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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 ) ) American General Media Corporation) ) Licensee, Station KISV(FM) ) Bakersfield, California ) ) For a Forfeiture ) ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: September 21, 1999 Released: September 22, 1999 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau ("Bureau"), acting pursuant to authority delegated by Section 0.283 of the Commission's Rules, has under consideration: (a) a Notice of Apparent Liability, DA 99-721, released April 16, 1999 ("NAL"), assessing a forfeiture of $4,000 against American General Media Corporation ("American General"), licensee of Station KISV(FM), Bakersfield, CA; and (b) American General's May 10, 1999, response to the NAL. 2. In the NAL, the Bureau determined that the "Baka Boyz" program, aired on Station KISV on May 20, 1998, broadcast the telephone conversations of two complainants without first informing them of an intent to do so. The Bureau acknowledged that the program was broadcast pursuant to a programming agreement, but held that a station licensee is responsible for the content of any material broadcast on its station, regardless of its source. The Bureau also recognized that both conversations were brief, but concluded that the duration of the broadcasts was irrelevant for purposes of determining compliance with our rules. Finally, the Bureau stated that the fact that Station KISV no longer carries the "Baka Boyz" program does not negate that a rule violation occurred. 3. American General admits that telephone conversations were broadcast and that complainants were not first informed that their conversations would be taped or broadcast. However, American General contends that it did not willfully or repeatedly violate Section 73.1206 of the Commission's Rules. It contends that because Station KISV was contractually required to air the program in its entirety and because it was "impossible to edit the program before it aired," there was no "willful" violation. Moreover, it asserts that because there is no "pattern or instance of rule violation prior to this event," it should not be assessed a forfeiture for "repeated" violations. 4. 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. Moreover, 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.  312(f), which definition also applies to 47 U.S.C.  503(b)). In this case, American General was assessed a forfeiture for broadcasting a program which contained telephone conversations in violation of Section 73.1206 of the Commission's Rules. Since American General intentionally broadcast that program, it can be found to have "willfully" violated the Commission's Rules, even if it did not intend to do so. 5. Moreover, because the program contained two telephone conversations, albeit during the same program on the same day, American General can be found to have repeatedly violated Section 73.1206. Under Section 312(f)(2) of the Communications Act of 1934, as amended (the "Act"), "repeated" means the "commission or omission" of an act "more than once or . . . for more than one day." 47 U.S.C.  312(f)(2). In any event, the Act requires only that the conduct be either "willful" or "repeated." 47 U.S.C.  503(b)(1)(B). See Southern California Broadcasting Co., 6 FCC Rcd at 4388. 6. While we find that the violation was willful and repeated, we acknowledge that American General has a favorable compliance history and that a review of our records indicates that no other sanctions have been imposed against it. Thus, in light of American General's good broadcast record apart from this violation, we will reduce the forfeiture to $3,000. 7. Accordingly, IT IS ORDERED THAT pursuant to Section 503(b) of the Act, American General Media Corporation, licensee of Station KISV(FM), Bakersfield, CA, FORFEIT to the United States of America the sum of Three Thousand Dollars ($3,000) for the willful and repeated violations of Section 73.1206 of the Commission's Rules on May 20, 1998. 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. 8. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipts Requested, copies of the Memorandum Opinion and Order and Forfeiture Order to American General Media Corporation. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau