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                Federal Communications Commission
                     Washington, D.C. 20554



In the matter of                 )
                                )
Infinity Radio Operations, Inc.  )    File No. EB-02-IH-0624-GC
                                )    NAL/Acct. No. 200332080020
Licensee of Station WBLK(FM),    )    FRN 0004036711
Buffalo, New York                )    Facility ID # 71215
                                )
                                )
                                )


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  August 1, 2003             Released:  August 5, 2003

By the Chief, Enforcement Bureau:

                         I. INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture 
(``NAL''), we find that Infinity Radio Operations, Inc. 
(``Infinity'') has apparently violated Section 73.1206 of the 
Commission's rules1 by broadcasting a telephone conversation 
without first informing the party to the conversation of its 
intention to do so.  Based on our review of the facts and 
circumstances in this case, we conclude that Infinity is 
apparently liable for a forfeiture in the amount of four thousand 
dollars ($4,000).


                         II.  BACKGROUND

     2.   Brenda L. Tanner, of Buffalo, New York, filed a 
complaint alleging that on June 26, 2002, at approximately 9:30 
p.m., on air personality Shae Moore of WBLK(FM), Buffalo, New 
York, broadcast a telephone conversation between Ms. Moore and 
Ms. Tanner without the latter's knowledge.  At the time, Ms. 
Tanner was at work as a telephone customer service representative 
for Adelphia Communications, Inc., a cable television company in 
the process of Chapter 11 reorganization.  According to Ms. 
Tanner, Ms. Moore asked several questions about the future of the 
firm, the job security of its employees, and the possibility of 
non-payment of bills or cable theft.  

     3.   In response to a Commission letter of inquiry,2 
Infinity, the licensee of WBLK(FM), admits that it did broadcast 
the conversation a single time at approximately 9:00 p.m. as 
alleged in the complaint, and that it did not inform Ms. Tanner 
of its intention to do so.3  Infinity further states that the 
incident is inconsistent with its written policy in this respect.  
Infinity also states that it took disciplinary action against Ms. 
Moore and distributed a memo to all WBLK on air employees 
reiterating its policy with respect to Section 73.1206.  Infinity 
then claims that, because this was an isolated incident and that 
it has taken steps to remedy the situation, no further action is 
warranted.


                        III.  DISCUSSION

     4.   Section 73.1206 of the Commission's rules provides 
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 its 
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.4  The Commission has stated, ``we believe that there 
is a legitimate expectation of privacy that telephone calls will 
not be broadcast without the consent of the parties involved.''5  
In this case, we find that Infinity apparently violated Section 
73.1206 of the Commission's rules by recording and broadcasting 
Ms. Tanner's conversation without giving her prior notice of its 
intent to broadcast such conversation. 

     5.   Section 503(b) of the Communications Act of 1934, as 
amended (``Act''),6 and Section 1.80(a) of the Commission's 
rules,7 each provide that any person who willfully or repeatedly 
fails to comply with the provisions of the Act or the 
Commission's 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 it was taking the action in question, 
irrespective of any intent to violate the Commission's rules.8

     6.   Based on the evidence before us, we find that Infinity 
broadcast a conversation on June 26, 2002, at approximately 9:30 
p.m., in apparent willful violation of Section 73.1206 of the 
Commission's rules.  The Commission's Forfeiture Policy Statement 
sets a base forfeiture of $4,000 for the unauthorized broadcast 
of a telephone conversation.9  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.  Infinity's claim that the matter here is 
an isolated incident ignores another case in which the Commission 
found that Infinity had violated Section 73.1206.10  Moreover, 
Infinity's subsequent remedial efforts do not alter the fact that 
the violation took place or justify further mitigation or 
cancellation of the proposed forfeiture penalty.11  Based upon 
these facts and considering all of the circumstances present 
here, we find that no reduction or increase in the base 
forfeiture amount is warranted and that $4,000 is the appropriate 
forfeiture amount.  


                      IV.  ORDERING CLAUSES

     7.   Accordingly, IT IS ORDERED THAT, pursuant to Section 
503(b) of the Communications Act of 1934, as amended, and Section 
1.80 of the Commission's rules,12  Infinity Radio  Operations, 
Inc., is hereby NOTIFIED of its APPARENT LIABILITY FOR A 
FORFEITURE in the amount of four thousand dollars ($4,000) for 
violating Section 73.1206 of the Commission's rules, which 
prohibits broadcasters from airing telephone conversations 
without first informing the parties to such  conversations of 
their intention to do so. 

     8.   IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Commission's rules,13 within thirty days of this NOTICE OF 
APPARENT LIABILITY, Infinity Radio Operations, Inc.,   SHALL PAY 
the full amount of the proposed forfeiture or SHALL FILE a 
written statement seeking reduction or cancellation of the 
proposed forfeiture.

     9.   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.

     10.  The response, if any, must be mailed to Maureen F. Del 
Duca, 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.

     11.  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 
submitted.  

