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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) KIDS-TV 6 ) ) License of Station K06MU(TV) ) Big Bear Lake Valley, CA ) ) For a Forfeiture ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: August 12, 1999 Released: August 19, 1999 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to authority delegated by Section 0.283 of the Commission's Rules, has before it for consideration: (1) a January 7, 1999, Notice of Apparent Liability ("NAL") assessing a forfeiture of $4,000 against KIDS-TV 6 ("KIDS"), licensee of low power television station K06MU, Big Bear Lake Valley, California, for violation of Section 73.1206 of the Commission's Rules (broadcast of telephone conversations); and (2) KIDS' January 16, 1999, response. 2. In the NAL, we determined that KIDS had willfully violated Section 73.1206 of the Commission's Rules on February 26, 1998, when it broadcast portions of a telephone conversation between Chuck Foster, the licensee's president, and Ken and Nancy Sargent. In its response to the NAL, KIDS contends that the Sargents were aware that the telephone conversation might be taped and broadcast over the air. Specifically, KIDS contends that Foster had previously warned the Sargents that, "I want to caution you that I'm going to record your conversations whenever you call or come in to the station, or when you appear at public meetings, and the reason I'm doing this is because I intend to rebut your lies by using your own statements and actions against you on-the-air and in a court of law." In addition, KIDS asserts that Ken Sargent knew he was being taped because, during the telephone call, he said, ". . . and if you're taping me, fine." The licensee also notes that a lawsuit has been filed against the Sargents on the grounds of conspiracy, negligence, infliction of emotional distress, trespass, and invasion of privacy, and it urges the Commission to await a decision in that matter before proceeding here, since that suit questions the credibility of the Sargents. Finally, KIDS urges that if the Bureau finds that it did violate the rule, the forfeiture should be reduced since it is a first-time offense, the station is a "small, non-profit educational low power station," and the violation was not intentional. 3. As an initial matter, we reject the licensee's request to defer this action until after the resolution of the civil suit against the Sargents. The matter before us is the narrow question of whether the licensee violated Section 73.1206 of the Commission's Rules by taping and broadcasting a February 26, 1998, telephone conversation with the Sargents. In resolving that question we need not make a ruling on the issues in the pending civil suit. Morevoer, although the parties are clearly at odds, our findings are based on a videotape and transcript of the broadcast submitted by the parties. 4. There is no dispute in this case that at least part of the February 26, 1998, telephone conversation between Chuck Foster and the Sargents was taped and subsequently broadcast. Section 73.1206 of the Commission's Rules states that, before recording a telephone conversation for broadcast, a licensee must inform any party to the call of its intention to broadcast the conversation, unless the party is aware or may be presumed to be aware that it likely will be broadcast. The rule further states that awareness may be presumed only where the party is associated with the station or originated the call in connection with a program that customarily broadcasts telephone conversations. 5. At issue in this case is whether or not Foster's blanket notice that he would tape any telephone conversations with the Sargents provided sufficient notice to comply with Section 73.1206 of the Commission's Rules. We do not think so. The Commission has specifically stated that "it is reasonable and desirable to retain for individuals the right to answer the telephone without having their voices or statements transmitted to the public" in the absence of prior notice. Amendment of Section 1206: Broadcast of Telephone Conversations (Report and Order), 3 FCC Rcd 5461, 5463 (1988). Thus, to ensure such privacy rights, the Commission has determined that it is not sufficient for a station to give notice that a conversation is being recorded or broadcast at the beginning of a telephone call, if the conversation is already being taped or broadcast. Id.; EZ Communications, Inc., 7 FCC Rcd 1893 (1992) (forfeiture assessed even though the party was informed soon after answering the call that the conversation was being taped). 6. Although Foster gave the Sargents a general warning of his intent to tape telephone conversations in the future, such a warning does not satisfy the letter or intent of the rule. The transcript of the conversation in this case indicates that KIDS was taping the call for broadcast even before Mr. Foster identified himself to the Sargents. Moreover, as previously noted in the NAL, Ken Sargent's statement that he did not care if the conversation was being taped was made after the taping of the conversation commenced. Thus, the Sargents were denied their right to answer the telephone without fear of being taped for broadcast and, consistent with case precedent, we affirm our finding that KIDS violated Section 73.1206 of the Rules. 7. With respect to the licensee's contention that the violation was not willful, we note that the Commission has consistently held that the term "willful" means that the person "knew he was doing the act in question, regardless of whether there was an intent to violate the law." See Jerry Szoka, FCC 99-145, paragraph 21, released June 15, 1999, citing Southern California Broadcasting Co., 6 FCC Rcd 4387, 4387-88 (1991) (quoting Conference Report accompanying amendment clarifying the definition of "willful" in 47 U.S.C. Section 312(f), which definition also applies to 47 U.S.C. Section 503(b)). Since KIDS intentionally recorded and broadcast the conversation at issue, it can be found to have "willfully" violated the Commission's Rules, regardless of the fact that it did not intend to violate the rule. Nevertheless, because the station's record is otherwise free of enforcement actions against it, we conclude that the forfeiture should be reduced from $4,000 to $3,000. 8. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the Communications Act of 1934, as amended (47 U.S.C. Section 503(b)), KIDS-TV 6, licensee of Station K06MU(TV), Big Bear Valley, California, FORFEIT to the United States of Americas the sum of three thousand dollars ($3,000) for the willful violation of Section 73.1206 of the Commission's Rules. Payment of the forfeiture may be made by mailing a check or similar instrument payable to the Federal Communications Commission at the address indicated in the attachment to this Memorandum Opinion and Order and Forfeiture Order. 9. IT IS FURTHER ORDERED THAT the Mass Media Bureau send by certified mail, return receipt requested, copies of this Memorandum opinion and Order and Forfeiture Order to KIDS-TV 6. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart, Chief Mass Media Bureau Enclosure