Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-02-IH-0109       |
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| Infinity Broadcasting            | ) | NAL/Acct. No. 200332080010   |
| Operations, Inc.                 | * |                              |
|                                  | * | FRN 0003476074               |
| Licensee of Station WKRK-FM      |   |                              |
|                                  | * | Facility ID \# 9618          |
| Detroit, Michigan                | * |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** March 28, 2003 **Released:** April 3, 2003

By the Commission: Commissioner Copps dissenting and issuing a
statement;

Commissioners Martin and Adelstein issuing separate statements.

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    that Infinity Broadcasting Operations, Inc., ("Infinity"), licensee
    of Station WKRK-FM, Detroit, Michigan apparently violated 18 U.S.C.
    § 1464 and 47 C.F.R. § 73.3999 by willfully broadcasting indecent
    language. Based upon our review of the facts and circumstances in
    this case, we conclude that Infinity is apparently liable for a
    forfeiture in the amount of twenty-seven thousand five hundred
    dollars (\$27,500).

    **II. BACKGROUND**

2.  The Commission received a complaint alleging that WKRK-FM broadcast
    indecent material during the "Deminski & Doyle Show," on January 9,
    2002 between 4:30 p.m. and 5:00 p.m. The complainant provided a tape
    of the "Deminski & Doyle Show" containing the allegedly indecent
    material broadcast. After reviewing the complainant's tape, the
    staff of the Enforcement Bureau issued a letter of inquiry to the
    licensee that included a copy of the tape submitted by the
    complainant as well as a transcript of a portion of the tape. *See*
    Attachment A.

3.  Infinity submitted a response to the letter of inquiry, and confirms
    that the program segment that is the subject of the complaint was
    broadcast. However, Infinity asserts that no enforcement action or
    administrative penalty can be assessed because the Commission's
    generic definition of indecency is unconstitutional. Infinity does
    not argue that the material broadcast is not indecent under the
    Commission's definition.

    **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.[^1] In contrast, federal
    courts have held that indecent speech is protected by the First
    Amendment.[^2] 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.[^3] However, the First Amendment is a
    critical constitutional limitation that demands we proceed
    cautiously and with appropriate restraint.[^4] Consistent with a
    subsequent statute and case law,[^5] 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 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.[^6]
    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.[^7]

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 (2001). "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.  There is no question that the complained of material broadcast on
    the "Deminski & Doyle Show" as set forth in Attachment A, which
    concerns a discussion of sexual techniques and practices, in
    context, refers to sexual and excretory organs and activities. Thus,
    the material warrants scrutiny. Moreover, as discussed below, based
    on the nature of the material in question, it is not surprising that
    Infinity does not argue that the complained of broadcast is not
    indecent. We find that the complained of material, in context, is
    patently offensive when considered under the three factors set out
    in the *Indecency Policy Statement*.

8.  The inquiry under the first key factor relevant to a determination
    of patent offensiveness is whether the sexual and excretory
    references are graphic or explicit. The complained of broadcast of
    the "Deminski & Doyle Show" invited listeners to call in to discuss
    sexual practices. There were separate discussions with nine
    individuals who called the show to talk about sexual activities.
    Callers and the show's hosts described in detail how specifically
    named sexual acts are performed. The broadcast included explicit and
    graphic sexual references, including references to anal and oral
    sex, as well as explicit and graphic references to sexual practices
    that involve excretory activities.

9.  With respect to the second factor, the complained of material
    dwelled on sexual and excretory organs and activities and the sexual
    and excretory references were repeated. Thus, the sexual and
    excretory references cannot be considered fleeting. Under the third
    factor, we find that the graphic and explicit descriptions of the
    sexual practices at issue in the broadcast, which were identified in
    descriptive, non-clinical terms, and the comments of the on-air
    personalities demonstrate that the material, in context, appears to
    have been used to pander, titillate and shock. The tone of the
    material broadcast is extremely vulgar and extremely lewd, and is
    similar to other programming that has been found to be indecent or
    apparently indecent.[^8]

10. Given our application of established standards that have been
    repeatedly affirmed by the courts as constitutional, we also reject
    Infinity's arguments that our indecency definition is
    unconstitutionally vague and overbroad. The Commission has rejected
    similar constitutional challenges to our broadcast indecency
    standards, including constitutional challenges based on *Reno v*.
    *ACLU*, a case which Infinity cites and which invalidated an
    indecency standard for the Internet. *See, e.g., Infinity
    Broadcasting Corporation of Los Angeles (KROQ-FM),* 17 FCC Rcd 9892
    (2002); *WQAM License Limited Partnership*, *supra,* 15 FCC Rcd at
    2518 (noting that the Court indicated that broadcast indecency
    regulations were justified based on significant differences between
    the Internet and the broadcast medium and between the standard in
    the statute at issue and the Commission's broadcast indecency
    standard). Moreover, we disagree with Infinity's assertion that our
    indecency definition is constitutionally invalid because no causal
    link has been demonstrated between the broadcast of indecent
    material and harm to children.[^9]

11. Infinity does not claim that any of the complained of material was
    broadcast outside the 6 a.m. to 10 p.m. time frame relevant to an
    indecency determination. Thus, there was a reasonable risk that
    children may have been in the audience at the time that the material
    at issue was broadcast on January 9, 2002 and, therefore, the
    material broadcast is legally actionable. By broadcasting this
    material, WKRK-FM apparently violated the prohibitions in the Act
    and the Commission's rules against broadcast indecency.

12. 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. [^10] Based on the material before us, it appears that
    Infinity willfully violated 18 U.S.C. § 1464 and section 73.3999 of
    the Commission's rules, by airing indecent programming on WKRK-FM on
    January 9, 2002. We also take this opportunity to note that we could
    have found Infinity to have engaged in apparent repeated violations.
    The statute prohibits the broadcast of indecent "utter\[ances\]."
    While the Commission has traditionally viewed all of the utterances
    in one program to be a single utterance and thus a single violation,
    such an approach is not legally required. Here, for example, there
    were several distinct conversations, each of which could be viewed
    as a separate indecent utterance, and thus a separate violation. For
    purposes of this proceeding, we will use our traditional per-program
    approach. We hereby make clear that, in the future, we may treat
    situations like this as multiple, repeated violations with the
    accompanying increase in forfeitures.

13. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent or obscene
    materials.[^11] 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."[^12] Based upon our review of the entire record, we
    believe that imposition of a forfeiture that is higher than the base
    amount is warranted. The violation was egregious in that the
    indecent material was extensive, and included discussions with nine
    callers. We therefore believe that an upward adjustment of the
    forfeiture amount to the statutory maximum of \$27,500 is warranted
    in this case for the apparent broadcast of indecent material.
    *Forfeiture Policy Statement, supra.*[^13] We take this opportunity
    to note that given the egregiousness of this violation, additional
    serious violations by Infinity may well lead to the initiation of a
    revocation proceeding. Moreover, other broadcasters are on notice
    that the Commission will not hesitate to adopt strong enforcement
    actions in the future, including the potential initiation of
    revocation proceedings. *See, e.g.,* 47 U.S.C. § 312(a).

    **IV. ORDERING CLAUSES**

14. 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,[^14] that Infinity Broadcasting
    Operations Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
    FORFEITURE in the amount of twenty-seven thousand five hundred
    dollars (\$27,500) for willfully violating 18 U.S.C. § 1464 and
    section 73.3999 of the Commission's rules.

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

16. 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.

17. The response, if any, must be mailed to Maureen F. Del Duca, 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.

18. 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.

19. 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.[^15]

20. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Investigations
    and Hearings Division. Your certification should indicate whether
    you, including your parent entity and its subsidiaries, meet one of
    the definitions set forth in the list provided by the FCC's Office
    of Communications Business Opportunities (OCBO) set forth in
    Attachment B of this Notice of Apparent Liability. This information
    will be used for tracking purposes only. Your response or failure to
    respond to this question will have no effect on your rights and
    responsibilities pursuant to Section 503(b) of the Communications
    Act. If you have questions regarding any of the information
    contained in Attachment B, please contact OCBO at (202) 418-0990.

21. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Stephen A. Hildebrandt,
    Vice President, Infinity Broadcasting Operations, Inc., 2000 K
    Street, N.W., Suite 725, Washington, D.C., 20006.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

ATTACHMENT A

EB-02-IH-0109

Radio Station: WKRK-FM, Detroit, Michigan

Date/Time of Broadcast: January 9, 2002 between 4:30 p.m. and 5:00 p.m.

Material Broadcast: Deminski & Doyle Show

**MV1:** Male Cast member

**MV2:** Male Cast member

**MV3:** Male Cast member

**MC1:** First caller

**MC2:** Second caller

**MC3:** Third caller

**MC4:** Fourth caller

**MC5:** Fifth caller

**MC6:** Sixth caller

**MC7:** Seventh caller

**MC8:** Eighth caller

**MC9:** Ninth caller

**MV1**: 4:37 on a Wednesday. So listen to this. Former Baywatch babe
Yasmine Bleeth was in court today in our area in Wayne county, you know
for that drug charge. She just got 2 years probation. She's gotta do the
substance abuse screening and all that. Ah Rudy's the only one I did not
show this photograph to in the new story. Do you remember Yasmine
Bleeth?

**MV2:** Oh yeah, she's hot or was hot.

**MV1:** Okay, well I think she still is. I guess you can tell the drugs
took a toll but she's got a little even bigger in the boobs there. Look
how big her boobs look now. Look at the size of those Bleeths.

**MV2:** Oh man, yeah! She looks like she put on some weight. She
doesn't look like Baywatch.

**MV1:** So you'd like to Yasmine all over those Bleeths, wouldn't you?

**MV2:** Damn right I would, hell yeah! I'd buy that for a dollar.

**MV1:** What does that mean? You'd buy that for a dollar?

**MV2:** It's an inside joke, from "Robocop."

**MV1:** Okay.

**MV3:** Okay, that was so inside Rudy's the only one who knows what
he's talking about.

**MV2:** There was a line in "Robocop" where the guy.... Forget it.

**MV1:** No, you gotta tell 'em.

**MV2:** There's some old man who keeps going "I"... It was a game show
on a television that was inside a window in a department store and the
guy kept going "I'll buy that for a dollar."

**MV3:** Was that the horsey game at the casino he was playing?

**MV2:** No.

**MV1:** To whom was that an inside joke?

**MV2:** It was for me. (laughter) It was one of those things where I
was saying in my head I was thinking I'd buy that for a dollar.

**MV1:** That's not usually what an inside joke normally means. It's
when only a few others get it. But you gotta have those few others.

**MV2:** Exactly. You got it. Humor me.

**MV1:** Our phone is 248-559-9797 so again I was saying no children are
to be listening to this next segment or so and ladies you probably don't
wanna hear this crap either 'cause this is really foul. Now we talked
about this only one other time on the show and not that long ago but
this is why this cracked me up so much. You know those weird funky uh
made up sex techniques or sex positions or sex maneuvers that guys have
their whole websites full of this stuff now and they have all these
clever names assigned to them?

**MV3:** They all seem like urban legends.

**MV1:** Right, right. Well, I'm watching TV last night and there's a
brand new TV show, brand new sitcom. I'm not even saying it was all that
good. I didn't even watch the whole thing, but it's that Hank Azaria
show. Hank Azaria has been on different things, he's a lot of the voices
on "The Simpsons" actually. So he's got his own show now where like his
imagination goes running wild with crap. So part of the plot was that
they're going to a therapist and they're trying to work on their sex
life, he and his wife. And um, she is telling him that he could have
anything that he wants. This one night he could have anything he wants.
He's like "anything?" She's like "anything you want." And so he comes up
with the term "okay how about a 'Cleveland tornado?'" And this is
something that apparently he had done to her in the past because she's
like "a Cleveland Tornado?" "You're not doing that to me again!" And
they had both been really drunk this night when they had done the
"Cleveland Tornado." And she gets horribly offended on the show last
night. And he's like "oh no, no, I don't know why I said it." "I don't
know what I was thinking," blah, blah, blah."

