Before the

Federal Communications Commission

Washington, D.C. 20554

+-----------------------------------+-----------------------------------+
| In the Matter of                  | )                                 |
|                                   |                                   |
| Infinity Broadcasting Corporation | )                                 |
| of Los Angeles                    |                                   |
|                                   | ) Control No. 97050319            |
| Licensee of Station KROQ-FM       |                                   |
|                                   | ) NAL/Acct. No. 818ed0017         |
| Pasadena, California              |                                   |
|                                   | )                                 |
| Facility ID \# 28622              |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | )                                 |
|                                   |                                   |
|                                   | )                                 |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+

## MEMORANDUM OPINION AND ORDER {#memorandum-opinion-and-order .unnumbered}

**Adopted: March 20, 2001 Released: March 22, 2001**

By the Chief, Enforcement Bureau:

1.  In this *Memorandum Opinion and Order*, we deny a petition for
    reconsideration filed on July 13, 2000, by Infinity Broadcasting
    Corporation of Los Angeles ("Infinity"), licensee of Station
    KROQ(FM), Los Angeles, California. Infinity seeks reconsideration of
    a *Forfeiture Order*[^1] which issued a monetary forfeiture in the
    amount of two thousand dollars (\$2,000) against Infinity for
    willful violation of 18 U.S.C. § 1464, which prohibits the broadcast
    of indecent material.

# Background

2.  On August 24, 1998, the Mass Media Bureau, by delegated authority,
    issued a Notice of Apparent Liability for Forfeiture to Infinity in
    the amount of two thousand dollars (\$2,000), for the broadcast of
    indecent material. *Infinity Broadcasting Corporation of Los Angeles
    (KROQ-FM)*, 13 FCC Rcd 25349 (Mass Media Bur. 1998) ("*NAL*").
    Specifically, the Mass Media Bureau found that the broadcast of "You
    Suck" by the group Consolidated on March 28, 1997, at approximately
    9:10 p.m., violated 18 U.S.C. § 1464. Infinity filed a response to
    the *NAL* on September 23, 1998. Thereafter, in the *Forfeiture
    Order*, we found, after considering the licensee's response, that
    the issuance of the proposed forfeiture was warranted.

3.  In its response to the *NAL*, Infinity admitted that a version of
    the "You Suck" song was aired at approximately 9:10 p.m. on March
    28, 1997. It asserted that Station KROQ-FM possessed at least two
    versions of the song, one of which Infinity contended does not
    contain any indecent material. One of the versions possessed by
    KROQ(FM) was the original version, a transcript of which is attached
    to the *NAL*. A second version was made by the station because an
    announcer "thought the unedited version was not acceptable for
    broadcast." Infinity asserted that it was unable to determine which
    version of the song was aired. In support of its position, Infinity
    filed an affidavit from a station announcer who admitted that he
    played some version of the "You Suck" song on the day in question.
    The announcer stated that he did not recall which version of the
    recording he aired and that he did not actually listen to the entire
    recording when it aired. The announcer and the station's General
    Manager also indicated that it was their opinion that numerous
    complaints would have been forthcoming if the unedited version had
    been played. However, they stated, no complaints other than that of
    the complainant were received. Further, Infinity states that the
    station does not retain copies of its broadcasts. The record
    reflects that the difference between the versions consists of the
    deletion of the words "pubic," "dick," "pussy," and "clit" in the
    edited version. The licensee did not dispute the finding of the
    *NAL* that the unedited version of the song would be indecent.

4.  Because the Mass Media Bureau did not have a tape or transcript of
    the actual broadcast, on April 1, 1998, before it issued the *NAL*,
    it sent a letter to the complainant with a copy of the edited
    version of the "You Suck" song. The Mass Media Bureau asked the
    complainant to confirm whether she heard the edited version or the
    version on the CD that was submitted with her complaint (the
    original unedited version). The Mass Media Bureau also asked her to
    explain the basis of her belief as to which version she heard
    broadcast on Station KROQ-FM. The complainant responded by a signed
    written statement indicating that she recalled hearing the words
    "pubic," "dick," "pussy," and "clit" in the broadcast she heard,
    none of which were contained in the edited version of the song
    provided by Infinity. The complainant's response was not referenced
    in the *NAL* and the licensee was not asked to comment on it. It was
    first discussed in the *Forfeiture Order*.

