*Pages 1--9 from Microsoft Word - 35784* Federal Communications Commission DA 04- 386 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Emmis Radio License Corporation Licensee of Station WKQX( FM), Chicago, Illinois ) ) ) ) ) ) ) ) ) File No. EB- 01- IH- 0121 NAL/ Acct. No. 200232080014 FRN 0001529346 Facility ID # 19525 FORFEITURE ORDER Adopted: February 17, 2004 Released: February 18, 2004 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Forfeiture Order, issued pursuant to section 503 of the Communications Act of 1934, as amended (the “Act”) and section 1.80 of the Commission’s rules, 1 we impose a monetary forfeiture of Seven Thousand Dollars ($ 7,000.00) on Emmis FM License Corporation (“ Emmis”), licensee of Station WKQX( FM), Chicago, Illinois, for the willful broadcast of indecent material over the station during its March 12, 2001, broadcast of the “Mancow’s Morning Madhouse” (“ Mancow”) program, in violation of 18 U. S. C. § 1464 and 47 C. F. R. § 73. 3999. II. BACKGROUND 2. The Commission received a complaint that Station WKQX( FM) broadcast indecent material on March 12, 2001, between 8: 00 and 8: 10 a. m. during the Mancow program. 2 In support of the complaint, the complainant submitted an audio tape of the broadcast. 3 The complainant specifically identified a song, “Smell My Finger,” that had been broadcast during the Mancow program. 3. After reviewing the complaint and the audio tape, we issued a letter of inquiry to Emmis that included a transcript of the song lyrics contained on the audio tape submitted by the complainant. 4 Emmis responded to the letter of inquiry and stated that it did not retain tapes or transcripts of the programming 1 47 U. S. C. § 503( b)( 2002); 47 C. F. R. § 1. 80 (2002). 2 See Letter from David Edward Smith, to Norman Goldstein, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau, dated March 12, 2001. 3 See Program Transcript, Attachment A. 4 See Letter from Charles W. Kelley, Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission to Emmis FM License Corp. of Chicago, dated August 6, 2001. 1 Federal Communications Commission DA 04- 386 2 aired over Station WKQX( FM), and thus could not verify the accuracy of the transcript. 5 Nevertheless, Emmis argued that, even assuming the accuracy of the transcript, the program material at issue was not actionably indecent. 6 4. On June 28, 2002, the Bureau issued a Notice of Apparent Liability (“ NAL”), finding that the material broadcast over Station WKQX( FM) on March 12, 2001 during the “Mancow” program apparently violated the Commission’s indecency rules. 7 First, we found that this material, in context, was within the subject matter scope of the first fundamental determination under the indecency definition, which requires a finding that the material describes or depicts sexual or excretory organs or activities. 8 Thus, we found that the material warranted further scrutiny to determine whether or not it was patently offensive as measured by contemporary community standards, which is the second fundamental determination required by the indecency definition. 9 5. We then assessed the full context of the program segment at issue in the complaint under three principal factors significant to a contextual analysis of whether material is patently offensive: (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. 10 In doing so, we found that the material broadcast during the “Mancow” program was patently offensive as measured by contemporary community standards for the broadcast medium because it met each factor. 11 In doing so, we rejected Emmis’s argument that this material was not patently offensive as measured by contemporary community standards for the broadcast medium based upon the absence of complaints concerning the Mancow programs’ content prior to late 2001, and the fact that the complaint had been initiated by a single individual or group whose standards did not accurately reflect those of the national community as a whole. 12 We concluded that a monetary sanction in the base forfeiture amount of $7,000.00 appeared appropriate in light of the apparent rule violation. 13 6. On July 29, 2002, Emmis filed a response to the NAL in accordance with section 1.80( f) (3) of the Commission’s rules. 