p.m.[^8]

6.  The Commission's indecency enforcement is based on complaints from
    the public. Once a complaint is before the Commission, we evaluate
    the facts of the particular case and apply the standards developed
    through Commission case law and upheld by the courts. *See 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 at 8015, ¶ 24.
    "Given the sensitive nature of these cases and the critical role of
    context in an indecency determination, it is important that the
    Commission be afforded as full a record as possible to evaluate
    allegations of indecent programming." *Id*. In evaluating the record
    to determine whether the complained of material is patently
    offensive, three factors are particularly relevant: (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. *See* *Indecency Policy
    Statement*, *supra*, 16 FCC Rcd at 8003 ¶ 10.

7.  The material in each of these three complaints, in context, refers
    to sexual organs and activity, and thus warrants scrutiny. *See*
    Attachment. We find that the material, in context, is patently
    offensive when considered under the three factors set out in the
    *Indecency Policy Statement.*

8.  The first key factor concerns whether the material is explicit or
    graphic. The March 7, 2001 broadcast concerns the use of a sexual
    stimulant by a female cast member as well as her appearance in a
    video, and includes explicit and graphic references to sexual organs
    and activities. This material is similar to other material with
    graphic and explicit sexual references that has been found
    indecent.[^9] The material broadcast on March 6, 2001 is a
    discussion of sexual and excretory responses to viewing pornography
    and contains sexual references that rely on innuendo. Likewise, the
    sexual references in the material broadcast on May 17, 2001 -- a
    discussion by a female cast member and a number of women guests in
    the "lava lamp love lounge"- relies in part on innuendo. Emmis
    argues that because the March 6 broadcast relies on innuendo, the
    sexual import of the material is "not even immediately apparent."
    Emmis also argues that this material is vague and oblique and
    therefore less explicit than broadcasts in which no enforcement
    action was taken.[^10]

9.  We disagree with Emmis' arguments. Although material that is more
    graphic is generally more likely to be found indecent, the context
    in which material is offered is essential to making a determination
    as to whether material is indecent. The Commission has repeatedly
    held that "innuendo may be patently offensive within the meaning of
    our indecency definition if it is understandable and clearly capable
    of a specific sexual or excretory meaning, which, in context, is
    inescapable."[^11] The material broadcast on WKQX(FM) on March 6,
    2001 and May 17, 2001, in context, has a sexual meaning that is
    unmistakable and is similar to other material found to have clearly
    understandable sexual references.[^12]

10. The second key factor is whether there is repetition of and
    persistent focus on the sexual references. The complained of
    material broadcast on March 6, 2001 dwells on sexual innuendo,
    including references to oral sex, male and female genitalia,
    masturbation, ejaculation, and excretory activities. Contrary to
    Emmis' argument, material with an unmistakable sexual meaning can be
    evaluated under this factor even if the sexual descriptions are
    based upon innuendo.[^13] Emmis also argues that the excerpt in the
    transcript of the March 6, 2001 broadcast represents between 30 and
    45 seconds of on-air discussion during the 20-minute time period
    cited in the complaint. However, the sexual references in the
    excerpt are not fleeting and the excerpt itself provides sufficient
    context to determine whether it is patently offensive. Under these
    circumstances, the fact that the excerpt cited on March 6, 2001 is a
    segment of a longer program is not decisionally significant.[^14]

11. Under the second key factor, the March 7, 2001 broadcast dwells at
    length on sexual activity, especially with respect to the female
    cast member's use of a sexual stimulant and its effect on her.
    Moreover, the material at issue in the May 17, 2001 complaint dwells
    on and repeats at length descriptions of male and female genitalia,
    masturbation, penis size and the taste of semen.

