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$16,000 Forfeitured Issued Against WSKQ-FM

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Released: August 22, 2012

Federal Communications Commission

DA 12-1370

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)

)

WSKQ Licensing, Inc.

)
File No.: EB-07-IH-8320
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FRN No.: 0004976882
Licensee of Station WSKQ-FM
)
NAL/Acct. No.: 201032080016
New York, New York
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Facility ID No.: 61641
)
)

FORFEITURE ORDER

Adopted: August 22, 2012

Released: August 22, 2012

By the Chief, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Forfeiture Order, we issue a monetary forfeiture in the amount of sixteen thousand
dollars ($16,000) against WSKQ Licensing, Inc. (WSKQ), licensee of WSKQ-FM, New York, New York
(Station), and a subsidiary of Spanish Broadcasting Systems, Inc. (SBS), for willfully and repeatedly
violating Section 73.1206 of the Commission’s rules by recording a telephone conversation for broadcast
without prior notification to the called party.1

II.

BACKGROUND

2.
As discussed in more detail in the Notice of Apparent Liability for Forfeiture (NAL) in
this case,2 the Enforcement Bureau (Bureau) received a complaint (Complaint) alleging that, on August
23, 2007, WSKQ broadcast over the radio a prank call made by one of its employees to a member of the
public. As described in the Complaint, the Station employee made a call to a woman—the call
recipient—pretending to be an employee of a local hospital, and told her that her husband had been
seriously injured in a motorcycle accident and that he later died at the hospital.3 Further, according to the
Complaint, the call recipient could be heard over the radio distraught when she received this information,4
at which point the Station employee informed her that the call was a “joke.”5


1 47 C.F.R. § 73.1206.
2 See WSKQ Licensing, Inc., Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 1287 (Enf. Bur. 2010) (NAL). A
comprehensive recitation of the facts and history of this case can be found in the NAL and is incorporated herein by
reference.
3 See Complaint to Federal Communications Commission (Aug. 23, 2007) (on file in EB-07-IH-8320) (Complaint).
4 See id. at 1.
5 Id.

Federal Communications Commission

DA 12-1370

3.
On September 25, 2008, the Bureau issued a letter of inquiry (LOI) to WSKQ inquiring
into these allegations.6 In its response, WSKQ stated that its parent company, SBS, contracted with a
vendor, Rubin Ithier, who made the call and recorded the conversation for a prank call feature show.7
The Licensee admitted that Ithier initiated the call that was broadcast by the Station, and that neither the
Station nor Ithier informed the call recipient that the call was being recorded for later broadcast until after
the call was recorded.8 The Licensee further admitted that it broadcast the call more than once.9 In view
of the record evidence, including WSKQ’s admissions, we issued on February 4, 2010, an NAL proposing
a forfeiture in the amount of sixteen thousand dollars ($16,000).10
4.
On March 8, 2010, WSKQ filed a response to the NAL, urging cancellation of the
forfeiture.11 In support of its response, WSKQ contends, first, that it “has violated no rule” because the
“plain language” of the telephone broadcast rule makes it applicable only to recordings made by a
licensee and not, as here, to recordings made by its contractor and vendor.12 WSKQ states that attributing
the vendor’s recording to the Licensee “improperly expands the rule beyond its plain language and
intended application.”13 Second, WSKQ contends that the NAL did not fully consider the fact that the call
recipient granted permission for the call to be aired, and argues that the call was, thus, consensual and did
not “impinge on the call recipient’s legitimate expectation of privacy.”14

III.

DISCUSSION

5.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Communications Act, as amended (Act),15 Section 1.80 of the Commission’s rules,16 and the
Commission’s forfeiture guidelines set forth in the Forfeiture Policy Statement.17 In assessing forfeitures,


6 See Letter from Rebecca Hirselj, Assistant Chief, Investigations and Hearings Division, FCC Enforcement Bureau, to
WSKQ Licensing, Inc. (Sept. 25, 2008) (on file in EB-07-IH-8320).

