**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of ) File Nos. EB-00-IH-0401

Emmis FM License Corp. of Chicago ) NAL/Acct. No. 200132080029

) Facility ID #19525

Licensee of Station WKQX(FM), )

Chicago, Illinois )

## 

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: April 5, 2001** **Released: April 6, 2001**

By the Chief, Enforcement Bureau:

## I. INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
find that Emmis FM License Corp. of Chicago ("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. Based on our review of the facts and circumstances in
this case, we conclude that Emmis is apparently liable for a forfeiture
in the amount of fourteen thousand dollars (\$14,000).

# 

# II. BACKGROUND

2\. The Commission received complaints dated March 20, 2000 and May 15,
2000, concerning broadcasts that aired on WKQX on the date of each
letter. Each complaint argued that on the date of the letter the station
had broadcast indecent material on "*Mancow Morning Madhouse*"
("*Mancow*") program. The March complaint alleged that the host aired a
telephone conversation with an adult-film actress who described
"fisting"[^1] in graphic detail. The May complaint charges that the
station aired a pre-recorded *Mancow* segment entitled "Bitch Radio."
The segment allegedly featured an interview with three women who
discussed their sex lives generally, and oral sex in particular. One of
the questions allegedly asked and answered was whether the women spit or
swallowed their partner's sperm. The complaint also charges that, during
this question and answer session, sounds of women moaning were played in
the background.

3\. Because the two broadcasts contained apparently indecent material
and aired between 6 a.m. and 10 a.m., we issued a letter of inquiry to
the licensee. In its response, Emmis states only that it has neither a
tape nor a transcript and cannot determine whether the alleged
statements were made.

**III. DISCUSSION**

4\. Section 503(b)(1) of the Communications Act (the "Act"), 47 U.S.C. §
503(b)(1), provides in pertinent part:

> Any person who is determined by the Commission, in accordance with
> paragraph (3) or (4) of this subsection to have \-\--
>
> ...
>
> \(D\) violated any provision of section 1304, 1343, or 1464 of title
> 18, United States Code;
>
> shall be liable to the United States for a forfeiture penalty.

18 U.S.C. § 1464 provides criminal penalties for anyone who "utters any
obscene, indecent or profane language by means of radio communication."
As explained below, we believe that language broadcast during the two
programs of "*Mancow*" was indecent and that the licensee's broadcasts
of that material were willful.

5\. The Commission has defined indecent speech as language that, 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. *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). 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. *Action for Children's Television v. FCC*, 852 F.2d 1332
(D.C. Cir. 1988). Current law holds that such times begin at 6 a.m. and
conclude at 10 p.m. *Action for Children's Television v. FCC*, 58 F.3d
654 (D.C. Cir. 1995), *cert. denied*, 116 S.Ct. 701 (1996). Thus, to be
actionably indecent, the material in question must not only meet the
standard referenced above but also air after 6 a.m. and before 10 p.m.
*See* 47 C.F.R. § 73.3999.

6\. After carefully considering the record before us, it appears that
Emmis has willfully and repeatedly violated our indecency rule. Emmis
does not deny that it broadcast the material in question between 6 a.m.
and 10 a.m. Each segment contains material that apparently describes
sexual activities in patently offensive terms. Specifically, the March
broadcast apparently described in explicit detail a sexual technique
familiar to a female porn star, while the May program discussed specific
aspects of fellatio and included the sounds of women moaning in the
background. In a similar situation, we found indecent portions of a
radio station's interview of an adult-film actress who crudely relayed
her fondness for oral sex. *See Regent Licensee of Flagstaff, Inc.
(KZGL(FM))*, 15 FCC Rcd 17286 (Enforcement Bureau 2000). We have
consistently deemed such material indecent, and we believe the same
result is warranted here*. See also Rusk Corporation (KLOL(FM))*, 5 FCC
Rcd 6332 (Mass Media Bureau 1990).

7\. Section 503(b) of the Act and 47 C.F.R. § 1.80 both state that any
person who willfully or repeatedly fails to comply with the Act or the
Commission's rules shall be liable for a forfeiture penalty. For
purposes of 47 U.S.C. § 503(b), the term "willful" means that the
violator knew that it was taking the action in question, irrespective of
any intent to violate the Commission's rules.[^2] In assessing a
forfeiture, we take into account 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.[^3]

8\. The Commission's *Forfeiture Guidelines* set a base forfeiture
amount of \$7,000 for transmission of indecent/obscene materials.[^4]
After considering all the facts and circumstances, we believe the base
forfeiture amount is the appropriate sanction for each of the two
violations described above and that neither an upward nor downward
adjustment should be made.

**IV. ORDERING CLAUSES**

9\. Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C. § 503(b), and
47 C.F.R. §§ 0.111, 0.311 and 1.80, Emmis FM License Corp. of Chicago is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of fourteen thousand dollars (\$14,000) for willfully and repeatedly
violating 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999.

10\. IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R. § 1.80, within
thirty days of this NOTICE OF APPARENT LIABILITY, Emmis FM License Corp.
of Chicago SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.

11\. 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 should note the NAL/Acct. No. referenced above.

12\. The response, if any, must be mailed to Charles W. Kelley, 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.

13\. 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.

14\. 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.[^5]

15\. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail Return Receipt Requested to
Emmis FM License Corp. of Chicago, 3500 West Olive Avenue, Suite 300,
Burbank, California 91505; with a copy to John E. Fiorini, III, Esq.,
Wiley, Rein & Fielding, 1776 K Street, N.W., Washington, D.C. 20006.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: According to the complainant, "fisting" is a procedure by which a
    female is sexually gratified by having an entire hand inserted into
    her sexual organ.

[^2]: *See* *Jerry Szoka*, 14 FCC Rcd 9857, 9865 (1999); *Southern
    California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^3]: 47 U.S.C. § 503(b)(2)(D). *See also* *The Commission's Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Rules to
    Incorporate the Forfeiture Guidelines*, 12 FCC Rcd 17087, 17100-01
    (1997), *recon. denied*, 15 FCC Rcd 303 (1999) ("*Forfeiture
    Guidelines*").

[^4]: *Forfeiture Guidelines*, 12 FCC Rcd at 17113.

[^5]: *See* 47 C.F.R. § 1.1914.