12. The inquiry under the third key factor of the *Indecency Policy
    Statement* is whether the material appears to pander, or is used to
    titillate or shock. The complained of material broadcast on March 6,
    2001, in context, appears to have been used to pander to and
    titillate or shock the audience and is similar to other material
    that has been found to be patently offensive.[^15] The tone of the
    complained of material broadcast on March 7, 2001 is lewd, and also
    appears to be used to pander to and titillate or shock.[^16]

13. With respect to the analysis of the complained of material on May
    17, 2001 under the third factor, Emmis cites warnings included in
    the broadcast about the material, *i.e., "*\[the *Mancow* program\]
    is a show done by adults for adults," and warning those who are
    easily offended to "please turn off the radio." Emmis argues that
    the presence of such warnings was found to be significant in other
    indecency cases. However, the cases cited by Emmis involved sexual
    references and the repeated use of expletives that were not used to
    pander to, to shock or to titillate.[^17] Despite the warnings, the
    material broadcast on WKQX(FM), in context, appears to have been
    used to pander to and titillate or shock the audience and is similar
    to other material that has been found to be patently offensive.[^18]
    The presence of the warnings, considering the overall context of the
    broadcast, is not a sufficient basis on which to conclude that the
    sexual references are not patently offensive.[^19]

14. Moreover, we reject Emmis's argument that the material broadcast on
    the *Mancow* program on the three dates cited in the complaints is
    not patently offensive as measured by contemporary community
    standards. In this regard, Emmis contends that "WKQX has been airing
    *Mancow's Morning Madhouse*" since July of 1998, and had received no
    inquiries from the Commission concerning the program's content until
    late last year." Emmis also speculates that the complaints about the
    *Mancow* program, including the complaints at issue here, were
    initiated by a single individual or group whose standards do not
    accurately reflect those of the national community as a whole. The
    identity of the complainant and whether the complainant is the
    source of other complaints about the *Mancow* program is not
    material to our determination under the factors set out in the
    *Indecency Policy Statement*. The purpose of using "contemporary
    community standards" is to ensure that material is not judged by its
    effect on a particularly sensitive or insensitive person or
    group.[^20] In this regard, looking to a national community standard
    that references the average broadcast listener, we find that the
    material broadcast on WKQX(FM), in context, is patently
    offensive.[^21] Emmis does not dispute that the complained of
    material was broadcast when there was a reasonable risk that
    children may have been in the audience. By broadcasting this
    material on three separate occasions -- on March 6, 2001, March 7,
    2001, and May 17, 2001- WKQX(FM) apparently violated the
    prohibitions against broadcast indecency.

15. Section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80(a)
    of the Commission's rules, 47 C.F.R § 1.80, both state that any
    person who willfully or repeatedly fails to comply with the
    provisions of the Act or the rules shall be liable for a forfeiture
    penalty. For purposes of section 503(b) of the Act, the term
    "willful" means that the violator knew it was taking the action in
    question, irrespective of any intent to violate the Commission's
    rules., and "repeatedly" means more than once.[^22] Based on the
    material before us, it appears that Emmis willfully and repeatedly
    violated 18 U.S.C. § 1464 and section 73.3999 of the Commission's
    rules, by airing indecent programming on WKQX(FM) on March 6, 2001,
    March 7, 2001 and March 17, 2001.

16. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent/obscene
    materials.[^23] 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."[^24] After reviewing all of the circumstances, we
    believe a \$21,000 forfeiture is appropriate in this case for the
    apparent broadcast of indecent material on three separate occasions.

    **IV. ORDERING CLAUSES**

17. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
    Communications Act of 1934, as amended, and Sections 0.111, 0.311,
    and 1.80 of the Commission's rules,[^25] that Emmis Radio License
    Corporation is hereby NOTIFIED of its APPARENT LIABILITY FOR
    FORFEITURE in the amount of twenty-one thousand dollars (\$21,000)
    for willfully and repeatedly violating 18 U.S.C. § 1464 and section
    73.3999 of the Commission's rules.

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

19. 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/Acct. No.
    referenced above.