**MV3:** Well, what is it?

**MV1:** That's just it. They never say. Or well, I didn't see the end
of it but I don't think they ever explained it 'cause it's a sitcom so
they couldn't ... Rudy what is it?

**MV2:** Don't know. Never heard of that one before.

**MV1:** Now try to describe carefully what a "Cleveland Steamer" would
be.

**MV2:** Now the "Cleveland Steamer" is when... I'm pretty sure it's
when...

**MV1:** Now you don't even know what a "Dirty Sanchez" was by the way,
so I'm not even so sure if you're accurate about this.

**MV2:** They're all different. I think a "Cleveland Steamer" is when
you take a poop like on the girl's chest area.

**MV1:** And this is romantic to whom? This improves your sex life?

**MV2:** And then, hold on. So you take a poop on her chest area,...

**MV1:** Oh, the romantic part is coming up apparently...

**MV2:** ...her breasts and then you supposedly sit on it and make the
noise of a steamboat.

**MV1:** So you Yasmine on her Bleeth's and then you ... (laughing).
Have you ever performed any of this Rudy?

**MV2:** I've never done any of these techniques except "The Stranger."

**MV1:** Have you ever asked a woman if you could do them?

**MV2:** No I have not.

**MV3:** You gotta tell what "The Stranger" is again for those that
don't follow every day.

**MV2:** "The Stranger" is when...

**MV1:** And he's done this!!! This is the sad part, Rudy's done it. Go
ahead...

**MV2:** "The Stranger" is when you sit on your hand to cut off the
circulation; the hand that you use to masturbate with and you cut off
the circulation until it's numb and you can't feel it and then uh, you
pleasure yourself with that hand. So it feels like someone else,
therefore "The Stranger."

**MV1:** (Laughing) This is so sad, when did you first develop your
interest in these strange sex techniques?

**MV2:** You know what? I have no idea to be honest with you. Let it be
known that this sitcom is jocking the Deminski & Doyle Show. 'Cause we
have brought these into the mainstream.

**MV1:** Well, see, I don't know who's brought them into the mainstream,
but if it was in prime time then naturally they didn't describe what it
was but it was obviously something really disgusting and kinky but if
they're starting to talk about "Cleveland Tornados" in prime time I'm
thinking yeah yeah there's gotta be all sorts of websites and jokes
about this kinda thing. So I just wanted to bring this up what sorts of
things like this have you heard of and try to, you know, carefully
within reason describe it as best as you can what these strange sex
techniques are. 248-559-9797.

**MV3:** And I would like to make a challenge to anyone who's actually
done one; 'cause I mean we've all heard these, but they're all urban
myths.

M**V2:** I would like to say the last two of my favorite ones lately is
"The Shocker" which I'm sure somebody will call that one in. I don't
want to say that. And uh what was the other one?

**MV1:** So just give us the title without telling us what it means.

**MV3:** What's "The Shocker?"

**MV2:** That's when... It's with the fingers, two in the orifices. I
can't really say. Can't do it careful enough.

**MV1:** Oh one... Oh... Look, we already warned people no children and
no women, so...

**MV2:** Two in the pink, one in the stink.

**MV1:** Okay now I was gonna see, I was gonna say "vagina" and
"rectum." But hey, you know...

**MV3:** Have you performed that one?

**MV2:** No.

**MV3:** And that's called a "Shocker."

**MV2:** "The Shocker," it takes them by surprise.

**MV3:** He only performed the one finger on himself.

**MV2:** And the other one which was called in awhile ago not when we
were talking about this but the "Rusty Trombone."

**MV1:** Oh that one I know!

**MV2:** That one's gross.

**MV3:** Yeah, once again one that had not been actually done.

**MV1:** The "Rusty Trombone" you know that I think that is the oldest
of all these sickening things uh, 'cause I heard that one years and
years and years ago.

**MV3:** I've never heard of it until that guy brought it up on the
show.

**MV1:** Really? For some reason I heard of that a long time ago.

**MV3:** Be honest I've never heard of any of these.

**MV1:** "Rusty Trombone," and again please, no kids, no women. "Rusty
Trombone" I believe that's when you're having anal sex with a girl and
then right afterwards you make her perform uh, oral sex on you.

**MV3:** That's the way the man described it. Yes.

**MV1:** Without washing up first. That's just disgusting.

**MV3:** She is referred to as playing the "Rusty Trombone."

**MV1:** So if anyone has had the balls or was stupid enough or and/ or
to actually try one of these on a girlfriend, wife, concubine, whatever
that's about the only person you'll get away with it. If you got a
hooker somewhere...

**MV3:** She'll probably kick your ass.

**MV1:** She'll have her driver kill you. So tell us if you were ever
dumb enough to try one of these on a girl and even if not just what sort
of strange sex techniques have you heard of. 248-559-9797.

**MV3:** Billy from Southfield you're on 97.1 FM talk.

**MC1:** How're you guys doin' today?

**MV3:** Okay Billy.

**MC1:** Yeah, the "David Copperfield."

**MV1:** I heard of this but I can't remember how it goes.

**MC1:** Um, I think it's when you're having sex with a girl from
behind...

**MV1:** Oh yeah.

**MC1:** and then you spit on her back.

**MV1:** Oh yeah, okay you pretend by spitting that you've just
finished.

.

**MC1:** Right and then when you turn around you Yasmine on her.... It's
an illusion.

**MV1:** (Laughing) You Yasmine on her face.

**MC1:** Right.

**MV1:** And Billy have you actually performed this?

**MC1:** I believe I have once, but I was really drunk.

**MV1:** What do you mean "you believe you have?" You're not sure you
did?

**MC1:** Well, I'm sure about the first part but the second part's a
little fuzzy.

**MV1:** You may have missed?

**MC1:** Yeah. Right.

**MV1:** But you definitely did the spitting on the back?

**MC1:** Yeah, I tried it.

**MV1:** Okay now but to perform a "David Copperfield" though doesn't
one have to not spit just once you have to sorta you know "puph, puph,
puph" (simulates a spitting noise) get a couple spits out there in a
rhythmic fashion?

