Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


                            Before the
                Federal Communications Commission
                      Washington, DC 20554

In the Matter of                 )
WXDJ LICENSING, INC.             )    File No. EB-03-IH-0275
                                )    NAL Account No. 
Licensee of Station WXDJ(FM),    )    200432080026
North Miami, Florida             )    Facility No. 48368
                                )    FRN No. 0004976874

                        FORFEITURE ORDER

Adopted: November 23, 2004              Released: November 24, 

By the Chief, Enforcement Bureau:


     1.   In this Forfeiture Order, we issue a monetary 
forfeiture in the amount of $3,500 to WXDJ Licensing, Inc., 
licensee of Station WXDJ(FM), North Miami, Florida for the 
willful broadcast of an unauthorized telephone conversation in 
violation of section 73.12061 of the Commission's rules.


     2.   The Enforcement Bureau received an informal complaint 
alleging that on June 17, 2003, Station WXDJ(FM) broadcast a 
telephone conversation between radio personalities Joe Ferrero 
and Enrique Santos of WXDJ and President Fidel Castro of the 
Republic of Cuba and four officials of the Cuban government.2  
According to the complaint, and a recording of the broadcast 
available on WXDJ(FM)'s website, Mr. Santos and Mr. Ferrero 
pretended to be President Hugo Chavez of Venezuela and a high-
ranking Venezuelan government official.  They telephoned the 
Cuban Ministry of Foreign Relations, requesting to speak to Mr. 
Castro.  After the DJs convinced several Cuban officials that 
President Chavez was on the line waiting to speak to Mr. Castro 
on an urgent matter, Mr. Castro answered the phone.  When Mr. 
Castro did so, Mr. Ferrero informed him that President Chavez was 
on the line and wished to speak to him concerning the loss of 
some sensitive material.  Moments later, Mr. Ferrero revealed the 
ruse to Mr. Castro and identified himself and Mr. Santos as 
employees of Station WXDJ(FM).3  

     3.   After reviewing the complaint, the Bureau issued a 
letter of inquiry (``LOI'') to WXDJ, in which we ordered the 
licensee to confirm whether Station WXDJ(FM) had broadcast either 
a live or recorded telephone conversation between WXDJ's radio 
personnel and Cuban government officials.4  In its response, WXDJ 
admitted it recorded a telephone conversation between Joe Ferrero 
and Enrique Santos and President Fidel Castro of the Republic of 
Cuba and four officials of the Cuban government prior to its 
broadcast, that the Cuban officials were not provided with notice 
that their conversations were to be broadcast prior to recording, 
and that Mr. Castro was only provided with notice of the 
station's intent to record and broadcast the conversation after 
the conversation had commenced.5 

     4.   Based on the Bureau's review of the facts and 
circumstances of this case and after considering WXDJ's response 
to our LOI, we concluded that WXDJ broadcast a conversation 
between employees of WXDJ and officials of the Cuban government 
without providing prior notice that the licensee intended to air 
their conversation, in apparent willful violation of section 
73.1206 of the Commission's rules.  The Bureau therefore proposed 
a forfeiture at the base amount of $4,000 for the unauthorized 
broadcast of a telephone conversation.6


     5.   In its response to the NAL, WXDJ does not dispute that 
it broadcast a conversation between employees of WXDJ and 
officials of the Cuban government without providing prior notice 
that it intended to air their conversation.7  Instead, WXDJ seeks 
cancellation or reduction of the proposed forfeiture based on its 
claim that Mr. Castro received notice of the station's intent to 
record and air the conversation prior to its broadcast but after 
its recording.8  Section 73.1206 of the Commission's rules, 
however, clearly requires a licensee to notify parties to a 
telephone call before it initiates recording 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 . . . .''9  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.10  Further, the absence of a 
complaint or objection lodged with the Commission by Mr. Castro 
or the other Cuban officials does not indicate, as WXDJ argues, 
that the recipients of the phone call consented to having their 
conversation broadcast, and we reject that claim.  Finally, we 
reject the claim that the licensee is not liable for the 
broadcast because an unidentified third party, not one of the 
recipients of the phone call, complained to the Commission.11  
Given the important privacy interest that the rule serves, and 
the fact that WXDJ's conduct was exactly the type of conduct that 
the rule was meant to prohibit, we conclude that the forfeiture 
proposed in the NAL is appropriate.

     6.     WXDJ also requests that we provide it with the name 
of the complainant who filed the informal complaint revealing 
WXDJ's unauthorized telephone broadcast, maintaining that it is 
entitled to know the identity of the individual.  WXDJ cites no 
authority in support of its request.  By contrast, Commission 
rules prohibit the release of investigatory records compiled for 
law enforcement purposes where production of such records would 
``constitute an unwarranted invasion of personal privacy.''12  We 
believe that is the case here, in which the complainant 
specifically requested anonymity.  To disclose the complainant's 
identity in such cases might have a chilling effect on the 
willingness of the listening public to assist the Commission in 
monitoring compliance with our rules and undermine our ability to 
obtain such information from the public.  Thus, we will not 
divulge the requested information.

     7.   Finally, WXDJ asserts that it has a history of overall 
compliance and no record of any prior offenses.13  Based on 
WXDJ's history of overall compliance, we will lower the 
forfeiture to $3,500.