20. The response, if any, must be mailed to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W, Room 3-B443,
    Washington DC 20554 and MUST INCLUDE the NAL/Acct. No. referenced
    above.

21. 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.

22. 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.[^26]

23. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to J. Scott Enright, Vice
    President, Associate General Counsel and Assistant Secretary, Emmis
    Radio License Corporation, 40 Monument Circle, Indianapolis, Indiana
    46204 and to Emmis's counsel, Eve J. Klindera, Esq., Wiley Rein &
    Fielding LLP, 1776 K Street, N.W., Washington, D.C. 20006.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

**ATTACHMENT**

EB-01-IH-0319

Radio Station: WKQX(FM), Chicago, Illinois

Date/Time Broadcast: March 6, 2001, between 8:05 a.m and 8:25 a.m.

Material Broadcast: Mancow's Morning Madhouse

The Yelling Guy (Y)

Y: Hey this is Anger Anderson, the yelling guy and I want to talk about
how my spunk-a-thons are always killed by manly mugs. When I flog my
beef stick while watching some pink in a porno, I don't wanna see some
guy's face, seriously people am I right? Guys in pornos are butt ugly,
and right when I'm ready to shoot airborne like number 23 in his heyday,
I gotta see some porno dude's face. God, the guys in pornos look like
they want to kill these broads. Their faces are so contorted they look
like they just smelled a fart, you know the kind of fart right after
you've eaten chimichangas, and right before you take a big sh-(beep to
cover the word "shit"). Focus on the girl, I don't want to see shaved
porno guy luggage either. Show me the pink and all the porno guys are
just dripping sweat. Hell, I don't like to work that hard when I
box-bang. Oh, also I don't like those endless shots of girls smoking
pole. It makes me feel like a homo, get to the sex and keep the camera
on the pink, Spielberg.

\*\*\* \*\*\* \*\*\*

EB-01-IH-0124

Radio Station: WKQX(FM), Chicago, Illinois

Date/Time Broadcast: March 7, 2001, between 8:00 a.m and 8:46 a.m.

Material Broadcast: Mancow's Morning Madhouse

M: Mancow

FV1: Female Guest

FV2: Female Cast Member

MV1: First Male Cast Member

MV2: Second Male Cast Member

\*\*\* \*\*\* \*\*\*

M: Alright listen. Yeah, that's right. Yeah. I see his point. Let's go
to Laurie. Laurie, Hello.

FV1: How are you?

M: Hi Laurie. Is this stuff legal?

FV1: Yes it is.

M: Okay. Here's what I want you to do.

FV1: Yeah.

M: Not you, Laurie. Prison Bitch (First Male Cast Member) I want you to
go over there and I want you just to rub, rub her bottom.

MV1 : Alright.

FV2: Oh no, oh my gosh.

MV2: How does he get the good jobs here?

M: Is it okay? Does he have permission to rub your bottom?

FV2: Yeah. I suppose he has permission. Woah.

MV2: All those months of smelling your finger it's finally paid off for
you.

MV1: Which hand?

M: Okay. Use both hands. Just stand behind her and just kind of rub her
a little. How many of these bottles have you had?

FV2: I've had two. Woah. Oh my gosh.

M: Is it like ecstasy? Have you done "ex" before?

FV2: Mancow, I've never done ex before but...

M: Now be serious.

FV2: I'm feeling this constant rush.

M: Okay.

FV2: Honestly.

M: Well, is it possible that it is just packed with caffeine? What are
you doing? Rub her ass.

MV1: I'm rubbing.

\[Background laughter\]

FV2: He is rubbing.

MV2: He's doin' it. He is doin' it.

FV2: \[Laughing\]. Oh my gosh...

M: And you don't stop. By the way that's the greatest... Do you want me
to show you how to rub it?

MV2: He's rubbing her ass like it's his husband Robert in front of him.

MV1: Yeah.