7 Letter from Bruce A. Eisen, Kaye Scholer, LLP, Counsel for WSKQ Licensing, Inc., to Marlene Dortch, Secretary,
Federal Communications Commission (Oct. 27, 2008) (on file in EB-07-IH-8320) (LOI Response). The LOI Response
included the declaration of Ramon Sierra a/k/a Ruben Ithier (Declaration) and an English translation of a transcript of
the telephone call at issue (Translation of Transcript).
8 See id. at 1–3, Declaration at 1, Translation of Transcript at 1–3. See also NAL, 25 FCC Rcd at 1287–89.
9 See LOI Response at 4.
10 See NAL, 25 FCC Rcd at 1292.
11 See Response to Notice of Apparent Liability for Forfeiture, filed by Dennis P. Corbett, Nancy A. Ory, and F.
Scott Pippin, Lerman Senter PLLC, Counsel to WSKQ Licensing, Inc. (Mar. 8, 2010) (on file in EB-07-IH-8320)
(NAL Response). The Bureau and SBS subsequently entered into a tolling agreement on May 23, 2012, that tolled
the statute of limitations period specified in Section 2462 of Title 28 of the United States Code, 28 U.S.C. § 2462,
with respect to this case until November 21, 2012, to permit the parties to discuss potential settlement options, which
discussions commenced on March 14, 2011, and ended on July 17, 2012.
12 NAL Response at 2–5.
13 Id. at 3–4.
14 Id. at 3 (internal quotations omitted).
15 47 U.S.C. § 503(b).
16 47 C.F.R. § 1.80.
17 See The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines
, Report and Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
2

Federal Communications Commission

DA 12-1370

Section 503(b) of the Act requires that we take into account 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 other such matters as justice may require.18 We have considered WSKQ’s response in
light of these statutory factors, and find that neither cancellation nor reduction of the forfeiture is
warranted for the reasons discussed below.
6.
Section 73.1206 of the Commission’s rules, also referred to as the telephone broadcast rule,
requires that, before broadcasting or recording a telephone conversation for later broadcast, a licensee must
inform any party to the call of its intention to broadcast the conversation, except where such party is aware,
or may be presumed to be aware from the circumstances of the conversation, that it is being or likely will be
broadcast.19 As explained in the NAL, Section 73.1206 reflects the Commission’s longstanding policy that
prior notification is essential to protect individuals’ legitimate expectation of privacy and to preserve their
dignity by avoiding nonconsensual broadcasts of their conversations.20
7.
We disagree with WSKQ’s contention that it did not violate the telephone broadcast rule.
WSKQ asserts that it could not have violated the rule because the plain language of the rule describes
prohibited conduct by “a licensee” specifically, and that because the conversation, in this case, was
recorded by a vendor, who is not a licensee, the rule is inapplicable.21 We find this line of argument to be
meritless.22 WSKQ offers no relevant legal precedent to support its narrow reading of the rule, nor
provides any other authority that persuades us.23 We have consistently held that licensees are responsible
for the programming aired on their stations and for violations of Commission rules by employees and


18 47 U.S.C. § 503(b)(2)(E).
19 47 C.F.R. § 73.1206. The Commission will presume such awareness only when “the other party to the call is
associated with the station (such as an employee or part-time reporter), or where the other party originates the call and
it is obvious that it is in connection with a program in which the station customarily broadcasts telephone
conversations.” Id.
20 See NAL, 25 FCC Rcd at 1290–91 (citing authorities).
21 See LOI Response at 2–6.
22 We also find WSKQ’s line of argument here to be disingenuous, particularly since it previously conceded to the
propriety of our application of the rule in the same context we have here (i.e., a recording contracted to a vendor).
In 2008, the Bureau proposed a forfeiture in the amount of sixteen thousand dollars ($16,000) each against WSKQ
and WXDJ for violating the telephone broadcast rule by contracting with the same independent vendor here (i.e.,
Rubin Ithier) to record so-called “caistes” without prior notice to the unsuspecting call recipients. See WXDJ
Licensing, Inc
, et al., Notice of Apparent Liability, 23 FCC Rcd 14933 (Enf. Bur. 2008) (WXDJ/WSKQ NAL).
WSKQ did not dispute the merits of the Bureau’s findings therein, and paid the forfeiture; WXDJ, however, did not
pay the forfeiture, but instead filed a response, urging for a reduction of the forfeiture, which was subsequently
denied. See WXDJ Licensing, Inc., Forfeiture Order, 25 FCC Rcd 3911 (Enf. Bur. 2010) (imposing $16,000
forfeiture for violation of the telephone broadcast rule) (petition for reconsideration pending).
23 WSKQ relies on criminal law precedent in support of its argument. See NAL Response at 4. Such reliance is
misplaced and unpersuasive. The cited support stems from interpretation of criminal statutes, and is inapplicable here.
Criminal statutes are generally subject to stricter scrutiny by the courts than are administrative rules and sanctions,
which, if reasonable, receive deference from the courts. Contrast Zaimi v. United States, 476 F.2d 511 (D.C. Cir. 1973)
(holding that “penal statutes are to be interpreted with exactitude”) with Northeast Hospital Corp. v. Sebelius,
Secretary, U.S. Dept. of Health and Human Svcs.,
Memorandum Opinion, 699 F. Supp. 2d 81, 85–86 (D.D.C. 2010)
(“[U]nder the APA, a court is to presume that the agency’s action is valid and that [a]n agency’s interpretation of a
statute need not be the best or most natural one by grammatical or other standards[,] . . . [r]ather [it] need be only
reasonable to warrant deference.”) (internal quotations omitted).

