**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

WQAM License Limited Partnership )

)

Licensee, WQAM(AM) ) File No. 918 ED 030

Miami, Florida )

Facility ID \# 64002 )

)

For a Forfeiture )

**FORFEITURE ORDER**

**Adopted:** January 24, 2000 **Released:** January 28, 2000

By the Commission:

1\. In this Order, we impose a forfeiture of \$35,000 on WQAM License
Limited Partnership ("licensee"), licensee of Station WQAM(AM), Miami,
Florida, for willful and repeated violations of 18 U.S.C. Section 1464,
which prohibits the broadcast of indecent material.[^1] This action is
taken pursuant to Sections 312(a)(6) and 503(b) of the Communications
Act of 1934, as amended, 47 U.S.C. Sections 312(a)(6) and 503(b), and
Section 1.80(f)(4) of the Commission's Rules, 47 C.F.R. Section
1.80(f)(4).

2\. By [Notice of Apparent Liability]{.underline} ("[NAL]{.underline}"),
FCC 99-187, released July 22, 1999, we determined that certain material
apparently broadcast over WQAM on five days in May 1998 was indecent.
Inasmuch as the material was apparently aired between the hours of 10
a.m. and 2 p.m., we concluded that the broadcasts occurred at a time
when there was a reasonable risk that children might be in the audience.
*See* Section 73.3999 of the Commission's Rules, 47 C.F.R. Section
73.3999. After considering the circumstances in light of our forfeiture
guidelines,[^2] which provide a base forfeiture for indecency of
\$7,000, we proposed a forfeiture of \$35,000 for the five days of
indecent broadcasts. The licensee has submitted a response, which we
address below.

3\. Initially, the licensee argues that our definition of indecency[^3]
is unconstitutionally vague. The licensee notes that in [Reno v.
ACLU]{.underline}, 521 U.S. 844 (1997), the Supreme Court struck down an
indecency standard for the Internet, which is similar to the one we use
for broadcasting. However, in so doing, the Court did not question the
constitutionality of our broadcast indecency standard. Instead, the
Court indicated that our broadcast indecency regulations were justified
because of the significant differences between the Internet and the
broadcast medium and between the standard employed in the statute under
attack and our broadcast indecency standard. [Id]{.underline}. at
868-70.

4\. Next, the licensee complains that the manner in which the Commission
has implemented indecency regulation is constitutionally suspect. In
this regard, the licensee notes that the Commission has not published
"industry guidance" relating to broadcast indecency, and it argues that
the Commission's failure to so act renders unreasonable any expectation
that licensees can know where to "draw the line." We disagree. Our
definition of indecency has remained unchanged for years, and in
rulemaking proceedings as well as in the context of specific rulings, we
have amply illustrated what broadcasters may and may not do. That these
rulings are not all in one place does not render constitutionally vague
the definition of indecency or the Commission's specific applications of
the definition.

5\. With respect to the particular material cited in the
[NAL]{.underline}, the licensee contends that the Commission's staff
previously dismissed a complaint based on one of the segments \-- a song
parody inspired by an interview of a Miami Dolphins football player \--
that the [NAL]{.underline} found to be indecent. The licensee argues
that, in light of the earlier action, the [NAL]{.underline}'s
determination regarding the May 22, 1998, broadcast confirms the
arbitrariness of the Commission's indecency enforcement scheme. We
disagree. A comparison of the two broadcasts indicates that the one
found not actionably indecent had significant portions "bleeped" out,
whereas the segment aired on WQAM on May 22, 1998, audibly included the
patently offensive references to sexual activities (fellatio) and
excretory activities. In our view, the differences are significant
enough to justify contrary enforcement outcomes.