5.  In its petition for reconsideration, the licensee argues that it was
    denied due process because the *NAL* was issued on the basis of
    information supplied by the complainant that was not disclosed to
    the licensee until after the issuance of the *Forfeiture Order*,
    thereby depriving it of the opportunity to rebut the additional
    evidence. It contends that the *Forfeiture Order* erred in relying
    on the untested recollection of an individual whose character,
    demeanor, memory, and motivation are unknown. It further urges that
    the *Forfeiture Order* improperly ignored the countervailing
    evidence proffered by it. Infinity also reiterates its contention
    advanced in response to the *NAL* that no forfeiture is appropriate
    because no tape, transcript or significant excerpt of the song as
    actually broadcast by KROQ(FM) was provided, as, it contends, is
    required by Commission policy. The licensee argues that a tape,
    transcript or significant excerpt is a requirement to protect
    licensees against unsubstantiated or spurious indecency complaints.
    It also characterizes the action here as reflecting a new policy
    insofar as it dispenses with the tape, transcript, or significant
    excerpt requirement. It therefore urges that at most a warning, and
    not a forfeiture, is warranted, citing *Infinity Broadcasting
    Corporation of Pennsylvania*, 2 FCC Rcd 2705 (1987). In that case,
    the Commission found actionable indecency, but issued only a warning
    because prior rulings might have suggested that it had a different
    view of what would be considered indecent.

    **II. DISCUSSION**

6.  First, we will address the licensee's arguments pertaining to the
    complainant's supplemental response indicating that she heard the
    unedited version of the song because the licensee was unaware of
    this fact prior to the *Forfeiture Order*. Given that we will now
    fully consider the licensee's comments concerning this matter, the
    question as to whether it was denied due process by virtue of the
    failure to elicit its comments at an earlier stage of this
    proceeding is moot.

7.  The licensee does not submit any new evidence in light of the
    complainant's statement. It rather contends that we should not
    accord it any evidentiary significance because of the untested
    nature of the complainant's claim. However, it is undisputed that
    the licensee had both the edited and the unedited versions of the
    song. It is also uncontested that the distinction between the
    versions is the inclusion in the unedited version of the words
    "pubic," "dick," "pussy," and "clit." In the circumstances of this
    case, the complainant's uncontradicted statement that she in fact
    heard those words in the song broadcast is probative evidence that
    the unedited version was broadcast. The circumstances here are
    unlike those in *Mr. Steve Bridges*, 9 FCC Rcd 1681 (Mass Media Bur.
    1994), relied upon by Infinity. That case involved a brief, live and
    unscripted comment by a caller. The complainant provided a
    transcript, but not a tape, of the alleged broadcast. The licensee
    contended that the entire transcript had not been broadcast, which
    was not contradicted. Under the circumstances of that case, the Mass
    Media Bureau found that the evidence was insufficient to determine
    the precise nature of the caller's arguably indecent remark. Here
    there are two versions of the song distinguished by the presence or
    absence of the pertinent words. We believe that the complainant's
    recollection that she heard those words provides sufficient
    probative evidence to conclude that the unedited version of the song
    was broadcast, particularly in the absence of any evidence to the
    contrary.

8.  It is, of course, true that the complainant's statement is
    "untested," in that no evidentiary hearing has been held. However,
    the Communications Act of 1934, as amended ("Act") permits the
    imposition of a forfeiture without an evidentiary hearing.[^2] The
    Act also protects the rights of parties subject to a forfeiture
    assessed without a hearing by providing that such a forfeiture
    cannot be used to the prejudice of the party unless it is paid or a
    court of competent jurisdiction has issued a final order after a
    trial *de novo* requiring that the forfeiture be paid.[^3]

