**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. EB-01-IH-0633       |
|                                  | *) |                              |
| **Infinity Broadcasting          | ** | NAL/Acct. No. 200432080013   |
| Operations, Inc.**               |    |                              |
|                                  | *  | FRN 0003476074               |
| Licensee of Station WKRK-FM      | *) |                              |
|                                  | ** | Facility ID No. 9618         |
| Detroit, Michigan                |    |                              |
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+----------------------------------+----+------------------------------+

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** March 8, 2004 **Released:** March 18, 2004

**By the Commission:** Commissioner Martin concurring and issuing a
statement; Commissioner Adelstein issuing a statement; and Commission
Copps dissenting and issuing a statement.

**I. INTRODUCTION**

1.  In this *Notice of Apparent Liability For Forfeiture* ("*NAL*"),
    issued pursuant to section 503(b) of the Communications Act of 1934,
    as amended (the "Act") and section 1.80 of the Commission's
    rules,[^1] we find that Infinity Broadcasting Operations, Inc.,
    licensee of Station WKRK-FM, Detroit, Michigan, aired program
    material during the "Howard Stern Show" on July 26, 2001, that
    apparently violates the federal restrictions regarding the broadcast
    of indecent material.[^2] Based upon our review of the facts and
    circumstances of this case, we conclude that Infinity is apparently
    liable for a monetary forfeiture in the amount of Twenty-Seven
    Thousand Five Hundred Dollars (\$27,500.00), the statutory maximum
    in this context, for broadcasting indecent material in apparent
    violation of 18 U.S.C. § 1464 and section 73.3999 of the
    Commission's rules.

    **II. BACKGROUND**

2.  The Enforcement Bureau received a complaint alleging that Station
    WKRK-FM aired indecent material during the "Howard Stern Show," on
    July 26, 2001, between 6:30 and 7:30 a.m. The complainant submitted
    an audio tape of this broadcast.[^3]

3.  The Enforcement Bureau sent Infinity a letter of inquiry,[^4] and
    attached a transcript of a portion of the material included in the
    audio tape.[^5] In its response, Infinity states that "The Howard
    Stern Show" was aired on WKRK(FM) on July 26, 2001, and that it "has
    no knowledge at this time that the transcripts are materially
    different from what was actually broadcast by WKRK on July 26,
    2001," but because the station did not retain a tape or transcript
    of the actual broadcast, it cannot state conclusively whether the
    material reproduced in the complainant's tape and in the transcript
    were broadcast over the station.[^6] Infinity maintains, however,
    that the aired material was not actionably indecent and did not
    contain any description or depiction of sexual or excretory organs
    or activities in a patently offensive manner.[^7] In addition,
    Infinity argues that the Commission's generic indecency definition
    is unconstitutional.

    **III. DISCUSSION**

4.  The Federal Communications Commission is authorized to license radio
    and television broadcast stations and is responsible for enforcing
    the Commission's rules and applicable statutory provisions
    concerning the operation of those stations. The Commission's role in
    overseeing program content is very limited. The First Amendment to
    the United States Constitution and section 326 of the Act prohibit
    the Commission from censoring program material and from interfering
    with broadcasters' freedom of expression.[^8] The Commission does,
    however, have the authority to enforce statutory and regulatory
    provisions restricting indecency and obscenity. Specifically, it is
    a violation of federal law to broadcast obscene or indecent
    programming. Title 18 of the United States Code, section 1464
    prohibits the utterance of "any obscene, indecent or profane
    language by means of radio communication."[^9] In addition, section
    73.3999 of the Commission's rules provides that radio and television
    stations shall not broadcast obscene material at any time, and shall
    not broadcast indecent material during the period 6 a.m. through 10
    p.m.

5.  Under section 503(b)(1) of the Act, any person who is determined by
    the Commission to have willfully or repeatedly failed to comply with
    any provision of the Act or any rule, regulation, or order issued by
    the Commission shall be liable to the United States for a forfeiture
    penalty.[^10] In order to impose such a forfeiture penalty, the
    Commission must issue a notice of apparent liability, the notice
    must be received, and the person against whom the notice has been
    issued must have an opportunity to show, in writing, why no such
    forfeiture penalty should be imposed.[^11] The Commission will then
    issue a forfeiture if it finds by a preponderance of the evidence
    that the person has violated the Act or a Commission rule.[^12] As
    we set forth in greater detail below, we conclude under this
    standard that Infinity is apparently liable for a forfeiture for its
    apparent willful violation of 18 U.S.C. § 1464 and section 73.3999
    of the Commission's rules.