M: Yeah they're in the prison cell, Prison Bitch. Yeah.

\[FV2 laughing\]

FV2: No, but seriously this really works. I'm feeling Duncan Hines right
now.

M: Now wait, you're feeling wet and gooey?

FV2: Yes.

M: Is it possible...

FV2: Yeah.

M: Is it possible that it's psychosomatic? Well let me tell you the
drink is called "Niagra." We've heard a lot about this and uh other
women have told me that it works. What are you doing?

FV2: \[laughing such that what she is saying is unintelligible\].

MV2: He's rubbing her butt.

M: Don't stop, don't stop dude.

FV2: Really I think that I have to go home and take care of this problem
right now.

M: Can he rub up front a little bit?

FV2: \[laughing\] I don't know about that.

M: Listen. Listen. Let me say something to you. Hey little girl...

MV2: That doesn't sound like a "no" to me.

M: You can see what she looks like at Mancow.com. Can I just say
something to you little girl?

FV2: Yeah Mancow.

M: Don't think it's the ugly big nosed dork behind you. Just imagine
it's me right there.

FV2: Okay. Why can't it be you?

M: Close your eyes.

FV2: Okay.

M: When was the last time that you had some action?

FV2: Um, actually last night, Mancow. Um my a boyfriend -I'm not very
sexually experienced you know- and my boyfriend, he wanted to get me up
to two fingers but I was kind of reluctant. And um he did it. And uh it
was incredible. But um I had some of this Niagra stuff and I was pretty
moist and um...

M: Okay. All right, all right. You must have just gotten out of the
shower. Your whole body was wet.

FV2: Right.

M: Seriously, do you really think it's real or is it psychosomatic?

FV2: No, Mancow.

M: How nice is that ass?

MV2: That's a nice ass.

MV1: Okay, wait a minute. Look, look...

\[Laughter\]

M: He's got a woody. He's got a woody. Prison Bitch has a woody. Prison
Bitch has a woody.

FV2: No he doesn't ...

MV1: I do too.

M: But how could you not ? How could you not? How could you not? How
could you not? How could you not?

MV2: But you're saying is this stuff for real. Look at Prison Bitch's
face. He looks like... He looks like that Gonzo from the muppets. Look
at that nose on him. There's no way that you could get turned on by him
normally.

FV2: Seriously, I think that this stuff really does work.

M: Laurie, Laurie is the creator of a of Niagra.

MV2: He's slapping her ass. He's spanking her.

M: Don't slap it, rub it nice.

FV2: He's getting violent.

M: Laurie, Laurie, talk to me about this stuff.

FV1: Yes. This is a herb drink that comes from Sweden and it's got the
main ingredient that is a sexual stimulant for the women is the domiana
amate.

M: Those were uh two people that were on "Survivor" several years ago.

FV1: Exactly. \[Laughs\].

M: And uh, talk to me about this. Okay. So, so it really does work?

FV1. Yes it does work.

M: How can people get this stuff?

FV1: Okay. Right now we are the national distributors for the United
States, Canada...

M: Gotcha. How can they get it?

FV1: They can call our number at (501) xxx- xxxx.

M: How many uh drinks does it take before uh a stranger be willing to
open her legs for me?

FV1: Uh, one drink and within twenty minutes you'll feel it in your
body.

FV2: That's true. Right after twenty minutes...

MV2: She just raised her hand when you said that.

FV2: Exactly. Right after twenty minutes I was just feeling it.

FV1: Right.

FV2: I was feeling so excited and invigorated. It was amazing.

M: When you say excited are you talking about in a uh sexual way?

FV2: In a sexual way, Mancow. I mean, I felt it.

M: Well let me tell you something. I haven't had a sip of this stuff and
I am... I'm turned on right now. 'Cause you got, you got a hot little
body. She does have a great body.

MV2: I'm turned on just by seeing Prison Bitch with wood.

MV1: She's got a smokin' little can.

M: What? What?

MV1: Your can smokes.

