**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-01-IH-0121       |
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| Emmis Radio License Corporation  | ) | NAL/Acct. No. 200232080014   |
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| Licensee of Station WKQX(FM),    | * | FRN 0001-5293-46             |
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| Chicago, Illinois                | * | Facility ID \# 19525         |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** June 27, 2002 **Released:** June 28, 2002

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    that Emmis Radio License Corporation ("Emmis"), licensee of Station
    WKQX(FM), Chicago, Illinois, apparently violated 18 U.S.C. § 1464
    and 47 C.F.R. § 73.3999, by willfully broadcasting indecent
    language. Based upon our review of the facts and circumstances in
    this case, we conclude that Emmis is apparently liable for a
    forfeiture in the amount of seven thousand dollars (\$7,000).

    **II. BACKGROUND**

2.  The Commission received a complaint that WKQX(FM) broadcast indecent
    material on March 12, 2001 between 8:00 a.m. and 8:10 a.m. during
    the "*Mancow's Morning Madhouse*" ("*Mancow")* program.[^1] The
    complainant submitted a tape of the *Mancow* program containing the
    allegedly indecent material broadcast. After reviewing the
    complainant's tape, we issued a letter of inquiry to the licensee
    that included a transcript of the tape submitted by the complainant.
    *See* Attachment.

3.  In its response, Emmis states that WKQX(FM) does not routinely
    archive tapes or transcripts of its broadcasts and did not retain
    tapes or transcripts of the programming aired on March 12, 2001.
    Accordingly, Emmis states that it cannot verify the accuracy of the
    transcript. Nevertheless, Emmis argues that even assuming the
    accuracy of the transcript, the programming at issue is not
    actionably indecent.

    **III. DISCUSSION**

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

5.  In enforcing its indecency rule, the Commission has defined indecent
    speech as language that first, in context, depicts or describes
    sexual or excretory organs or activities. Second, the broadcast must
    be "patently offensive as measured by contemporary community
    standards for the broadcast medium." *Infinity Broadcasting
    Corporation of Pennsylvania*, 2 FCC Rcd 2705 (1987) (subsequent
    history omitted) (*citing* *Pacifica Foundation*, 56 FCC 2d 94, 98
    (1975), *aff'd sub nom*. *FCC v. Pacifica Foundation*, 438 U.S. 726
    (1978)). This definition has been specifically upheld by the federal
    courts.[^7] The Commission's authority to restrict the broadcast of
    indecent material extends to times when there is a reasonable risk
    that children may be in the audience. *ACT I, supra*. As noted
    above, current law holds that such times begin at 6 a.m. and
    conclude at 10 p.m.[^8]

6.  The Commission's indecency enforcement is based on complaints from
    the public. Once a complaint is before the Commission, we evaluate
    the facts of the particular case and apply the standards developed
    through Commission case law and upheld by the courts. *See Industry
    Guidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464
    and Enforcement Policies Regarding Broadcast Indecency* ("
    *Indecency Policy Statement*"), 16 FCC Rcd 7999 at 8015, ¶ 24.
    "Given the sensitive nature of these cases and the critical role of
    context in an indecency determination, it is important that the
    Commission be afforded as full a record as possible to evaluate
    allegations of indecent programming." *Id*. In evaluating the record
    to determine whether the complained of material is patently
    offensive, three factors are particularly relevant: (1) the
    explicitness or graphic nature of the description; (2) whether the
    material dwells on or repeats at length descriptions of sexual or
    excretory organs or activities; and (3) whether the material appears
    to pander or is used to titillate or shock. *See* *Indecency Policy
    Statement*, *supra*, 16 FCC Rcd at 8003 ¶ 10.

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

8.  The first key factor concerns whether the material is explicit or
    graphic. The lyrics of "Smell My Finger" contain explicit and
    graphic sexual references, including references to fellatio, female
    genitalia, ejaculation and manual stimulation of the female
    genitalia. The song's sexual import is lewd, inescapable and
    understandable.[^9] The song, in context, has a sexual meaning that
    is unmistakable and is similar to other material found to have
    clearly understandable sexual references and to meet the definition
    of broadcast indecency.[^10] Moreover, under the second key factor,
    we find that the sexual references in "Smell My Finger" are
    repeated.