    **A. Indecency Analysis**

6.  Any consideration of government action against allegedly indecent
    programming must take into account the fact that such speech is
    protected under the First Amendment.[^13] The federal courts
    consistently have upheld Congress's authority to regulate the
    broadcast of indecent material, as well the Commission's
    interpretation and implementation of the governing statute.[^14]
    Nevertheless, the First Amendment is a critical constitutional
    limitation that demands that, in indecency determinations, we
    proceed cautiously and with appropriate restraint.[^15]

7.  The Commission defines indecent speech as language that, in context,
    depicts or describes sexual or excretory activities or organs in
    terms patently offensive as measured by contemporary community
    standards for the broadcast medium.[^16]

> Indecency findings involve at least two fundamental determinations.
> First, the material alleged to be indecent must fall within the
> subject matter scope of our indecency definition---that is, the
> material must describe or depict sexual or excretory organs or
> activities. . . . Second, the broadcast must be *patently offensive*
> as measured by contemporary community standards for the broadcast
> medium.[^17]

8.  As an initial matter, Infinity disputes that it aired material
    describing or depicting sexual and excretory activities and
    organs.[^18] Specifically, Infinity argues that the material
    contains "brief and non-descriptive references to sexual practices
    that employ only clinical terms such as "evacuating" and "oral
    sex."[^19] We disagree. Infinity's argument cites only one of the
    sexual practices described in the complained-of material.[^20] In
    any event, the material at issue clearly describes named sexual
    practices[^21] and also describes features of an excretory
    organ.[^22] The material, therefore, warrants further scrutiny to
    determine whether or not it was patently offensive as measured by
    contemporary community standards for the broadcast medium.[^23]

9.  In our assessment of whether broadcast material is patently
    offensive, "the *full context* in which the material appeared is
    critically important."[^24] Three principal factors are significant
    to this contextual analysis: (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.[^25] In examining these three factors, we must
    weigh and balance them to determine whether the broadcast material
    is patently offensive because "\[e\]ach indecency case presents its
    own particular mix of these, and possibly, other factors."[^26] In
    particular cases, one or two of the factors may outweigh the others,
    either rendering the broadcast material patently offensive and
    consequently indecent,[^27] or, alternatively, removing the
    broadcast material from the realm of indecency.[^28] In this case,
    we note that the complained-of material is similar to material
    broadcast by the same station that we previously found to be
    patently offensive as measured by contemporary community standards
    for the broadcast medium.[^29] This finding was based upon an
    examination of all three factors and a finding that each weighed in
    favor of a determination that the broadcast material was patently
    offensive. We find no reason to conclude that our analysis of the
    three principal factors should yield a different result with respect
    to the other material broadcast over Station WKRK-FM that is at
    issue here.

10. First, contrary to Infinity's argument, in context, the description
    of the sexual and excretory organs and activities in the
    complained-of material is graphic and explicit. There are
    descriptions of how specifically named sexual practices are
    performed, including references to an oral sexual practice that also
    involves excretory activity.[^30] To the extent that the colloquial
    terms used, in part, to describe sexual activity involved in one of
    the sexual practices could be described as innuendo, they are
    nonetheless sufficient to render the material actionably indecent
    because the sexual import of the reference was "unmistakable."[^31]
    Given the detailed and explicit manner in which the broadcast
    described the sexual and excretory organs and activities, there is
    no non-sexual meaning that a listener could possibly have attributed
    to the colloquial terms.[^32]

11. Second, the broadcast contained repeated descriptions of sexual and
    excretory organs and activities.[^33] Moreover, contrary to
    Infinity's argument that some of the descriptions used clinical
    terms,[^34] the overall context in which the material was presented
    was used to pander, titillate and shock. The tone of the material is
    vulgar and lewd, not clinical.

12. We also reject Infinity's contention that this material cannot be
    found indecent because there are other cases referencing topics such
    as masturbation, and anal and oral sex in which no enforcement
    action was taken. In support of this argument, Infinity cites two
    unpublished Enforcement Bureau staff decisions, in which there were
    references to "giving head"[^35] and "finger banging your
    boyfriend."[^36] However, the material at issue here is more graphic
    and explicit than the language cited from these complaints.
    Moreover, the use of the term "finger banging" was brief and
    fleeting, which is not the case with the material at issue
    here.[^37] Infinity also cites material at issue in an unpublished
    internal staff memorandum and unpublished staff decisions where the
    Mass Media Bureau, the predecessor to the Media Bureau, found that
    certain material was not actionably indecent.[^38] To the extent
    that the staff may have erred by determining that the material in
    those cases was not indecent, these unpublished decisions are not
    binding on the Commission.[^39] That is particularly the case here,
    where published decisions, including those cited in the Commission's
    *Indecency Policy Statement*, provide guidance indicating that
    material such as that contained in this case is indecent.

13. Infinity argues that due to profound changes in social mores, the
    range of acceptable topics and words for broadcast discussion has
    changed dramatically, especially in light of widespread media
    coverage of sex scandals involving President Clinton and the Roman
    Catholic Church. Although contemporary community standards may
    change over time, the material at issue here is nevertheless
    patently offensive as measured by current contemporary community
    standards for the broadcast medium and is similar to other material
    that has been found to be patently offensive. We thus reject
    Infinity's argument that the material broadcast over Station WKRK-FM
    on July 26, 2001, is consistent with contemporary community
    standards for the broadcast medium.

14. It is undisputed that the complained-of material was broadcast
    within the 6 a.m. to 10 p.m. time frame relevant to an indecency
    determination under section 73.3999 of the Commission's rules. Thus,
    because there was a reasonable risk that children may have been in
    the audience at the time that the material at issue was broadcast on
    July 26, 2001, the material broadcast is legally actionable.[^40] By
    broadcasting this material, Infinity apparently violated the
    prohibitions in 18 U.S.C. § 1464 and the Commission's rules against
    broadcast indecency.

    **B. Proposed Forfeiture**

15. Based upon our review of the record in this case, we conclude that
    Infinity is apparently liable for the willful violation of our
    rules. The Commission's *Forfeiture Policy Statement* sets a base
    forfeiture amount of \$7,000 for transmission of indecent or obscene
    materials.[^41] 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."[^42] In this case, taking all of these factors into
    consideration, we find that an upward adjustment of the forfeiture
    amount to the statutory maximum of \$27,500.00 is warranted.
    Infinity's recent history of indecent or apparently indecent
    broadcasts justifies the upward adjustment. We reiterate our
    previous statements that we may sanction a broadcaster for apparent,
    repeated violations of the indecency rules for separate utterances
    within one program[^43] and that "additional serious violations by
    Infinity may well lead to a license revocation proceeding."[^44]

    **IV. ORDERING CLAUSES**

16. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
    Communications Act of 1934, as amended, and section 1.80 of the
    Commission's rules,[^45] that Infinity Broadcasting Operations, Inc.
    is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the
    amount of Twenty-Seven Thousand Five Hundred Dollars (\$27,500.00)
    for willfully violating 18 U.S.C. § 1464 and section 73.3999 of the
    Commission's rules.

17. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
    rules, that within thirty (30) days of the release of this *NAL*,
    Infinity SHALL PAY the full amount of the proposed forfeiture or
    SHALL FILE a written statement seeking reduction or cancellation of
    the proposed forfeiture.

18. 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/Account Number
    referenced above.

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

20. 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.

21. Requests for payment of the full amount of this *NAL* under an
    installment plan should be sent to: Chief, Revenue and Receivables
    Operations Group, 445 12th Street, S.W., Washington, D.C.
    20554.[^46]

22. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If Infinity qualifies as a small entity and if it
    wishes to be treated as a small entity for tracking purposes, it
    should so certify to us within thirty (30) days of this *NAL*,
    either in its response to the *NAL* or in a separate filing to be
    sent to the Investigations and Hearings Division. The certification
    should indicate whether Infinity, including its parent entity and
    its subsidiaries, meet one of the definitions set forth in the list
    provided by the FCC's Office of Communications Business
    Opportunities ("OCBO") set forth in Attachment B of this Notice of
    Apparent Liability. This information will be used for tracking
    purposes only. Infinity's response or failure to respond to this
    question will have no effect on its rights and responsibilities
    pursuant to Section 503(b) of the Communications Act. If Infinity
    has questions regarding any of the information contained in
    Attachment B, it should contact OCBO at (202) 418-0990.

23. Accordingly, IT IS ORDERED, that the complaint filed against Station
    WKRK-FM's broadcast of the "Howard Stern Show" on July 26, 2001, IS
    GRANTED to the extent indicated herein, AND IS OTHERWISE DENIED, and
    the complaint proceeding IS HEREBY TERMINATED.[^47]

24. IT IS FURTHER ORDERED, that a copy of this *NAL* shall be sent by
    Certified Mail Return Receipt Requested to Stephen A. Hildebrandt,
    Vice President, Infinity Broadcasting Operations, Inc., 2000 K
    Street, N.W., Suite 725, Washington, D.C. 20006; to Infinity's
    counsel, Steven A. Lerman, Esq., Dennis P. Corbett, Esq., and
    David S. Keir, Esq., Leventhal, Senter and Lerman P.L.L.C., 2000 K
    Street, N.W., Suite 600, Washington, D.C. 20006-1809, and to the
    complainant.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**[ATTACHMENT A]{.underline}**

**Program Transcript**

**Radio Station: WKRK-FM, Detroit, MI**

**Date/Time of Broadcast: July 26, 2001, 6:30 a.m. to 7:30 a.m.**

**Material Broadcast: The Howard Stern Show**

HS: Howard Stern

RQ: Robin Quivers

MV: Male Cast Member

HS: I said to Mark Wahlberg yesterday, had he ever gotten a blumpkin
from a girl and everyone around here is acting like they don't know what
it is.

RQ: You're the only nutcase who does.

MV: I said "blumpkin" on the "Norm Show" and the network censor, we told
him we just made the word up. He goes, "that's definitely not a real
word right?" We go, no,no,no. And I said it, I yelled out at a hooker in
a cab.

HS: What do you say to her, "how about a blumpkin?"

MV: I go "honey, how much for a blumpkin?"

HS: Right.

MV: And uh the network censor never heard of it. And he goes if you just
made it up it's fine but if it's a real thing we can't have it. So it's
aired, it's been on ABC, it's like the dirtiest thing ever on
television.

HS: Yeah, but nobody knows what it is. A blumpkin... I can explain it
cleanly.

RQ: There's nothing clean about a blumpkin.

HS: Well, a blumpkin is receiving oral sex while you're sitting on a
toilet bowl if you are a man. You're sitting on a toilet bowl and uh,
while you're evacuating you receive your oral.

RQ: Ick.

HS: And uh, then, what did I say yesterday too you didn't understand?
Balloon knot?

RQ: Yes, I don't know what that is. Somebody said to me "is that the
funniest thing ever?" and I was like "what is that?"

HS: A balloon knot...

