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UNITED STATES v. EVERGREEN MEDIA CORP.

August 20, 1993

THE UNITED STATES OF AMERICA, Plaintiff-counterdefendant,
v.
EVERGREEN MEDIA CORPORATION OF CHICAGO, AM, Licensee of Radio Broadcast Station WLUP (AM), Defendant-counterplaintiff, and THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, Intervenor-defendant counterplaintiff.



The opinion of the court was delivered by: JOHN A. NORDBERG

 BACKGROUND

 This action was instigated by the Federal Communications Commission ("FCC") pursuant to its powers under 47 U.S.C. § 503(b)(1)(D), to institute an action for a forfeiture penalty for the broadcast of obscene, indecent or profane language in violation of 18 U.S.C. § 1464. Evergreen Media Corporation of Chicago (AM) ("Evergreen"), the object of the FCC's attention, is the licensee of WLUP-AM, a Chicago radio station. The FCC alleges that Evergreen willingly violated § 1464 on the basis of comments aired during the Steve and Garry Show, part of WLUP's regular programming, during the afternoon in August, 1987 and March, 1989.

 The FCC issued a Notice of Apparent Liability in the amount of $ 6,000.00 on November 30, 1989. An order of forfeiture was issued over Evergreen's objection on January 28, 1991. 6 FCC Rcd 502. Evergreen's motion to reconsider was denied on October 18, 1991. 6 FCC Rcd 5950. Plaintiff's complaint seeks to collect the fine of $ 6,000.00 imposed. Defendant has counterclaimed, challenging the constitutionality of § 1464. On May 14, 1993, the court granted leave to the American Civil Liberties Union ("ACLU") to intervene in the controversy as co-defendant/counterclaimant on the basis of common legal questions. Fed. R. Civ. P. 24(b)(2).

 Defendant's counterclaims raise several challenges to the constitutionality of § 1464, both facially and as applied to the conduct subject to forfeiture. First, defendants suggest that § 1464 is facially unconstitutional both for vagueness and for being overbroad. Second, they contend the statute is unconstitutional in its application to the conduct at issue because it demonstrates that the FCC's interpretation of the statute is not the least restrictive means of accomplishing the goals of § 1464. Finally, defendants argue that the FCC's pattern of enforcement of the statute constitutes both a violation of substantive due process, and of the Equal Protection Clause.

 The FCC has filed a motion to dismiss defendants' counterclaims or, in the alternative, for summary judgment. Defendant's in turn have filed their own motion for summary judgment on the counterclaims. Evergreen has also filed a motion for partial judgment on the pleadings, which the court will consider in a separate opinion.

 As defendants did not have a hearing before the FCC, the court will consider the case for forfeiture de novo. 47 U.S.C. § 504(a).

 STATEMENT OF FACTS

 Sexual expression which is indecent but not obscene receives First Amendment protection, but may be regulated according to its content to promote a compelling government interest, by the least restrictive means to further that interest. Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 109 S. Ct. 2829, 2836, 106 L. Ed. 2d 93 (1989). The FCC defines as "indecent," "language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs." 62 Rad. Reg. 2d 1218, 1219 (1987); see also Pacifica Foundation v. FCC, 181 U.S. App. D.C. 132, 556 F.2d 9, 11 (D.C. Cir. 1977), rev'd FCC v. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978). The gravamen of the commission's complaint is that the incidents addressed in its forfeiture fit within this definition.

 The incidents giving rise to this order took place on the Steve and Garry Show on March 30, 1989, at approximately 5:10 p.m., and August 19, 1987 between 2:20 and 4:30 p.m. The March 1989 incident involves a discussion between several members of the show over the appearance of Vanessa Williams on the television show "Later, with Bob Costas." The show members were critical of Bob Costas' attempt to defend Williams' loss of her Miss America title due to pictures of her which appeared in Penthouse magazine. In discussing the issue, show members mocked the dialogue on the program, getting descriptive of the Penthouse pictures in the process:

 
She was licking that other woman's vagina. I want to tell you pal . . . Went down on that other woman and oh God, you had your tongue in her vagina. It was fabulous. A lot of your Miss Americas can. I don't picture Phyliss George being able to do it like that. . . . He had to put his leg up on the ottoman because he had a stiff-oh. God, I'm hard as a rock right now Vanessa. You're so honest Bob.

 The August 1987 incidents involve statements made by callers which were allowed on the air during the show. The first of these incidents involve a song parody created by a caller called "Kiddie Porn:" *fn1"

 
Welcome to my camp, you're a grown up little man, let me rub out that cramp. My, you've got a lovely hand, look at who your are and where you want to go. Drop your drawers and strike a pose, my tripod's all aglow, its Kiddie Porn. Do you remember when we filmed that hot summer day, you were nude and you discovered I was gay. Yes, I know but let's go roll out in the hay.

 The second incident involves a caller who had a joke to tell at the expense of homosexuals. The punch line of the joke was that the number one line at a gay ...


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