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                            Before the
                Federal Communications Commission
                      Washington, DC 20554


In the Matter of                 )
                                )
TEMPE RADIO, INC.                )    File No. EB-02-IH-0812
                                )    NAL Account No. 
Licensee of Station KUPD(FM),    )    200432080006
Tempe, Arizona                   )    Facility No. 65166
                                )    FRN No. 0007589328
                                )
                                )


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  October 6, 2003            Released:  October 7, 
2003

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''), we find that,  on October 3,  2002, Tempe Radio,  Inc. 
(``Tempe''),  licensee  of  Station  KUPD(FM),  Tempe,   Arizona, 
apparently willfully violated Section 73.1206 of the Commission's 
rules.1  Based upon our review of the facts and circumstances  in 
this case, and for the reasons discussed below, we conclude  that 
Tempe is  apparently  liable for  a  monetary forfeiture  in  the 
amount of Four Thousand Dollars ($4,000.00).  

                         II.  BACKGROUND

     2.   The Commission received a complaint that, on October 3, 
2002,   Station  KUPD(FM)  broadcast  a  telephone   conversation 
between radio personality  Beau Duran and  Flynn Kile, the  then-
recently widowed wife  of St. Louis  Cardinals' baseball  pitcher 
Darryl Kile.2  According to the  complaint, Mr. Duran called  Ms. 
Kile, who was visiting Phoenix, Arizona, to attend the St.  Louis 
Cardinals-Arizona Diamondbacks playoff game.  Mr. Duran told  Ms. 
Kile that she was ``hot,'' asked her whether ``she had a date for 
Thursday's  game,''  and   broadcast  the  conversation   without 
informing Ms. Kile that the conversation was being aired.  

     3.   After reviewing the  complaint, we issued  a letter  of 
inquiry to Tempe.3 We asked the licensee whether Station KUPD(FM) 
had broadcast a telephone conversation or had recorded and  later 
replayed such a conversation between Mr. Duran and Ms. Kile,  and 
whether  station   personnel   had  provided   Ms.   Kile   prior 
notification  that  they  intended   to  air  the   conversation.  
Additionally,  we  asked  the  licensee  to  provide  any   other 
pertinent details that would explain or clarify the matter.  

     4.   In its  response  to  our  letter  of  inquiry,4  Tempe 
admitted that Station KUPD(FM)   broadcast live the  conversation 
between Mr.  Duran and  Ms.  Kile, on  October 3,  2002.    Tempe 
stated  that  ``the  entire  broadcast  of  the  telephone  call, 
including a brief exchange with  the hotel operator, lasted  less 
than 45 seconds,'' that ``Mr. Duran's conversation with Ms.  Kile 
lasted less  than 25  seconds,'' that  the conversation  was  not 
rebroadcast, that Mr. Duran  had initiated the  call and that  he 
was the  only station  employee to  speak with  Ms. Kile.   Tempe 
further admitted  that  Mr.  Duran never  gave  notice  that  the 
telephone conversation would be or was being aired.  As a  result 
of the October 3 broadcast, Tempe stated that on October 4, 2002, 
it suspended Mr. Duran,  that on October  7, 2002, it  terminated 
his employment  and also  circulated a  memorandum reminding  its 
employees  of  the  requirement  to  inform  parties  that  their 
conversation will  be simultaneously  broadcast or  recorded  for 
later  broadcast  and  warning   them  that  violation  of   this 
requirement  would  result  in  ``immediate  termination.''5   In 
reply, the  complainant claimed  that  Tempe had  terminated  Mr. 
Duran only because of the ``public outcry'' and ensuing notoriety 
the broadcast engendered, and that its ``efforts to adhere to FCC 
Rules seems to have begun seriously only after [his] complaint to 
the FCC and [our] subsequent letter'' to Station KUPD(FM).6

                       III.     DISCUSSION

     5.   Under section 503(b)(1)  of the  Communications Act  of 
1934, as amended (the ``Act''),  7  any person who is  determined 
by the  Commission  to have  willfully  or repeatedly  failed  to 
comply with any provision of the Act or any rule, regulation,  or 
order issued  by the  Commission shall  be liable  to the  United 
States for a  monetary forfeiture  penalty.  In  order to  impose 
such a forfeiture penalty, the Commission must issue a notice  of 
apparent liability, the notice must  be received, and the  person 
against whom the notice has been issued must have an  opportunity 
to show, in  writing, why  no such forfeiture  penalty should  be 
imposed.8  The  Commission will  then issue  a forfeiture  if  it 
finds by  a preponderance  of the  evidence that  the person  has 
violated the  Act or  a Commission  rule.9  As  we set  forth  in 
greater detail below, we conclude under this standard that  Tempe 
is apparently liable  for a forfeiture  for its apparent  willful 
violation of section 73.1206 of the Commission's rules. 

