**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of ) File No. EB-00-IH-0401

)

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

) FRN: 0001-5293-87

Licensee of Station WKQX(FM), ) Facility ID #19525

Chicago, Illinois )

## 

## FORFEITURE ORDER

**Adopted: January 7, 2002** **Released: January 8, 2002**

By the Chief, Enforcement Bureau:

## I. INTRODUCTION

1\. In this Forfeiture Order, we impose a forfeiture of \$14,000 on
Emmis FM License Corp. of Chicago ("Emmis"), licensee of Station
WKQX(FM), Chicago, Illinois, for willful and repeated violations of 18
U.S.C. § 1464 and 47 C.F.R. § 73.3999. We take this action pursuant to
47 U.S.C. § 503(b)(1)(D) and 47 C.F.R. § 1.80(f)(4).

# 

# II. BACKGROUND

II. 

2\. The Commission received letters dated March 20, 2000, and May 15,
2000, complaining about material aired on Station WKQX(FM) on each of
those dates during the "*Mancow Morning Madhouse*" ("*Mancow*") program.
The March complaint alleged that the station broadcast a conversation
between 8:13 a.m. and 8:16 a.m., which the complainant deemed indecent.
The May complaint alleged that the station broadcast interviews between
7:45 a.m. and 8:00 a.m., which the complainant believed indecent. After
reviewing the complaints, Enforcement Bureau ("Bureau") staff issued a
letter of inquiry to Emmis, licensee of the station involved. In its
response to the staff's inquiry, Emmis stated that it had neither a tape
nor a transcript and could not determine whether the alleged material
actually aired. Emmis does not deny that the material aired as stated in
the complaints.

3\. On April 6, 2001, the Bureau issued a Notice of Apparent Liability
("NAL"),[^1] which found that the material apparently violated the
Commission's indecency rule. To redress the apparent rule violations, we
concluded that a monetary sanction in the base forfeiture amount of
\$7,000 appeared appropriate with respect to each broadcast.
Accordingly, the NAL proposed a forfeiture of \$14,000.

4\. Emmis challenges the NAL's findings. Emmis argues that the factual
record is inadequate because it lacks objective evidence as to what was
actually broadcast. Emmis notes that the complaints do not include a
tape or transcript, and it contends that the information actually
provided can only be characterized as a summary or brief description.
Emmis argues that the complaint's descriptions contain even less detail
and context than the majority of the segments appearing in the
Commission's indecency guidelines,[^2] which, as Emmis notes, the
Commission "intended only as a research tool" and not as a "meaningful
selection of words and phrases to be evaluated for indecency purposes
without the fuller context that the tapes or transcripts provide."
*Indecency Policy Statement, supra,* 16 FCC Rcd at 8003 ¶ 11. Emmis
concludes that our finding of apparent liability, based on the
complainant's characterizations, has effectively shifted the burden of
proof to the licensee, contrary to the Administrative Procedure Act and
due process. In light of the above, Emmis requests cancellation of the
forfeiture.

**III. DISCUSSION**

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

6\. 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.[^8] 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.[^9]

7\. 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. *Indecency Policy
Statement*, *supra*, 16 FCC Rcd 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.

8\. In the NAL, we found that the material allegedly aired was
apparently indecent. With respect to the March 20, 2000 broadcast, based
on the uncontradicted facts set forth in the complaint, the *Mancow*
program featured a telephone conversation with a porn star. The program
talked in graphic detail about "fisting," which, according to the
complainant, the porn star described as a procedure by which a female is
sexually gratified by having an entire hand inserted into her sexual
organ. With respect to the May 15, 2000 broadcast, the *Mancow* program
featured interviews with three women about their sex lives. The
interviewer asked each woman (and each answered) whether she "spit or
swallowed" her partner's sperm. During the questions and answers, the
station played in the background sounds of women moaning.

9\. There is no question that the material broadcast referred to sexual
activities and that it aired between 6 a.m. and 10 p.m. As discussed
below, the uncontradicted excerpts and descriptions provided by the
complainant lead us to conclude that both broadcasts violated the
Commission's indecency rule.