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Federal Communications Commission

DA 12-1370

independent contractors.24 To hold otherwise would allow a licensee to circumvent the Commission’s
rules with impunity by simply having an agent perform, on its behalf, any acts that violate Commission
rules.
8.
Furthermore, in this case, it is undisputed that WSKQ’s parent company, SBS,
specifically contracted with a vendor to record various calls for WSKQ’s prank call feature show,
demonstrating a clear intent to broadcast the prank call.25 WSKQ admits: “[T]he telephone call was
initiated, as described, by Ramon Sierra, aka Ruben Ithier, the owner of a vendor with whom [SBS]
contracted to create ‘caistes,’ which are calls made during WSKQ’s ‘El Vacilon’ morning show . . . .
WSKQ had a segment called ‘Llamado cruel’ (‘cruel calls’ or ‘caistes’) during the El Vacilon morning
show.”26 It is further undisputed that the call recipient had not received prior notice that the call was
being recorded for later broadcast.27 Despite knowing the foregoing circumstances, WSKQ nevertheless
agreed to air the call. As such, WSKQ’s violation of the telephone broadcast rule was willful, and it
cannot now claim innocence for the actions of a vendor with which it (or its parent company, SBS)
specifically contracted to make these so called “cruel [prank] calls” to unsuspecting individuals.28
9.
We also disagree with the Licensee’s contention that the consent to broadcast the call,
obtained after the recording concluded, insulates the Licensee from the rule’s application.29 The rule
requires notice obtained before recording for broadcast commences, not consent obtained after the fact.30
It is this initial notice that protects the privacy of the call recipient.31


24 See, e.g., WXDJ/WSKQ NAL, 23 FCC Rcd at 14937 (“We further find that the call’s origination and recording by
an independent contractor, rather than the Licensees themselves, does not exculpate WXDJ Licensing or WSKQ
Licensing from liability.”); Proactive Communications, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 9079, 9082 (Enf. Bur. 2008) (“[T]he Commission has consistently ruled that licensees are responsible for the
selection and presentation of program material aired over their stations as well as for the acts and omissions of their
employees.”) (forfeiture paid); Des Moines Independent Community School District, Forfeiture Order, 24 FCC Rcd
3869, 3870-71 (Mass Med. Bur. 2009) (“[T]he Commission has long held that licensees are responsible for the acts
and omissions of their employees and independent contractors, and has consistently refused to excuse licensees from
forfeiture penalties where the actions of employees or independent contractors have resulted in violations.”); see
also American General Media Corporation
, Letter, 14 FCC Rcd 6445 (Mass Med. Bur. 1999) (finding telephone
broadcast rule violation and holding that, “although the . . . program was aired pursuant to a programming
agreement and the air personalities were not employees of [the station], [the licensee] is responsible for any
violations of the Commission's rules which occurred during that program”).
25 See NAL, 25 FCC Rcd at 1291; see also NAL Response at 1–2.
26 LOI Response at 1–2.
27 See id. at Translation of Transcript at 3–5.
28 The Licensee should have been aware, as of the time of this conduct and as of the filing of its response to our NAL,
that we have specifically rejected this argument in similar cases against another SBS station. See WXDJ Licensing,
Inc
., 19 FCC Rcd 22445, 22446 (Enf. Bur. 2004); WXDJ Licensing, Inc., 25 FCC Rcd 3911, 3912–14 (Enf. Bur. 2010).
29 See NAL Response at 3; 47 C.F.R. § 73.1206. The Licensee points out (see NAL Response at notes 1, 7)
imprecision in the NAL’s recitation of how certain factual events unfolded. Even if the events occurred as clarified by
the Licensee, they are inconsequential to our decision and the resulting forfeiture.
30 See 47 C.F.R. § 73.1206; see also Broadcast of Telephone Conversations, Report and Order, 3 FCC Rcd 5461,
5463–64 (1988) (the Commission specifically considered and rejected amending the telephone broadcast rule to allow
consent after the fact).
31 See supra note 20; Cumulus Licensing LLC, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 1667, 1670
(Enf. Bur. 2009) (“The Commission has held that the prior notification requirement ensures the protection of an
(Footnote continued on next page…)
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Federal Communications Commission

