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 FEDERAL  COMMUNICATIONS  COMMISSION  DA  01-  870 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of  )  File  Nos.  EB-  00-  IH-  0401 
 Emmis  FM  License  Corp.  of  Chicago  )  NAL/  Acct.  No.  200132080029 
 )  Facility  ID  #19525 
 Licensee  of  Station  WKQX(  FM),  ) 
 Chicago,  Illinois  ) 

 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  April  5,  2001  Released:  April  6,  2001 
 By  the  Chief,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  ("  NAL"),  we  find  that  Emmis  FM 
 License  Corp.  of  Chicago  (  Emmis),  licensee  of  Station  WKQX(  FM),  Chicago,  Illinois, 
 apparently  violated  18  U.  S.  C.    1464  and  47  C.  F.  R.    73.  3999,  by  willfully  and  repeatedly 
 broadcasting  indecent  language.  Based  on  our  review  of  the  facts  and  circumstances  in  this  case, 
 we  conclude  that  Emmis  is  apparently  liable  for  a  forfeiture  in  the  amount  of  fourteen  thousand 
 dollars  ($  14,000). 

 II.  BACKGROUND 
 2.  The  Commission  received  complaints  dated  March  20,  2000  and  May  15,  2000, 
 concerning  broadcasts  that  aired  on  WKQX  on  the  date  of  each  letter.  Each  complaint  argued 
 that  on  the  date  of  the  letter  the  station  had  broadcast  indecent  material  on  Mancow  Morning 
 Madhouse  (  Mancow)  program.  The  March  complaint  alleged  that  the  host  aired  a  telephone 
 conversation  with  an  adult-  film  actress  who  described  fisting  1  in  graphic  detail.  The  May 
 complaint  charges  that  the  station  aired  a  pre-  recorded  Mancow  segment  entitled  Bitch  Radio. 
 The  segment  allegedly  featured  an  interview  with  three  women  who  discussed  their  sex  lives 
 generally,  and  oral  sex  in  particular.  One  of  the  questions  allegedly  asked  and  answered  was 
 whether  the  women  spit  or  swallowed  their  partners  sperm.  The  complaint  also  charges  that, 
 during  this  question  and  answer  session,  sounds  of  women  moaning  were  played  in  the 
 background. 

 3.  Because  the  two  broadcasts  contained  apparently  indecent  material  and  aired  between 
 6  a.  m.  and  10  a.  m.,  we  issued  a  letter  of  inquiry  to  the  licensee.  In  its  response,  Emmis  states 
 only  that  it  has  neither  a  tape  nor  a  transcript  and  cannot  determine  whether  the  alleged  statements 
 were  made. 

 1  According  to  the  complainant,  fisting  is  a  procedure  by  which  a  female  is  sexually  gratified  by  having  an 
 entire  hand  inserted  into  her  sexual  organ. 
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 III.  DISCUSSION 
 4.  Section  503(  b)(  1)  of  the  Communications  Act  (the  Act),  47  U.  S.  C.    503(  b)(  1), 
 provides  in  pertinent  part: 

 Any  person  who  is  determined  by  the  Commission,  in  accordance  with  paragraph 
 (3)  or  (4)  of  this  subsection  to  have  --  - 
  
 (D)  violated  any  provision  of  section  1304,  1343,  or  1464  of  title  18,  United 
 States  Code; 
 shall  be  liable  to  the  United  States  for  a  forfeiture  penalty. 

 18  U.  S.  C.    1464  provides  criminal  penalties  for  anyone  who  utters  any  obscene,  indecent  or 
 profane  language  by  means  of  radio  communication.  As  explained  below,  we  believe  that 
 language  broadcast  during  the  two  programs  of  Mancow  was  indecent  and  that  the  licensees 
 broadcasts  of  that  material  were  willful. 

 5.  The  Commission  has  defined  indecent  speech  as  language  that,  in  context,  depicts  or 
 describes,  in  terms  patently  offensive  as  measured  by  contemporary  community  standards  for  the 
 broadcast  medium,  sexual  or  excretory  activities  or  organs.  Infinity  Broadcasting  Corporation  of 
 Pennsylvania,  2  FCC  Rcd  2705  (1987)  (subsequent  history  omitted)  (citing  Pacifica  Foundation, 
 56  FCC  2d  94,  98  (1975),  affd  sub  nom.  FCC  v.  Pacifica  Foundation,  438  U.  S.  726  (1978).  The 
 Commissions  authority  to  restrict  the  broadcast  of  indecent  material  extends  to  times  when  there 
 is  a  reasonable  risk  that  children  may  be  in  the  audience.  Action  for  Childrens  Television  v. 
 FCC,  852  F.  2d  1332  (D.  C.  Cir.  1988).  Current  law  holds  that  such  times  begin  at  6  a.  m.  and 
 conclude  at  10  p.  m.  Action  for  Childrens  Television  v.  FCC,  58  F.  3d  654  (D.  C.  Cir.  1995),  cert. 
 denied,  116  S.  Ct.  701  (1996).  Thus,  to  be  actionably  indecent,  the  material  in  question  must  not 
 only  meet  the  standard  referenced  above  but  also  air  after  6  a.  m.  and  before  10  p.  m.  See  47 
 C.  F.  R.    73.  3999. 

