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Rejoynetwork, LLC

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Released: February 4, 2010

Federal Communications Commission DA 10-19

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)

)
File Nos. EB-06-IH-1772 and

REJOYNETWORK, LLC

)
EB 06-IH-1748
)
FRN: 0008498685
Licensee of Station WAAW(FM),
)
NAL Account No. 200932080012
Williston, South Carolina
)
Facility ID No. 4094

FORFEITURE ORDER

Adopted: February 4, 2010

Released: February 4, 2010

By the Chief, Investigations and Hearings Division, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Forfeiture Order, we assess a monetary forfeiture in the amount of $4,000 against
Rejoynetwork, LLC (“Rejoynetwork” or the “Licensee”), licensee of Station WAAW(FM), Williston, South
Carolina (the “Station”), for its willful and repeated violation of Section 73.1206 of the Commission’s
Rules.1 As discussed below, Rejoynetwork violated the Commission’s rules by broadcasting multiple
telephone conversations without giving prior notice to the individuals being called of its intention to do so.

II.

BACKGROUND

2.
On October 16, 2008, the Investigations and Hearings Division of the FCC’s
Enforcement Bureau (the “Bureau”) issued a Notice of Apparent Liability for Forfeiture (“NAL”) in the
amount of $4,000 against Rejoynetwork for apparently broadcasting multiple telephone conversations
without giving prior notice to the individuals being called of its intention to do so, in violation of Section
73.1206.2 As discussed in the NAL, the Commission received multiple complaints that the Licensee
broadcast telephone calls without giving the prior notice required by Section 73.1206. 3 The complaints
allege that on March 23, 2006, between approximately 10:45 a.m. and 11:15 a.m., a Station radio
personality, Ryan B., called airport officials Raquel Oliver, Willis M. (“Buster”) Boshears, Jr., and Cedric
Jerome Johnson and broadcast each conversation on-air over the Station without first informing the
individuals being called that the conversations would be so broadcast.4


1 See 47 C.F.R. § 73.1206. Station WAAW(FM) was licensed to Frank Neely at the time of the violations. The
licensee of the Station was later assigned pro forma from Mr. Neely to Rejoynetwork. See FCC File No. BAL-
20080314ABZ, granted March 20, 2008 and consummated April 4, 2008. According to that application, Mr. Neely
is the sole manager and sole member of Rejoynetwork.
2 See Rejoynetwork, LLC, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 14917 (Enf. Bur., Investigations
& Hearings Div. 2008) (“NAL”).
3 See id.
4 See Complaint of Iain Crawford, submitted to the FCC on March 27, 2006 (IC Number 06-WB11627850) (alleging
that Ryan B. called the city administrator and airport director on-air over the Station on March 23, 2006, and did not

Federal Communications Commission DA 10-19


3.
The facts and circumstances surrounding the broadcast of the telephone conversations are
described in detail in the NAL, incorporated by reference here, and need not be reiterated. In its NAL
Response
, 5 the Licensee did not challenge our findings in the NAL, but instead argued that the NAL is
invalid because (1) the Licensee stated that the program host identified himself by name and said that he
was calling from the radio station when he called the airport officials and argued that those officials could
have immediately terminated the call;6 (2) Section 73.1206 is an invalid and unenforceable restraint on
free speech violating the First Amendment and Section 326 of the Communications Act of 1934, as
amended (the “Act”);7 and (3) the Commission has not complied with its obligations under the Small
Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”8).9 We reject these arguments, as
explained in detail below.

III.

