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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
Emmis Radio License Corporation ) File No. EB-01-IH-0121
) NAL/Acct. No. 200232080014
Licensee of Station WKQX(FM), ) FRN 0001529346
Chicago, Illinois ) 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
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 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 definition¾that 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 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 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 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 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
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 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...
*** *** *** ***
_________________________
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.
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.
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.
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).
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.
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, 97th
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.