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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
Adopted: August 11, 2004 Released: August 12,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order, we impose a forfeiture of
$4,000 on Infinity Radio Operations, Inc. (``Infinity'') for
violating 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.
2. On August 5, 2003, we issued a Notice of Apparent
Liability in which we proposed a $4,000 forfeiture based on a
finding that Infinity apparently violated section 73.1206 of the
Commission's rules.2 Specifically, we found that Infinity,
licensee of Station WBLK(FM), Buffalo, New York, had broadcast a
telephone conversation on June 26, 2002, between Shae Moore, a
disc jockey (DJ) employed by Infinity, and Brenda Tanner, a
customer service representative employed by Adelphia
Communications, Inc., without informing Ms. Tanner of its intent
to broadcast the conversation.3 Based on the facts and
circumstances surrounding the apparent violation, we proposed a
forfeiture in the amount of $4,000.00, the base forfeiture amount
for such a violation.4
3. On September 4, 2003, Infinity filed a response to the
NAL urging the Enforcement Bureau (``Bureau'') to rescind the
forfeiture. 5 Infinity contends that no forfeiture is warranted
because: (1) the Bureau's reference to a prior offense by
Infinity violates section 504(c) of the Communications Act of
1934, as amended (``the Act'');6 and (2) the Commission recently
cancelled a notice of apparent
liability issued to an unrelated broadcaster in another
proceeding that allegedly contained more aggravating
circumstances than the present one.7
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.8 Infinity admits that it broadcast the telephone
conversation between its DJ and Ms. Tanner on June 26, 2002, and
that it did not inform Ms. Tanner of its intent to broadcast her
conversation.9 Thus, it is undisputed that Infinity violated
5. Nevertheless, Infinity claims that the proposed
forfeiture should be cancelled because the NAL, in its discussion
of the statutory factors to be considered in determining a
forfeiture amount, rebutted Infinity's claim that the broadcast
was an isolated incident by citing another proceeding in which
the Commission assessed a forfeiture against another Infinity
affiliate for similar conduct.10 Infinity contends that section
504(c) of the Act bars the Commission from considering a prior
unpaid, unadjudicated forfeiture proceeding in the instant case.
11 Section 504(c) states:
In any case where the Commission issues a notice of
apparent liability looking toward the imposition of a
forfeiture under this Act, that fact shall not be used,
in any other proceeding before the Commission, to the
prejudice of the person to whom such notice was issued,
unless (i) the forfeiture has been paid, or (ii) a
court of competent jurisdiction has ordered payment of
such forfeiture, and such order has become final.12
Infinity thus argues that the Bureau's reference to the
earlier proceeding impermissibly relied on a prior, unpaid
forfeiture to Infinity's detriment.13
6. Infinity's reliance on section 504(c) as justification
for canceling the instant NAL is misplaced. Contrary to
Infinity's claim, we referenced the earlier Infinity decision¾EZ
Sacramento¾merely to rebut Infinity's inaccurate claim that its
June 26, 2002, unauthorized telephone broadcast was an ``isolated
incident'' that did not warrant further action.14 As the
Commission has previously held in a rulemaking order addressing
this very issue that Infinity does not even mention, reliance on
the underlying facts of similar conduct in other unadjudicated
proceedings, as opposed to the existence of a notice of apparent
liability as such, is permissible under section 504(c).15
7. Furthermore, we are not persuaded by Infinity's
argument that the Bureau should cancel the proposed forfeiture
because we recently canceled part of another proposed forfeiture
for $9,000 in the American Family case that allegedly involved
more aggravating circumstances.16 In that proceeding, the Bureau
canceled the portion of a $9,000 proposed forfeiture attributable
to three admitted, willful violations of the local public
inspection file rule and admonished the licensee instead because
the required items were at the station (albeit not in the public
file) at the time of the inspection. Infinity argues that, if
the Bureau cancelled a portion of the American Family forfeiture
because of the licensee's good faith efforts to comply, then the
Bureau should likewise cancel the instant forfeiture based on
Infinity's ``one-time'' violation and similar good faith
8. We find no merit in Infinity's reliance on a single
order in an unrelated area to justify rescinding the forfeiture.
And, as noted above, this is not the first Infinity violation of
our telephone broadcast rule. We therefore reject Infinity's
arguments that imposing a forfeiture in this instance would
constitute impermissible disparate treatment.
IV. ORDERING CLAUSES
9. 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,18 Infinity Radio Operations,
Inc., shall FORFEIT to the United States the sum of Four Thousand
Dollars ($4,000.00) for willfully violating section 73.1206 of
the Commission's rules.
10. 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 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
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 Forfeiture Order, either in your response to this
Forfeiture Order 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 Forfeiture Order. 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
13. Requests for payment of the full amount of this
Forfeiture under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.19
14. IT IS FURTHER ORDERED THAT a copy of this Forfeiture
Order 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 PLLC, 2000 K Street N.W., Washington,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
147 C.F.R. § 73.1206.
2See Infinity Radio Operations, Inc. (WBLK(FM)), Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 16,191 (EB 2003)
5Infinity Radio Operations, Inc., Response to Notice of Apparent
Liability for Forfeiture, filed September 4, 2003 (``Infinity
6Id. at 2-3.
7Id. at 3-4.
847 C.F.R. § 73.1206.
9NAL, 18 FCC Rcd at 16,191-92, ¶¶ 3-4.
10Id. at 16,192, ¶ 6, n. 10 (citing EZ Sacramento, Inc., and
Infinity Broadcasting Corporation of Washington, D.C., 16 FCC Rcd
4958 (2001) (``EZ Sacramento''), recon. denied, 16 FCC Rcd 15605
11Infinity Response at 2-3 (citing Pleasant Broadcasting Co. v.
FCC, 564 F.2d 496, 500 (D.C. Cir. 1977) (``Pleasant
Broadcasting''); WIYN Radio, Inc., 59 FCC 2d 424 (1976) (``WIYN
1247 U.S.C. § 504(c).
13See Infinity Response at 2-3.
14See NAL, 18 FCC Rcd at 16,192, ¶ 6.
15The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, Memorandum Opinion and Order, 15 FCC Rcd 303, 304, ¶¶
3-6 (1999). Pleasant Broadcasting and WIYN Radio, cited by
Infinity, are inapposite because those cases simply restate the
statutory provision without any reference to the kind of
situation at issue here. See Pleasant Broadcasting, 564 F.2d at
502; WIYN Radio, 59 FCC 2d. at 425, ¶ 7. (WIYN Radio was one of
the underlying orders upheld in Pleasant Broadcasting.)
16Infinity Response at 3-4 (citing American Family Association,
Inc., Memorandum Opinion and Order, 18 FCC Rcd 16,530 (Enf. Bur.
2003)) (``American Family'').
1847 U.S.C. § 503(b); 47 C.F.R. § 1.80.
19See 47 C.F.R. § 1.1914.