DISCUSSION

4.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Act,10 Section 1.80 of the Commission’s Rules,11 and the Commission’s forfeiture
guidelines set forth in its Forfeiture Policy Statement.12 In assessing forfeitures, 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
matters as justice may require.13 As further discussed below, we have examined Rejoynetwork’s response
to the NAL pursuant to the aforementioned statutory factors, our rules, and the Forfeiture Policy
Statement
, and find no basis for cancellation or reduction of the forfeiture.
5.
Section 73.1206 of the Commission’s Rules 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





inform either that they were on-air); Complaint of Willis M. Boshears, Jr., dated March 27, 2006 (including
statements from Ms. Oliver and other persons allegedly with first-hand knowledge of Mr. Boshears’ telephone
conversation with Ryan B.); Complaint of Tonya Riddle, submitted to the FCC on March 27, 2006 (IC Number 06-
WB11628201) (alleging that Ryan B. failed to inform Mr. Boshears that the telephone conversation was being aired
live); Complaint of Cedric Jerome Johnson, dated April 20, 2006 (alleging Ryan B. failed to properly notify him and
Mr. Boshears that his telephone conversations with each of them were broadcast live); E-mails from Iain Crawford
to FCCINFO, dated Oct. 6, 2006.
5 See Rejoynetwork, LLC, Opposition to Notice of Apparent Liability for Forfeiture, dated Oct. 23, 2008. On
November 4, 2008, the Commission received a Supplement to Opposition to Notice of Apparent Liability for
Forfeiture, dated Oct. 27, 2008, which included the supporting Declaration of Frank Neely (the Opposition to Notice
of Apparent Liability for Forfeiture and Supplement to Opposition to Notice of Apparent Liability for Forfeiture,
together, will be referred to hereinafter as “NAL Response”).
6 See id. at 5-6.
7 See id. at 2-7.
8 See Pub. L. No. 104-121, § 223, 110 Stat. 847, 862 (1996), 5 U.S.C. § 601 Note (hereinafter “§ 223”).
9 See NAL Response at 7-9.
10 See 47 U.S.C. § 503(b).
11 See 47 C.F.R. § 1.80.
12 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) (“Forfeiture Policy Statement”), recons.
denied
, 15 FCC Rcd 303 (1999).
13 See 47 U.S.C. § 503(b)(2)(E).
2

Federal Communications Commission DA 10-19


circumstances of the conversation, that it is being or likely will be broadcast.14 The Commission will
presume such awareness only where “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.”15
6.
The Licensee in the NAL Response admitted that the airport officials were placed directly
on the air but stated that the program host identified himself by name and station and noted that either call
recipient could have terminated the call after saying “hello.”16 This disclosure does not satisfy the rule.
Mere identification of oneself by name and as calling from a radio station does not provide notice that the
call is being broadcast or recorded for broadcast. Further, as we explained in the NAL, any notice Ryan B.
gave on-air was given too late since it occurred after Messrs. Boshears and Johnson began speaking and
after Ryan B. had started recording and broadcasting the telephone conversations.17 Section 73.1206 clearly
requires that such notice be provided “[b]efore recording a telephone conversation for broadcast, or
broadcasting such a conversation simultaneously with its occurrence . . . .” As we held in the NAL, the
recordings themselves demonstrate that the recipients of the call were not informed they were being
broadcast as required by the rule.
7.
The Licensee next contends in the NAL Response that Section 73.1206 violates the First
Amendment and Section 326 of the Act because it restrains the exercise of free speech.18 In support of its
position, the Licensee argues that because Section 73.1206 restricts the manner in which broadcast
stations can conduct discussions and interviews with public officials and members of the public it
impinges on the ability of broadcast stations to conduct discussions of public issues, so there must be a
compelling legitimate governmental interest for the rule and the rule must be narrowly drawn.19 The
Licensee claims that the Commission did not establish that a legitimate and compelling governmental
interest exists for the rule’s restrictions on speech or that the rule serves a legitimate public purpose.20
The Licensee argues that the context in which the telephone conversations which are the subject of the
NAL were broadcast is one especially deserving of the fullest protections accorded by the First
Amendment and Section 326 of the Act because the Station was discharging its responsibility as a public
trustee, airing a robust and open discussion of a current public controversy.21
8.
In enacting this rule, the Commission explicitly addressed the rule’s constitutionality and
found that constitutional requirements were met.22 The rule requires only that broadcasters provide prior
notice to any party to a call that they are being broadcast. The Commission found that the prior notice
requirements of Section 73.1206 “pursue a legitimate, substantial governmental interest in protecting
privacy with respect to the broadcast use of telephone conversations and are sufficiently narrowly drawn