RQ: I didn't want to show my ignorance, I laughed too.

HS: A balloon knot... I'm gonna post these on a web site...

RQ: Yeah, we need a dictionary for this show.

HS: A balloon knot is when you bend over and I can see up right up your
old...

RQ: Up the wazoo?

HS: Up the wazoo and uh, you know that's a balloon knot that you see.
That's called a "balloon knot."

RQ: Really, I did not know that.

HS: Think about it, it looks like a balloon knot.

RQ: I don't know. Oh... you know what...

HS: Tie up a balloon.

RQ: I'm just thinking of a balloon knot...

MV: It all makes sense, Robin, come on.

HS: And uh, what else did I say? "Nasty Sanchez," you didn't know what
that was.

RQ: Oh, I don't even want to know half the time what these things are...

HS: That I'd have to post on the internet.

RQ: 'Cause there've been a number of terms used lately. Would you do...
'cause KC's always blurtin' them out.

HS: "Strawberry shortcake"

RQ: "Strawberry shortcake" I've never heard of. "Dirty Sanchez"

HS: "Nasty Sanchez."

RQ: What is the others KC?

MV: I heard a new one the other day. It was the "David Copperfield."

HS/RQ: That's right.

MV: Okay, do you want to explain it, since I\... When you're goin' like
a dog...

HS: Right.

MV: ...and you're about to finish and instead you don't finish, you spit
on her and then you turn around and when she turns her face around then
you go... So it's kind of like an illusion...

HS: Right.

MV: to David Copperfield.

RQ: Sleight of hand.

HS: Misdirection.

MV: Classic misdirection.

HS: You trick her. There's a million of them, but uh, I'll post them on
the web.

RQ: Yes, because people need to know. These aren't in the regular
dictionary.