14 Emmis argued that the Commission’s definition of “contemporary community standards” is not sufficiently clear to allow broadcasters to make informed decisions regarding broadcast material that is entitled to constitutional protection. 15 Emmis also argued that the material broadcast in 5 See Letter from J. Scott Enright, Vice President, Associate General Counsel and Assistant Secretary, Emmis Communications, to Magalie Roman Salas, Secretary, Federal Communications Commission, dated September 5, 2001. (“ Emmis Response to Inquiry”). 6 Id. at 2. 7 Emmis Radio License Corporation, Notice of Apparent Liability for Monetary Forfeiture, 17 FCC Rcd 11990 (EB 2002). 8 See Industry Guidance on the Commission’s Case Law Interpreting 18 U. S. C. § 1464 and Enforcement Policies Regarding Broadcast Indecency (“ Indecency Policy Statement”), 16 FCC Rcd 7999, 8002, ¶ 7 (2001). Emmis Radio License Corporation, 17 FCC Rcd at 11992, ¶ 7. 9 Indecency Policy Statement, 16 FCC Rcd at 8002- 03, ¶¶ 8- 9. Emmis Radio License Corporation, 17 FCC Rcd at 11992, ¶7. 10 Emmis Radio License Corporation, 17 FCC Rcd at 11992- 93, ¶¶ 8- 9. 11 Id. 12 Emmis Response to Inquiry at 6. Emmis Radio License Corporation, 17 FCC Rcd at 11992- 93, ¶ 9. 13 Emmis Radio License Corporation, 17 FCC Rcd at 11993, ¶ 11. 14 Response to Notice of Apparent Liability for Forfeiture of Emmis Radio License Corporation (“ Emmis NAL Response”). 15 Id. at 1- 3. 2 Federal Communications Commission DA 04- 386 3 this case does not fit within the Commission’s definition of indecency. 16 In light of these arguments, Emmis requested cancellation of the proposed forfeiture. 17 III. DISCUSSION 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. 18 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. 19 The federal courts consistently have upheld Congress’s authority to regulate the broadcast of indecent speech, as well the Commission’s interpretation and implementation of the governing statute. 20 The Commission’s authority to restrict the broadcast of indecent material extends to times when there is a reasonable risk that children may be in the audience. 21 Under current law, indecent material may not be broadcast between 6 a. m. and 10 p. m. 22 8. Emmis does not dispute that the material was broadcast between 6 a. m. and 10 p. m. or that the material refers to sexual organs and activities, and thus warrants scrutiny to determine whether or not it was patently offensive as measured by contemporary community standards for the broadcast medium. 23 As discussed below, we reject Emmis’s assertion that that the material at issue does not fit within the Commission’s definition of indecency because it is not patently offensive. We conclude that the broadcast of this material violated the Commission’s indecency rule. 9. Under the first factor, Emmis argues that the sexual import of the material is far from inescapable and that the “average” child would hardly understand that the complained- of material had any 16 Id. at 3- 4. 17 Id. at 1. 18 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)). 19 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). 20 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 Action for Children’s Television v. FCC, 852 F. 2d 1332, 1339 (D. C. Cir. 1988) (“ ACT I”); Action for Children’s Television v. FCC, 932 F. 2d 1504, 1508 (D. C. Cir. 1991), cert. denied, 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”). 21 ACT I, 852 F. 2d at 1341. 22 ACT III, 58 F. 3d at 669. 23 The “contemporary community 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, 16 FCC Rcd at 8002, ¶ 8 and n. 15. 3 Federal Communications Commission DA 04- 386 4 sexual meaning at all. Moreover, Emmis asserts that the NAL’s conclusion that the material at issue contains explicit and graphic sexual references is not supported by references to specific language in the complained- of material. 