Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Nos. EB-00-IH-0412;     |
|                                  | * | EB-01-IH-0027                |
| Infinity Broadcasting            | ) |                              |
| Operations, Inc.                 | * | NAL/Acct. No. 200032080012   |
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| Licensee of Station WNEW(FM),    |   | FRN 0003-4760-74             |
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| New York, New York               | * | Facility ID \# 25442         |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** June 6, 2002 **Released:** June 7, 2002

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    that Infinity Broadcasting Operations, Inc., ("Infinity"), licensee
    of Station WNEW(FM), New York, New York, apparently violated 18
    U.S.C. § 1464 and 47 C.F.R. § 73.3999, by willfully and repeatedly
    broadcasting indecent language on three occasions. 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-one thousand dollars (\$21,000).

    **II. BACKGROUND**

2.  The Commission received two complaints alleging that WNEW(FM)
    broadcast indecent material during the "Opie and Anthony Show," a
    show that is regularly scheduled to air on weekdays from 3 p.m. to 7
    p.m. The first complaint cited material that aired on November 15,
    2000 and November 16, 2000. The complainant provided tapes with
    various portions of the show. A song entitled "Teen Week" was aired
    during one segment of the November 15, 2000 "Opie and Anthony Show."
    "Teen Week" consisted of lines of dialogue with a musical
    background. A portion of the song follows:

    Young girl's voice\-- YV

    Dad\-- D

    \*\*\*

    YV: Daddy, can I come too? Can I come too? Daddy, it won't fit in my
    mouth.

    D: Just keep sucking

    YV: I almost choked on your creamy head

    I almost choked on your creamy head

    Mommy, mommy doesn't have to know

    D: Who's daddy's little girl.

    YV: I'm your little whore.

    D: Who's daddy's little girl.

    YV: I'm your little whore/

    Daddy, show me your monkey...

3.  In a segment of the "Opie and Anthony Show" broadcast on November
    16, 2000, the show hosts asked a seventeen-year-old girl to remove
    her panties and rub the telephone on her pubic hair. The show hosts
    called the game, "Teen Guess What's In My Pants?" The show hosts
    gave detailed instructions regarding how to rub the telephone across
    the girl's pubic area. After each direction from the host, the
    station broadcast the sound of the telephone rubbing across the
    girl's pubic area.

4.  The second complaint includes excerpts from a song allegedly
    broadcast on the January 8, 2001 "Opie and Anthony Show." The
    excerpts were lyrics sung by a man who is "horny for little girls,"
    liked girls between the ages of two and three, liked the girls'
    "round butts" and "liked to ram them." After reviewing these
    complaints, we issued letters of inquiry to the licensee. The letter
    of inquiry concerning the November 15, 2000 and November 16, 2000
    "Opie and Anthony Show" included a transcript of portions of the
    tapes submitted by the complainant. *See* Attachment.[^1]

5.  Infinity submitted responses to the letters of inquiry, and, with
    respect to the November 2000 broadcasts, states that WNEW (FM) does
    not have its own recording of the allegedly indecent broadcasts and
    thus has no knowledge if the actual broadcast was materially
    different from the transcript.[^2] Infinity argues that even if the
    transcript accurately reflects material broadcast on the "Opie and
    Anthony Show," the material is not actionably indecent.

6.  With respect to the January 8, 2001 broadcast, Infinity acknowledges
    that "sometime during the early part of 2001, it broadcast material
    on the 'Opie and Anthony Show' relating to the general subject
    matter cited in the complaint."[^3] However, Infinity states that
    WNEW(FM) does not have a recording of the broadcast, and therefore
    cannot determine whether the specific material described in the
    complaint represents an accurate description of what was broadcast.
    Infinity argues that because it is not possible to establish what
    was actually broadcast, this complaint must be dismissed.

    **III. DISCUSSION**

7.  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.[^4] In contrast, federal
    courts have held that indecent speech is protected by the First
    Amendment.[^5] 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.[^6] However, the First Amendment is a
    critical constitutional limitation that demands we proceed
    cautiously and with appropriate restraint.[^7] Consistent with a
    subsequent statute and case law,[^8] 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.

8.  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.[^9]
    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.[^10]

9.  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.

10. The complained of material broadcast on the "Opie and Anthony Show,"
    in context, refers to sexual activity. Thus, this material warrants
    scrutiny in order to determine whether it is patently offensive. We
    find that two of the excerpts broadcast on November 15 and 16, 2000
    and the material broadcast on January 8, 2001 appear to be patently
    offensive.