**MC1:** You know I never claimed to be a professional at it.
(Laughter).

**MV1:** You're just in it for the love of the game. Okay, alright
Billy, thanks for your call. Oh my God we're being told, Frank in
Belleville. Hey Frank?

**MC2:** Yes?

**MV1:** We got a note here that says you actually know what a
"Cleveland Tornado" is supposed to be?

**MC2:** I know what the "Cleveland Tornado" is. Are you ready?

**MV1:** I just thought it was something they made up just to put on the
show.

**MC2:** Oh no, no, no. A "Cleveland Tornado" is ... You have to have a
sex swing. What you do is you lay down and you have to lower the girl.
You have to...

**MV1:** Wait, wait, I'm sorry. Who is in the swing?

**MC2:** Oh, a girl okay?

**MV1:** And you're on the bed?

**MC2:** You're on the bed or floor preferably, okay and you have to
penetrate her rectum and...

**MV1:** Yeah?

**MC2:** ...you turn her around and supposedly she is supposed to have
ate something that is going to make her defecate all over you.

**MV1:** Oh God!!!!

**MC2:** While you're spinning around.

**MV1:** That's beautiful, that's like a dream wedding night (laughing).

**MC2:** Why anybody would do this I don't know but I heard.... Yeah.

**MV2:** Who would want that?

**MV3:** I don't know...

**MV1:** What guy would want the girl to crap on her \[him\]? (laughing)
I don't know. What's fun about any of these? That makes the show last
night even funnier because that's what they were referring to. The thing
is you gotta have the sex swing and the plot of the show was something
they just sorta tried one night. You know you gotta have the swing!
Alright strange sex techniques you've heard of 248-559-9797.

**MV3:** Alan in Garden City you're on 97.1 FM talk.

**MC3:** Alright the one I know of is called the "Chili Dog."

**MV1:** Well of course it is.

**MC3:** And it's kinda like the "Cleveland Steamer" the way you started
out except for you do the Hershey squirts on her chest. And then you add
the hot dog which would be your member.

**MV1:** You add it. You just put it there?

**MC3:** You put it there and, yeah.

**MV1:** Okay, wait a minute... so it starts off like the "Cleveland
Steamer"...

**MC3:** Yeah, you're using Hershey squirts instead of just defecating.
And then you add the hot dog and the bun there... So the chili's already
there.

**MV1:** So you put your unit in your own feces?

**MC3:** Yeah, in between her breasts.

**MV1:** So Alan, how many times have you tried this?

**MC3:** Absolutely none.

**MV1:** That sounds like a real good maneuver.

**MV2:** Well once you find the right girl. Why would you wanna put your
unit in your own poop? (laughing)

**MV1:** Josh, you're on 97.1 FM talk.

**MC4:** Hey guys

**MV1:** Hey Josh.

**MC4:** I got one for you, have you ever heard of a "Tony Danza?"

**MV1:** Oh, this is a brand new one, so I'm glad, no I have not.

**MC4:** A "Tony Danza's" when you grab her by the hair, throw her down
on the bed, smack her around a little bit and tell her who's the boss.

**MV1:** Aww. That's it?! Aww, otherwise know as a domestic violence
move. Yeah I think that's known as a former Senator David Jay move.
Brian in Milford you're on 97.1 FM talk.

**MC5**: Hey, what's up guys?

**MV1:** Hey Brian.

**MC5:** I have done the "Rusty Trombone."

**MV1:** Aw, for God's sakes.

**MV2:** You must've really loved her.

**MC5:** No it was a girl I picked up when I was vacationing down in
Hilton Head, South Carolina.

**MV1:** Okay and you're back.

**MC5:** She wanted me to do it.

**MV1:** Now, you're in the hotel room?

**MC5:** No, we were in a condo.

**MV1:** Okay so you're in this condo and it's just you and the girl,
it's not a threesome or anything?

**MC5:** No. It was just me and the girl, my buddy was sleeping in the
other bedroom.

**MV1:** And uh, when you say she wanted you to do it, I mean, what
happens, like you start having anal sex with her?

**MC5:** Yeah, and I was approaching the finish line and she says\...

**MV1:** She says, "Finish in my mouth?"

**MC5:** Yes, yes.

**MV1:** No kiddin'? Wasn't that kinda disgusting?

**MC5:** It was bizzare when it happened.

**MV1:** Didn't it kind of gross you out?

**MC5:** Yeah, but uh, it was a story, you know.

**MV1:** Oh yeah, it is a good story. What does the girl do immediately
after? Does she go to the bathroom and use a bunch of Listerine or what?

**MC5:** No she tried to kiss me and that wasn't happenin.' (Laughter).

**MV1:** No way!! Oh man, now was she offended that you would not kiss
her?

**MC5:** Yeah, she was.

**MV1:** Yeah, I mean, I guess she would be, 'cause hey look what she
did for you.

**MV2:** Yeah but so what!

**MV1:** Oh no, I agree, it's just that it's inevitable that she's gonna
be offended you know? Brian, thanks for your call. Oh yeah, if you
actually tried these with anybody for God sakes get on a phone we'll
talk about this just for the next segment...

**MV2:** I still think about 99 percent of them are urban legend.

**MV1:** Oh yeah, they've never actually been performed. I just think
that guys, I think that guys bein' sick just tryin' to come up with just
the most disgusting turn-off they can and then just pretend like oh
yeah, this is what I did with somebody. So strange sex techniques you've
heard of, no children no women 248-559-9797.

