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 Federal  Communications  Commission  FCC  04-  49 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Infinity  Broadcasting  Operations,  Inc. 
 Licensee  of  Station  WKRK-  FM  Detroit,  Michigan 


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 File  No.  EB-  01-  IH-  0633  NAL/  Acct.  No.  200432080013 
 FRN  0003476074  Facility  ID  No.  9618 


 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 
 Commissions  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  Commissions  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 


 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. 
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 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  complainants  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  Commissions  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  Commissions  rules  and  applicable  statutory 


 provisions  concerning  the  operation  of  those  stations.  The  Commissions  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  Commissions  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 


 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);  see  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  operators  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). 
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 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  Commissions  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  Congresss  authority  to  regulate  the  broadcast  of  indecent  material,  as  well  the  Commissions  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, 


 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.,  amend.  I;  See  Action  for  Childrens  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  Childrens  Television  v.  FCC,  932  F.  2d  1504,  1508  (D.  C.  Cir. 


 1991),  cert.  denied,  503  U.  S.  914  (1992)  (  ACT  II);  Action  for  Childrens  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  Infinitys 
 constitutional  challenges  of  the  Commissions  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  Infinitys  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  FCCs  generic  definition  of  indecency  will  be  tempered  by  the  Commissions  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),  affd  sub  nom.  FCC  v.  Pacifica  Foundation,  438  U.  S.  726  (1978). 
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 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.  Infinitys  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 


 17  Industry  Guidance  on  the  Commissions  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). 
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 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  Infinitys  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  Infinitys  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  Infinitys  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 


 (...  continued  from  previous  page)  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  innuendos  unmistakably  sexual  meanings  and  contexts 
 were  established  by  lengthy  surrounding  discussion,  the  material  was  found  to  be  actionably  indecent).  In  this  regard,  when  youre  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. 
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 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  Commissions  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  Infinitys 
 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  Commissions  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  Commissions  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  Commissions  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 


 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.  DAmato,  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  Commissions  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  Commissions  Rules  and 
 Adjustment  of  Forfeiture  Maxima  to  Reflect  Inflation,  15  FCC  Rcd  18221  (2000). 
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 Federal  Communications  Commission  FCC  04-  49 
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 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.  Infinitys  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  Commissions  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  Commissions  rules. 
 17.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  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 
 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. 


 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. 


 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. 
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 Federal  Communications  Commission  FCC  04-  49 
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 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  FCCs  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.  Infinitys  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-  FMs  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  Infinitys  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 


 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. 
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 ATTACHMENT  A  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  dont  know  what  it  is. 


 RQ:  Youre  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,  thats  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  its  fine  but  if  its  a  real  thing  we  cant  have  it.  So  its  aired,  its  been  on  ABC,  its  like  the  dirtiest  thing  ever  on  television. 


 HS:  Yeah,  but  nobody  knows  what  it  is.  A  blumpkin  I  can  explain  it  cleanly. 
 RQ:  Theres  nothing  clean  about  a  blumpkin. 
 HS:  Well,  a  blumpkin  is  receiving  oral  sex  while  youre  sitting  on  a  toilet  bowl  if  you  are  a  man.  Youre  sitting  on  a  toilet  bowl  and  uh,  while  youre  evacuating  you  receive  your  oral. 


 RQ:  Ick. 
 HS:  And  uh,  then,  what  did  I  say  yesterday  too  you  didnt  understand?  Balloon  knot? 
 RQ:  Yes,  I  dont  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  didnt  want  to  show  my  ignorance,  I  laughed  too. 
 HS:  A  balloon  knot  Im  gonna  post  these  on  a  web  site 
 RQ:  Yeah,  we  need  a  dictionary  for  this  show. 
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 Federal  Communications  Commission  FCC  04-  49 
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 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  thats  a  balloon  knot  that  you  see.  Thats  called  a  balloon  knot. 
 RQ:  Really,  I  did  not  know  that. 
 HS:  Think  about  it,  it  looks  like  a  balloon  knot. 
 RQ:  I  dont  know.  Oh  you  know  what 
 HS:  Tie  up  a  balloon. 
 RQ:  Im  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  didnt  know  what  that  was. 
 RQ:  Oh,  I  dont  even  want  to  know  half  the  time  what  these  things  are 
 HS:  That  Id  have  to  post  on  the  internet. 
 RQ:  Cause  thereve  been  a  number  of  terms  used  lately.  Would  you  do  cause  KCs  always  blurtin  them  out. 