6\. The licensee also claims that prior Commission rulings have found
that material virtually identical to that aired on WQAM was not
actionably indecent. Citing [Infinity Broadcasting Corporation of
Pennsylvania]{.underline}, 3 FCC Rcd 930 (1987)
("[Infinity]{.underline}"), the licensee contends that a forfeiture is
inappropriate because such rulings could have led the licensee to
conclude that its broadcasts were permissible. Specifically, the
licensee points to other material "found nonactionable by the
Commission," (Response at p. 19) including material from the "Neil
Rogers Show." *See* [Mr. Michael J. Flaherty]{.underline}, 6 FCC Rcd
3704 (MMB 1989). Among other things, the licensee points to two examples
where the staff concluded that the material allegedly broadcast was not
actionably indecent. The first concerned erections and fantasy
scenarios, while the second contained a song parody alluding to the
subject of oral sex. In addition, the licensee provides numerous other
examples of program material, both from radio and television, which were
not found indecent by the staff. In the licensee's opinion, the cited
material is indistinguishable in character from the excerpts cited in
the [NAL]{.underline}.

7\. At the time of the [Infinity]{.underline} decision, the Commission
had not yet built up a body of case law under the new enforcement
standard announced in 1987.[^4] Accordingly, it did not initiate a
forfeiture proceeding for indecency in that case. Since then, a body of
case law has been developed.[^5] Furthermore, as explained in
[Infinity]{.underline},[^6] indecency determinations are contextual and
thus are necessarily fact intensive. They require consideration of such
factors as whether the material is explicitly graphic, whether the
material dwells on or repeats at length the sexual or excretory organs
or activities, whether the material appears to pander or titillate, and
whether the material appears to have been broadcast for shock value.
Moreover, we note that, in addition to concluding that certain
complained of material did not "establish a basis for Commission
action," [Flaherty]{.underline} found five different program segments
from a "Neil Rogers Show" to be indecent. Like the broadcast excerpts
cited in the [NAL]{.underline}, the broadcast excerpts from the "Neil
Rogers Show" cited in [Flaherty]{.underline} referenced sexual
activities in a patently offensive manner through the use of songs, some
of which were apparently original and one of which was apparently a
parody of an existing song. If anything, the excerpts cited in
[Infinity]{.underline} and [Flaherty]{.underline} should have provided
ample notice to the licensee as to what material would be considered
indecent. Notwithstanding those determinations, the licensee chose to
broadcast the segments cited in the [NAL]{.underline}. We therefore
conclude that the licensee, unlike those affected in the
[Infinity]{.underline} decision, did not establish that it had a basis
for believing that its programming was not indecent.

8\. The licensee next argues that, in any event, the excerpts cited in
the [NAL]{.underline} were not indecent. In this regard, the licensee
first contends that the material for which it is cited is "oblique" and
that the sexual import of the cited material is not inescapable. We
disagree. The material broadcast on May 20, 1998, consists of a song
"Uterus Guy," which is unmistakably about oral sex. The song's sexual
import is lewd, inescapable and understandable. The May 21 broadcast
consists of a parody of the song "New York, New York." The parody's tag
line, "Let's pork," considered in conjunction with the rest of the
material, is a lewd, inescapable reference to sexual intercourse. The
May 22 broadcast consists of a parody of the song, "The Girl from
Ipanema," and includes the interview of the Miami Dolphins football
player discussed above. The May 25 broadcast consists of a song focusing
on anal sex. The song is lewd, and the sexual reference is inescapable
and unmistakable. Finally, the May 26 segment consists of a telephone
conversation discussing anal sex and, specifically, how a male can avoid
having his penis dirtied by his partner's feces. In short, we conclude
that each of the cited segments contains material, which, in context,
depicts or describes, in patently offensive terms, sexual or excretory
activities or organs.