97.1 FM Talk. D&D Talk That Rocks In Detroit.

COMMERCIAL BREAK

Deminski (Deminski) and Doyle (Doyle). It's like seeing nude photos of
your sister. (Sound of a spring snapping back "boing"). Sure it's
creepy, but there's just something about it (Woah). 97.1 FM Talk.

**MV1:** It's 4:55 with Deminski and Doyle and by the way Rudy somebody
e-mailed and was laughing their ass off when you said "I'd buy that for
a dollar" 'cause he says it all the time too. So another "RoboCop" fan
out there.

**MV2:** Oh so it was an inside joke.

**MV3:** Between Rudy and a listener.

**MV1:** Another guy who lives in the basement somewhere just like Rudy.
Oh, oh, hey, real quick\-- hot girl upstairs any update?! You still
haven't talked to the hot girl upstairs? No "Cleveland Tornado?"
Nothing? Okay. Just getting the update. So again no women no children
we'll drop this after five, strange sex techniques. 'Cause this is
making the main stream. Last night on that Hank Azaria brand new sitcom
they were using the term "Cleveland Tornado." 248-559-9797. Scott from
Grand Bluff!

**MC6:** Yeah hi guys, how ya doing?

**MV1:** Hi Scott.

**MC6:** You guys are classic. This is classic radio right here. I love
it.

**MV1:** Yeah.

**MC6:** You know I didn't know this was so mainstream. I was telling my
buddies about all these acts a couple months ago and they didn't believe
me. So God bless you guys. Nevertheless I have one that's an offshoot of
the "Cleveland Steamer" and it's called the "Manhattan Hot Platter."

**MV1:** Okay, carefully now tell us what happens.

**MC6:** It's the same thing but it's not done on the chest it's done in
the mouth.

**MV1:** Oh God! So you're telling me you get a girl and you, you crap
in her mouth?

**MC6:** Exactly.

**MV1:** And then what? That's it?

**MC6:** That's it.

**MV1:** Okay Scott, have you ever done this?

**MC6:** And the "Copperfield" is also known as the "Houdini."

**MV1:** No you gotta tell us, have you ever done this?

**MC6:** No. Goodness no.

**MV1:** Do you honestly believe anybody has ever done any of these
things?

**MC6:** You know I've seen the "Manhattan Hot Platter" on the Internet.
I have seen it in an e-mail.

**MV1:** It's gotta be a model.

**MC6:** No it's not

**MV1:** Somebody's getting paid.

**MC6:** I swear it's not; it's very disgusting.

**MV1:** No, no Bill's saying it's a real person; it's gotta be a porno
actress that gets paid to get demeaned.

**MC6:** I watched it several times.

**MV2:** Gotta be pretty low on the porno scale too. You start off with
the "Manhattan Hot Platter," whatever.

**MV1:** I think that's the 90 days before you make your health
insurance.

**MV2:** And what does that even have to do with sex?

**MV1:** (Laughing) I don't know.

**MV2:** There's no sex involved. You poop in somebody's mouth. (hoots).

**MV1:** Some guys are thinking "Yeah; she wants that; she enjoys it."
From Auburn Hills,

Tim. Hey Tim, you're on 97.1 FM Talk.

**MC7:** Hey you guys, how ya doin'? I listen every day. My personal
favorite is the "Frothy Walrus." (Laughing)

**MV1:** What's a... I may have heard this but I forget. What's a
"Frothy Walrus?"

**MC7:** Well, that's where you have a girl perform oral on you, you
complete the act and then you finish it off by punching her in the
stomach so it comes outta her nose. (Laughing)

**MV1:** Oh God. Another abuse one. If we ever talk about this again
'cause I swear there's so many of these and guys have jammed the phone
lines, we gotta get all sorts of romantic music to play underneath this.
Tom in Sterling Heights you're on 97.1 FM Talk.

**MC8:** Hey guys this is great. This is actually kind of like the last
one, its called the "Strawberry Swirl." You get the girl to pleasure
you, get it on her face, punch her in the nose and smear it all around.

**MV1:** Have you ever done this one Tom?

**MC8:** Oh no, no, no.

**MV1:** Would you ever consider doing this?

**MC8:** No, I'm not that violent.

**MV1:** So yeah, you gotta get her bloody nose mixed in with everything
else.

**MC8:** Yeah, gotcha.

**MV2:** That's charming, another a wedding night memory. Let's just
take one more.

**MV1:** Alright, Tom in Sterling Heights, you're on 97.1 FM Talk.

**MV2:** Another Tom.

**MC9:** Hey guys. Hey, I'd like to call in a blumpkin.

**MV1:** A blumpkin?

**MC9:** Blumpkin, yeah. It's you're receiving. The cow's being serviced
while you're on the can.

**MV1:** Okay. A blumpkin is where she's giving you oral sex while
you're on the...while you're moving your bowels?

**MC9:** Absolutely.

**MV1:** What's fun about that?

**MC9:** It's just dirty that's all.

**MV1:** Have you had a blumpkin?

**MC9:** Absolutely not.

**MV1:** What would you think of a guy who had a blumpkin?

**MC9:** I don't know.

**MV1:** 'Cause you know what Tom? My dad had a blumpkin.

**MC9:** Oh no way!! (Laughing).

**MV1:** Yeah, swear to God. He didn't know it was called a blumpkin but
my dad had this kinky girlfriend for about a year. Did all this weird
stuff, and and this was her idea. She wanted to give my dad and enema.
This was like a longtime fantasy of hers, and then when the enema kicks
in she wanted to blumpkin him. And she did and my dad for some reason my
dad told me about this.

**MV2:** That's even worse. I mean it's bad enough he's got a blumpkin
but then he shares it with his son. That's priceless.

**MV1:** I wonder if when you die you really do just gain all the
knowledge that's out there in the universe; meaning that at this point
now that my dad has passed now maybe he knows that that was a blumpkin.
Alright we're gonna stop, so men you can find your women and children
and allow them back to the radio. 97 1 FM Talk. It's 5:00.