 6.  After  carefully  considering  the  record  before  us,  it  appears  that  Emmis  has  willfully 
 and  repeatedly  violated  our  indecency  rule.  Emmis  does  not  deny  that  it  broadcast  the  material  in 
 question  between  6  a.  m.  and  10  a.  m.  Each  segment  contains  material  that  apparently  describes 
 sexual  activities  in  patently  offensive  terms.  Specifically,  the  March  broadcast  apparently  described 
 in  explicit  detail  a  sexual  technique  familiar  to  a  female  porn  star,  while  the  May  program  discussed 
 specific  aspects  of  fellatio  and  included  the  sounds  of  women  moaning  in  the  background.  In  a 
 similar  situation,  we  found  indecent  portions  of  a  radio  stations  interview  of  an  adult-  film  actress 
 who  crudely  relayed  her  fondness  for  oral  sex.  See  Regent  Licensee  of  Flagstaff,  Inc.  (KZGL(  FM)), 
 15  FCC  Rcd  17286  (Enforcement  Bureau  2000).  We  have  consistently  deemed  such  material 
 indecent,  and  we  believe  the  same  result  is  warranted  here.  See  also  Rusk  Corporation 
 (KLOL(  FM)),  5  FCC  Rcd  6332  (Mass  Media  Bureau  1990). 

 7.  Section  503(  b)  of  the  Act  and  47  C.  F.  R.    1.80  both  state  that  any  person  who  willfully 
 or  repeatedly  fails  to  comply  with  the  Act  or  the  Commissions  rules  shall  be  liable  for  a  forfeiture 
 penalty.  For  purposes  of  47  U.  S.  C.    503(  b),  the  term  willful  means  that  the  violator  knew  that  it 
 was  taking  the  action  in  question,  irrespective  of  any  intent  to  violate  the  Commissions  rules.  2  In 
 assessing  a  forfeiture,  we  take  into  account  the  nature,  circumstances,  extent  and  gravity  of  the 

 2  See  Jerry  Szoka,  14  FCC  Rcd  9857,  9865  (1999);  Southern  California  Broadcasting  Co.,  6  FCC  Rcd  4387 
 (1991). 
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 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.  3 

 8.  The  Commissions  Forfeiture  Guidelines  set  a  base  forfeiture  amount  of  $7,000  for 
 transmission  of  indecent/  obscene  materials.  4  After  considering  all  the  facts  and  circumstances, 
 we  believe  the  base  forfeiture  amount  is  the  appropriate  sanction  for  each  of  the  two  violations 
 described  above  and  that  neither  an  upward  nor  downward  adjustment  should  be  made. 

 IV.  ORDERING  CLAUSES 
 9.  Accordingly,  IT  IS  ORDERED  THAT,  pursuant  to  47  U.  S.  C.    503(  b),  and  47  C.  F.  R. 
   0.111,  0.311  and  1.80,  Emmis  FM  License  Corp.  of  Chicago  is  hereby  NOTIFIED  of  its 
 APPARENT  LIABILITY  FOR  A  FORFEITURE  in  the  amount  of  fourteen  thousand  dollars 
 ($  14,000)  for  willfully  and  repeatedly  violating  18  U.  S.  C.    1464  and  47  C.  F.  R.    73.  3999. 

 10.  IT  IS  FURTHER  ORDERED  THAT,  pursuant  to  47  C.  F.  R.    1.  80,  within  thirty  days 
 of  this  NOTICE  OF  APPARENT  LIABILITY,  Emmis  FM  License  Corp.  of  Chicago  SHALL 
 PAY  the  full  amount  of  the  proposed  forfeiture  or  SHALL  FILE  a  written  statement  seeking 
 reduction  or  cancellation  of  the  proposed  forfeiture. 

 11.  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  should  note  the  NAL/  Acct.  No.  referenced  above. 

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

 13.  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  respondents  current  financial  status.  Any  claim  of  inability  to  pay  must  specifically 
 identify  the  basis  for  the  claim  by  reference  to  the  financial  documentation  submitted. 

 14.  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.  5 

 3  47  U.  S.  C.    503(  b)(  2)(  D).  See  also  The  Commissions  Forfeiture  Policy  Statement  and  Amendment  of 
 Section  1.  80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines,  12  FCC  Rcd  17087,  17100-  01  (1997), 
 recon.  denied,  15  FCC  Rcd  303  (1999)  (  Forfeiture  Guidelines). 

 4  Forfeiture  Guidelines,  12  FCC  Rcd  at  17113. 

 5  See  47  C.  F.  R.    1.1914. 
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 15.  IT  IS  FURTHER  ORDERED  THAT  a  copy  of  this  NOTICE  OF  APPARENT 
 LIABILITY  shall  be  sent  by  Certified  Mail  Return  Receipt  Requested  to  Emmis  FM  License 
 Corp.  of  Chicago,  3500  West  Olive  Avenue,  Suite  300,  Burbank,  California  91505;  with  a  copy 
 to  John  E.  Fiorini,  III,  Esq.,  Wiley,  Rein  &  Fielding,  1776  K  Street,  N.  W.,  Washington,  D.  C. 
 20006. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 David  H.  Solomon 
 Chief,  Enforcement  Bureau 
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