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

October 2002

**ATTACHMENT B**

+--------------------------------+-------------------------------------+
| **FCC List of Small Entities** |                                     |
|                                |                                     |
| **As described below, a "small |                                     |
| entity" may be a small         |                                     |
| organization,**                |                                     |
|                                |                                     |
| **a small governmental         |                                     |
| jurisdiction, or a small       |                                     |
| business.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(1) Small Organization**     |                                     |
+--------------------------------+-------------------------------------+
| **Any not-for-profit           |                                     |
| enterprise that is             |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field.**                       |                                     |
+--------------------------------+-------------------------------------+
| **(2) Small Governmental       |                                     |
| Jurisdiction**                 |                                     |
+--------------------------------+-------------------------------------+
| **Governments of cities,       |                                     |
| counties, towns, townships,    |                                     |
| villages, school districts,    |                                     |
| or**                           |                                     |
|                                |                                     |
| **special districts, with a    |                                     |
| population of less than fifty  |                                     |
| thousand.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(3) Small Business**         |                                     |
+--------------------------------+-------------------------------------+
| **Any business concern that is |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field, *and* meets the         |                                     |
| pertinent size criterion       |                                     |
| described below.**             |                                     |
+--------------------------------+-------------------------------------+
| **Industry Type**              | **Description of Small Business     |
|                                | Size Standards**                    |
+--------------------------------+-------------------------------------+
| ***Cable Services or           |                                     |
| Systems***                     |                                     |
+--------------------------------+-------------------------------------+
| Cable Systems                  | Special Size Standard --            |
|                                |                                     |
|                                | **Small Cable Company** has 400,000 |
|                                | Subscribers Nationwide or Fewer     |
+--------------------------------+-------------------------------------+
| Cable and Other Program        | \$12.5 Million in Annual Receipts   |
| Distribution                   | or Less                             |
+--------------------------------+-------------------------------------+
| Open Video Systems             |                                     |
+--------------------------------+-------------------------------------+
| ***Common Carrier Services and |                                     |
| Related Entities***            |                                     |
+--------------------------------+-------------------------------------+
| Wireline Carriers and Service  | 1,500 Employees or Fewer            |
| providers                      |                                     |
+--------------------------------+-------------------------------------+
| Local Exchange Carriers,       |                                     |
| Competitive Access Providers,  |                                     |
| Interexchange Carriers,        |                                     |
| Operator Service Providers,    |                                     |
| Payphone Providers, and        |                                     |
| Resellers                      |                                     |
+--------------------------------+-------------------------------------+
| **Note:** With the exception   |                                     |
| of Cable Systems, all size     |                                     |
| standards are expressed in     |                                     |
| either millions of dollars or  |                                     |
| number of employees and are    |                                     |
| generally the average annual   |                                     |
| receipts or the average        |                                     |
| employment of a firm.          |                                     |
| Directions for calculating     |                                     |
| average annual receipts and    |                                     |
| average employment of a firm   |                                     |
| can be found in                |                                     |
|                                |                                     |
| 13 CFR 121.104 and 13 CFR      |                                     |
| 121.106, respectively.         |                                     |
+--------------------------------+-------------------------------------+
| ***International Services***   |                                     |
+--------------------------------+-------------------------------------+
| International Broadcast        | \$12.5 Million in Annual Receipts   |
| Stations                       | or Less                             |
+--------------------------------+-------------------------------------+
| International Public Fixed     |                                     |
| Radio (Public and Control      |                                     |
| Stations)                      |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite                |                                     |
| Transmit/Receive Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite Very Small     |                                     |
| Aperture Terminal Systems      |                                     |
+--------------------------------+-------------------------------------+
| Mobile Satellite Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Radio Determination Satellite  |                                     |
| Earth Stations                 |                                     |
+--------------------------------+-------------------------------------+
| Geostationary Space Stations   |                                     |
+--------------------------------+-------------------------------------+
| Non-Geostationary Space        |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Direct Broadcast Satellites    |                                     |
+--------------------------------+-------------------------------------+
| Home Satellite Dish Service    |                                     |
+--------------------------------+-------------------------------------+
| ***Mass Media Services***      |                                     |
+--------------------------------+-------------------------------------+
| Television Services            | \$12 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Low Power Television Services  |                                     |
| and Television Translator      |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| TV Auxiliary, Special          |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Radio Services                 | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio Auxiliary, Special       |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction Special Size Standard --    |
| Service                        |                                     |
|                                | **Small Business** is less than     |
|                                | \$40M in annual gross revenues for  |
|                                | three preceding years               |
+--------------------------------+-------------------------------------+
| ***Wireless and Commercial     |                                     |
| Mobile Services***             |                                     |
+--------------------------------+-------------------------------------+
| Cellular Licensees             | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase |                                     |
| I Licensees                    |                                     |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase | Auction special size standard -     |
| II Licensees                   |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and controlling          |
|                                | principals)                         |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and controlling          |
|                                | principals)                         |
+--------------------------------+-------------------------------------+
| 700 MHZ Guard Band Licensees   |                                     |
+--------------------------------+-------------------------------------+
| Private and Common Carrier     |                                     |
| Paging                         |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | 1,500 Employees or Fewer            |
| Communications Services        |                                     |
| (Blocks A, B, D, and E)        |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | Auction special size standard -     |
| Communications Services (Block |                                     |
| C)                             | **Small Business** is \$40M or less |
|                                | in annual gross revenues for three  |
|                                | previous calendar years             |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three calendar years  |
|                                | (includes affiliates and persons or |
|                                | entities that hold interest in such |
|                                | entity and their affiliates)        |
+--------------------------------+-------------------------------------+
| Broadband Personal             |                                     |
| Communications Services (Block |                                     |
| F)                             |                                     |
+--------------------------------+-------------------------------------+
| Narrowband Personal            |                                     |
| Communications Services        |                                     |
+--------------------------------+-------------------------------------+
| Rural Radiotelephone Service   | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Air-Ground Radiotelephone      |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| 800 MHz Specialized Mobile     | Auction special size standard -     |
| Radio                          |                                     |
|                                | **Small Business** is \$15M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
+--------------------------------+-------------------------------------+
| 900 MHz Specialized Mobile     |                                     |
| Radio                          |                                     |
+--------------------------------+-------------------------------------+
| Private Land Mobile Radio      | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Amateur Radio Service          | N/A                                 |
+--------------------------------+-------------------------------------+
| Aviation and Marine Radio      | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Fixed Microwave Services       |                                     |
+--------------------------------+-------------------------------------+
| Public Safety Radio Services   | **Small Business** is 1,500         |
|                                | employees or less                   |
|                                |                                     |
|                                | **Small Government Entities** has   |
|                                | population of less than 50,000      |
|                                | persons                             |
+--------------------------------+-------------------------------------+
| Wireless Telephony and Paging  | 1,500 Employees or Fewer            |
| and Messaging                  |                                     |
+--------------------------------+-------------------------------------+
| Personal Radio Services        | N/A                                 |
+--------------------------------+-------------------------------------+
| Offshore Radiotelephone        | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Wireless Communications        | **Small Business** is \$40M or less |
| Services                       | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 39 GHz Service                 |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction special size standard       |
| Service                        | (1996) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
|                                |                                     |
|                                | Prior to Auction --                 |
|                                |                                     |
|                                | **Small Business** has annual       |
|                                | revenue of \$12.5M or less          |
+--------------------------------+-------------------------------------+
| Multichannel Multipoint        | \$12.5 Million in Annual Receipts   |
| Distribution Service           | or Less                             |
+--------------------------------+-------------------------------------+
| Instructional Television Fixed |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Local Multipoint Distribution  | Auction special size standard       |
| Service                        | (1998) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 218-219 MHZ Service            | First Auction special size standard |
|                                | (1994) --                           |
|                                |                                     |
|                                | **Small Business** is an entity     |
|                                | that, together with its affiliates, |
|                                | has no more than a \$6M net worth   |
|                                | and, after federal income taxes     |
|                                | (excluding carryover losses) has no |
|                                | more than \$2M in annual profits    |
|                                | each year for the previous two      |
|                                | years                               |
|                                |                                     |
|                                | New Standard --                     |
|                                |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| Satellite Master Antenna       | \$12.5 Million in Annual Receipts   |
| Television Systems             | or Less                             |
+--------------------------------+-------------------------------------+
| 24 GHz -- Incumbent Licensees  | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 24 GHz -- Future Licensees     | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| ***Miscellaneous***            |                                     |
+--------------------------------+-------------------------------------+
| On-Line Information Services   | \$18 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio and Television           | 750 Employees or Fewer              |
| Broadcasting and Wireless      |                                     |
| Communications Equipment       |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Audio and Video Equipment      |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Telephone Apparatus            | 1,000 Employees or Fewer            |
| Manufacturers (Except          |                                     |
| Cellular)                      |                                     |
+--------------------------------+-------------------------------------+
| Medical Implant Device         | 500 Employees or Fewer              |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Hospitals                      | \$29 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Nursing Homes                  | \$11.5 Million in Annual Receipts   |
|                                | or Less                             |
+--------------------------------+-------------------------------------+
| Hotels and Motels              | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Tower Owners                   | (See Lessee's Type of Business)     |
+--------------------------------+-------------------------------------+