October 2002

**ATTACHMENT B**

+--------------------------------+-------------------------------------+
| **FCC List of Small Entities** |                                     |
|                                |                                     |
| **As described below, a "small |                                     |
| entity" may be a small         |                                     |
| organization,**                |                                     |
|                                |                                     |
| **a small governmental         |                                     |
| jurisdiction, or a small       |                                     |
| business.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(1) Small Organization**     |                                     |
+--------------------------------+-------------------------------------+
| **Any not-for-profit           |                                     |
| enterprise that is             |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field.**                       |                                     |
+--------------------------------+-------------------------------------+
| **(2) Small Governmental       |                                     |
| Jurisdiction**                 |                                     |
+--------------------------------+-------------------------------------+
| **Governments of cities,       |                                     |
| counties, towns, townships,    |                                     |
| villages, school districts,    |                                     |
| or**                           |                                     |
|                                |                                     |
| **special districts, with a    |                                     |
| population of less than fifty  |                                     |
| thousand.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(3) Small Business**         |                                     |
+--------------------------------+-------------------------------------+
| **Any business concern that is |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field, *and* meets the         |                                     |
| pertinent size criterion       |                                     |
| described below.**             |                                     |
+--------------------------------+-------------------------------------+
| **Industry Type**              | **Description of Small Business     |
|                                | Size Standards**                    |
+--------------------------------+-------------------------------------+
| ***Cable Services or           |                                     |
| Systems***                     |                                     |
+--------------------------------+-------------------------------------+
| Cable Systems                  | Special Size Standard --            |
|                                |                                     |
|                                | **Small Cable Company** has 400,000 |
|                                | Subscribers Nationwide or Fewer     |
+--------------------------------+-------------------------------------+
| Cable and Other Program        | \$12.5 Million in Annual Receipts   |
| Distribution                   | or Less                             |
+--------------------------------+-------------------------------------+
| Open Video Systems             |                                     |
+--------------------------------+-------------------------------------+
| ***Common Carrier Services and |                                     |
| Related Entities***            |                                     |
+--------------------------------+-------------------------------------+
| Wireline Carriers and Service  | 1,500 Employees or Fewer            |
| providers                      |                                     |
+--------------------------------+-------------------------------------+
| Local Exchange Carriers,       |                                     |
| Competitive Access Providers,  |                                     |
| Interexchange Carriers,        |                                     |
| Operator Service Providers,    |                                     |
| Payphone Providers, and        |                                     |
| Resellers                      |                                     |
+--------------------------------+-------------------------------------+
| **Note:** With the exception   |                                     |
| of Cable Systems, all size     |                                     |
| standards are expressed in     |                                     |
| either millions of dollars or  |                                     |
| number of employees and are    |                                     |
| generally the average annual   |                                     |
| receipts or the average        |                                     |
| employment of a firm.          |                                     |
| Directions for calculating     |                                     |
| average annual receipts and    |                                     |
| average employment of a firm   |                                     |
| can be found in                |                                     |
|                                |                                     |
| 13 CFR 121.104 and 13 CFR      |                                     |
| 121.106, respectively.         |                                     |
+--------------------------------+-------------------------------------+
| ***International Services***   |                                     |
+--------------------------------+-------------------------------------+
| International Broadcast        | \$12.5 Million in Annual Receipts   |
| Stations                       | or Less                             |
+--------------------------------+-------------------------------------+
| International Public Fixed     |                                     |
| Radio (Public and Control      |                                     |
| Stations)                      |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite                |                                     |
| Transmit/Receive Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite Very Small     |                                     |
| Aperture Terminal Systems      |                                     |
+--------------------------------+-------------------------------------+
| Mobile Satellite Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Radio Determination Satellite  |                                     |
| Earth Stations                 |                                     |
+--------------------------------+-------------------------------------+
| Geostationary Space Stations   |                                     |
+--------------------------------+-------------------------------------+
| Non-Geostationary Space        |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Direct Broadcast Satellites    |                                     |
+--------------------------------+-------------------------------------+
| Home Satellite Dish Service    |                                     |
+--------------------------------+-------------------------------------+
| ***Mass Media Services***      |                                     |
+--------------------------------+-------------------------------------+
| Television Services            | \$12 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Low Power Television Services  |                                     |
| and Television Translator      |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| TV Auxiliary, Special          |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Radio Services                 | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio Auxiliary, Special       |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction Special Size Standard --    |
| Service                        |                                     |
|                                | **Small Business** is less than     |
|                                | \$40M in annual gross revenues for  |
|                                | three preceding years               |
+--------------------------------+-------------------------------------+
| ***Wireless and Commercial     |                                     |
| Mobile Services***             |                                     |
+--------------------------------+-------------------------------------+
| Cellular Licensees             | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase |                                     |
| I Licensees                    |                                     |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase | Auction special size standard -     |
| II Licensees                   |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and controlling          |
|                                | principals)                         |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and controlling          |
|                                | principals)                         |
+--------------------------------+-------------------------------------+
| 700 MHZ Guard Band Licensees   |                                     |
+--------------------------------+-------------------------------------+
| Private and Common Carrier     |                                     |
| Paging                         |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | 1,500 Employees or Fewer            |
| Communications Services        |                                     |
| (Blocks A, B, D, and E)        |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | Auction special size standard -     |
| Communications Services (Block |                                     |
| C)                             | **Small Business** is \$40M or less |
|                                | in annual gross revenues for three  |
|                                | previous calendar years             |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three calendar years  |
|                                | (includes affiliates and persons or |
|                                | entities that hold interest in such |
|                                | entity and their affiliates)        |
+--------------------------------+-------------------------------------+
| Broadband Personal             |                                     |
| Communications Services (Block |                                     |
| F)                             |                                     |
+--------------------------------+-------------------------------------+
| Narrowband Personal            |                                     |
| Communications Services        |                                     |
+--------------------------------+-------------------------------------+
| Rural Radiotelephone Service   | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Air-Ground Radiotelephone      |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| 800 MHz Specialized Mobile     | Auction special size standard -     |
| Radio                          |                                     |
|                                | **Small Business** is \$15M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
+--------------------------------+-------------------------------------+
| 900 MHz Specialized Mobile     |                                     |
| Radio                          |                                     |
+--------------------------------+-------------------------------------+
| Private Land Mobile Radio      | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Amateur Radio Service          | N/A                                 |
+--------------------------------+-------------------------------------+
| Aviation and Marine Radio      | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Fixed Microwave Services       |                                     |
+--------------------------------+-------------------------------------+
| Public Safety Radio Services   | **Small Business** is 1,500         |
|                                | employees or less                   |
|                                |                                     |
|                                | **Small Government Entities** has   |
|                                | population of less than 50,000      |
|                                | persons                             |
+--------------------------------+-------------------------------------+
| Wireless Telephony and Paging  | 1,500 Employees or Fewer            |
| and Messaging                  |                                     |
+--------------------------------+-------------------------------------+
| Personal Radio Services        | N/A                                 |
+--------------------------------+-------------------------------------+
| Offshore Radiotelephone        | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Wireless Communications        | **Small Business** is \$40M or less |
| Services                       | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 39 GHz Service                 |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction special size standard       |
| Service                        | (1996) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
|                                |                                     |
|                                | Prior to Auction --                 |
|                                |                                     |
|                                | **Small Business** has annual       |
|                                | revenue of \$12.5M or less          |
+--------------------------------+-------------------------------------+
| Multichannel Multipoint        | \$12.5 Million in Annual Receipts   |
| Distribution Service           | or Less                             |
+--------------------------------+-------------------------------------+
| Instructional Television Fixed |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Local Multipoint Distribution  | Auction special size standard       |
| Service                        | (1998) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 218-219 MHZ Service            | First Auction special size standard |
|                                | (1994) --                           |
|                                |                                     |
|                                | **Small Business** is an entity     |
|                                | that, together with its affiliates, |
|                                | has no more than a \$6M net worth   |
|                                | and, after federal income taxes     |
|                                | (excluding carryover losses) has no |
|                                | more than \$2M in annual profits    |
|                                | each year for the previous two      |
|                                | years                               |
|                                |                                     |
|                                | New Standard --                     |
|                                |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| Satellite Master Antenna       | \$12.5 Million in Annual Receipts   |
| Television Systems             | or Less                             |
+--------------------------------+-------------------------------------+
| 24 GHz -- Incumbent Licensees  | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 24 GHz -- Future Licensees     | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| ***Miscellaneous***            |                                     |
+--------------------------------+-------------------------------------+
| On-Line Information Services   | \$18 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio and Television           | 750 Employees or Fewer              |
| Broadcasting and Wireless      |                                     |
| Communications Equipment       |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Audio and Video Equipment      |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Telephone Apparatus            | 1,000 Employees or Fewer            |
| Manufacturers (Except          |                                     |
| Cellular)                      |                                     |
+--------------------------------+-------------------------------------+
| Medical Implant Device         | 500 Employees or Fewer              |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Hospitals                      | \$29 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Nursing Homes                  | \$11.5 Million in Annual Receipts   |
|                                | or Less                             |
+--------------------------------+-------------------------------------+
| Hotels and Motels              | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Tower Owners                   | (See Lessee's Type of Business)     |
+--------------------------------+-------------------------------------+

