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 SEPARATE  STATEMENT  OF  COMMISSIONER  KEVIN  J.  MARTIN 
 Re:  Infinity  Broadcasting  Operations,  Inc.,  Licensee  of  Stations  WNEW(  FM),  New  York,  New  York;  WYSP(  FM),  Philadelphia,  Pennsylvania;  KYCY(  AM),  San  Francisco,  California;  Infinity 
 Radio  Operations,  Inc.,  Licensee  of  Stations  WBUF(  FM),  Buffalo,  New  York;  KSFN(  AM),  North  Las  Vegas,  Nevada;  WAZU(  FM),  Circleville,  Ohio;  WXTM(  FM),  Cleveland  Heights,  Ohio; 
 KUPL(  AM),  Portland,  Oregon;  Infinity  Radio  Subsidiary  Operations,  Inc.,  Licensee  of  Station  KXOA(  FM),  Roseville,  California;  Infinity  Broadcasting  Corporation  of  Dallas,  Licensee  of 
 Station  KLLI(  FM),  Dallas,  Texas;  Infinity  Broadcasting  Corporation  of  Washington,  DC  Licensee  of  Station  WJFK-  FM,  Manassas,  Virginia;  Infinity  Holdings  Corporation  of  Orlando, 
 Licensee  of  Station  WCKG(  FM),  Elmwood  park,  Illinois;  Hemisphere  Broadcasting  Corporation,  Licensee  of  Station  WBCN(  FM),  Boston,  Massachusetts,  Notice  of  Apparent  Liability  for 
 Forfeiture 
 I  support  the  finding  in  this  Notice  of  Apparent  Liability  that  the  licensee  apparently  violated  our  rule  against  the  broadcast  of  indecent  content,  but  I  would  have  proposed  a  higher  fine.  I  note 
 both  that  we  have  taken  issue  with  this  licensee  in  past  broadcasts  of  this  radio  show  and  that  the  licensee  subsequently  removed  the  show.  1  As  I  have  said  in  similar  cases,  we  could  have  found 
 that  each  time  the  show’s  hosts  started  talking  about  an  indecent  topic  or  had  a  separate  distinct  conversation,  the  ensuing  conversation  constituted  a  separate  violation.  2  In  prior  cases,  the 
 Commission  has  acknowledged  that  we  have  the  discretion  to  consider  each  indecent  utterance  a  separate  violation.  3 


 1  In  June  2002,  for  example,  the  Enforcement  Bureau  issued  a  Notice  of  Apparent  Liability  for  $21,000  for 
 the  Opie  and  Anthony  Show  willfully  and  repeatedly  broadcasting  indecent  language  on  several  occasions.  See  Infinity  Broadcasting  Operations,  Inc.,  Licensee  of  Station  WNEW(  FM),  New  York,  New  York,  Notice  of 


 Apparent  Liability  for  Forfeiture,  17  FCC  Rcd  27711  (EB  2002).  The  final  outcome  of  this  case  is  still  pending. 


 2  See  Separate  Statement  of  Commissioner  Kevin  J.  Martin,  Infinity  Broadcasting  Operations,  Inc.,  Licensee 
 of  Station  WKRK-  FM,  Detroit,  Michigan,  Notice  of  Apparent  Liability  for  Forfeiture,  18  FCC  Rcd  6915  (2003)  (Infinity  Detroit  NAL). 


 3  Infinity  Detroit  NAL  at  para.  13  (clarifying  that  the  Commission  could  pursue  enforcement  action  for  each 
 indecent  utterance).  See  also  18  U.  S.  C.  §  1464  (specifying  that  “[  w]  hoever  utters  any  obscene,  indecent,  or  profane  language  by  means  of  radio  communication  shall  be  fined  under  this  title  or  imprisoned  not  more  than 


 two  years,  or  both.”). 
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