FV2: Thanks, Prison Bitch. I appreciate that.

M: She's got a smokin' ass.

MV1: She's got a smokin' little can.

FV2: And he's still rubbing my butt.

M: Yeah. Keep rubbing it.

FV2: Get him to rub something else.

MV1: See these real hands. We're making real love

\[Music\]

Who are you?

My name is Kucky, Kucky Galore

My name is Kucky, Kucky Galore

M: Look at her giggling, leaning forward. Her face all flushed. Oh, I
want me some of that.

\[Music\]

Who are you?

My name is Kucky, Kucky Galore.

My name is Kucky, Kucky Galore.

\*\*\* \*\*\* \*\*\*

\[Back to the dialogue with FV2, who drank "Niagra."\]

M: So you did this drink?

FV2: Yes, Niagra.

M: They're saying it really does... And you are legit... It's not just
caffeine, you're horny.

FV2: Mancow, I swear on my life, this really turns me on.

M: Are you gonna... Are you gonna act like you did on that "Spring
Break" video when you went down, down, down with that girl...

\[Mancow plays the video. The audio portion of the video can be heard
from the studio.\]

\[There is the sound of water splashing.\]

Male voice on video: You better get in the water.

M: Here's a little video she didn't want us to find but the rest of
American's seen it. "Girls Gone Wild At Mardi Gras"

Second Male voice on video: It's my turn.

Male voice: We want it down lower, lower...

Female voice on video: Here? Here?

M \[over the audio portion of the video\]: Here's Freak's Niece...

Male voice: No, we want it down. We want it here, here...

Female voice: Ready?

Male voice: Go deep.

Female voice: Get your mouth down there. Here it comes.

Male voice: Lower...

M: I love little whores like her. Young stupid little whores...

Male Voice: Now go deep. \[Sound of cheering in the audio portion of the
video\]

M: There she is, her mouth is filled...

\*\*\* \*\*\* \*\*\*

EB-01-IH-0408

Radio Station: WKQX(FM), Chicago, Illinois

Date/Time Broadcast: May 17, 2001, between 8:03 a.m and 8:49 a.m.

Material Broadcast: Mancow's Morning Madhouse

Mancow - M

Doyle - D

Freak's Niece - F (a female member of the cast of *Mancow's Morning
Madhouse)*

Girls **-** G

M: Let's go to Doyle, Doyle hello.

D: Hey Mancow, how are ya?

M: Good man, what can I do for you?

D: Well, uh, every time I bang my fiancée, I realize that I can't
possibly get off unless I fantasize about ex-girlfriends or women I'd
like to be with, and I just want your advice. I just want to know if you
think this is innocent or if it's cheating. I mean you might want to
hear some of my fantasies, and you can judge for yourself if I've got a
problem here.

M: Okay, first of all, first of all, I want to tell everybody that this
is a show done by adults for adults, uh, banging girlfriends and all of
this. If we are going to have a serious conversation I'd like to make it
somewhat medical. Freak's Niece is gathered in the lava lamp love
lounge.

F: That's right Mancow.

M: We've got 35 girls, something like, sittin on beanbags.

F: Like 40 women just chilling on beanbags.

M: Doyle...

D: Okay, maybe I should rephrase it. Okay, when I'm reaming my bitch\...

\*\*\*Girls say collectively, Oh no.

M: No, no, that is not appropriate, and I want to apologize to our
listeners. Listen Freak's Niece....

\*\*\* \*\*\* \*\*\*

F: Janet Jackson's a size Queen, does size matter?

G: Yes....

F: I am so sick of hearing it doesn't, you know matter how...

G: The motion of the ocean.

F: Yeah, please, it doesn't matter how big it is, it matters how you use
it baby, please -- NO... no.

G: It does matter how big it is.

F: It does. What's the biggest you've ever?

G: Salami girth...

F: Italian salami?

G: Go girl!

G: A pro football player was huge.