**DISSENTING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re: Infinity Broadcasting Operations Inc., licensee of WKRK-FM, Detroit
Michigan, Notice of Apparent Liability for Forfeiture*

In this case, WKRK-FM in Detroit aired some of the most vulgar and
disgusting indecency that I have had the misfortune to examine since I
joined the Commission. The station presented graphic descriptions of
violent sexual acts against women as entertainment at a time when
children likely composed a significant portion of the audience. The
extreme nature of this broadcast -- among the worst we have faced in the
Commission's history -- and the fact that it was broadcast in the middle
of the day, gives the FCC the responsibility to take serious action. I
dissent from the majority's decision because I believe that a financial
slap on the wrist does not adequately reflect the seriousness of the
station's actions. To fulfill our duty under the law, we should initiate
a hearing to determine whether the WKRK-FM license should be revoked.

I am deeply disappointed that the majority proposes a mere \$27,500 fine
against this station. Such a fine will easily be absorbed by the station
as a "cost of doing business." While I am encouraged that the Commission
has at least, and at last, found such programming to be indecent, I am
discouraged that it does so little about it.

Would anyone who reads the transcript of this program argue that the
United States should subsidize such material by giving WKRK-FM free
spectrum through their broadcast license? Can anyone read the indecency
law that Congress has given us and conclude that any station could
broadcast such material on the public's airwaves consistent with the
law? The majority admits that WKRK-FM appears to have violated
egregiously and extensively the statutory ban on the broadcast of
indecent material. The majority presumably recognizes the seriousness of
the offense. And, importantly, this Commission has agreed for the first
time that it may revoke the license of a station owner that broadcasts
indecent material. But the Commission does not take this step.

Our tepid action today will not dissuade these types of broadcasts in
the future. The message to licensees is clear: Even egregious violations
will not result in revocation of a license. The majority does warn
Infinity that another similar action could result in a revocation
hearing, but it fails to mention that this is not the first action
against a station owned by Infinity. Infinity stations were fined \$1.7
million by a previous Commission in 1995 to settle a series of indecency
cases. As part of that settlement, Infinity agreed to take steps to
prevent further broadcast of indecent material. But more complaints
involving other broadcasts followed. Last August, for example, another
Infinity station aired the "Opie & Anthony" program allegedly involving
sex acts performed in or near St. Patrick's Cathedral. That
investigation is still pending without action by the Commission.

The majority may say that this is the largest fine we are allowed to
impose under our guidelines. But fines are not the only tool Congress
gave us to enforce the law. The Commission would be more credible by
moving immediately to a hearing to determine whether the station's
license should be revoked. We would be well within our statutory
authority to do this under Section 312(a)(6) of the Communications Act,
which specifically provides such a remedy.