**DISSENTING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re: Infinity Broadcasting Operations Inc., licensee of WKRK-FM, Detroit
Michigan, Notice of Apparent Liability for Forfeiture*

I dissent from the Commission's decision today to provide a slap on the
wrist rather than take serious action to address the indecency on our
airwaves. In this decision, the Commission proposes a fine of \$27,500
against this multi-billion dollar media conglomerate.

I am troubled by several aspects of this decision that demonstrate the
Commission is not yet taking a strong stand against indecency on the
airwaves. First, the Commission fined this very same station last year
for airing some of the most vulgar and disgusting material I have had
the misfortune to examine since I joined the Commission. In both that
decision and this Order, the Commission warned Infinity that additional
violations may well lead to the initiation of a license revocation
proceeding. Some may argue that the program at issue today pre-dated the
broadcast addressed last year, which only serves to demonstrate the need
to consider complaints in a more timely manner. Moreover, the statute
does not require notice to begin a license revocation hearing.

Second, the Commission recently reaffirmed that its indecency
enforcement will address not only the station that is the subject of a
complaint, but also any other station that aired the same programming.
Yet here, the Commission proposes a fine against only WKRK-FM in Detroit
notwithstanding that this program airs on numerous stations across the
country.

The time has come for the Commission to send a message that it is
serious about enforcing its indecency rules.

25. 

**CONCURRING STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN,**

*Re: Infinity Broadcasting Operations, Inc., Licensee of Station
WKRK(FM), Detroit, MI, Notice of Apparent Liability for Forfeiture*

This Order emphasizes the importance of the Commissioner responding to
complaints in a more timely fashion. This is the same licensee that we
have previously fined for "egregious" indecency violations and warned
against future violations.[^48] This broadcast, however, actually
pre-dates the broadcast that incurred those warnings.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

> *Re: Infinity Broadcasting Operations, Inc., Licensee of Station
> WKRK-FM, Detroit, Michigan; Notice of Apparent Liability for
> Forfeiture*

I support this Notice of Apparent Liability for the broadcast of
indecent material at a time when children may be in the audience. This
NAL furthers our responsibility to enforce statutory and regulatory
provisions restricting broadcast indecency. While this case predates
another case in which this station aired some of the most egregious
broadcast indecency that I have yet encountered, we impose the statutory
maximum fine here and remind broadcasters that the Commission can and
will avail itself of a range of enforcement sanctions. I am also
concerned that the Commission did not take more steps to address other
stations which likely aired the same programming.

Since I arrived at the Commission, we have greatly stepped up our
enforcement against indecent broadcasts. I expect that these stepped-up
actions will convince broadcasters that they cannot ignore their
responsibility to serve the public interest and to avoid the broadcast
of indecent material over the public airwaves.

[^1]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

[^2]: *See* 18 U.S.C. § 1464, 47 C.F.R. § 73.3999 and 47 U.S.C. §
    503(b).

[^3]: Letter from complainant to Federal Communications Commission,
    dated October 11, 2001.

[^4]: Letter from the Chief, Investigations and Hearings Division,
    Enforcement Bureau, to Infinity Broadcasting Operations, Inc., dated
    June 3, 2003.

[^5]: *See* Program Transcript, Attachment A.

[^6]: *See* Letter from Steven A. Lerman, Dennis P. Corbett, and David
    S. Keir, Counsel to Infinity Broadcasting Operations, Inc., to the
    Investigations and Hearings Division, Enforcement Bureau, dated July
    17, 2003 ("*Infinity Response*"), at 5. As part of its response,
    Infinity indicated that it did not know whether other Infinity
    stations broadcast the language alleged by the complainant. Because
    the only evidence in the record relates to WKRK-FM, we limit our
    action here to that station.

[^7]: *Id.* at 8-9.

[^8]: *See* 47 U.S.C. § 326.

[^9]: 18 U.S.C. § 1464.

