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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
MID-MISSOURI BROADCASTING, INC. ) File No. EB-03-IH-0150
) NAL Account No.
Licensee of Station KOQL(FM), ) 200532080013
Ashland, Missouri ) Facility ID No. 60731
FRN No. 0005088505
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 23, 2004 Released: November 24,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that, on March 25, 2003, Mid-Missouri
Broadcasting, Inc. (``Mid-Missouri''), licensee of Station
KOQL(FM), Ashland, Missouri, apparently willfully violated
Section 73.1206 of the Commission's rules regarding the broadcast
of telephone calls.1 Based upon our review of the facts and
circumstances in this case, and for the reasons discussed below,
we conclude that Mid-Missouri is apparently liable for a monetary
forfeiture in the amount of $4,000.
II. BACKGROUND
2. The Commission received a complaint from the Interim
Director of Life Crisis Services, Inc. (``Life Crisis
Services''), which operates a gambling hotline for the State of
Missouri, alleging that Station KOQL(FM) broadcast a telephone
conversation on March 25, 2003, from approximately 8:10 to 8:15
a.m., during ``The Cosmo & JC Radio Show'' between a station
radio personality and one of the complainant's hotline crisis
counselors that was a prank.2
3. After reviewing the complaint, we issued a letter of
inquiry to Mid-Missouri.3 In its response,4 Mid-Missouri
admitted that it recorded and broadcast the telephone
conversation as alleged in the complaint, and that it did not
inform the hotline counselor that the conversation was being
recorded for broadcast. The transcript of the broadcast provided
by Mid-Missouri reveals that, during the aired call to the
hotline counselor, the radio personality pretended to have a
gambling problem. After posing a series of questions to the
radio personality, the counselor determined the call was a prank
and abruptly terminated the discussion.5
4. Mid-Missouri states that this was an isolated incident;
that it has taken the necessary steps to ensure that such
incidents do not reoccur; that the radio personality responsible
for the prank apologized publicly and on the air to the employee
and Life Crisis Services; and that Mid-Missouri has provided a
link to the Life Crisis Services hotline on its station website.6
III. DISCUSSION
5. Under section 503(b)(1) of the Communications Act of
1934, as amended (the ``Act''),7 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 monetary forfeiture penalty. 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.8 The Commission will then issue a forfeiture if it
finds by a preponderance of the evidence that the person has
violated the Act or a Commission rule.9 As we set forth in
greater detail below, we conclude under this standard that Mid-
Missouri is apparently liable for a forfeiture for its apparent
willful violation of section 73.1206 of the Commission's rules.
6. Section 73.1206 of the Commission's rules provides, in
pertinent part:
Before recording a telephone conversation for broadcast
. . . a licensee shall inform any party to the call of
the licensee's 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. Such
awareness is presumed to exist only when the other
party to the call is associated with the station (such
as [sic] 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.
Thus, section 73.1206 requires licensees to notify any party to a
telephone call, before recording a call for broadcast or
simultaneously airing the call of its intention to record and/or
broadcast the conversation. The Commission has stated that
``[t]he recording of such conversation with the intention of
informing the other party later - whether during the conversation
or after it is completed but before it is broadcast -- does not
comply with the Rule . . . .''10 The rule reflects the
Commission's longstanding policy that prior notification is
essential to protect an individual's legitimate expectation of
privacy, as well as to preserve their dignity by avoidance of
nonconsensual broadcasts of their conversations.11 Thus, the
Commission has held that the prior notification requirement
ensures the protection of an 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.12 Applying this reasoning, the
Commission has defined ``conversations'' broadly ``to include any
word or words spoken during the telephone call,'' and
specifically has rejected arguments that ``utterances made by
parties called in answering the phone'' are not subject to the
rule's prior notification requirement.13
7. As noted above, Mid-Missouri does not dispute that it
violated the telephone broadcast rule. Based upon the
information before us, we conclude that, on March 25, 2003, Mid-
Missouri broadcast over Station KOQL(FM) a conversation between
its radio personality and the helpline counselor without
providing the counselor with prior notice that he intended to
record and subsequently air the conversation, in apparent willful
violation of section 73.1206 of the Commission's rules. In light
of this apparent misconduct, we find that Mid-Missouri apparently
liable for a monetary forfeiture.
8. The Commission's Forfeiture Policy Statement sets a base
forfeiture amount of $4,000 for the unauthorized broadcast of a
telephone conversation14 and provides that base forfeitures may
be adjusted based upon consideration of the factors enumerated in
section 503(b)(2)(D) and 1.80(a)(4), which include ``the nature,
circumstances, extent, and gravity of the violation . . . and the
degree of culpability, any history of prior offenses, ability to
pay, and such other matters as justice may require.''15 As noted
above, Mid-Missouri states that it ``believes this was an
isolated incident and it is taking the necessary steps to prevent
an incident like this from happening again. Additionally, Mid-
Missouri,....made an on-air apology to Life Crisis Services on
April 4, 2003, and provided a link to the Life Crisis Hotline on
its website....''16 Although such efforts are laudable, post-
violation actions are not relevant to our determination of
appropriate forfeiture amount.17 Based upon the facts and
circumstances presented here, we find the base amount of $4,000
to be the appropriate proposed forfeiture amount.18
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to section
503(b) of the Communications Act of 1934, as amended,19 and
sections 0.111, 0.311 and 1.80 of the Commission's rules,20 Mid-
Missouri Broadcasting, Inc., licensee of Station KOQL(FM),
Ashland, Missouri, is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of $4,000 for willfully violating
section 73.1206 of the Commission's rules on March 25, 2003.21
10. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of
the rules,22 within thirty (30) days of the release date of this
NOTICE OF APPARENT LIABILITY, Mid-Missouri Broadcasting, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
11. 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/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, Illinois 60661. Payment by wire transfer