10. The NAL contained a transcript of the material at issue, including the following excerpt: 24 MR: I’ve never been bashful, shy, sheepish or chivalrous when asking a lady to give me a kiss. So when she lifted up her skirt, I didn’t ask what is this. MR: Her box had some cheese so I nicknamed her Swiss. And so like Magellan I began to explore. Like Vasco DeGama I cleared the cape and went for more. Like Columbus I got lost but still managed to score. Like Ponce DeLeon I found the fountain in her core. [Unintelligible] Like Captain Cook I unearthed her buried treasure. My shot was on target like Jesse James the gun slinger. You need proof? Make like Sherlock Holmes and smell my finger. Chorus: Smell my finger. Smell my finger. Smell my finger. MR: Smell my finger. Smell that stank finger ya’all. [female making moaning sounds]. MR2: I like the super models with the low self- esteem, who wear the tight jeans covering up the g- strings. Tall lanky chicks who grow out their bangs. They only eat lettuce. They belong to the machine gangs. I take her to dinner, I buy her some roses and then I part her legs like the Red Sea cuz I am Moses. We smoke the ganja. We drink from a flask. The material also contained graphic and explicit references to sexual activity, including the repeated reference to “smell my finger.” In addition to these references, there were repeated moaning sound effects. The material relied in part on innuendo, such as “lifting up her skirt,” “part her legs like the Red Sea,” and “God had given her a tongue.” 25 To the extent that the material included sound effects and innuendo, these references were nonetheless sufficient to render the material actionably indecent because the sexual import of the sounds and terms was “unmistakable.” 26 Emmis argues that indecency enforcement is aimed at protecting children and that the “average” child would not understand the sexual import of this material. However, the courts have held that the Commission is justified in concluding the government’s interest in protecting children from exposure to indecent material extends to minors of all ages, who are defined as being under the age of 18 years. 27 Given the explicit references and the graphic manner in which the material described sexual activity, we are confident that many, if not most, 17 year-olds would have clearly understood the sexual meaning. 28 11. We also disagree with Emmis’s assertion that the complained- of material is not as graphic or explicit as a parody of a Britney Spears song that the staff found not actionably indecent. 29 Unlike the 24 See Program transcript, Attachment A at 8- 9. 25 Id. 26 See Indecency Policy Statement, 16 FCC Rcd at 8003- 04, ¶ 12. 27 See ACT III, 58 F. 3d at 664. 28 See Sagittarius Broadcast Corporation, Memorandum Opinion and Order and Apparent Liability for Forfeiture, Forfeiture Order, 7 FCC Rcd 6873, 6874 (1992)( subsequent history omitted). 29 See Letter from Charles W. Kelley to Cathy Levin, EB- 01- IH- 0326 (May 3, 2002). 4 Federal Communications Commission DA 04- 386 5 material at issue here, the Britney Spears song parody was edited by the radio station over which it was broadcast, so that it was not possible for the staff to determine what the omitted terms were or derive from the surrounding text what meaning was intended. Here, we find that the material at issue described sexual activity through the use of direct references, simulation and/ or innuendo that were sufficiently explicit or graphic to be deemed patently offensive as measured by contemporary community standards for the broadcast medium. 12. Under the second factor, Emmis argues that the sexual references are fleeting. We disagree. There are numerous sexual references in the complained- of material. The sexual references were repeated and not isolated. Given the overall context, these references cannot be considered fleeting. 30 We also disagree with Emmis’s argument under the third factor that the material is not pandering, titillating, or shocking. The material, in context, includes repetitive sexual references, some of which are discussed above. In the context presented, the sexual references were used to pander and to titillate and are similar to others that the Commission has found to be apparently indecent. 31 For these reasons, we find that the material broadcast over Station WKQX( FM) on March 12, 2001, was patently offensive as measured by contemporary community standards for the broadcast medium. 13. Emmis also maintains that the Commission’s definition of “contemporary community standards for the broadcast medium” is not sufficiently clear to enable broadcasters to make informed decisions regarding the broadcast of material that is entitled to constitutional protection. Specifically, Emmis argues that none of the cited cases discuss the attributes or traits of the average person whose contemporary community standards are used to evaluate indecency complaints. We reject this argument. The Commission’s interpretation of the term “contemporary community standards” flows from its analysis of the definition of that term set forth in the Supreme Court’s decision in Hamling v. United States. 