9.  Under the third key factor of the *Indecency Policy Statement*, the
    material broadcast on WKQX(FM), in context, appears to have been
    used to pander to and titillate the audience and is similar to other
    material that has been found to be patently offensive.[^11] In this
    regard, we reject Emmis's argument that this material is not
    patently offensive as measured by contemporary community standards.
    Emmis contends that "WKQX has been airing '*Mancow's Morning
    Madhouse'* since July of 1998, and had received no inquiries from
    the Commission concerning the program's content until late last
    year." Emmis also asserts that the complaints about the *Mancow*
    program, including the complaint at issue here, were initiated by a
    single individual or group whose standards do not accurately reflect
    those of the national community as a whole. The identity of the
    complainant and whether the complainant here is the source of other
    complaints about the *Mancow* program is not material to our
    determination under the factors set out in the *Indecency Policy
    Statement*. The purpose of using "contemporary community standards"
    is to ensure that material is not judged by its effect on a
    particularly sensitive or insensitive person or group.[^12] In this
    regard, looking to a national community standard that references the
    average broadcast listener, we find that the material broadcast on
    WKQX(FM), in context, is patently offensive.[^13] Emmis does not
    dispute that the complained of material was broadcast when there was
    a reasonable risk that children may have been in the audience. By
    broadcasting this material, WKQX(FM) apparently violated the
    prohibitions against broadcast indecency.

10. 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.[^14] Based on the material before us, it appears that Emmis
    willfully violated 18 U.S.C. § 1464 and section 73.3999 of the
    Commission's rules, by airing indecent programming on WKQX(FM) on
    March 12, 2001.

11. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent/obscene
    materials.[^15] 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."[^16] After reviewing all of the circumstances, we
    believe a \$7,000 forfeiture is appropriate in this case for the
    apparent broadcast of indecent material.

    **IV. ORDERING CLAUSES**

12. 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,[^17] that Emmis Radio License
    Corporation is hereby NOTIFIED of its APPARENT LIABILITY FOR
    FORFEITURE in the amount of seven thousand dollars (\$7,000) for
    willfully violating 18 U.S.C. § 1464 and section 73.3999 of the
    Commission's rules.

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

14. 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.

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

16. 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.

17. 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.[^18]

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

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

**ATTACHMENT**

EB-01-IH-0121

Radio Station: WKQX(FM), Chicago, Illinois

Date/Time Broadcast: March 12, 2001, between 8:05 a.m and 8:10 a.m.

Material Broadcast: Mancow's Morning Madhouse

M: Mancow

MV: Male Cast Member

MV2: Male Cast Member

MV3: Male Voice

MR: Male Rapper

MR2: Second Male Rapper

MR3: Third Male Rapper

FV: Female Cast Member

MV3: This is Kobey Dick and we're from Buffa (?) Roach.

MV2: You're listening to Mancow's Morning Madhouse on the Free Speech
Radio Network.

MV3: Piss off. Eat a bowl of fu (bleep).

\[Song: "Smell My Finger" \]

MR: I've never been bashful, shy, sheepish or chivalrous when asking a
lady to give me a kiss. So when she lifted up her skirt, I didn't ask
what is this.

MR: Her box had some cheese so I nicknamed her Swiss. And so like
Magellan I began to explore. Like Vasco DeGama I cleared the cape and
went for more. Like Columbus I got lost but still managed to score. Like
Ponce DeLeon I found the fountain in her core. \[Unintelligible\] Like
Captain Cook I unearthed her buried treasure. My shot was on target like
Jesse James the gun slinger. You need proof? Make like Sherlock Holmes
and smell my finger.

Chorus: Smell my finger. Smell my finger. Smell my finger.

MR: Smell my finger. Smell that stank finger ya'all. \[female making
moaning sounds\].