14 See 47 C.F.R. § 73.1206.
15 Id.
16 See NAL Response at 5-6.
17 See NAL, 23 FCC Rcd at 14922, ¶ 10 n.48.
18 See NAL Response at 2-7.
19 See id. at 2-3 (citing Martin v. City of Struthers, 319 U.S. 141 (1943); Thornhill v. Alabama, 310 U.S. 88 (1940);
Hague v. CIO, 307 U.S. 496 (1939)).
20 See NAL Response at 4.
21 See id. at 5-6. The Licensee also noted that the level of possible embarrassment in this context for an on-air radio
discussion is less than that of on-air television experience. See id. at 6-7.
22 See Amendment of Section 73.1206: Broadcast of Telephone Conversations, Report and Order, 3 FCC Rcd 5461,
5464, ¶ 21 (1988).
3

Federal Communications Commission DA 10-19


to achieve this purpose to pass constitutional muster.”23 The Commission further stated that “these
limitations are both reasonable and necessary to protect the legitimate interests of the public in privacy in
communications”24 and do not infringe upon broadcasters’ right to gather information “important to their
broadcast functions.”25 Therefore, we reject the Licensee’s challenge to the rule.
9.
Finally, the Licensee contends that the NAL does not comply with the Commission’s
obligations under the SBREFA.26 The Licensee argues that until the Commission adopts a policy or
program for reducing or waiving civil penalties for violations by small entities, the Commission lacks the
legal authority to impose penalties on small entities, such as Rejoynetwork.27
10.
The SBREFA requires agencies to establish a policy providing for the reduction and,
under appropriate circumstances, the waiver of civil penalties imposed on small entities.28 As part of this
policy, under appropriate circumstances, the agency may consider ability to pay in determining penalty
assessments on small entities. Such circumstances may include, among others, violations discovered
because the small entity participated in a compliance assistance or audit program, and good faith efforts
demonstrated by the entity to comply with the law. The Commission has held that the Commission’s
existing policies, as reflected in our precedent, comply with Section 223 of the SBREFA.29 Warnings,
rather than forfeitures, may be appropriate for small entities and others,30 and the Commission considers
inability to pay a relevant factor in assessing forfeitures.31 Certain factors considered by the Enforcement
Bureau to adjust forfeiture amounts encompass many of the conditions and exclusions listed in Section
223 of the SBREFA.32 The Commission has found that its existing policies apply to small entities and
therefore fulfill its requirements under the SBREFA.33 Therefore the SBREFA does not prevent the
Commission from imposing a forfeiture on a small entity and application of the forfeiture policy and
procedure to Rejoynetwork satisfies the Commission’s obligations under the SBREFA.
11.
Furthermore, the SBREFA provides that a small business entity may be excluded from
consideration for waiver or reduction of forfeiture if “multiple enforcement actions” have been taken
against it by an agency.34 It was previously held that Frank Neely, the principal of the Licensee, should


23 Id.
24 Id. at 5464, ¶ 24.
25Id. at 5464, ¶ 21.
26 See NAL Response at 7-9.
27 See id. The Declaration of Frank Neely included with the NAL Response notes that Rejoynetwork’s annual
revenues are below the cut-off amount for a business to qualify as a “small business.” See id. at Declaration of
Frank Neely.
28 See § 223.
29 See Forfeiture Policy Statement, 12 FCC Rcd at 17109, ¶¶ 51-52. See also U.S. v. Frank Neely, 595 F.Supp. 2d
662 (D.S.C. 2009) (“U.S. v. Frank Neely”) (finding that the FCC encompassed the spirit of the SBREFA in the
mitigation factors set out in its amended Forfeiture Policy Statement and applied them as required to Frank Neely).
30 See Forfeiture Policy Statement, 12 FCC Rcd at 17102, ¶ 31 (stating the Commission has broad discretion to issue
warnings instead of forfeitures).
31 See 47 U.S.C. § 503(b)(2)(E); 47 C.F.R. § 1.80(b)(4).
32 Compare id. and Forfeiture Policy Statement with § 223.
33 See Forfeiture Policy Statement, 12 FCC Rcd at 17109, ¶ 52.
34 See § 223(b)(3) (excluding from the scope of the statute “small entities that have been subject to multiple
enforcement actions by the agency.”).
4