32 The Commission has observed that in Hamling, “the Court explained that the purpose of ‘contemporary community standards’ was to ensure that material is judged neither on the basis of a decision maker’s personal opinion, nor by its effect on a particularly sensitive or insensitive person or group.” 33 The Commission also relied on the fact that the Court in Hamling indicated that decision makers need not use any precise geographic area in evaluating material. 34 Thus, the Commission judges material “by the standard of the average broadcast viewer or listener” 35 by drawing on its “knowledge of the views of the average viewer or listener” 36 and its “general expertise in broadcast matters.” 37 30 See, e. g., Three Eagles of Columbus, Inc. (KROR( FM)), Notice of Apparent Liability for Monetary Forfeiture, 15 FCC Rcd 13624, 13625, forfeiture reduced, 15 FCC Rcd 18902 (EB 2000)( forfeiture paid). 31 See, e. g. WQAM License Limited Partnership (WQAM( AM)), Apparent Liability for Forfeiture, Forfeiture Order, 15 Rcd 2518 (2000) (sexual references in the song “Uterus Guy”); KGB, Inc., (KGB- FM), Notice of Apparent Liability for Monetary Forfeiture, 7 FCC Rcd 3207 (1992), Memorandum Opinion and Order and Apparent Liability for Forfeiture, Forfeiture Order, 13 FCC Rcd 16396 (1998)( forfeiture reduced )(“ Candy Wrapper” song, which includes lyrics such as “my Butterfinger went up her tight little Kit Kat”). See also Great American Television and Radio Company, Inc. (WFBQ( FM)/ WNDE( AM)), Notice of Apparent Liability for Monetary Forfeiture, 6 FCC Rcd 3692 (MMB 1990); WIOD, Inc. (WIOD( AM)), Notice of Apparent Liability for Monetary Forfeiture, 6 FCC Rcd 3704 (MMB 1989). 32 Hamling v. United States, 418 U. S. 87 (1974), reh’g denied, 419 U. S. 885. 33 Infinity Broadcasting Corporation of Pennsylvania (WYSP( FM)), 3 FCC Rcd 930, 933 (1987)( subsequent history omitted), citing 418 U. S. at 107. 34 Id. at 933, citing 418 U. S. at 104- 05. 35 WQAM License Limited Partnership (WQAM( AM)), 15 FCC Rcd at 2520- 2521, citing Infinity Broadcasting Corporation of Pennsylvania (WYSP( FM)), 3 FCC Rcd at 933. 36 Id. 37 Id. 5 Federal Communications Commission DA 04- 386 6 Moreover, courts reviewing this standard have accepted the Commission’s determination that it will apply its general expertise without requiring a definition of “the average broadcast viewer or listener.” 38 14. 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 monetary forfeiture penalty. 39 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. 40 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. 41 As set forth above, we conclude under this standard that Emmis is liable for a forfeiture for its willful violation of 18 U. S. C. § 1464 and section 73.3999 of the Commission’s rules. 15. The Commission’s Forfeiture Policy Statement sets a base forfeiture amount of $7,000.00 for transmission of indecent materials. 42 The Forfeiture Policy Statement also specifies that the Commission shall adjust a forfeiture based upon consideration of the factors enumerated in section 503( b)( 2)( D) of the Act, 47 U. S. C. § 503( b)( 2)( D), such as “the nature, circumstances, extent and gravity of the violation, and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.” 43 In this case, taking all of these factors into consideration, we find that the NAL properly proposed that the base forfeiture amount is the appropriate sanction for the violation described above. Consequently, Emmis is liable for a forfeiture of Seven Thousand Dollars ($ 7,000.00). IV. ORDERING CLAUSES 16. 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 Radio License Corporation FORFEIT to the United States the sum of Seven Thousand Dollars ($ 7,000.00) for willfully violating 18 U. S. C. § 1464 and 47 C. F. R. § 73.3999. 17. Payment of the forfeiture may be made by mailing a check or similar instrument, payable to 38 See, e. g., ACT 1, 852 F. 2d 1332. 39 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 14 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. 40 47 U. S. C. § 503( b); 47 C. F. R. § 1.80( f). 