I wonder when this Commission will finally take a firm stand against
broadcast's "race to the bottom" as the level of discourse on the
public's airwaves gets progressively coarser and more violent. The time
has come for this Commission to send a message that it is serious about
enforcing its indecency rules. Our enforcement actions should convince
broadcasters that they cannot ignore their responsibility to serve the
public interest and to protect children. The FCC's actions today fail to
do so.

**SEPARATE STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN**

*Re: Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK-FM, Detroit, Michigan, Notice of Apparent Liability for Forfeiture*

I support this Notice's finding that the licensee apparently violated
our rule against the broadcast of indecent content, but I would have
proposed a higher fine. For instance, we could have found that each time
the show's hosts solicited a new call on an indecent topic, the ensuing
conversation constituted a separate violation. As the Notice
acknowledges, we have the discretion to consider each indecent utterance
a separate violation.[^16]

**SEPARATE STATEMENT OF**

**COMMISSIONER JONATHAN ADELSTEIN**

*Re: Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK-FM, Detroit, Michigan, Notice of Apparent Liability for Forfeiture*

I strongly support this Notice and the message it sends to Infinity and
other broadcasters that violate our indecency rules. The Commission has
now given fair notice that it can and will avail itself of a range of
enforcement sanctions, including the initiation of revocation
proceedings. Moreover, the Commission will, in the future, consider
finding broadcasters liable for multiple violations that occur in a
single program where statements can be viewed as separate indecent
utterances. Such an approach could result in substantially higher
forfeiture amounts.

[^1]: *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).

[^2]: *Sable Communications of California, Inc. v. FCC, supra* note 1,
    492 U.S. at 126.

[^3]: *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*").

[^4]: *ACT I, supra* note 3, 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).

[^5]: Public Telecommunications Act of 1992, Pub. L. No. 356, 102^nd^
    Cong., 2^nd^ Sess. (1992); *ACT III, supra* note 3.

[^6]: In *FCC v. Pacifica Foundation,* the Court quoted the Commission's
    definition of indecency with apparent approval. *FCC v. Pacifica
    Foundation*, *supra* note 3, 438 U.S. at 732. In addition, the D.C.
    Circuit Court of Appeals upheld the definition against
    constitutional challenges. *ACT I*, *supra* note 3, 852 F.2d at
    1339; *ACT II, supra* note 3, 932 F.2d at 1508; *ACT III, supra*
    note 3, 58 F.3d at 657.

[^7]: *ACT III,* *supra* note 3.

[^8]: *See, e.g., WQAM License Limited Partnership (WQAM(AM))* 15 FCC
    Rcd 2518 (2000), *aff'd* 15 FCC Rcd 13549 (2000)(segment consisting
    of a telephone conversation discussing anal sex); *Emmis Radio
    License Corporation*, 17 FCC Rcd 5263 (EB 2002), *aff'd* 17 FCC Rcd
    21697 (EB 2002)(Forfeiture Order)(discussions concerning sexual
    practices by female cast member and women guests); *Capstar TX
    Limited Partnership (KTXQ(FM))*, 15 FCC Rcd 19615 (EB 2000)(radio
    show hosts discuss sexual techniques with a caller); *Communicast
    Consultants, Inc., (KRXK(AM))*, 15 FCC Rcd 18730 (EB 2000), *aff'd*
    15 FCC Rcd 19697 (EB 2000)(Forfeiture Order)(complained of material
    includes graphic description of sexual activities and organs);
    *Southern Nevada Radio, Inc. D.I.P.(KKLZ(FM))*, 13 FCC Rcd 2787 (MMB
    1998)(radio show hosts solicit "men are pigs" stories and discuss
    with a caller the sexual and excretory activities performed by the
    caller's ex-husband); *Rich Communications Corporation (WGRF(FM))*,
    10 FCC Rcd 5149 (MMB 1995)(radio show hosts solicit women callers to
    relate "the strangest intimate story" confided to them by a
    girlfriend and then discuss the details of such stories with
    callers).

[^9]: Infinity cites language from *Ashcroft v. Free Speech Coalition*,
    122 S.Ct. 1389 (2002), a case invalidating provisions of the Child
    Pornography Prevention Act of 1996 ("CPPA"), which criminalized
    non-obscene "virtual" child pornography. The CPPA extended the
    federal prohibition against child pornography to sexually explicit
    images that appeared to depict minors but were produced without
    using any real children. In the text cited, the Court distinguished
    provisions of the CPPA related to "virtual" child pornography from
    constitutionally valid statutory provisions banning actual child
    pornography. Protecting children from exposure to indecent material
    is a compelling governmental interest and courts have not questioned
    or expected proof on the issue of harm. *See Sable Communications,
    supra* note 1, 492 U.S. at 126-27. However, to withstand
    constitutional scrutiny, government regulations aimed at promoting
    this compelling interest must be narrowly drawn so as not to
    unnecessarily interfere with First Amendment freedoms. The D.C.
    Circuit has concluded that a 10 p.m. to 6 a.m. "safe harbor" period,
    during which indecent speech may be legally broadcast, is justified
    as a properly tailored means of vindicating the government's
    compelling interest in the welfare of children. *See ACT III, supra*
    note 3.

[^10]: *See Southern California Broadcasting Co*., 6 FCC Rcd 4387
    (1991).

[^11]: *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).

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

[^13]: *See* 47 C.F.R. § 1.80. The Commission recently amended its rules
    to increase the maximum penalties to account for inflation since the
    last adjustment of the penalty rates. The new rates apply to
    violations that occur or continue after November 13, 2000. *See
    Order,* "In the Matter of Amendment of Section 1.80(b) of the
    Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
    Inflation." 15 FCC Rcd 18221 (2000).

[^14]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.

[^15]: *See* 47 C.F.R. § 1.1914.

[^16]: *See* Notice at ¶ 12. *See also* 18 U.S.C. § 1864 ("Broadcasting
    obscene language. 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.")