F: How big was huge?

G: Um... a forearm.

F: Wow \-- lucky you.

G: My forearm, I have small forearms.

F: Still lucky you.

G: I was dating a guy who was on the crew team for Yale, and let's just
say an oar's width.

F: I think that girth is so very important because it just, you know...
well, it just really feels very good. And it's important, I think, you
know... just a nice size.

G: Subway submarine -- all protein and no fat grams.

F: Wait I have a question. I have a question though. Don't you think
that too big can be too big?

G: Yeah, it can be painful.

The straddle walk looking like a...

F: Yeah, that's not fun. That's not fun.

G: I don't think that size matters with back door sex though.

M: Okay, okay, alright. I'm going to shut it down here for a minute.
Listen, we uh absolutely have to keep it clean. We're on the radio and
again, if you're easily offended, please turn off the radio. We are
having a serious conversation, and uh, hopefully medical terms about
things of a sexual nature. Uh, certainly a relationship nature.

\*\*\* \*\*\* \*\*\*

F: Do any of you ladies do the two finger swirly?

G: Yeah, all the time.

I don't just use two fingers though.

I'm doing it now.

F: How often do you jill off?

G: Once a day at least. In the morning before I go to work.

F: Wow, good for you.

G: I'm maybe once a month.

I had three yesterday.

Before I go to bed for a good night's sleep

F: For a good night's sleep, yeah.

G: Couple times a day just depending on how busy my workload is

G: I think that it depends on if there is a guy in my life.

Or the lack of guy in my life.

G: Do you do it like in the office?

G: If there's a guy in my life, that really, and we're not like...it's
the preliminaries. And I'll go home.

G: Yeah. Definitely.

G: The warm up.

> It increases when you start dating somebody, and then it kind of
> decreases when you've been dating them for a while.

\*\*\* \*\*\* \*\*\*

F: What does stuff taste like? And you know what stuff I'm talking
about. The stuff...

G: It depends on what the man eats. Warm salt butter.

It's his nutrition it really is.

Protein\--

It's good for your hair.

F: It's good for your hair (laughs). Honey, will you condition my hair
tonight?

G: I recently had a guy who was surprising sweet. Like I had never
experienced it before. It was like sugar, like molasses.

F: Does he eat like a lot of oranges or...

G: He must be on some Vegan diet or...

Have you ever been with a guy who's eat'n like jalapeño peppers or
something like that -- really spicy, and you are like what, and it's
just not right?

F: No, it's just pungent. Have you ever had the pungent one?

G: Oh definitely...

M: \[Cuts off discussion\] Okay, again it's a little um-hum...

F: Ladies, keep it clean

\*\*\* \*\*\* \*\*\*

M: Alright, next question.

F: Alright. Guys like apparent panty lines. Guys like apparent panty
lines and camel toe. Do you know what camel toe is? It's when the big
front... uh.

M: \[Ahem, clears his throat\]

G: It's uncomfortable, it hurts, it's hard to sit.

If I was a guy, I wouldn't want to see panty lines

G: Yeah, panty lines are tacky.

\[unintelligible\] hanging out the side of them.

> You would think that they wouldn't want to see panty lines because you
> know that means that you aren't wearing any underwear. If you can't
> see 'em.

G: That's the whole reason behind thongs, so that you know, I mean,
thongs are sexy.

> Pants off.

G: When you take your pants off, and you have a thong on, you know that
turns them on.

> Totally, when you take your pants off right from behind and that thong
> going down.
>
> Personally, I like the panties that have a little stuff missing down
> there... I'm not sure if I can say that here.

G: Crotchless.

Yeah, yeah.

### Camel Toe Song

### \[Sound effects of rubber being squeezed and twisted\]

### Guy: Oh-my-God, look at the clam on that bitch.

Song: She's got a crack in the back and a crack in the front, it's
called camel toe/

Camel toe.

She's got a bulge like a man, but it's just her clam. Yeah it's camel
toe.