9.  We also find that the licensee has offered no evidence contradicting
    the complainant's statement. It relies principally on its ignorance
    as to which version of the song was broadcast. However, the
    licensee's ignorance as to what was broadcast on its station does
    not constitute evidence that the station in fact broadcast the
    edited version. Moreover, the station was aware of the inappropriate
    nature of the unedited version of the song. Indeed, that is why an
    edited version existed. Given this fact, the licensee should have
    taken precautions to ensure that the version of the song that the
    licensee itself recognized to be inappropriate was not inadvertently
    broadcast. A licensee is ultimately responsible for the programming
    of its station. *Mr. Steve Bridges*, *supra*; *Trustees of the
    University of Pennsylvania*, 69 FCC 2d 1394, 1397 (1978). Under
    these circumstances, it would be particularly inappropriate to
    accord evidentiary weight to the licensee's ignorance that was the
    product of its failure to take precautions to prevent the
    inadvertent broadcast of the unedited version of the song, let alone
    to give the licensee's ignorance greater weight than the signed
    statement of a listener.

10. The licensee further relies upon the opinions of station personnel
    that there likely would have been multiple complaints if the station
    had aired the unedited version. However, we find this claim to be
    speculative, especially since the station personnel do not explain
    the basis for their opinions. Accordingly, we do not find that this
    argument amounts to evidence contradicting the complainant's
    recollection.

11. Finally, we disagree with the licensee's contention that, by not
    requiring a tape, transcript or significant excerpt, the *Forfeiture
    Order* creates new policy that makes the assessment of a forfeiture
    inappropriate. First, we note that the case law cited by the
    licensee stated that the Commission would ordinarily require a
    complainant to provide a tape, transcript or *significant excerpts*
    of the programming.[^4] The complainant substantially complied with
    this procedure. Specifically, the complainant provided a copy of the
    unedited version of the CD including the language that she alleged
    to have heard during the broadcast. The complainant's submission
    constituted a "significant excerpt" of the programming that she
    alleged to be indecent, albeit not one that she transcribed herself.
    This, along with the date and time of the broadcast and the call
    sign of the station in question, provided a sufficient basis for
    identifying a violation of the indecency prohibition. In any event,
    we note that 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.

12. We have fully considered Infinity's contentions concerning the
    complainant's statement confirming her recollection as to the
    version of the song she heard. However, we do not find that the
    licensee has raised any new matter, or demonstrated any material
    error or omission, that warrants modification of the result reached
    in the *Forfeiture Order*. Therefore, we will deny its petition for
    reconsideration.

    **III. ORDERING CLAUSES**

13. **ACCORDINGLY, IT** IS **ORDERED** that, pursuant to Section 405 of
    the Act[^5] and Section 1.106 of the Rules,[^6] Infinity
    Broadcasting Corporation of Los Angeles' petition for
    reconsideration **IS DENIED**.

14. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules[^7] within thirty (30) days of the
    release of this *Order*. If the forfeiture is not paid within the
    specified period, the case may be referred to the Department of
    Justice for collection pursuant to Section 504(a) of the Act.[^8]
    Payment may be made 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 NAL/Acct. No.
    818ed0017. Requests for full payment under an installment plan
    should be sent to: Chief, Credit and Debt Management Center, 445
    12th Street, S.W., Washington, D.C. 20554.[^9]

15. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by certified mail, return receipt requested, to counsel for
    Infinithy., Steven A. Lerman, Esq., Leventhal, Senter and 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

[^1]: *Infinity Broadcasting Corporation of Los Angeles*, 15 FCC Rcd
    10667 (Enf. Bur. 2000).

[^2]: Section 503(b) of the Act, 47 U.S.C. § 503(b).

[^3]: Section 504(a) and (c) of the Act, 47 U.S.C. § 504(a) and (c).

[^4]: *See* *Infinity Broadcasting Corporation of Pennsylvania*, 3 FCC
    Rcd 930, 938 n. 49 (1987).

[^5]: 47 U.S.C. § 405.

[^6]: 47 C.F.R. § 1.106.

[^7]: 47 C.F.R. § 1.80.

[^8]: 47 U.S.C. § 504(a).

[^9]: *See* 47 C.F.R. § 1.1914.