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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
Entercom New Orleans License, ) File No. EB-01-IH-0099
LLC ) NAL/Acct. No. 2002 3208
Licensee of Station WEZB-FM, ) FRN # 0006-1143-42
New Orleans, Louisiana ) Facility # 20346
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 5, 2001 Released: February 6,
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we
find that Entercom New Orleans License, LLC (``Entercom''),
licensee of Station WEZB-FM, New Orleans, Louisiana, has
apparently violated Section 73.1206 of the Commission's rules, 47
C.F.R. § 73.1206, by recording a telephone conversation for
broadcast without informing the other party of its intention to
do so, even though the circumstances required it. Based on our
review of the facts and circumstances in this case, we conclude
that Entercom is apparently liable for a monetary forfeiture in
the amount of Four Thousand Dollars ($4,000.00).
2. The complainant states that she attempted to call the
parents of an acquaintance of her son, and that the answering
party identified himself as the acquaintance's father. After a
brief conversation and termination of the call, both she and her
son received word from friends that the conversation had been
broadcast on Station WEZB-FM.
3. After reviewing the complaint, we issued a letter of
inquiry on April 19, 2001. Entercom confirms that its on-air
personality for a music and talk show at that hour recorded and
broadcast the conversation. Entercom claims that the on-air
personality twice told the complainant that she had reached a
4. Section 73.1206 of the rules provides, in pertinent
Before recording a telephone conversation
for broadcast . . . 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 [where the non-
licensee party] originates the call and it is
obvious that it is in connection with a program
in which the station customarily broadcasts
5. Entercom argues that WEZB-FM's on-air personality was
entitled to presume that the complainant was aware that her call
was being recorded for broadcast. Specifically, Entercom
contends that: (1) the complainant originated the call; and (2)
the on-air personality reasonably believed that it was obvious to
the complainant that the call might be recorded for broadcast.
6. We disagree. Entercom does not contest the key
elements of complainant's description of the call. We believe
that the complaint clearly shows that the complainant was
understandably confused during most of the call and she did not
intend to call a broadcast station. At no time in the call did
she realize that the conversation might be broadcast.1 Moreover,
we find that this should have been evident to the on-air
personality by the time he finished the call and broadcast the
recording. Thus, although the complainant originated the call,
the on-air personality could not reasonably have presumed that
the complainant had the awareness required by the rule.
Therefore, Entercom's recording of the conversation and
subsequent broadcast thereof without sufficient notice violated
Section 73.1206 of the rules.2
7. Section 503(b) of the Communications Act of 1934, as
amended (``Act''), 47 U.S.C. § 503(b), and Section 1.80 of the
rules, 47 C.F.R. § 1.80, both state that any person who willfully
or repeatedly fails to comply with the Act or the rules shall be
liable for a forfeiture penalty. For purposes of Section 503(b)
of the Act, the term ``willful'' means that the violator knew
that it was taking the action in question, without regard to any
specific intent to violate the Commission's rules.3 Here, there
is no question that Entercom, through its employee, knew that it
broadcast a recorded telephone conversation without having
previously informed the complainant of its intention to do so.
Moreover, as detailed above, Entercom was not entitled to presume
that the complainant was aware that her call was being recorded
for later broadcast.
8. In assessing a monetary forfeiture, we take into
account the statutory factors set forth in Section 503(b)(2)(D)
of the Act. Those factors include the nature, circumstances,
extent and gravity of the violation, and, with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may
require.4 The Commission's Forfeiture Guidelines set a base
forfeiture amount of $4,000 for recording a telephone
conversation for broadcast without informing the other party of
its intention to do so. After considering all the facts and
circumstances, we find no reason for reducing that amount. We
find that a $4,000 proposed forfeiture is appropriate.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,5 and Sections 0.111, 0.311 and 1.80 of the
rules,6 Entercom is hereby NOTIFIED of its APPARENT LIABILITY FOR
A FORFEITURE in the amount of $4,000 for willfully violating
Section 73.1206 of the rules.
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the rules,7 within thirty days of this NOTICE OF APPARENT
LIABILITY, Entercom SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture. Payment of the
forfeiture may be made by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission,
to Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. . The payment must include the FCC Registration
number (FRN) referenced above and also must note the NAL/Acct.
No. referenced above.
11. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Room 3-B443, Washington, D.C. 20554 and MUST INCLUDE THE
NAL/Acct. No. referenced above.
12. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the respondent submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the respondent's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenues and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail - Return
Receipt Requested to Entercom New Orleans License, Radio Station
WEBZ(FM), 401 City Avenue, Suite 409, Bala Cynwyd, PA, 19004;
with a copy to Leventhal, Senter & Lerman, Suite 600, 2000 K.
Street N.W., Washington, D.C. 2006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 In this regard, Brad Cummings, the Entercomm on-air personality
who received and recorded the call at issue, himself acknowledges
that he thought the complainant was a ``prank'' caller and that
he ``decided to play along.''
2 Entercom's reliance on Dontron, Inc., 6 FCC Rcd 2560 (Aud.
Serv. Div. 1991) in support of a contrary result is misplaced.
In Dontron, concerning a religious call-in show, callers knew
that their substantive conversation would be broadcast, but the
host did not tell them that the portion of the call in which they
gave their addresses and phone numbers was also on the air. The
decision found no violation of Section 73.1206 because the
callers were generally aware that they would be broadcast and, in
fact, being broadcast was their intention. Here, complainant had
no knowledge or intention of being on the air.
3 See Southern California Broadcasting Co., 6 FCC Rcd 4387
4 47 U.S.C. § 503(b)(2)(D). See also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17100-01 (1997), recon. denied, 15 FCC Rcd 303 (1999)
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311, 1.80.
7 47 C.F.R. § 1.80.
8 See 47 C.F.R. § 1.1914.