     12.  Under the Small Business Paperwork Relief Act of 2002, 
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is 
engaged in a two-year tracking process regarding the size of 
entities involved in forfeitures.  If you qualify as a small 
entity and if you wish to be treated as a small entity for 
tracking purposes, please so certify to us within thirty (30) 
days of this NAL, either in your response to the NAL or in a 
separate filing to be sent to the Investigations and Hearings 
Division, 445 12th, S.W., Room 3-B443, Washington, D.C. 20554.  
Your certification should indicate whether you, including your 
parent entity and its subsidiaries, meet one of the definitions 
set forth in the list provided by the FCC's Office of 
Communications Business Opportunities (OCBO) set forth in 
Attachment A of this Notice of Apparent Liability.  This 
information will be used for tracking purposes only.  Your 
response or failure to respond to this question will have no 
effect on your rights and responsibilities pursuant to Section 
503(b) of the Communications Act.  If you have questions 
regarding any of the information contained in Attachment A, 
please contact OCBO at (202) 418-0990.

     13.  Requests for payment of the full amount of this Notice 
of Apparent Liability under an installment plan should be sent 
to: Chief, Revenue and Receivables Operations Group, 445 12th 
Street, S.W., Washington, D.C. 20554.14  

     14.  IT IS FURTHER ORDERED THAT a copy of this NOTICE OF 
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt 
Requested to Stephen A. Hildebrandt, Vice President, Infinity 
Radio Operations, Inc., 14 Lafayette Square, Suite 1300, Buffalo, 
New York 142203, with a copy to its counsel, attn: John D. 
Poutasse, Leventhal, Senter & Lerman, P.L.L.C., 2000 K Street 
N.W., Washington, D.C. 20006-1890.                

     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau
                       ATTACHMENT A

                FCC List of Small Entities

   As described below, a ``small entity'' may be a small 
                       organization,
  a small governmental jurisdiction, or a small business.

(1)  Small Organization 
Any not-for-profit enterprise that is independently owned 
and operated and 
is not dominant in its field.

  
(2)  Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages, 
school districts, or 
special districts, with a population of less than fifty 
thousand.


(3)  Small Business
Any business concern that is independently owned and 
operated and 
is not dominant in its field, and meets the pertinent size 
criterion described below.
  

      Industry Type          Description of Small Business 
                                     Size Standards
                 Cable Services or Systems
                            Special Size Standard - 
Cable Systems                Small Cable Company has 400,000 
                            Subscribers Nationwide or Fewer
Cable and Other Program 
Distribution                     $12.5 Million in Annual 
                                    Receipts or Less

Open Video Systems 
       Common Carrier Services and Related Entities
Wireline Carriers and 
Service providers 
                                1,500 Employees or Fewer
Local Exchange Carriers, 
Competitive Access 
Providers, Interexchange 
Carriers, Operator Service 
Providers, Payphone 
Providers, and Resellers


Note:  With the exception of Cable Systems, all size 
standards are expressed in either millions of dollars or 
number of employees and are generally the average annual 
receipts or the average employment of a firm.  Directions 
for calculating average annual receipts and average 
employment of a firm can be found in 
13 CFR 121.104 and 13 CFR 121.106, respectively.





                  International Services
International Broadcast 
Stations






                                $12.5 Million in Annual 
                                    Receipts or Less
International Public Fixed 
Radio (Public and Control 
Stations)
Fixed Satellite 
Transmit/Receive Earth 
Stations
Fixed Satellite Very Small 
Aperture Terminal Systems
Mobile Satellite Earth 
Stations
Radio Determination 
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space 
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
                    Mass Media Services
Television Services

                             $12 Million in Annual Receipts 
                                        or Less
Low Power Television 
Services and Television 
Translator Stations
TV Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Radio Services
                             $6 Million in Annual Receipts 
                                        or Less
Radio Auxiliary, Special 
Broadcast and Other Program 
Distribution Services
Multipoint Distribution      Auction Special Size Standard -
Service                      Small Business is less than 
                            $40M in annual gross revenues 
                            for three preceding years
          Wireless and Commercial Mobile Services
Cellular Licensees
                                1,500 Employees or Fewer
220 MHz Radio Service - 
Phase I Licensees
220 MHz Radio Service -      Auction special size standard -
Phase II Licensees           Small Business is average gross 
                            revenues of $15M or less for 
                            the preceding three years 
                            (includes affiliates and 
                            controlling principals)
                            Very Small Business is average 
                            gross revenues of $3M or less 
                            for the preceding three years 
                            (includes affiliates and 
                            controlling principals)
700 MHZ Guard Band Licensees


Private and Common Carrier 
Paging
Broadband Personal 
Communications Services          1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal           Auction special size standard -
Communications Services      Small Business is $40M or less 
(Block C)                    in annual gross revenues for 
                            three previous calendar years
                            Very Small Business is average 
                            gross revenues of $15M or less 
                            for the preceding three 
                            calendar years (includes 
                            affiliates and persons or 
                            entities that hold interest in 
                            such entity and their 
                            affiliates)
Broadband Personal 
Communications Services 
(Block F)
Narrowband Personal 
Communications Services