9\. Finally, the licensee attacks our indecency conclusion because, it
believes, the material would not be considered patently offensive under
contemporary community standards for the broadcast medium. The licensee
contends that the Commission has never explained the precise methodology
by which it measures such contemporary standards, and it argues that, in
any event, the contemporary standards concept is not static. In this
regard, the licensee asserts that the standard has evolved as a
consequence of discussions, analyses and jokes resulting from the sex
scandal involving the President. As a consequence, the licensee argues,
the broadcast medium has aired a great deal of material that is sexually
graphic, and these broadcasts must be considered in evaluating the "Neil
Rogers Show."[^7] With respect to contemporary community standards for
the broadcast medium, we explained in [Infinity]{.underline}, that we
would judge such standards "by the standard of an average broadcast
viewer or listener.... In making the required determination of
indecency, Commissioners draw on their knowledge of the views of the
average viewer or listener, as well as their general expertise in
broadcast matters." [^8] Applying such knowledge to the broadcasts at
issue, we reaffirm our determination that they are patently offensive.

10\. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act, 47 U.S.C. Section 503(b), and Section 1.80(f)(4) of
the Commission's Rules, 47 C.F.R. Section 1.80(f)(4), that WQAM License
Limited Partnership, licensee of Station WQAM, Miami, Florida, FORFEIT
to the United States the sum of \$35,000 (thirty-five thousand dollars)
for willful and repeated violations of 18 U.S.C. Section 1464.[^9]

11\. IT IS FURTHER ORDERED that a copy of this Forfeiture Order be sent
by Certified Mail/Return Receipt Requested to counsel for the licensee,
Leventhal, Senter & Lerman, P.L.L.C., Attention: Steven A. Lerman,
Esquire, 2000 K Street, N.W., Suite 600, Washington, D.C. 20006-1809.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: 18 U.S.C. § 1464 provides: "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."

[^2]: [Amendment of Part 1 -- Forfeiture Guidelines]{.underline}, 12 FCC
    Rcd 17087 (1997), *recon. denied*, FCC 99-407, released December 28,
    1999.

[^3]: ^?^ Indecent material is that, which, in context, depicts or
    describes, in terms patently offensive as measured by contemporary
    community standards for the broadcast medium, sexual or excretory
    activities or organs. *See* [Infinity Broadcasting Corporation of
    Pennsylvania]{.underline}, 2 FCC Rcd 2705 (1987).

[^4]: *See* [Public Notice]{.underline}, 2 FCC Rcd 2726 (1987).

[^5]: ^?^ *E.g*., [Infinity Broadcasting Corporation]{.underline}, 9 FCC
    Rcd 6442 (1994); [The Rusk Corporation]{.underline}, 8 FCC Rcd 3228
    (1993); [Pacifica and Southern Company, Inc., (KSD-FM)]{.underline},
    6 FCC Rcd 3689 (MMB 1990); [Great American Television
    (WFBQ(FM))]{.underline}, 6 FCC Rcd 3692 (MMB 1990); [Legacy
    Broadcasting of Detroit, Inc. (WLLZ-FM)]{.underline}, 6 FCC Rcd 3698
    (MMB 1989).

[^6]: ^?^ 3 FCC Rcd at 931-32.

[^7]: In furtherance of its point, the licensee lists more than 35
    sexually-oriented topics that have been broadcast on television
    between 1991 and the present. The licensee also contends that Neil
    Rogers has been a fixture in Miami radio for over 20 years, and it
    asserts that he is "easily the most popular local radio figure in
    Miami." The licensee further observes that Mr. Rogers' popularity in
    Miami should be contrasted with the relative dearth of listener
    complaints about his show. With respect to the assertion that
    sexually-oriented topics have frequently appeared on television, we
    note that discussions of sexual matters or relationships is not now
    and never has been *per se* prohibited. What is subject to sanction
    is the broadcast of indecent material. As to the latter assertions,
    we find it sufficient to observe that a show's general popularity
    cannot insulate it from a determination that certain material it
    broadcast was indecent.

[^8]: [Infinity]{.underline}, 3 FCC Rcd at 933.

[^9]: ^?^ Payment of the forfeiture may be made by credit card through
    the Commission's Credit and Debt Management Center at (202) 418-1995
    or by mailing a check or similar instrument, payable to the order of
    the Federal Communications Commission, to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should note the file number referenced above.