     8.    Accordingly, IT IS ORDERED, pursuant to section 503(b) 
of the Communications Act of 1934, as amended,14 that WXDJ 
Licensing, Inc., licensee of Station WXDJ(FM),  North Miami, 
Florida, FORFEIT to the United States the sum of $3500.00 for 
willfully broadcasting an unauthorized telephone conversation in 
violation of section 73.1206 of the Commission's rules, 47 C.F.R. 
§ 73.1206.

     9.   Payment of the forfeiture must be made by check or 
similar instrument, payable to the order of the Federal 
Communications Commission.  The payment must include the 
NAL/Acct. No. and FRN No. referenced above.  Payment by  check or 
money order may be mailed to Forfeiture Collection Section, 
Finance Branch, Federal Communications Commission, P.O. Box 
73482, Chicago, Illinois 60673-7482.  Payment by overnight mail 
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor 
Mailroom, Chicago, IL 60661.   Payment by wire transfer may be 
made to ABA Number 071000013, receiving bank Bank One, and 
account number 1165259. 

     10.  IT IS FURTHER ORDERED that a copy of this Forfeiture 
Order shall be sent, by Certified Mail Return Receipt Requested, 
to WXDJ Licensing, Inc., care of its attorney, Allan G. 
Moskowitz, Esq., Kaye Scholer, LLP,  901 Fifteen Street, N.W., 
Washington, DC 20005.


                         David H. Solomon                        
Chief, Enforcement Bureau



1 47 C.F.R. § 73.1206.
2 Ferrero and Santos are morning talk show hosts of ``El Vacilón 
de la Mañana''  (``The Morning High Jinks'').
3 This conversation was pre-recorded on June 17, 2003 at 11:08 AM 
and broadcast three times later that day from 5:30 PM to 
midnight, and two additional times on the following day.
4 See Letter from Maureen F. Del Duca, Chief, Investigations and 
Hearings Division, Enforcement Bureau, Federal Communications 
Commission, to WXDJ Licensing, Inc., dated November 18, 2003.
5 Letter from Allan G. Moskowitz, Esq., attorney for WXDJ 
Licensing, Inc., to the Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, dated 
January 7, 2004 (``LOI Response'').   
6 WXDJ Licensing, Inc., Notice of Apparent Liability, DA 04-1047, 
2004 WL 868562 (Enf. Bur. rel. April 23, 2004 (``NAL'').  
7 See Request for Cancellation or Reduction of Forfeiture, dated 
May 18, 2004 at 1-2.  (``NAL Response'').
8 Id. at 2.  
9 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'').  
10 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., Memorandum Opinion 
and Order, 16 FCC Rcd 4958, 4958 (2002) (finding that prior 
notifications ``effectively cease'' when callers are put on hold, 
and  thus explicit notice must be given if stations plan to 
continue such broadcasts or record such conversations for later 
broadcasts); Heftel Broadcasting-Contemporary, Inc., Memorandum 
Opinion and Order, 52 FCC 2d 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). 
11 Contrary to WXDJ's unsupported contention that the complaint 
lacks standing to object to the broadcast in question, section 
73.1206 does not impose a standing requirement.  See Tempe Radio, 
Inc., Notice of Apparent Liability and Forfeiture, 18 FCC Rcd 
20102 (Enf. Bur. 2003) (forfeiture paid).  In  Tempe, the 
Enforcement Bureau issued an NAL based on a complaint from a 
member of the listening public rather than the recipient of the 
phone call unlawfully broadcast by the licensee.  In that case, a 
radio personality phoned the recently widowed wife of a baseball 
pitcher, told her on the air that she was ``hot,'' and asked 
whether ``she had a date for Thursday's game.''   The radio 
personality then broadcast the conversation without informing the 
widow.  Despite the complaint being initiated by someone other 
then the recipient of the call, the Bureau found the station 
liable for forfeiture. 
12 47 C.F.R. § 0.457(g)(3); see also William McConnell, 
Broadcasting and Cable, Memorandum Opinion and Order, 18 FCC Rcd 
26371, ¶4 (2003) (Enforcement Bureau properly granted 
respondent's request for confidential treatment of names supplied 
in response to an investigation, finding that release of the 
information ``could reasonably be expected to `constitute an 
unwarranted invasion of personal privacy.'''  Lenona E. Shook, 
Memorandum Opinion and Order, FCC 86-46, 1986 FCC Lexis 3437 
(rel. May 15, 1986) (Field Operations Bureau properly denied 
request by Citizens' Band operator to obtain identities of 
individuals who filed complaints with the Commission and 
expressly requested confidentiality); Brian L. Snyder, Memorandum 
Opinion and Order,  FCC 85-138, 1985 FCC Lexis 3664, ¶ 3 (rel. 
March 22, 1985) (Field Operations Bureau properly denied 
respondent the name of complainants who had written letter to 
assist Commission in ``effecting its duty to maintain and assure 
the proper use of the electromagnetic spectrum,'' despite 
respondent's desire to pursue civil remedies for alleged 
defamatory qualities of letter).  
13 See  NAL Response at 3- 4 (citing 47 C.F.R. § 1.80(b)(4)). 
14 See 47 U.S.C. § 503(b).