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                         Before the
              FEDERAL COMMUNICATIONS COMMISSION
                   Washington, D.C.  20554

In the Matter of                        )
                                   )
EZ SACRAMENTO, INC.                )    File No. 98020370
                                   )    NAL/Acct. No. 
918ed012
Licensee of Station KHTK(AM)                 )    Facility # 
20352
Sacramento, California                       )
                                   )
INFINITY BROADCASTING              )    File No. 98090215
CORPORATION OF WASHINGTON, D.C.    )    NAL/Acct. No. 
918ed013
                                   )    Facility #28625
Licensee of Station WJFK-FM             )
Manassas, Virginia                      )

                MEMORANDUM OPINION AND ORDER

     Adopted: February 12, 2001              Released: 
February 20, 2001 

By the Commission: Commissioner Furchtgott-Roth concurring 
and issuing a statement

     1.  In this Order, we deny an application for review 
filed jointly by EZ Sacramento, Inc. (``EZ''), licensee of 
KHTK(AM), Sacramento, California, and Infinity Broadcasting 
Corporation of Washington, D.C. (``Infinity''), licensee of 
WJFK-FM, Manassas, Virginia (jointly, ``petitioners'').  
Petitioners seek review of a EZ Sacramento, Inc., 15 FCC Rcd 
18257 (Enf. Bureau 2000).  In that Order, the Chief, 
Enforcement Bureau, denied reconsideration of two forfeiture 
orders, Infinity Broadcasting Corp. of Washington, D.C., 14 
FCC Rcd 13541 (Mass Media Bureau 1999) and EZ Sacramento, 
Inc., 14 FCC Rcd 13539 (Mass Media Bureau 1999).  Each 
forfeiture order imposed a $4,000 forfeiture upon the 
licensee for a willful violation of section 73.1206 of the 
Commission's rules, 47 C.F.R.  73.1206 (Broadcast of 
telephone conversations).     

     2.  The staff properly decided the matters raised 
below, and we uphold the staff decisions for the reasons 
stated therein.  In this regard, we concur fully with the 
Bureaus that the protection afforded by 47 C.F.R.  73.1206 
is not as limited as the petitioners would desire.  Thus, 
when an individual is informed during a broadcast 
conversation that he or she is being put on hold, the prior 
notification that the call is being broadcast or recorded 
for later broadcast effectively ceases.  If a licensee 
wishes to continue to broadcast or record for later 
broadcast any conversation or utterances that occur while 
the caller is on hold, the licensee must explicitly notify 
the caller of its intention to do so.  While we recognize 
that the facts in this case are somewhat different than most 
cases under 47 C.F.R.  73.1206, we believe the Bureaus' 
conclusions are in accord with the language and purpose of 
the rule and should have been anticipated by the 
petitioners.  In this regard, the Commission has made clear 
repeatedly that the purpose of the rule is to afford a level 
of privacy to telephone conversations.  E.g., Amendment of 
Section 73.1206: Broadcast of Telephone Conversations, 3 FCC 
Rcd 5461, 5463 (1988).  The petitioners chose to disregard 
these pronouncements, and we reject their contention that 
they acted in good faith.  We therefore agree with the 
Bureaus that the forfeitures are warranted.  

     3.  We also disagree with Infinity's argument that its 
acquisition of control of EZ precludes imposition of a 
forfeiture upon EZ for actions occurring prior to the 
transfer.  In addition to the reasons articulated in EZ 
Sacramento, Inc., we note that section 503 of the 
Communications Act of 1934, as amended, 47 U.S.C.  503, 
authorizes us to impose forfeitures upon any person who 
willfully violates the Act or our rules.  That section also 
requires us to take into account, with respect to the 
violator, its degree of culpability, history of prior 
offenses, ability to pay, and such other matters as justice 
may require.  47 U.S.C.  503(b)(2)(D).  The facts of this 
case plainly reveal that EZ willfully violated 47 C.F.R.  
73.1206 and that a forfeiture is warranted against EZ.  The 
fact that the ownership of the company changed hands does 
not affect the company's liability.  In determining the 
amount of the forfeiture, we have considered, but ultimately 
find insignificant, the fact that Infinity acquired control 
of EZ after the violation occurred.   
     
     4.  Accordingly, IT IS ORDERED, pursuant to authority 
granted by section 5(c) of the Communications Act of 1934, 
as amended, 47 U.S.C.  155(c), and section 1.115(g) of the 
Commission's rules, 47 C.F.R.  1.115(g), that the 
application for review filed October 23, 2000, by EZ 
Sacramento, Inc. and Infinity Broadcasting Corporation of 
Washington, D.C. IS DENIED.


                         FEDERAL COMMUNICATIONS COMMISSION



                         Magalie Roman Salas
                         Secretary    CONCURRING SEPARATE STATEMENT OF COMMISSIONER HAROLD 
                       FURCHTGOTT-ROTH

In the  Matter of  EZ Sacramento,  Inc. Licensee  of Station 

KHTK(AM)   Sacramento,  California,   Infinity  Broadcasting 

Corporation of Washington, D.C.  Licensee of Station WJFK-FM 

Manassas, Virginia, Memorandum Opinion  and Order, FCC 01-53 

(rel. February 20, 2001).

     I support today's forfeiture order, nonetheless, I 
write separately to question the continued utility and 
effectiveness of FCC rules addressing privacy issues, such 
as this one. 47 CFR  73.1206 provides, in pertinent part, 
that ``[b]efore 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.''  That section forms the basis 
of today's forfeiture.  Rather than promulgated pursuant to 
some specific statutory directive, this provision was 
promulgated in 1970 based on our general statutory 
authority.1  

     I believe the Commission should re-examine the utility 
of rules -- like this one - that are not based on a specific 
statutory charge.  Among the factors to be considered in 
assessing the efficacy of these rules are: the availability 
of remedies in other fora, the possibility of asymmetrical 
regulation, and the ability of the Commission to focus 
resources on its core mission.  Here, it appears that 
private parties have extensive remedies under state law to 
cure any privacy violations.  Relying on state law remedies 
would also place radio broadcasters on the same footing as 
other media outlets (i.e., newspapers) that are not subject 
to these privacy rules.  Finally, elimination of the rule 
would allow the FCC to more aggressively focus its 
enforcement attention on those areas squarely and solely 
within the FCC's jurisdiction.  Therefore I encourage my 
colleagues to take a closer look at these types of rules in 
upcoming biennial review proceedings.  In the end, we may 
better serve the American people by doing fewer things, but 
doing them better.  


_________________________

1 See In the Matter of Amendment of Part 73 of the 
Commission's Rules and Regulations with Respect to the 
Broadcast of Telephone Conversations, Report and Order, 
Docket No. 18601, 23 F.C.C. 2d 1 (1970) (adopting 47 CFR  
73.1206 under its authority from sections 4(i) and (j) and 
303(r) of the Communications Act of 1934).  47 CFR  73.1206 
provides, 
     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.  Such awareness is 
     presumed to exist only when the other party to the call 
     is associated with the station (such as an 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.  
47 CFR  73.1206.