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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Nos. EB-01-IH-0682
AMFM Radio Licenses, LLC ) NAL/Acct. No.
) Facility ID # 8682
Licensee of Station WWDC-FM, ) FRN: 0001-6565-86
Washington, D.C. )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 15, 2002 Released: March 19,
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that AMFM Radio Licenses, LLC (``AMFM''
or ``licensee''), licensee of Station WWDC-FM, Washington,
D.C., has apparently violated 47 C.F.R. § 73.1206, by
broadcasting a telephone conversation without first
informing the non-licensee party of its intention to do so.
Based on our review of the facts and circumstances in this
case, we conclude that AMFM is apparently liable for a
forfeiture of six thousand dollars ($6,000).
2. The Commission received a letter dated December 7,
2001, complaining that on November 30, 2001, WWDC-FM air
personality Elliot Siegel called the complainant's home and
broadcast the voice mail message from the complainant's
telephone.1 In its January 7, 2002,
response to the staff's December 19, 2001, letter of
inquiry, the licensee acknowledges that the message was
broadcast. However, the licensee contends that the message
was ``generic in content'' and that the matter is thus
distinguishable from Citicasters Co., 15 FCC Rcd 13805 (Enf.
Bur. 2000) (forfeiture paid) (``Citicasters''), where we
found apparent liability for the broadcast of a conversation
between the complainant in that case and another person,
which was taken from that complainant's answering machine.
4. Section 73.1206 of the Commission's rules 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.
5. In Citicasters, we found apparent liability when
the licensee accessed a complainant's answering machine
without her knowledge or permission and then broadcast a
telephone conversation between her and another person as it
was recorded on her answering machine without giving her
prior notification. In so finding, we acknowledged that
Citicasters' conduct was different from the typical Section
73.1206 case, where a station calls a person directly and
broadcasts the resulting conversation without giving prior
notice. Nevertheless, citing Amendment of Section 73.1206:
Broadcast of Telephone Conversations (Report and Order), 3
FCC Rcd 5461, 5463 (1988) (``Report and Order''), we
concluded that the licensee's actions appeared to be
directly contrary to the language of the rule, which
requires prior notice before a conversation is broadcast,
and that the licensee's conduct was inconsistent with the
rule's purpose of protecting parties to telephone
conversations. Citicasters, at 13806.
6. We believe the instant case warrants the same
result. The Commission has 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 by a broadcast station in the
absence of prior notice.'' Report and Order at 5463. As
Citicasters makes clear, that right to answer without having
one's voice transmitted to the public exists irrespective of
whether the voice broadcast or recorded for later broadcast
is live or is lifted from an answering machine. To ensure
such privacy rights, the Commission has determined that a
broadcast station must give notice of its intent to
broadcast the conversation before the transmitting or
recording for later transmission of the telephone call.
Report and Order at 5463. See also KIDS-TV 6, 14 FCC Rcd
13351 (Mass Media Bur. 1999). ``Conversation'' as used in
the rule includes any word or words spoken during the call.
Heftel Broadcasting-Contemporary, Inc., 52 FCC 2d 1005, 1006
(1975). The licensee does not dispute that it did not give
any notice to the complainant before WWDC-FM broadcast the
complainant's voice mail greeting. Hence, we find apparent
7. Section 503(b) of the Communications Act, 47 U.S.C.
§ 503(b), and Section 1.80(a) of the Commission's rules, 47
C.F.R. § 1.80(a), each state that any person who willfully
or repeatedly fails to comply with the provisions of the
Communications Act or the Commission's rules shall be liable
for a forfeiture penalty. For purposes of Section 503(b) of
the Communications Act, the term "willful" means that the
violator knew it was taking the action in question,
irrespective of any intent to violate the Commission's
rules. See Southern California Broadcasting Co., 6 FCC Rcd
4387 (1991). Based on the evidence before us, it appears
that AMFM willfully broadcast a conversation on November 30,
2001, in apparent violation of Section 73.1206 of the
Commission's rules, 47 C.F.R. § 73.1206. There is no
question that AMFM, through its employees, knew that it
broadcast the complainant's voice mail message without
having previously informed complainant of its intention to
8. In assessing a monetary forfeiture, we take into
account the statutory factors set forth in Section
503(b)(2)(D) of the Act, 47 U.S.C. § 503(b)(2)(D). 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.2 The Commission's Forfeiture Guidelines set a base
forfeiture amount of $4,000 for broadcasting a telephone
conversation without informing the other party of its
intention to do so. After considering all the facts and
circumstances, we find that an upward adjustment is
appropriate. In Citicasters, we specifically put AMFM's
corporate parent, Clear Channel Communications, Inc.
(``Clear Channel''), on notice that broadcasting a
conversation from an answering machine was prohibited by 47
C.F.R. § 73.1206.3 We therefore find that a $6,000 proposed
forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,4 and Sections 0.111, 0.311 and
1.80 of the Commission's rules,5 AMFM Radio Licenses, LLC is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
in the amount of $6,000 for willfully violating Section
73.1206 of the Commission's rules.6
10. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the rules,7 within thirty days of this NOTICE OF
APPARENT LIABILITY, AMFM Radio Licenses, LLC 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. 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.
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail -
Return Receipt Requested to AMFM Radio Licenses, LLC, 200 East Basse Road, San Antonio, Texas,
78209; with a copy to Christopher L. Robbins, Esquire,
Wiley, Rein & Fielding, LLP, 1776 K Street, N.W.,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 The complainant raised additional matters in his
complaint and in a supplement dated December 13, 2001. We
intend to address those matters separately.
2 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) ("Forfeiture Guidelines").
3 Clear Channel is likewise the corporate parent of
47 U.S.C. § 503(b).
47 C.F.R. §§ 0.111, 0.311 and 1.80.
47 C.F.R. § 73.1206.
47 C.F.R. § 1.80.
See 47 C.F.R. § 1.1914.