10\. [March 20, 2000 broadcast]{.underline}. With respect to the key
factors set out in the *Indecency Policy Statement*, we conclude that
the language aired was sufficiently graphic or explicit to meet the
patently offensive standard. The complainant's unchallenged assertions
reflect that the station aired a telephone conversation with a porn
star; that the show talked in graphic detail about "fisting;" and that
the porn star described "fisting" as noted above. The information
provided makes plain that the activity described left nothing to the
imagination as to how the people involved interacted and that the
purpose of such interaction was sexual gratification. With regard to the
second factor, we further conclude that we have sufficient information
to determine that the material broadcast dwelled on the sexual activity
identified as "fisting" as opposed to being a mere fleeting reference.
Again, the information before us reveals that the activity was not
merely adverted to, but described in such detail that one knew exactly
not only what "fisting" was but what it was intended to do. Finally,
there is nothing in the record that suggests that the context of the
program was educational.[^10] Indeed, the fact that a porn star was
involved suggests that the material was pandering, titillating and/or
presented for shock value. We thus conclude that Emmis' March 20, 2000
broadcast included indecent material in violation of our rules. *See
Citicasters Co. (KEGL(FM))*, 16 FCC Rcd 7546 (Enforcement Bureau 2001)
(interviews with porn stars); *Citicasters Co. (KSJO(FM))*, 15 FCC Rcd
19095, 19096 (Enforcement Bureau 2000); *Regent Licensee of Flagstaff,
Inc. (KZGL(FM))*, 15 FCC Rcd 17286 (Enforcement Bureau 2000).

11\. [May 15, 2000 broadcast]{.underline}. Again, the complainant's
assertions are unchallenged. They reflect that the station broadcast
interviews with three women about their sex lives. The interviews
included conversations about oral sex. The interviewer asked each woman
whether she "spit or swallowed" her partner's sperm after engaging in
oral sex. During the segment in which the women were asked whether they
spit or swallowed, the station played sounds of women moaning in the
background. In light of the direct and plain nature of the questions
asked and answers provided, we conclude that the material broadcast was
sufficiently graphic or explicit to meet the patently offensive
standard. Likewise, considering that the station posed the question
about spitting or swallowing to three different women, we further
conclude that the material was repeated and not fleeting in nature.
Finally, in light of the subject matter, the specific question posed,
and the accompanying sound effects, we find that the material was meant
to pander or titillate. We thus conclude that Emmis' May 15, 2000
broadcast included indecent material in violation of our rules. *See
Citicasters Co. (KEGL(FM))*, *supra* (conversation with female regarding
her methods and frequency of masturbation); *Citicasters Co.
(KSJO(FM))*, *supra*.

12\. As noted above, Emmis contends that the NAL is based on an
inadequate factual record because the complainant did not, in either
case, submit a tape, transcript or significant excerpt. We disagree,
finding that the excerpts are significant enough, when viewed in
combination with the descriptions provided by the complainant and the
lack of contradiction by Emmis, to be consistent with our practice. In
any event, "our practice that complainants provide a tape, transcript or
significant excerpt is not a requirement, but a general practice used by
the Commission to assist in the evaluation of indecency complaints."
*Infinity Broadcasting Corporation of Los Angeles (KROQ-FM)*, 16 FCC Rcd
6867, 6870 ¶ 11 (Enforcement Bureau 2001). We base our decision to
investigate on whether the complainant provided sufficient information
for us to determine that the station may have broadcast indecent
material contrary to the Commission's rule. We base our decision to
impose a forfeiture on whether the record as a whole contains sufficient
excerpts and description to support a finding that a violation occurred.
As explained above, the complainant provided the dates and times of the
broadcasts, the call sign of the station, and sufficient detail and
context about what was broadcast to determine that Emmis broadcast
prohibited indecent material.[^11] Emmis submitted no evidence to rebut
the complainant's allegations. We therefore reject Emmis' contention
that the record is inadequate. For the same reasons, we reject its
contention that our action is contrary to the Administrative Procedure
Act or due process. We have based our decision on the information
provided by both the complainant and Emmis, a procedure that is
consistent with 47 U.S.C. § 503(b) and 47 C.F.R. §1.80. Should Emmis
choose not to pay the forfeiture, 47 U.S.C. § 504 protects its rights by
providing that a forfeiture imposed without an evidentiary hearing
cannot be used to the prejudice of that entity unless a court of
competent jurisdiction has issued a final order after a trial *de novo*
requiring payment of the forfeiture. *See* *Infinity Broadcasting
Corporation of Los Angeles (KROQ-FM)*, *supra*, 16 FCC Rcd at 6869.