may be made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
12. The response, if any, must be mailed to William H.
Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Room 4-C330, Washington, D.C. 20554 and MUST
INCLUDE THE NAL/Acct. No. referenced above.
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.23
14. Accordingly, IT IS ORDERED that the complaint filed
against Mid-Missouri Broadcasting, Inc., licensee of Station
KOQL(FM), Ashland, Missouri, IS GRANTED to the extent set forth
herein.24
15. IT IS FURTHER ORDERED that a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail - Return
Receipt Requested to Mid-Missouri Broadcasting, Inc., 503 Old
Highway 63 North, Columbia, Missouri 65201, with copy to its
counsel, Mark N. Lipp, Esq., Vinson & Elkins, L.L.P., 1455
Pennsylvania Ave., N.W., Washington, D.C. 20004 and to the
complainant, Susan M. Self, LCSW, Interim Director, Life Crisis
Services, 1423 S. Big Bend Blvd., St. Louis, Missouri 63117.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 73.1206.
2 Life Crisis Services, Inc. operates 888-BETS-OFF, a telephone
hotline for those Missouri residents with gambling addictions.
3 See Letter from William H. Davenport, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, to Mid-Missouri Broadcasting, Inc., dated June 4,
2004.
4 Letter from Mark N. Lipp, Esq., counsel for Mid-Missouri
Broadcasting, Inc., to the Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, dated July
6, 2004 (``Response'').
5 Id. at 5-6.
6 Id. at 2.
7 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also 47
U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14 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, ¶ 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
8 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
9 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC
Rcd 7589, 7591, ¶ 4 (2002) (forfeiture paid).
10 Station-Initiated Telephone Calls which Fail to Comply with
Section 73.1206 of the Rules, Public Notice, 35 FCC 2d 940, 941
(1972) (``1972 Public Notice'').
11 See Amendment of Section 1206: Broadcast of Telephone
Conversations, Report and Order, 3 FCC Rcd 5461, 5463-64 (1988)
(``1988 Order''); 1972 Public Notice, 35 FCC 2d at 941; Amendment
of Part 73 of the Commission's Rules and Regulations with Respect
to the Broadcast of Telephone Conversations, Report and Order, 23
FCC 2d 1, 2 (1970); see also EZ Sacramento, Inc. and Infinity
Broadcasting Corporation of Washington, D.C., Memorandum Opinion
and Order, 16 FCC Rcd 4958, 4958 (2002) (finding that prior
notifications ``effectively cease'' when callers are put on hold,
and that thus explicit notice must be given if stations plan to
continue such broadcasts or record such conversations for later
broadcasts); Heftel Broadcasting-Contemporary, Inc., Memorandum
Opinion and Order, 52 FCC 2d 1005, 1006 (1975) (finding that
``cash call'' promotions that simultaneously broadcast, and award
prizes based on, parties' responses in answering the telephone
are subject to section 73.1206's prior notification requirement).
12 1988 Order, 3 FCC Rcd at 5463.
13 Heftel Broadcasting-Contemporary, Inc., 52 FCC 2d at 1006.
14 See 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, 17113 (1997)
(``Forfeiture Policy Statement''), Memorandum Opinion and Order,
recon. denied, 15 FCC Rcd 303 (1999).
15 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01.
16 See Response at 2.
17 See, e.g., AT&T Wireless Services, Inc., Memorandum Opinion
and Order, 17 FCC Rcd 21866, 21871 (2002); Seawest Yacht
Brokers, Notice of Forfeiture, 9 FCC Rcd 6099 (1994); Station
KGVL, Inc., Memorandum Opinion and Order, 42 FCC 2d 258, 259
(1973).
18 See, e.g., El Mundo Broadcasting Corp., Notice of Apparent
Liability, 15 FCC Rcd. 20377 (Enf. Bur. 2000), Forfeiture Order,
16 FCC Rcd 4513 (Enf. Bur. 2001) (forfeiture lowered from $6,000
to $4,000).
19 47 U.S.C. § 503(b).
20 47 C.F.R. §§ 0.111, 0.311 and 1.80.
21 47 C.F.R. § 73.1206.
22 47 C.F.R. § 1.80.
23 47 C.F.R. § 1.1914.
24 Consistent with section 503(b) of the Act and Commission
practice, for the purpose of the forfeiture proceeding initiated
by this NAL, Mid-Missouri Broadcasting, Inc. shall be the only
party to this proceeding, 47 U.S.C. § 503(b).