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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                )
INFINITY BROADCASTING            )    File No. EB-00-IH-0009
CORPORATION OF WASHINGTON, D.C.  )    NAL/Acct. No. X32080005
                                )    Facility #28625
Licensee of Station WJFK-FM      )
Manassas, Virginia               )


                  MEMORANDUM OPINION AND ORDER

   Adopted:  November 8, 2001           Released:  November   13, 

2001                                           
By the Chief, Enforcement Bureau:

                        I.  Introduction

     1.  In this order, pursuant to section 1.106(a)(1) of the 
Commission's rules, 47 C.F.R.  1.106(a)(1), we grant a petition 
for reconsideration filed June 16, 2000, by Infinity Broadcasting 
Corporation of Washington, D.C. (``Infinity''), licensee of 
station WJFK-FM, Manassas, Virginia.  Infinity seeks 
reconsideration of Infinity Broadcasting Corporation of 
Washington, D.C., 15 FCC Rcd 10387 (Enforcement Bureau 2000) 
(``Forfeiture Order''), which imposed a $4,000 forfeiture for a 
willful violation of section 73.1206 of the Commission's rules, 
47 C.F.R.  73.1206, regarding the broadcast of telephone 
conversations.  For the reasons that follow, we cancel the 
forfeiture.  

                         II. Discussion

     2.  Section 73.1206 of the Commission's rules, 47 
C.F.R.  73.1206, 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 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.

     3.  For more than five years, Infinity has used digital 
delay devices in the context of airing telephone 
conversations on the ``Don and Mike Show.''  The digital 
delay devices used by Infinity allow Infinity to capture the 
speakers' words temporarily and either broadcast those words 
shortly thereafter or not at all.  It appears that the 
length of delay between the speakers' utterances and their 
broadcast is under Infinity's control and depends on the 
number and type of devices employed.      

     4.  In the matter now before us, Infinity used digital 
delay devices to capture a conversation with the 
complainant, Ms. Flora Barton.  Consistent with its past 
practice, Infinity did not notify Ms. Barton of its 
intention to broadcast the conversation before the 
conversation to be broadcast began.  Rather, as the 
Forfeiture Order reflects, Infinity gave notice of its 
intention to Ms. Barton after the conversation to be 
broadcast began. 

     5.  Infinity argues that it used the procedures described 
above in good faith reliance on three prior Commission staff 
decisions that led it to believe that its use of digital delay 
devices ensured compliance with the rule.  Letter from Norman 
Goldstein to Bernard A. Solnik, Esq., Case No. 02120518 (Mass 
Media Bureau, March 25, 1996), Letter from Norman Goldstein to 
Kenneth C. Stevens, Esq., Case Nos. 96010161 and 96040220 (Mass 
Media Bureau, June 4, 1996), and Infinity Broadcasting Corp. of 
Washington, D.C., 14 FCC Rcd 5539 (Mass Media Bureau 1999) 
(``IBC'').  In each instance, a complaint occurred as a result of 
a broadcast of a telephone conversation on the ``Don and Mike'' 
show.  In the first two cases, the staff took no action against 
Infinity after receiving conflicting stories about the 
broadcasts.  In the IBC case, the staff imposed a forfeiture.  
However, that forfeiture was premised on the broadcast of a 
portion of the conversation that occurred after Don and Mike told 
the complainant she was being put on hold, not on the broadcast 
of any portion of the conversation that occurred before that 
point.1  Although none of the rulings explicitly discusses or 
endorses the delay devices used by Infinity, the factual 
circumstances surrounding those broadcasts are indistinguishable 
from the instant case.  Specifically, in each case, Infinity gave 
essentially the same notice at the same time to each complainant 
as was given to Ms. Barton.  Also, in each case, Infinity 
broadcast the entire conversation, including that portion that 
occurred before notice, but contended it could have avoided doing 
so because delay devices allowed it to dump a conversation if the 
person called had objected to the conversation or terminated it 
after receipt of Infinity's notice. 

     6.  This background persuades us that Infinity could have 
reasonably believed that, at the least, the Commission's staff 
had tacitly approved its procedures for broadcasting telephone 
conversations.  Thus, as applied to Infinity, we believe the rule 
was not sufficiently clear to justify a forfeiture.  We note that 
Infinity has indicated that it intends to file a request for 
declaratory ruling on the issue of whether a radio station's use 
of a digital delay device, coupled with delivery of a specified 
notice to the called party during the period of the digital 
delay, is compliant with 47 C.F.R.  73.1206.  Furthermore, 
consistent with the Forfeiture Order's determination that 
Infinity's procedures were not in accord with the rule's 
requirements, Infinity informs us that the ``Don and Mike Show'' 
will implement steps in the production process designed to ensure 
that the show will not contain the called party's voice until the 
called party is provided notice of intent to broadcast.2  In view 
of all the above, we conclude that cancellation of the forfeiture 
is appropriate.

                     III.  Ordering Clauses

     7.  Accordingly, IT IS ORDERED, pursuant to authority 
granted by section 405 of the Communications Act of 1934, as 
amended, 47 U.S.C.  405, and section 1.106(a) of the 
Commission's rules, 47 C.F.R.  1.106(a), that the petition for 
reconsideration filed June 16, 2000, by Infinity Broadcasting 
Corporation of Washington, D.C. IS GRANTED.
   
     8.  IT IS FURTHER ORDERED that the forfeiture imposed in 
Infinity Broadcasting Corporation of Washington, D.C., 15 FCC Rcd 
10387 (Enforcement Bureau 2000) IS CANCELLED.
     
     9.  IT IS FURTHER ORDERED that a copy of this Memorandum 
Opinion and Order shall be sent, by Certified Mail/Return Receipt 
Requested, to Infinity's counsel, Dennis P. Corbett, Esq., 
Leventhal, Senter & Lerman P.L.L.C., 2000 K Street, N.W., Suite 
600, Washington, DC 20006-1809.

                         FEDERAL COMMUNICATIONS COMMISSION




                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1  See IBC, 14 FCC Rcd 13541 (Mass Media Bureau 1999); EZ 
Sacramento, Inc., 14 FCC Rcd 13539 (Mass Media Bureau 1999), 
recon. of both denied sub nom. EZ Sacramento, Inc., 15 FCC Rcd 
18257 (Enforcement Bureau 2000), review denied, 16 FCC Rcd 4958 
(2001), recon. dismissed, FCC 01-230, released August 14, 2001.
2
  Letter from Dennis P. Corbett, counsel for Infinity, to David 
H. Solomon, Chief, Enforcement Bureau, dated October 22, 2001.