Camel toe.

She's so... damn tight.

\*\*\*Music continues under

[^1]: The complainant alleged that four excerpts of the March 6, 2001
    *Mancow* program contained indecent material. The Attachment
    contains one of the complained of excerpts. We will not pursue
    enforcement action regarding the other three excerpts from the March
    6, 2001 broadcast.

[^2]: *See Sable Communications of California, Inc. v. FCC*, 492 U.S.
    115 (1989); *Miller v. California*, 413 U.S. 15 (1973), *rehearing
    denied*, 414 U.S. 881 (1973).

[^3]: *Sable Communications of California, Inc. v. FCC, supra* note 2,
    492 U.S. at 126.

[^4]: *FCC v. Pacifica Foundation*, 438 U.S. 726 (1978). *See also*
    *Action for Children's Television v. FCC*, 852 F.2d 1332, 1339 (D.C.
    Cir. 1988) ("*ACT I*"); *Action for Children's Television v. FCC*,
    932 F.2d 1504, 1508 (D.C. Cir. 1991), *cert denied*, 112 S.Ct. 1282
    (1992) ("*ACT II*"); *Action for Children's Television v. FCC*, 58
    F.3d 654 (D.C. Cir. 1995), *cert denied*, 116 S.Ct. 701 (1996)
    ("*ACT III*").

[^5]: *ACT I, supra* note 4, 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
    say and hear."). *See also United States v. Playboy Entertainment
    Group, Inc.*, 529 U.S. 803, 813-15 (2000).

[^6]: Public Telecommunications Act of 1992, Pub. L. No. 356, 102^nd^
    Cong., 2^nd^ Sess. (1992); *ACT III, supra* note 4*.*

[^7]: In *FCC v. Pacifica Foundation,* the Court quoted the Commission's
    definition of indecency with apparent approval. *FCC v. Pacifica
    Foundation*, *supra* note 4, 438 U.S. at 732. In addition, the D.C.
    Circuit Court of Appeals upheld the definition against
    constitutional challenges. *ACT I*, *supra* note 4, 852 F.2d at
    1339; *ACT II, supra* note 4, 932 F.2d at 1508; *ACT III, supra*
    note 4, 58 F.3d at 657.

[^8]: *ACT III,* *supra* note 4.

[^9]: *See, e.g.,Communicast Consultants, Inc.( KRXK(AM))*, 15 FCC Rcd
    18730, *aff'd* 15 FCC Rcd 19697 (EB 2000).

[^10]: Emmis cites the following Mass Media Bureau actions: *Letter from
    Chief, Complaints and Political Programming Branch, Enforcement
    Division, to Mrs. Barbara Onisko*, 8310-TRW (May 15, 1997);
    Memorandum to WIOD(AM) Complaint File (Control No. 97010196);
    *Letter from Chief, Complaints and Political Programming Branch, to
    Mr. R.D. Merkel*, 8310-TRW (Jan. 23, 1997). In addition, Emmis cites
    the Enforcement Bureau's actions dismissing complaints alleging the
    broadcast of indecent material. *See Letter from Chief,
    Investigations and Hearings Division to Anne Shapleigh, complaint
    against KLOU(FM), EB-00-IH-0350* (Feb. 7, 2001); *Press Statement of
    Gloria Tristani re: Enforcement Bureau Letter Ruling on KLOU(FM),
    St. Louis, Missouri Indecency Complaint* (Feb. 8, 2001); *Letter
    from Chief, Investigations and Hearings Division to Michael Palko,
    complaint against WGR(AM), EB-00-IH-0221* (Feb.23, 2001)(the Bureau
    subsequently issued a letter of inquiry to the licensee in this
    case).

[^11]: *Citicasters Co.( KSJO(FM)),* 15 FCC Rcd 19091, 19092 (EB 2000),
    *citing San Francisco Century Broadcasting, L.P.,* 8 FCC Rcd 498
    (1993).