Rural Radiotelephone Service     1,500 Employees or Fewer
Air-Ground Radiotelephone 
Service
800 MHz Specialized Mobile   Auction special size standard -
Radio                        Small Business is $15M or less 
                            average annual gross revenues 
                            for three preceding calendar 
                            years
900 MHz Specialized Mobile 
Radio
Private Land Mobile Radio        1,500 Employees or Fewer
Amateur Radio Service                      N/A
Aviation and Marine Radio 
Service                          1,500 Employees or Fewer
Fixed Microwave Services
                            Small Business is 1,500 
Public Safety Radio Services employees or less
                            Small Government Entities has 
                            population of less than 50,000 
                            persons
Wireless Telephony and 
Paging and Messaging             1,500 Employees or Fewer
Personal Radio Services                    N/A
Offshore Radiotelephone          1,500 Employees or Fewer
Service
Wireless Communications      Small Business is $40M or less 
Services                     average annual gross revenues 
                            for three preceding years
                            Very Small Business is average 
                            gross revenues of $15M or less 
                            for the preceding three years 

39 GHz Service
                            Auction special size standard 
                            (1996) -
Multipoint Distribution      Small Business is $40M or less 
Service                      average annual gross revenues 
                            for three preceding calendar 
                            years
                            Prior to Auction -
                            Small Business has annual 
                            revenue of $12.5M or less
Multichannel Multipoint 
Distribution Service             $12.5 Million in Annual 
                                    Receipts or Less
Instructional Television 
Fixed Service
                            Auction special size standard 
                            (1998) -
Local Multipoint             Small Business is $40M or less 
Distribution Service         average annual gross revenues 
                            for three preceding years
                            Very Small Business is average 
                            gross revenues of $15M or less 
                            for the preceding three years 
                            First Auction special size 
                            standard (1994) -
                            Small Business is an entity 
                            that, together with its 
                            affiliates, has no more than a 
218-219 MHZ Service          $6M net worth and, after 
                            federal income taxes (excluding 
                            carryover losses) has no more 
                            than $2M in annual profits each 
                            year for the previous two years
                            New Standard - 
                            Small Business is average gross 
                            revenues of $15M or less for 
                            the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
                            Very Small Business is average 
                            gross revenues of $3M or less 
                            for the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
Satellite Master Antenna 
Television Systems               $12.5 Million in Annual 
                                    Receipts or Less
24 GHz - Incumbent Licensees     1,500 Employees or Fewer
24 GHz - Future Licensees    Small Business is average gross 
                            revenues of $15M or less for 
                            the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
                            Very Small Business is average 
                            gross revenues of $3M or less 
                            for the preceding three years 
                            (includes affiliates and 
                            persons or entities that hold 
                            interest in such entity and 
                            their affiliates)
                       Miscellaneous
On-Line Information Services  $18 Million in Annual Receipts 
                                        or Less
Radio and Television 
Broadcasting and Wireless 
Communications Equipment          750 Employees or Fewer
Manufacturers
Audio and Video Equipment 
Manufacturers
Telephone Apparatus 
Manufacturers (Except            1,000 Employees or Fewer
Cellular)
Medical Implant Device            500 Employees or Fewer
Manufacturers
Hospitals                     $29 Million in Annual Receipts 
                                        or Less
Nursing Homes                    $11.5 Million in Annual 
                                    Receipts or Less
Hotels and Motels             $6 Million in Annual Receipts 
                                        or Less
Tower Owners                 (See Lessee's Type of Business)



_________________________

1 47 C.F.R.  73.1206.
2 Letter  from  Charles  W.  Kelley,  Chief,  Investigations  and 
Hearings  Division,   Enforcement  Bureau,   to  Infinity   Radio 
Operations, Inc., July 29, 2002.
3 Licensee states that the call occurred at ``approximately  9:00 
p.m.,'' whereas Ms. Tanner states that it was ``about 9:30 p.m.'' 
4 47 C.F.R.  73.1206.
5 In  the  Matter of  Amendment  of Section  1206:  Broadcast  of 
Telephone Conversations, 3 FCC Rcd 5461, 5463 (1988).
6 47 U.S.C.  503(b).
7 47 C.F.R.  1.80(a).
8 See Southern California Broadcasting Co., 6 FCC Rcd 4387, 4387-
88 (1991).
9 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). 
10 See EZ Sacramento, Inc. and Infinity Broadcasting  Corporation 
of Washington, D.C., 16  FCC Rcd 4958  (2001); recon. denied,  16 
FCC Rcd  15,605 (2001)  (broadcast of  a conversation  while  the 
parties had been told they were on hold).
11  See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
12 47 U.S.C.  503(b); 47 C.F.R.  1.80.
13 47 C.F.R.  1.80.
14 See 47 C.F.R.  1.1914.