     6.   Section 73.1206 of the Commission's rules provides,  in 
pertinent part:

     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  only when  the  other 
     party to the call is associated with the station  (such 
     as as [sic] 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.

Thus, Section 73.1206 requires licensees to so notify parties  to 
a telephone call before it initiates recordings for  simultaneous 
or later  broadcasts.  The  Commission  has stated  that  ``[t]he 
recording of such  conversation with the  intention of  informing 
the other party later - whether during the conversation or  after 
it is completed  but before it  is broadcast --  does not  comply 
with the Rule  . . .  .''10  The rule  reflects the  Commission's 
longstanding belief  that  prior  notification  is  essential  to 
protect individuals' legitimate expectation  of privacy, as  well 
as to  preserve  their  dignity  by  avoidance  of  nonconsensual 
broadcasts of their conversations.11    Thus, the Commission  has 
held  that  the  prior   notification  requirement  ensures   the 
protection of  an individual's  ``right to  answer the  telephone 
without having [his  or her] voice  or statements transmitted  to 
the public  by a  broadcast station''  live or  by recording  for 
delayed airing.12  Applying  this reasoning,  the Commission  has 
defined ``conversations'' broadly ``to include any word or  words 
spoken during the telephone call,'' and specifically has rejected 
arguments that ``utterances made  by parties called in  answering 
the phone''  are not  subject to  the rule's  prior  notification 
requirement.13

     7.   Based upon the information before us, it appears  that, 
on October 3, 2002, Tempe broadcast the conversation between  Mr. 
Duran and Ms. Kile, without providing Ms. Kile prior notice  that 
it  intended  to  air  her  conversation,  in  apparent   willful 
violation of Section 73.1206 of the Commission's rules.  In light 
of this apparent violation, we believe it appropriate that  Tempe 
be assessed a monetary  forfeiture.  The Commission's  Forfeiture 
Policy Statement sets a base  forfeiture amount of $4,000.00  for 
the unauthorized  broadcast  of a  telephone  conversation14  and 
provides  that  base  forfeitures  may  be  adjusted  based  upon 
consideration of the factors  enumerated in Section  503(b)(2)(D) 
and  1.80(a)(4),  which  include  ``the  nature,   circumstances, 
extent, and gravity  of the  violation . .  . and  the degree  of 
culpability, any history of prior  offenses, ability to pay,  and 
such other matters as justice may require.''15    Based upon  the 
facts and circumstances  presented here,  we find  that the  base 
amount of Four Thousand Dollars ($4,000.00) to be the appropriate 
proposed forfeiture amount.   

                      IV.  ORDERING CLAUSES

     8.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of  the  Communications Act  of  1934, as  amended,16  and 
Sections 0.111, 0.311 and 1.80 of the Commission's rules,17 Tempe 
Radio, Inc.,  licensee of  KUPD(FM),  Tempe, Arizona,  is  hereby 
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount 
of Four  Thousand  Dollars ($4,000.00)  for  willfully  violating 
Section 73.1206 of the Commission's rules on October 3, 2002.18

     9.   IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the rules,19 within thirty (30)  days of this NOTICE OF  APPARENT 
LIABILITY, Tempe Radio,  Inc. 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.

     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.  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. 20554.20 

     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.   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.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall  be sent  by  Certified Mail  -  Return 
Receipt Requested to  Chuck Artigue, Vice  President and  General 
Manager, KUPD(FM), 1900 W. Carmen,  Tempe, Arizona 85283, and  to 
Kenneth C. Howard, Jr., Esquire,  Baker and Hostetler, LLP,  1050 
Connecticut Avenue, N.W., Suite 1100, Washington, D.C. 20036. 


