FCC Record, Volume 19, No. 6, Pages 4326 to 5230, March 10 - March 19, 2004 Page: 5,033
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II I i i ii F i Co mmu I IcIons I I I Commiss I o FC 4
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 complainant's 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 Commission's generic indecency definition is
4. The Federal Communications Commission is authorized to license radio and television
broadcast stations and is responsible for enforcing the Commission's rules and applicable statutory
provisions concerning the operation of those stations. The Commission's 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 Commission's 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.'0 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." 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)(l)(B); 47 C.F.R. 1.80(a)(l); 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, 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, 1 5; Callais Cablevision, Inc., 16 FCC Rcd at 1362, 9.
1 47 U.S.C. 503(b); 47 C.F.R. 1.80(f).
Federal Communications Commission
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United States. Federal Communications Commission. FCC Record, Volume 19, No. 6, Pages 4326 to 5230, March 10 - March 19, 2004, book, March 2004; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc4079/m1/725/: accessed April 19, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.