Federal Communications Commission DA 10-19


be excluded from the SBREFA.35 Commission records confirm that Frank Neely does not have a history
of overall compliance with the requirements of the Act and the Commission’s Rules.36 Therefore we
reject the Licensee’s contention that the SBREFA precludes this forfeiture. To the extent the Licensee
argued in the NAL Response that the forfeiture should be reduced or cancelled because Rejoynetwork is a
small entity and therefore is unable to pay the forfeiture, we have not considered a reduction or cancellation
of the forfeiture due to its inability to pay in this matter because the Licensee did not provide the required,
supporting documentation described in the NAL.37
12.
Having considered the record in this case, the statutory factors, and the matters raised by
the Licensee in response to the NAL, we affirm the NAL and issue a forfeiture in the amount of $4,000.

IV.

ORDERING CLAUSES

13.

ACCORDINGLY, IT IS ORDERED

that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, Section 1.80 of the Commission’s Rules, and authority
delegated by Sections 0.111 and 0.311 of the Commission’s Rules, that Rejoynetwork, LLC

IS LIABLE
FOR A MONETARY FORFEITURE

in the amount of four thousand dollars ($4,000) for repeated and
willful violation of Section 73.1206 of the Commission’s Rules, 47 C.F.R. § 73.1206, as described in the
paragraphs above and in the NAL.38
14.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
rules39 within thirty (30) days of the release of this Forfeiture Order. Payment of the forfeiture must be
made by check or similar instrument, payable to the order of the Federal Communications Commission.
The payment must include the NAL/Account Number and FRN Number referenced above. Payment by
check or money order may be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank – Government Lockbox
#979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may
be made to ABA Number 021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be submitted. When completing the
FCC Form 159, enter the NAL/Account number in block number 23A (call sign/other ID), and enter the
letters “FORF” in block number 24A (payment type code). Requests for full payment under an
installment plan should be sent to: Chief Financial Officer -- Financial Operations, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554. Please contact the Financial Operations Group Help Desk at 1-
877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Rejoynetwork will also send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, and Anjali.Singh@fcc.gov.


35 See U.S. v. Frank Neely, 595 F.Supp. 2d at 670-71 (finding sufficient grounds under Section 223(b)(3) of the
SBREFA upon which to conclude that Neely is precluded from obtaining any relief under Section 223(a) of the
SBREFA).
36 See Frank Neely, Forfeiture Order, 23 FCC Rcd 11922 (Media Bur., Audio Div. 2008) (finding Neely liable for
$9,000 for repeated violation of Section 73.3526 of the Commission’s Rules); Frank Neely, Forfeiture Order, 19
FCC Rcd 16135 (Enf. Bur. 2004) (finding Neely liable for $4,000 for repeated violation of Section 73.1745(a) of the
Commission’s Rules), recons. denied, 22 FCC Rcd 1434 (Enf. Bur. 2007), aff’d in part, U.S. v. Frank Neely, supra
notes 29 and 35.
37 See NAL, 23 FCC Rcd at 14924-925, ¶ 19 (setting forth inability to pay document submission requirements).
38 See 47 U.S.C. § 503(b); 47 C.F.R. §§ 1.80, 0.111, 0.311, 73.1206.
39 See 47 C.F.R. § 1.80.
5

Federal Communications Commission DA 10-19


15.

IT IS FURTHER ORDERED

, that a copy of this

FORFEITURE ORDER

shall be sent
by Certified Mail, Return Receipt Requested, to Rejoynetwork, LLC at its address of record and to its
counsel, David Tillotson, Esq., Law Office of David Tillotson, 4606 Charleston Terrace, N.W., Washington,
D.C. 20007-1911.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
6

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