                         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 See Letter from Matthew O'Brien to Investigations and  Hearings 
Division, Enforcement Bureau,  Federal Communications  Commission 
(October 15, 2002). 
3 See Letter  from Charles W.  Kelley, Chief, Investigations  and 
Hearings Division,  Enforcement  Bureau,  Federal  Communications 
Commission, to Tempe Radio, Inc. (November 15, 2002).
4 In  accordance  with  a staff-granted  extension  of  time,  on 
December 20, 2002,  Tempe filed  its response.   See Letter  from 
Chuck Artigue, Vice  President and General  Manager, KUPD(FM)  to 
Charles W. Kelley, Chief,  Investigations and Hearings  Division, 
Enforcement Bureau, Federal  Communications Commission  (December 
20, 2002).   
5 Id. at 2.
6 See Letter from  Matthew O'Brien to  Charles W. Kelley,  Chief, 
Investigations and Hearings Division, Enforcement Bureau, Federal 
Communications Commission (January 9, 2003).  
7 47 U.S.C.  503(b)(1)(B); 47  C.F.R.  1.80(a)(1); see also  47 
U.S.C.  503(b)(1)(D) (forfeitures for  violation of 14 U.S.C.   
1464).  Section 312(f)(1)  of the  Act defines  willful as  ``the 
conscious and  deliberate commission  or omission  of [any]  act, 
irrespective of any  intent to  violate'' the law.   47 U.S.C.   
312(f)(1). The legislative  history to section  312(f)(1) of  the 
Act clarifies that  this definition  of willful  applies to  both 
sections 312 and 503(b)  of the Act, H.R.  Rep. No. 97-765,  97th 
Cong. 2d Sess. 51 (1982),  and the Commission has so  interpreted 
the term in the section  503(b) context.  See, e.g.,  Application 
for Review of  Southern California  Broadcasting Co.,  Memorandum 
Opinion and  Order,  6  FCC Rcd  4387,  4388  (1991)  (``Southern 
California Broadcasting Co.'').  The Commission may also assess a 
forfeiture for  violations  that  are merely  repeated,  and  not 
willful.  See,  e.g.,  Callais  Cablevision,  Inc.,  Grand  Isle, 
Louisiana, Notice of Apparent Liability for Monetary  Forfeiture, 
16 FCC Rcd 1359  (2001) (issuing a  Notice of Apparent  Liability 
for, inter alia,  a cable television  operator's repeated  signal 
leakage).  ``Repeated'' merely means  that the act was  committed 
or omitted more than once, or lasts more than one day.   Southern 
California Broadcasting  Co., 6  FCC Rcd  at 4388,   5;  Callais 
Cablevision, Inc., 16 FCC Rcd at 1362,  9.    
8 47 U.S.C.  503(b); 47 C.F.R.  1.80(f).
9 See,  e.g., SBC  Communications, Inc.,  Apparent Liability  for 
Forfeiture, Forfeiture Order, 17 FCC  Rcd 7589, 7591,  4  (2002) 
(forfeiture paid). 
10  Station-Initiated Telephone Calls  which Fail to Comply  with 
Section 73.1206 of the Rules, Public  Notice, 35 FCC 2d 940,  941 
(1972) (``1972 Public Notice'').  
11  See  Amendment  of  Section  1206:  Broadcast  of   Telephone 
Conversations, Report and Order, 3  FCC Rcd 5461, 5463-64  (1988) 
(``1988 Order''); 1972 Public Notice, 35 FCC 2d at 941; Amendment 
of Part 73 of the Commission's Rules and Regulations with Respect 
to the Broadcast of Telephone Conversations, Report and Order, 23 
FCC 2d 1,  2 (1970); see  also EZ Sacramento,  Inc. and  Infinity 
Broadcasting Corporation of  Washington, D.C., 16  FCC Rcd  4958, 
4958  (2002)  (finding  that  prior  notifications  ``effectively 
cease'' when  callers are  put on  hold, and  that thus  explicit 
notice must be given if stations plan to continue such broadcasts 
or  record  such  conversations  for  later  broadcasts);  Heftel 
Broadcasting-Contemporary,  Inc.,  52   FCC  1005,  1006   (1975) 
(finding  that  ``cash  call''  promotions  that   simultaneously 
broadcast, and  award  prizes  based on,  parties'  responses  in 
answering the telephone  are subject to  section 73.1206's  prior 
notification requirement) (emphasis added).  
12 1988 Order, 3 FCC Rcd at 5463.
13 Heftel Broadcasting-Contemporary, Inc., 52 FCC at 1006.
14 See Commission's Forfeiture Policy Statement and Amendment  of 
Section  1.80  of  the   Rules  to  Incorporate  the   Forfeiture 
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC 
Rcd 303 (1999).
15 Id., 12 FCC Rcd at 17100-01.
16 47 U.S.C.  503(b).
17 47 C.F.R.  0.111, 0.311 and 1.80.
18 47 C.F.R.  73.1206.
19 47 C.F.R.  1.80.
20 47 C.F.R.  1.1914.