13\. 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 "willfully" means that the
violator knew that it was taking the action in question, irrespective of
any intent to violate the Commission's rules, while "repeatedly" means
more than once.[^12] 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.[^13]

14\. The Commission's *Forfeiture Guidelines* set a base forfeiture
amount of \$7,000 for transmission of indecent/obscene materials.[^14]
After considering all the facts and circumstances, we conclude that 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**

15\. 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 FORFEIT to the United States the sum of fourteen thousand
dollars (\$14,000) for willfully and repeatedly violating 18 U.S.C. §
1464 and 47 C.F.R. § 73.3999.

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, within thirty (30) days of the release of this Forfeiture
Order. *See* 47 C.F.R. § 1.80(h). The payment MUST INCLUDE the FCC
Registration Number (FRN) referenced above, and also should note the
NAL/Acct. No. referenced above. If the forfeiture is not paid within
that time, the case may be referred to the Department of Justice for
collection pursuant to 47 U.S.C. § 504(a).

17\. IT IS FURTHER ORDERED THAT a copy of this FORFEITURE ORDER shall be
sent by Certified Mail Return Receipt Requested to Emmis FM License
Corp. of Chicago, c/o Doyle L. Rose, President, Emmis Radio, 15821
Ventura Blvd., Suite 685, Encino, California

91436-29155; 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]: *Emmis FM License Corp. of Chicago*, Notice of Apparent Liability,
    16 FCC Rcd 7829 (Enforcement Bureau 2001).

[^2]: *See Industry Guidance on the Commission's Case Law Interpreting
    18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast
    Indecency*, 16 FCC Rcd 7999 (2001) ("*Indecency Policy Statement*").

[^3]: *See Miller v. California*, 413 U.S. 15 (1973), *rehearing
    denied*, 414 U.S. 881 (1973); *Sable Communications of California,
    Inc. v. FCC*, 492 U.S. 115 (1989).

[^4]: *Sable Communications of California, Inc. v. FCC, supra* note 3,
    492 U.S. at 126.

[^5]: *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*").

[^6]: *ACT I*, *supra* note 5, 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).

[^7]: Public Telecommunications Act of 1992, Pub. L. No. 356, 102^nd^
    Cong., 2^nd^ Sess. (1992); *ACT III, supra* note 5*.*

[^8]: In *FCC v. Pacifica Foundation,* the Court quoted the Commission's
    definition of indecency with apparent approval. *FCC v. Pacifica
    Foundation*, *supra* note 5, 438 U.S. at 732. In addition, the D.C.
    Circuit Court of Appeals upheld the definition against
    constitutional challenges. *ACT I*, *supra* note 5, 852 F.2d at
    1339; *ACT II, supra* note 5, 932 F.2d at 1508; *ACT III, supra*
    note 5, 58 F.3d at 657.

[^9]: *ACT III,* *supra* note 5.

[^10]: *See Indecency Policy Statement*, *supra*, 16 FCC Rcd at 8012
    (Letter from Chief, Complaints and Investigations Branch,
    Enforcement Division, Mass Media Bureau, to Gerald P. McAtee, dated
    October 26, 1989, concerning the "Geraldo Rivera Show" (Unlocking
    the Great Mysteries of Sex) on KTVI-TV, St. Louis, Missouri).

[^11]: *See* *Infinity Broadcasting Corporation of Los Angeles
    (KROQ-FM)*, *supra*, 16 FCC Rcd at 6868 (accepting a complainant's
    *uncontradicted* statement that she heard certain words as probative
    evidence that a particular version of a song was played).

[^12]: *See* *Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^13]: 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*").

[^14]: *Forfeiture Guidelines*, *supra* note 13, 12 FCC Rcd at 17113.