DA 12-1370

10.
We have examined WSKQ’s response to the NAL pursuant to the statutory factors above,
and in conjunction with the Forfeiture Policy Statement. As a result of our review, we conclude that
WSKQ willfully and repeatedly violated Section 73.1206 of the Commission’s rules. We hereby affirm
the NAL and impose a forfeiture in the amount of sixteen thousand dollars ($16,000).

IV.

ORDERING CLAUSES

11.
Accordingly,

IT IS ORDERED

that, pursuant to Section 503(b) of the Communications
Act of 1934, as amended,32 Section 1.80 of the Commission's rules,33 and authority delegated by Sections
0.111, 0.204, and 0.311 of the Commission’s rules,34 WSKQ Licensing, Inc.,

IS LIABLE FOR A
MONETARY FORFEITURE

in the amount of sixteen thousand dollars ($16,000) for repeated and
willful violation of Section 73.1206 of the Commission’s rules.35
12.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
Rules by the close of business on or before August 29, 2012.36 If the forfeiture is not paid within the
period specified, the case may be referred to the U.S. Department of Justice for enforcement of the
forfeiture pursuant to Section 504(a) of the Act.37 WSKQ Licensing, Inc. shall send electronic
notification of payment to Jeffrey Gee at Jeffrey.Gee@fcc.gov, Anjali Singh at Anjali.Singh@fcc.gov,
and Judy Lancaster at Judy.Lancaster@fcc.gov on the date said payment is made.
13.
The payment must be made by check or similar instrument, wire transfer, or credit card,
and must include the NAL/Account number and FRN referenced above. Regardless of the form of
payment, a completed FCC Form 159 (Remittance Advice) must be submitted.38 When completing the
FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters
“FORF” in block number 24A (payment type code). Below are additional instructions you should follow
based on the form of payment you select:
Ÿ
Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-
9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-
GL, 1005 Convention Plaza, St. Louis, MO 63101.
Ÿ
Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank
at (314) 418-4232 on the same business day the wire transfer is initiated.





(Continued from previous page…)
individual’s ‘right to answer the telephone without having [his or her] voice or statements transmitted to the public by a
broadcast station’ live or by recording for delayed airing.”) (forfeiture paid).
32 47 U.S.C. § 503(b).
33 47 C.F.R. § 1.80(f)(4).
34 47 C.F.R. §§ 0.111, 0.204, 0.311.
35 47 C.F.R. § 73.1206.
36 47 C.F.R. § 1.80.
37 47 U.S.C. § 504(a).
38 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
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Federal Communications Commission

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Ÿ
Payment by credit card must be made by providing the required credit card information on
FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment.
The completed Form 159 must then be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank –
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101.
14.
Any request for full payment under an installment plan should be sent to: Chief Financial
Officer—Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-
A625, Washington, D.C. 20554.39 If you have questions regarding payment procedures, please contact
the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
15.

IT IS FURTHER ORDERED

that a copy of this

FORFEITURE ORDER

shall be sent
by both First Class Mail and Certified Mail, Return Receipt Requested, to WSKQ at its address of record,
and to its counsel of record, Dennis P. Corbett, Nancy A. Ory, and F. Scott Pippin, Lerman Senter PLLC,
2000 K Street, NW, Suite 600, Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Federal Communications Commission


39 47 C.F.R. § 1.1914.
6

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