MR2: I like the super models with the low self-esteem, who wear the
tight jeans covering up the g-strings. Tall lanky chicks who grow out
their bangs. They only eat lettuce. They belong to the machine gangs. I
take her to dinner, I buy her some roses and then I part her legs like
the Red Sea cuz I am Moses. We smoke the ganja. We drink from a flask.
Oops, I left her a gift on her mud mask. Will you chill with super model
dead ringers? Get ready. Folks come from all over to smell your fingers.
\[female making moaning noises\]

Chorus: Smell my finger. Smell my finger. Smell my finger.

MR3: She was definitely young but she was old enough to know what God
had given her a tongue. She got a rock hard body like a statue from
Greece. I didn't catch her name. I don't \[unintelligible\] when I can
reach. She lifted up her skirt when she found I was a rap singer. You
don't believe me go ahead and smell the finger.

Chorus: Smell my finger. Smell my finger. Smell my finger.

MR3: Smell, baby. Inhale.

Chorus: Smell my finger. Smell my finger. Smell my finger.

MR3: Check the smell, baby. Smell my fingers, just don't smell my thumb.
What's that underneath my fingernails?

\[Song fades\]

FV: I don't like that song Mancow.

M: Why?

FV: Because it's horrible, please.

M: Really? \[unintelligible comment by Mancow\].

FV: Yeah.

M: Anyone notice, whoever thinks it's funny, and I imagine it's Turd.
Smell my finger don't smell my thumb. I like that lyric. That's a new
group called "No Time." I don't know if it's in stores or not...

MV: Yeah, it'll be gone in no time...

M: Yeah, there you go. Ah, No Time...

MV: Should have smelled \[unintelligible\] leg.

M: Oh, with your wife?

FV: Oh, geeze...

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

[^1]: The complainant also referenced an excerpt of the *Mancow* program
    from the March 12, 2001 broadcast in which the program's host offers
    a reward for the killing of an incarcerated pedophile. The
    complainant asks the Commission to determine whether the host's
    remarks warrant criminal charges. Such a determination is outside
    the Commission's regulatory jurisdiction, and is a matter for local
    law enforcement authorities.

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

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

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

[^5]: *ACT I, supra* note 4, 852 F.2d at 1344 ("Broadcast material that
    is indecent but not obscene is protected by the first amendment; the
    FCC may regulate such material only with due respect for the high
    value our Constitution places on freedom and choice in what people
    say and hear."). *See also United States v. Playboy Entertainment
    Group, Inc.*, 529 U.S. 803, 813-15 (2000).

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

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

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

[^9]: *See WQAM License Limited Partnership,* 15 FCC Rcd 1475 (1999),
    *aff'd* 15 FCC Rcd 2518 (2000), *recon. denied* 15 FCC Rcd 12549
    (2000).

[^10]: *See, e.g.,WQAM License Limited Partnership, supra* note 9
    (sexual references in the song "Uterus Guy"); *KGB, Inc., (KGB-FM),*
    7 FCC Rcd 3207 (1992), *forfeiture reduced* 13 FCC Rcd 16396
    (1998)("Candy Wrapper" song, which includes lyrics such as "my
    Butterfinger went up her tight little Kit Kat"). *See also Great
    American Television and Radio Company, Inc. (WFBQ(FM)/WNDE(AM))*, 6
    FCC Rcd 3692, 3693 (MMB 1990); *WIOD, Inc. (WIOD(AM))*, 6 FCC Rcd
    3704 (MMB 1989).

[^11]: *See* note 10, *supra*.

[^12]: *Infinity Broadcasting Corporation of Pennsylvania (WYSPFM)),* 3
    FCC Rcd 930, 932 (1987)(subsequent history omitted) *citing Hamling
    v. United States*, 418 U.S. 87, 107 (1974).

[^13]: *See, e.g., WQAM License Limited Partnership (WQAM(AM)),* 15 FCC
    Rcd 2518, 2520 (2000)(explaining that the Commission uses its
    expertise to apply a national community standard that references the
    average broadcast viewer or listener). *See also, Indecency Policy
    Statement,* 16 FCC Rcd at 8002 note 15.

[^14]: *See Southern California Broadcasting Co*., 6 FCC Rcd 4387
    (1991).

[^15]: *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).

[^16]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17110.

[^17]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.

[^18]: *See* 47 C.F.R. § 1.1914.