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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 April 1, l999 In reply refer to: 1800C1-SP/CMW 98020370 98110001 Released: April 2, l999 Certified Mail - Return Receipt Requested EZ Sacramento, Inc. Licensee, Radio Station KHTK(AM), Sacramento, CA 600 New Hampshire Avenue, Suite 1200 Washington, DC 20037 Dear Licensee: This letter constitutes a Notice of Apparent Liability for a Forfeiture pursuant to Section 503(b) of the Communications Act of 1934, as amended, for a violation of Section 73.1206 of the Commission's Rules. This action is taken under authority delegated to the Chief of the Mass Media Bureau by Section 0.283 of the Commission's Rules. The Commission received a complaint filed on behalf of Ms. Sharmie Silva, alleging that on January 29, 1998, Station KHTK(AM), Sacramento, CA, broadcast a telephone conversation between Ms. Silva and her sister without the complainant's knowledge. Specifically, Ms. Silva explained that she participated in a live radio program on the "Don and Mike Show." She alleged that after engaging in an on-air conversation with Don and Mike and her sister, she was told that she was being put on hold so that Don and Mike could speak to other participants. Apparently, however, she was not put on hold and the station continued to broadcast a private conversation between her and her sister. Based on this complaint the Commission sent EZ Sacramento, Inc. ("EZ Sacramento"), the licensee of Station KHTK(AM), a letter of inquiry on May 21, 1998. EZ Sacramento responded to that inquiry on July 1, 1998. We also sent an August 19, 1998, letter of inquiry to Station WJFK-FM, Manassas, VA, since the program in question originated at that station and is carried in syndication by Station KHTK(AM). We received a joint response to that inquiry from both stations dated November 2, 1998. As a preliminary matter, EZ Sacramento contends that since the broadcast in question, there has been a transfer of control of the station and that the transferee should not be held responsible for any violation that may have occurred prior to its ownership. We find this argument without merit. Although there has been a transfer of control of Station KHTK(AM), the licensee has remained the same. Moreover, the complaint was filed and our letter of inquiry was issued prior to the transfer of control. EZ Sacramento next asserts that since KHTK is "a passive carrier" of the nationally syndicated "Don and Mike Show," it had no ability to control whether a violation of Section 73.1206 occurred during that show. We also reject this argument. The Commission consistently has held that a station licensee is responsible for the content of any material broadcast on its station regardless of its source. Additionally, in EZ Sacramento's November 2, 1998, response, it states that the parties have settled a civil lawsuit involving this matter and that Ms. Silva has withdrawn her complaint to the FCC. While we recognize the settlement between the complainant and the licensee, such a settlement of a civil action does not address whether or not Section 73.1206 of the Commission's Rules has been violated. Moreover, the complainant's withdrawal of her complaint does not obviate what we find to be an egregious violation of our rules. Section 73.1206 of the Commission's Rules provides, in pertinent part, that before recording a telephone conversation for broadcast or broadcasting such a conversation simultaneously with its occurrence, a licensee shall inform any party to the call of its intention to broadcast the conversation, except where such a 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. EZ Sacramento asserts that a violation of Section 73.1206 of the Rules did not occur in this instance because Ms. Silva was notified at the outset of the conversation that it was being broadcast on a live radio program and that the rule does not require licensees to provide ongoing notice that telephone calls will continue to be broadcast. It is true that Ms. Silva was informed initially that her conversation was being broadcast and that Section 73.1206 of the Commission's Rules does not require licensees to provide ongoing notice that a telephone conversation is being broadcast. However, we do not find these factors to be prevailing in this case. The portion of the conversation at issue took place only after Ms. Silva was informed that she was being placed on hold. Thus, she reasonably believed that her conversation with her sister was not being broadcast. This fact separates the portion of the conversation at issue from the earlier segment which the complainant knew was being broadcast. Continued broadcast of the complainant's conversation in such a case violates Section 73.1206 of the Commission's Rules. Accordingly, based on the evidence before us, it appears that EZ Sacramento, Inc. willfully violated Section 73.1206 of the Commission's Rules on January 29, 1998. The guidelines contained in the Commission's Forfeiture Policy Statement, 12 FCC Rcd 17087 (1997), which became effective on October 14, 1997, specify a base forfeiture amount of $4,000 for the unauthorized broadcast of a telephone conversation. Accordingly, pursuant to Section 503 of the Communications Act of 1934, as amended, EZ Sacramento, Inc., licensee of Station KHTK(AM), Sacramento, CA, is hereby advised of its Apparent Liability for Forfeiture in the amount of $4,000 for apparent willful violation of Section 73.1206 of the Commission's Rules on January 29, 1998. In regard to this forfeiture proceeding, EZ Sacramento is afforded thirty (30) days from the date of this letter "to show in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." Other relevant provisions of Section 1.80 of the Commission's Rules are summarized in attachments to this letter. Sincerely, Enclosure Roy J. Stewart, Chief Mass Media Bureau cc: Sally Buckman, Esq. John M. Poswall, Esq.