[^10]: 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); s*ee also* 47
    U.S.C. § 503(b)(1)(D)(forfeitures for violation of 18 U.S.C. §
    1464). Section 312(f)(1) of the Act defines willful as "the
    conscious and deliberate commission or omission of \[any\] act,
    irrespective of any intent to violate" the law. 47 U.S.C. §
    312(f)(1). The legislative history to section 312(f)(1) of the Act
    clarifies that this definition of willful applies to both sections
    312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97^th^ Cong. 2d
    Sess. 51 (1982), and the Commission has so interpreted the term in
    the section 503(b) context. *See, e.g., Application for Review of
    Southern California Broadcasting Co.*, Memorandum Opinion and Order,
    6 FCC Rcd 4387, 4388 (1991) ("*Southern California Broadcasting
    Co.*"). The Commission may also assess a forfeiture for violations
    that are merely repeated, and not willful. *See, e.g.,* *Callais
    Cablevision, Inc., Grand Isle, Louisiana*, Notice of Apparent
    Liability for Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
    Notice of Apparent Liability for, *inter alia*, a cable television
    operator's repeated signal leakage). "Repeated" merely means that
    the act was committed or omitted more than once, or lasts more than
    one day. *Southern California Broadcasting Co.,* 6 FCC Rcd at 4388,
    ¶ 5; *Callais Cablevision, Inc.,* 16 FCC Rcd at 1362, ¶ 9.

[^11]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^12]: *See, e.g., SBC Communications, Inc.,* Apparent Liability for
    Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
    (forfeiture paid).

[^13]: U.S. [Const.]{.smallcaps}, amend. I; *See Action for Children's
    Television v. FCC*, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("*ACT
    I*").

[^14]: 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." *FCC v. Pacifica
    Foundation*, 438 U.S. 726 (1978). *See also ACT I*, 852 F.2d at
    1339; *Action for Children's Television v. FCC,* 932 F.2d 1504, 1508
    (D.C. Cir. 1991)*, cert. denied,* 503 U.S. 914 (1992) ("*ACT II*");
    *Action for Children's Television v. FCC,* 58 F. 3d 654 (D.C. Cir.
    1995)*, cert. denied,* 516 U.S. 1043 (1996) *("ACT III").* Moreover,
    we have previously rejected Infinity's constitutional challenges of
    the Commission's indecency definition. *See, e.g., Infinity
    Broadcasting Operations, Inc.(WKRK-FM)*, Apparent Liability for
    Forfeiture, Forfeiture Order, 18 FCC Rcd 26360 (2003), *recon.
    denied,* Memorandum Opinion and Order, FCC 04-34 (rel. Mar. 5, 2004)
    (rejecting argument the indecency definition is vague and overbroad
    based upon *Reno v. ACLU,* 521 U.S. 844 (1997) and rejecting
    argument that the indecency definition is constitutionally invalid
    because no causal link has been demonstrated between indecency and
    harm to children based upon *Ashcroft v. Free Speech Coalition,* 122
    S.Ct. 1389 (2002) a case invalidating provision of the Child
    Pornography Prevention Act of 1996). We also reject Infinity's
    citation to *Interactive Digital Software Association v. St. Louis
    County, Missouri,* 329 F.3d 954 (8^th^ Cir. 2003) in support of its
    argument that no causal link has been established between indecency
    and harm to children. This case invalidated an ordinance prohibiting
    certain sales, rental and provision of access to minors to
    graphically violent video games because there was no support that
    there was a strong likelihood of harm to the psychological well
    being of minors as a result of playing violent video games.

[^15]: *ACT I,* 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 may say and
    hear."). *See id*. at 1340 n.14 (" . . . the potential chilling
    effect of the FCC's generic definition of indecency will be tempered
    by the Commission's restrained enforcement policy.").

[^16]: *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).

[^17]: *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, 8002, ¶¶ 7-8
    (2001) (emphasis in original).

[^18]: *Infinity Response* at 9-10.

[^19]: *Infinity Response* at 10.

[^20]: *Id.* Infinity claims that discussion of a "blumpkin" involves
    only "brief and non-descriptive references to sexual practices that
    employ only clinical terms such as 'evacuating' and 'oral sex.'"

[^21]: *See* Program Transcript, Attachment A, at 9-10, describing a
    "blumpkin" and at 10-11, describing the "David Copperfield." *See
    also,* note 30, *infra*.

[^22]: *See* Program Transcript, Attachment A at 9-10, describing a
    "balloon knot" as the anal opening.

[^23]: The "contemporary standards for the broadcast medium" criterion
    is that of an average broadcast listener and with respect to
    Commission decisions, does not encompass any particular geographic
    area. *See Indecency Policy Statement* at 8002, ¶ 8 and n. 15.

[^24]: *Indecency Policy Statement,* 16 FCC Rcd at 8002, ¶ 9 (emphasis
    in original).

[^25]: *Id.* at 8002-15, ¶¶ 8-23.

[^26]: *Id.* at 8003, ¶ 10.

[^27]: *Id.* at 8009, ¶ 19 (*citing Tempe Radio, Inc (KUPD-FM)*, 12 FCC
    Rcd 21828 (MMB 1997) (forfeiture paid) (extremely graphic or
    explicit nature of references to sex with children outweighed the
    fleeting nature of the references); *EZ New Orleans, Inc.
    (WEZB(FM))*, 12 FCC Rcd 4147 (MMB 1997) (forfeiture paid) (same).

[^28]: *Id.* at 8010, ¶ 20 ("the manner and purpose of a presentation
    may well preclude an indecency determination even though other
    factors, such as explicitness, might weigh in favor of an indecency
    finding").