41 See, e. g., SBC Communications, Inc., Apparent Liability for Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002) (forfeiture paid). 42 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). 43 Forfeiture Policy Statement, 12 FCC Rcd at 17100- 01, ¶ 27. 6 Federal Communications Commission DA 04- 386 7 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, within thirty (30) days of the release of this Forfeiture Order. See 47 C. F. R. § 1.80( h). The payment MUST INCLUDE the FCC Registration Number (FRN) referenced above, and also should note the NAL/ Acct. No. referenced above. If the forfeiture is not paid within that time, the case may be referred to the Department of Justice for collection pursuant to 47 U. S. C. § 504( a). 18. IT IS FURTHER ORDERED THAT a copy of this FORFEITURE ORDER shall be sent by Certified Mail Return Receipt Requested to Emmis Radio License Corporation, c/ o J. Scott Enright, Vice-President, Associate General Counsel & Secretary, Emmis Radio License Corporation, One Emmis Plaza, 40 Monument Circle, Suite 700, Indianapolis, IN 46204; with a copy to Eve Klindera Reed, Wiley, Rein & Fielding LLP, 1776 K Street, N. W., Washington, D. C. 20006. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau 7 Federal Communications Commission DA 04- 386 8 ATTACHMENT A Program Transcript EB- 01- IH- 0121 Radio Station: WKQX( FM), Chicago, Illinois Date/ Time Broadcast: March 12, 2001, between 8: 05 a. m and 8: 10 a. m. Material Broadcast: Mancow’s Morning Madhouse M: Mancow MV: Male Cast Member MV2: Male Cast Member MV3: Male Voice MR: Male Rapper MR2: Second Male Rapper MR3: Third Male Rapper FV: Female Cast Member MV3: This is Kobey Dick and we’re from Buffa (?) Roach. MV2: You’re listening to Mancow’s Morning Madhouse on the Free Speech Radio Network. MV3: Piss off. Eat a bowl of fu (bleep). [Song: “Smell My Finger” ] MR: I’ve never been bashful, shy, sheepish or chivalrous when asking a lady to give me a kiss. So when she lifted up her skirt, I didn’t ask what is this. MR: Her box had some cheese so I nicknamed her Swiss. And so like Magellan I began to explore. Like Vasco DeGama I cleared the cape and went for more. Like Columbus I got lost but still managed to score. Like Ponce DeLeon I found the fountain in her core. [Unintelligible] Like Captain Cook I unearthed her buried treasure. My shot was on target like Jesse James the gun slinger. You need proof? Make like Sherlock Holmes and smell my finger. Chorus: Smell my finger. Smell my finger. Smell my finger. MR: Smell my finger. Smell that stank finger ya’all. [female making moaning sounds]. MR2: I like the super models with the low self- esteem, who wear the tight jeans covering up the g- strings. Tall lanky chicks who grow out their bangs. They only eat lettuce. They 8 Federal Communications Commission DA 04- 386 9 belong to the machine gangs. I take her to dinner, I buy her some roses and then I part her legs like the Red Sea cuz I am Moses. We smoke the ganja. We drink from a flask. Oops, I left her a gift on her mud mask. Will you chill with super model dead ringers? Get ready. Folks come from all over to smell your fingers. [female making moaning noises] Chorus: Smell my finger. Smell my finger. Smell my finger. MR3: She was definitely young but she was old enough to know what God had given her a tongue. She got a rock hard body like a statue from Greece. I didn’t catch her name. I don’t [unintelligible] when I can reach. She lifted up her skirt when she found I was a rap singer. You don’t believe me go ahead and smell the finger. Chorus: Smell my finger. Smell my finger. Smell my finger. MR3: Smell, baby. Inhale. Chorus: Smell my finger. Smell my finger. Smell my finger. MR3: Check the smell, baby. Smell my fingers, just don’t smell my thumb. What’s that underneath my fingernails? [Song fades] FV: I don’t like that song Mancow. M: Why? FV: Because it’s horrible, please. M: Really? [unintelligible comment by Mancow]. FV: Yeah. M: Anyone notice, whoever thinks it’s funny, and I imagine it’s Turd. Smell my finger don’t smell my thumb. I like that lyric. That’s a new group called “No Time.” I don’t know if it’s in stores or not… MV: Yeah, it’ll be gone in no time… M: Yeah, there you go. Ah, No Time… MV: Should have smelled [unintelligible] leg. M: Oh, with your wife? FV: Oh, geeze… *** *** *** *** 9