11. The inquiry under the first key factor relevant to a determination
    of patent offensiveness is whether the sexual references are graphic
    or explicit. Infinity argues that the "Teen Week" song broadcast on
    November 15, 2000 is a mix of random lines of dialogue from the
    "Opie and Anthony Show," popular culture, politics and other
    sources, consisting of oblique sexual references which would not be
    inescapably understood by a child. Although the mix broadcast on
    WNEW (FM) was constructed of lines of dialogue that may not have
    originally described sexual activities, the mix as aired inescapably
    refers to oral sex between a daughter and her father and other
    sexual activities. The Commission has found similar language to be
    indecent when used in a context where the sexual import is
    inescapable*. See, e.g., The Rusk Corporation (KLOL(FM)),* 8 FCC Rcd
    3228 (1993).[^11]

12. Moreover, the segment "Teen Guess What's In My Pants?" broadcast on
    November 16, 2000 explicitly described and broadcast the sound of a
    telephone rubbing over a seventeen-year-old girl's pubic area. A
    broadcast of the sound that a telephone makes when rubbed across a
    teenager's pubic area epitomizes the type of explicit and graphic
    depiction of sexual organs and activities contemplated by the
    Commission's definition. The Commission has found similar
    programming indecent. *See, e.g.*, *Citicasters, Co. (WXTB (FM)),*
    13 FCC Rcd 15381 (MMB 1998)(forfeiture paid); *see also Indecency
    Policy Statement*, *supra*, 16 FCC Rcd at 8010-11 ¶ 20. In addition,
    with respect to the analysis of the January 8, 2001 broadcast under
    the first key factor, we find that the sexual references in the
    song, which refer to children, are explicit and graphic especially
    given the reference to "being horny for little girls."

13. With respect to the second factor, the material broadcast on
    November 15, 2000 and November 16, 2000 dwelled on sexual organs or
    activities. Under the third factor, we find that the programming on
    broadcast on both November 15, 2000 and November 16, 2000 was used
    to pander and titillate.

14. Moreover, under the third factor, the sexual references in the song
    broadcast on January 8, 2001 appear to be used to shock, and are
    similar to other patently offensive material involving graphic
    references to sexual activity with children that have been found to
    be indecent.[^12] Under these circumstances, we need not find that
    the sexual references broadcast on January 8, 2001 were repeated at
    length, which is relevant under the second factor, in order to find
    that the material is patently offensive. As noted in the *Indecency
    Policy Statement*, broadcasting references to sexual activities with
    children, even if relatively fleeting, may be found indecent where,
    as here, other factors contribute to a finding of patent
    offensiveness.[^13]

15. Infinity argues that the "Opie and Anthony Show" when judged by
    contemporary community standards is not offensive to the average
    listener.[^14] In support of this argument, Infinity recites the
    high ratings the "Opie and Anthony Show" has among men 25-44. We are
    not convinced that because a segment of the population tunes in to
    the "Opie and Anthony Show," that the material aired was not
    indecent. We find that the programming aired is patently offensive
    to the average listener as measured by contemporary community
    standards.[^15] 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 November 15, 2000, November
    16, 2000 and January 8, 2001 and, therefore, the material broadcast
    on these three occasions is legally actionable. By broadcasting this
    material on three occasions, WNEW(FM) apparently violated the
    prohibitions in the Act and the Commission's rules against broadcast
    indecency.

16. Finally, as noted above, Infinity argues that the January 8, 2001
    complaint should be dismissed because the complainant did not submit
    a tape, transcript or significant excerpts of the allegedly indecent
    material and it is not otherwise possible to establish what was
    actually broadcast by using, for example, a commercial recording.
    Infinity also argues that proceeding with the complaint under these
    circumstances deprives it of the right to due process. Specifically,
    Infinity contends that we cannot rely on the untested recollection
    of the complainant without first giving it the opportunity to
    cross-examine the complainant in order to explore the complainant's
    character, demeanor, memory and motivation.