[^29]: *See* *Infinity Broadcasting Operations, Inc., (WKRK-FM),*
    Apparent Liability for Forfeiture, Forfeiture Order, 18 FCC Rcd
    26360 (2003), *recon. denied,* Memorandum Opinion and Order, FCC
    04-34 (rel. Mar. 5, 2004) (broadcast on Station WKRK on January 9,
    2002 during the "Deminski & Doyle Show" that "described in detail
    how specifically named sexual acts are performed" and that "included
    explicit and graphic sexual references to anal and oral sex, as well
    as explicit and graphic references to sexual practices that involve
    excretory activities"). The complained-of material at issue here was
    broadcast on an earlier date, but includes similar descriptions of a
    "blumpkin," and the "David Copperfield," sexual practices among
    those at issue in the January 9, 2002, broadcast over Station
    WKRK-FM.

[^30]: *See* Program Transcript, Attachment A at 9-11.

[^31]: *Indecency Policy Statement*, 16 FCC Rcd at 8002-04, ¶¶ 9-12
    (2001). *See also,* *Emmis Radio License Corporation (WKQX(FM))*,
    Notice of Apparent Liability for Monetary Forfeiture, 17 FCC Rcd
    5263 (EB 2002); Apparent Liability for Forfeiture, Forfeiture Order,
    17 FCC Rcd 21697 (EB 2002), *recon. denied*,*,* Memorandum Opinion
    and Order, 19 FCC Rcd 2697 (EB 2004)(where innuendo's "unmistakably
    sexual" meanings and contexts were established by lengthy
    surrounding discussion, the material was found to be actionably
    indecent). In this regard, "when you're goin' like a dog..."
    referred to the position employed during the "David Copperfield"
    sexual practice. Program transcript, Attachment A at 10.

[^32]: *See Sagittarius Broadcast Corporation*, Memorandum Opinion and
    Order, 7 FCC Rcd 6873, 6874 (1992) (subsequent history omitted).

[^33]: *See, e.g.,* *Emmis Radio License Corporation (WKQX(FM))*, Notice
    of Apparent Liability for Monetary Forfeiture, 17 FCC Rcd 5263, 5266
    ¶¶ 10-11; Forfeiture Order, 17 FCC Rcd at 21699 ¶ 9.

[^34]: *Infinity Response* at 9-10.

[^35]: *See Infinity Response* at 12 citing Letter from Charles W.
    Kelley, Chief, Investigations and Hearings Division, Enforcement
    Bureau, dated April 22, 2002, EB-01-IH-0407.

[^36]: *See Infinity Response* at 12 citing Letter from Charles W.
    Kelley, Chief, Investigations and Hearings Division, Enforcement
    Bureau, dated February 12, 2002, EB-01-IH-0331.

[^37]: *Id.* at 4-5.

[^38]: *See* Memo from Thom Winkler to WIOD Complaint File, dated April
    21, 1997, FCC Ref. No. 97010196; Letter from Norman Goldstein,
    Chief, Complaints and Political Programming Branch, Enforcement
    Division, Mass Media Bureau, dated May 15, 1997, FCC Ref. No.
    94069521; Letter and Appendix from FCC Commissioner James H. Quello
    to The Honorable Senator Alfonse M. D'Amato, dated April 29, 1994.

[^39]: *See, e.g., Amor Family Broadcasting Group v. FCC*, 918 F. 2d
    960, 962 (D.C. Cir. 1990), *citing Homemakers North Shore, Inc. v.
    Bowen*, 832 F.2d 408, 413 (7^th^ Cir. 1987). *See also Lorenzo Jelks
    v. FCC*, 146 F.3d 878, 881 (D.C. Cir. 1998).

[^40]: *See ACT III*, 58 F.3d at 660-63.

[^41]: *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). The
    Commission amended its rules to increase the maximum penalties to
    account for inflation since the last adjustment of the penalty
    rates. The new rates apply to violations that occur or continue
    after November 13, 2000. *See Order, In the Matter of Amendment of
    Section 1.80(b) of the Commission's Rules and Adjustment of
    Forfeiture Maxima to Reflect Inflation,* 15 FCC Rcd 18221 (2000).

[^42]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17100-01, ¶ 27.

[^43]: *Infinity Broadcasting Operations, Inc., (WKRK-FM),* Notice of
    Apparent Liability for Monetary Forfeiture, 18 FCC Rcd 6915,
    6918-19, ¶ 12 (2003), *Apparent Liability for Forfeiture*,
    Forfeiture Order, 18 FCC 26360 (2003), *recon. denied,* Memorandum
    Opinion and Order, FCC 04-34 (rel. Mar. 5, 2004).

[^44]: *Id.* at 6919, ¶ 13. We note that the broadcast at issue here
    took place prior to the release of the WKRK-FM *NAL* in which this
    statement appeared.

[^45]: 47 C.F.R. § 1.80.

[^46]: *See* 47 C.F.R. § 1.1914.

[^47]: Consistent with section 503(b) of the Act and consistent
    Commission practice, for the purposes of the forfeiture proceeding
    initiated by this *NAL*, Infinity shall be the only party to this
    proceeding.

[^48]: *Infinity Broadcasting Operations, Inc., Licensee of Station
    WKRK-FM, Detroit, Michigan*, Notice of Apparent Liability, 18 FCC
    Rcd. 6915, 6919 (2003).