FCC Record, Volume 19, No. 6, Pages 4326 to 5230, March 10 - March 19, 2004 Page: 5,034
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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
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.'3 The federal courts
consistently have upheld Congress's authority to regulate the broadcast of indecent material, as well the
Commission's 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.'5
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,
2 See, e.g., SBC Communications, Inc., Apparent Liability for Forfeiture, Forfeiture Order, 17 FCC Red 7589, 7591,
4 (2002) (forfeiture paid).
13 U.S. CONST., amend. I; See Actionfor Children's Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) ("ACT
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 ACTI, 852 F.2d at 1339; 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 Ili'). Moreover, we have previously rejected Infinity's
constitutional challenges of the Commission's 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 Infinity's citation to Interactive Digital Software
Association v. St. Louis County, Missouri, 329 F.3d 954 (8t 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 FCC's generic definition of indecency will be tempered by the Commission's restrained enforcement
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).
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/m1/726/?rotate=270: accessed May 20, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.