17. We disagree, finding that the excerpt is significant enough to be
    consistent with our practice for evaluating indecency
    complaints.[^16] 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
    (EB 2001), *aff'd* FCC 02-141 (rel. May 24, 2002). 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 propose a forfeiture on a *preliminary*
    determination that the material aired and was actionably indecent.
    *See Indecency Policy Statement, supra*, 16 FCC Rcd at 8016. As
    explained above, the complainant provided the date of the broadcast,
    the call sign of the station, and sufficient detail and context
    about what was broadcast to determine that Infinity apparently
    broadcast prohibited indecent material.[^17] Infinity does not deny
    that the material at issue was broadcast or that the "Opie and
    Anthony Show" aired during the time period between 6 a.m. and 10
    p.m. We therefore reject Infinity's contention that the record is
    inadequate. For the same reasons, we reject its contention that our
    action is contrary to due process. Infinity will be afforded the
    opportunity to respond to this NAL, a step that is required by
    statute. 47 U.S.C. § 503(b). *See also id.* Should Infinity choose
    not to respond to the NAL and not to pay the proposed 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.

18. 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, and "repeatedly" means more than once.[^18] 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 WNEW(FM) on November 15, 2000,
    November 16, 2000 and January 8, 2001.

19. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent/obscene
    materials.[^19] 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."[^20] After reviewing all of the circumstances, we
    believe a \$21,000 forfeiture is appropriate in this case for the
    apparent broadcast of indecent material on three occasions.

    **IV. ORDERING CLAUSES**

20. 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,[^21] that Infinity Broadcasting
    Operations Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
    FORFEITURE in the amount of twenty-one thousand dollars (\$21,000)
    for willfully and repeatedly violating 18 U.S.C. § 1464 and section
    73.3999 of the Commission's rules.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.[^22]

26. 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., 600 New
    Hampshire Ave., N.W., Suite 1200, Washington, D.C., 20037 and to
    Infinity's

    counsel, Elizabeth N. Alexander, Esq., Leventhal, Senter & Lerman
    P.L.L.C., 2000 K Street, N.W., Suite 600, Washington, D.C.
    20006-1809.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

ATTACHMENT

EB-00-IH-0412

Opie and Anthony

WNEW 102.7FM

**November 15, 2000 between 2:00 P.M. and 7:00 P.M.** [^23]

**["Teen Week"]{.underline}** Drew Boogy

Young girls voice - YV

Dad - D

Guy: Nude Teens

\*\*\*Moans

YV: Daddy, can I come too? Can I come too? Daddy, it won't fit in my
mouth.

D: Just keep sucking

YV: I almost choked on your creamy head

I almost choked on your creamy head

Mommy, mommy doesn't have to know

D: Who's daddy's little girl.

YV: I'm your little whore.

D: Who's daddy's girl---

YV: I'm your little whore/

Daddy, show me your monkey/

Put a little nigga' in it

Put a little nigga' in it

Stick it in my mouth, what's that in your pants?

D: I can't believe it. \*\*\*squirting sounds

YV: That didn't taste like beer.

D: Shut up, dummy.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**November 16, 2000 between 2:30 [p.m]{.smallcaps} and 3:30
[p.m]{.smallcaps}., 6:00 p.m. --7 p.m.**[^24]

**[Teen Guess What's In My Pants]{.underline}, w/ 17-year-old Megan**

M: What do I do, I just put the phone down there

\*\*\*laughter

DJ's: Okay, hold on for just a second.

M: Okay.

DJ's: I think your boyfriend needs to leave the room---and your
girlfriend.

M: I'm out of the room. They're in my room. I'm out in the hallway.

DJ's: Now what you do, is take off your little pants and pull down your
little panties.

M: Okay.

DJ's: Now you take the phone, and you know what to do with it, you've
heard this before right?

M: Yeah.

DJ's: We're looking for the first motion of the phone to be an up and
down motion.

M: Okay.

DJ's: We didn't do the theme song.

F the theme song.. someone's going to run through the door in the middle
of the

theme song , and we are never going to get to this.

\*\*\*Sings song quickly

M: Okay, you ready?

DJ's: Up and down motion---now, after you do all the motions, Opie and I
, and the other people in the studio, are going to try to guess what
kind of hairstyle you have. Don't answer or acknowledge anything we say
until we ask you what hairstyle you have.

M: Okay.

DJ's: Okay, start with an up and down motion.

M: Okay. Hold on.

\*\*\*Rubs phone up and down on her crotch.

DJ's: Lucky phone.

\*\*\*Laughter

DJ's: Now that was up and down.

M: Yup.

DJ's: Can we have a couple more than that? Just do it like five or six
times up and down.