 HS:  Strawberry  shortcake 
 RQ:  Strawberry  shortcake  Ive  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:  Thats  right. 
 MV:  Okay,  do  you  want  to  explain  it,  since  I...  When  youre  goin  like  a  dog 
 HS:  Right. 
 MV:  and  youre  about  to  finish  and  instead  you  dont  finish,  you  spit  on  her  and  then  you  turn  around  and  when  she  turns  her  face  around  then  you  go  So  its  kind  of  like  an  illusion 


 HS:  Right. 
 MV:  to  David  Copperfield. 
 RQ:  Sleight  of  hand. 
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 Federal  Communications  Commission  FCC  04-  49 
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 HS:  Misdirection. 
 MV:  Classic  misdirection. 
 HS:  You  trick  her.  Theres  a  million  of  them,  but  uh,  Ill  post  them  on  the  web. 
 RQ:  Yes,  because  people  need  to  know.  These  arent  in  the  regular  dictionary. 
 ***  *** 
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 Federal  Communications  Commission  FCC  04-  49 
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 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  Distribution  Open  Video  Systems  $12.5  Million  in  Annual  Receipts  or  Less 


 Common  Carrier  Services  and  Related  Entities  Wireline  Carriers  and  Service  providers 
 Local  Exchange  Carriers,  Competitive  Access  Providers,  Interexchange  Carriers, 
 Operator  Service  Providers,  Payphone  Providers,  and  Resellers  1,500  Employees  or  Fewer 


 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  Stations 
12
 Federal  Communications  Commission  FCC  04-  49 
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 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 


 $12.5  Million  in  Annual  Receipts  or  Less 


 Mass  Media  Services  Television  Services 
 Low  Power  Television  Services  and  Television  Translator  Stations 
 TV  Auxiliary,  Special  Broadcast  and  Other  Program  Distribution  Services  $12  Million  in  Annual  Receipts  or  Less 
 Radio  Services  Radio  Auxiliary,  Special  Broadcast  and 
 Other  Program  Distribution  Services  $6  Million  in  Annual  Receipts  or  Less  Multipoint  Distribution  Service  Auction  Special  Size  Standard   
 Small  Business  is  less  than  $40M  in  annual  gross  revenues  for  three  preceding  years 
 Wireless  and  Commercial  Mobile  Services  Cellular  Licensees 


 220  MHz  Radio  Service    Phase  I  Licensees  1,500  Employees  or  Fewer  220  MHz  Radio  Service    Phase  II 
 Licensees  700  MHZ  Guard  Band  Licensees 


 Private  and  Common  Carrier  Paging 


 Auction  special  size  standard  -  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) 
 Broadband  Personal  Communications  Services  (Blocks  A,  B,  D,  and  E)  1,500  Employees  or  Fewer 


 Broadband  Personal  Communications  Services  (Block  C) 
 Broadband  Personal  Communications  Services  (Block  F) 
 Narrowband  Personal  Communications  Services 


 Auction  special  size  standard  -  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) 


 Rural  Radiotelephone  Service  Air-  Ground  Radiotelephone  Service  1,500  Employees  or  Fewer 
 800  MHz  Specialized  Mobile  Radio  900  MHz  Specialized  Mobile  Radio  Auction  special  size  standard  -  Small  Business  is  $15M  or  less  average  annual  gross 
 revenues  for  three  preceding  calendar  years 
 Private  Land  Mobile  Radio  1,500  Employees  or  Fewer  Amateur  Radio  Service  N/  A 


 Aviation  and  Marine  Radio  Service  Fixed  Microwave  Services  1,500  Employees  or  Fewer 
13
 Federal  Communications  Commission  FCC  04-  49 
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 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  and  Messaging  1,500  Employees  or  Fewer 


 Personal  Radio  Services  N/  A  Offshore  Radiotelephone  Service  1,500  Employees  or  Fewer 


 Wireless  Communications  Services 
 39  GHz  Service 


 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 


 Multipoint  Distribution  Service 
 Auction  special  size  standard  (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  Distribution  Service 


 Instructional  Television  Fixed  Service  $12.5  Million  in  Annual  Receipts  or  Less 


 Local  Multipoint  Distribution  Service 
 Auction  special  size  standard  (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  Television  Systems  $12.5  Million  in  Annual  Receipts  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  Broadcasting  and  Wireless  Communications  Equipment 
 Manufacturers  Audio  and  Video  Equipment  Manufacturers  750  Employees  or  Fewer 
 Telephone  Apparatus  Manufacturers  (Except  Cellular)  1,000  Employees  or  Fewer 
 Medical  Implant  Device  Manufacturers  500  Employees  or  Fewer 
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 Federal  Communications  Commission  FCC  04-  49 
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 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  Lessees  Type  of  Business) 
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 Federal  Communications  Commission  FCC  04-  49 
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 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  Commissions  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. 
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 Federal  Communications  Commission  FCC  04-  49 
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 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.  1  This  broadcast,  however,  actually  pre-  dates  the  broadcast  that  incurred  those  warnings. 


 1  Infinity  Broadcasting  Operations,  Inc.,  Licensee  of  Station  WKRK-  FM,  Detroit,  Michigan,  Notice  of  Apparent 
 Liability,  18  FCC  Rcd.  6915,  6919  (2003). 
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 Federal  Communications  Commission  FCC  04-  49 
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 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. 
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