[^12]: *See, e.g., Telemundo of Puerto Rico License Corp.(WKAQ-TV))*, 16
    FCC Rcd 7157 (EB 2001)(forfeiture paid); *Three Eagles of Columbus,
    Inc. (KROR(FM)),* 15 FCC Rcd 13624 , *forfeiture reduced* 15 FCC Rcd
    18902 (EB 2000)(forfeiture paid); *Great American Television and
    Radio Company, Inc.(WFBQ(FM)/WNDE(AM))*, 6 FCC Rcd 3692, 3693 (MMB
    1990); *Infinity Broadcasting Corporation of Pennsylvania
    (WYSP(FM))*, 3 FCC Rcd 930, 932 (1987).

[^13]: *See, e.g. Three Eagles of Columbus, Inc., supra* note 12*,* 15
    FCC Rcd at 13625 ("The cited language dwells at length on sexual
    innuendoes and cannot be considered fleeting").

[^14]: *Id* (rejecting argument that the complained of material was "an
    isolated occurrence" during one segment of a four-hour program,
    noting that the language was not fleeting, and dwells at length on
    sexual innuendo).

[^15]: *See, e.g.,Telemundo of Puerto Rico, supra* note 12*; Three
    Eagles of Columbus, Inc., supra* note 12.

[^16]: *See, e.g.,Citicasters Co.(KEGL(FM))*, 16 FCC Rcd 7546 (EB
    2001)(forfeiture paid); *Communicast Consultants, Inc.(KRXR(AM)),
    supra* note 9*; Citicasters Co.(WXTB(FM))*, 13 FCC Rcd 15381 (MMB
    1998)(forfeiture paid).

[^17]: Emmis cites the *Indecency Policy Statement, supra,* 16 FCC Rcd
    at 8011-12, and the discussion of *Peter Branton*, 6 FCC Rcd 610
    (1991)(subsequent history omitted)(explicit language, including the
    repeated use of the words "fuck" or "fucking" in a wiretap of a
    telephone conversation, was integral part of bona fide news story
    and not gratuitous, pandering, titillating or otherwise patently
    offensive) and the Letter from Chief, Complaints and Investigations
    Branch, Enforcement Division, Mass Media Bureau to Chris Giglio
    (July 20, 1994)(Oprah Winfrey Show ("How to Make Romantic Relations
    with Your Mate Better")).

[^18]: *See, e.g.,Citicasters Co.(KEGL(FM))*, *supra* note 16; *Three
    Eagles of Columbus, Inc.*, *supra* note 12; *Goodrich Broadcasting,
    Inc. (WVIC-FM)*, 6 FCC Rcd 2178, *aff'd* 6 FCC Rcd 7484 (MMB 1991);
    *KFI, Inc.(KFI(AM)),* 6 FCC Rcd 3699, 3700 (MMB 1989).

[^19]: *Citicasters Co. supra* note 16, 16 FCC Rcd at 7547, *citing
    Station KGVL, Inc.*, 42 FCC 2d 258, 259 (1973).

[^20]: *Infinity Broadcasting Corporation of Pennsylvania (WYSP(FM)),* 3
    FCC Rcd 930, 933 (1987) *citing Hamling v. United States*, 418 U.S.
    87, 107 (1974).

[^21]: *See, e.g., WQAM License Limited Partnership(WQAM(AM)),* 15 FCC
    Rcd 2518, 2520 (2000)(explaining that the Commission uses its
    expertise to apply a national community standard that references the
    average broadcast viewer or listener). *See also, Indecency Policy
    Statement, supra,* 16 FCC Rcd at 8002 note 15.

[^22]: ^?^ *See Southern California Broadcasting Co*., 6 FCC Rcd 4387
    (1991).

[^23]: *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).

[^24]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17110.

[^25]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.

[^26]: *See* 47 C.F.R. § 1.1914.