M: Okay.

\*\*\*Rubs phone up and down on her crotch.

M: Okay.

DJ's: Now a side to side motion.

\*\*\*Rubs phone side to side on her crotch.

DJ's: Here that little change in sound Opie, you know what that is,
don't you?

Yes.

Now a circular motion.

M: Okay.

\*\*\*Rubs phone circular on her crotch.

\*\*\*Opie and Anthony and crew continue to guess the type of pubic
haircut Megan has.

[^1]: Two excerpts from the transcript that are the basis for this
    Notice of Apparent Liability with respect to the November 15, 2000
    and November 16, 2000 broadcasts are attached.

[^2]: Infinity does dispute that the "Unnamed Song" transcribed
    contained the word "fuck." However, this Notice of Apparent
    Liability does not base its finding on that segment.

[^3]: Infinity's Response to the Letter of Inquiry for the January 8,
    2000 complaint, at 2.

[^4]: *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).

[^5]: *Sable Communications of California, Inc. v. FCC, supra* note 4,
    492 U.S. at 126.

[^6]: *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*").

[^7]: *ACT I, supra* note 6, 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). We note that Infinity
    makes a general argument that our definition of indecency is
    unconstitutional, citing *Reno v. ACLU*, 521 U.S. 844 (1997).
    However, the Commission previously has rejected constitutional
    challenges to our broadcast indecency standards based on *Reno v*.
    *ACLU*, a case which invalidated an indecency standard for the
    Internet. *See, e.g., WQAM License Limited Partnership*, 15 FCC Rcd
    2518 (2000)(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).

[^8]: Public Telecommunications Act of 1992, Pub. L. No. 356, 102^nd^
    Cong., 2^nd^ Sess. (1992); *ACT III, supra* note 6.

[^9]: In *FCC v. Pacifica Foundation,* the Court quoted the Commission's
    definition of indecency with apparent approval. *FCC v. Pacifica
    Foundation*, *supra* note 6, 438 U.S. at 732. In addition, the D.C.
    Circuit Court of Appeals upheld the definition against
    constitutional challenges. *ACT I*, *supra* note 6, 852 F.2d at
    1339; *ACT II, supra* note 6, 932 F.2d at 1508; *ACT III, supra*
    note 6, 58 F.3d at 657.

[^10]: *ACT III,* *supra* note 6.

[^11]: *See also, 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).

[^12]: *Citicasters Co.(KSJO(FM))*, 15 FCC Rcd 19091 (EB 2000)("joke"
    that includes patently offensive references to incest and sex with
    children); *Tempe Radio, Inc (KUPD-FM)*, 12 FCC Rcd 21828 (MMB
    1997)(patently offensive language referring to sexual activity with
    a child); *EZ New Orleans, Inc (WEZB(FM))*, 12 FCC Rcd 4147 (MMB
    1997)(patently offensive references to incest and sexual activity
    with an infant).

[^13]: *Indecency Policy Statement,* 16 FCC Rcd at 8009.

[^14]: Infinity makes this argument in response to our inquiry
    concerning the November 15, 2000 broadcast and the November 16, 2000
    broadcast.

[^15]: *See, e.g., WIOD, Inc., supra* n.11, at 6 FCC Rcd 3705 (ratings
    indicating the popularity of broadcast material do not prevent the
    Commission from ascertaining that such material is patently
    offensive using contemporary community standards that reference the
    average listener).

[^16]: *Indecency Policy Statement,* 16 FCC Rcd at 8015.

[^17]: *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). Moreover,
    the circumstances here are unlike *Mr. Steve Bridges*, 9 FCC Rcd
    1681 (MMB 1991), on which Infinity relies. In that case, the
    complainant provided a transcript of allegedly indecent material
    broadcast during a brief, live, unscripted comment by a caller. The
    licensee disputed that the entire text of the transcribed material
    had been broadcast, which was not contradicted.

[^18]: *See Southern California Broadcasting Co*., 6 FCC Rcd 4387
    (1991).

[^19]: *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).

[^20]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17110.

[^21]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.

[^22]: *See* 47 C.F.R. § 1.1914.

[^23]: Although the complainant acknowledges that the "Opie and Anthony
    Show" airs between 3 p.m. and 7 p.m., the tape containing this
    excerpt references an approximate start time of 2 p.m.

[^24]: The tape containing this excerpt references an approximate start
    time of 2:30 p.m.