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

******************************************************** 
                      NOTICE
********************************************************

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, D.C. 20554


In the Matter of                 )
                                )
MID-MISSOURI BROADCASTING, INC.  )    File No. EB-03-IH-0150
                                )    NAL Account No. 
Licensee of Station KOQL(FM),    )    200532080013
Ashland, Missouri                )    Facility ID No. 60731
                                     FRN No. 0005088505


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  November 23, 2004          Released:  November 24, 
2004

By the Chief, Enforcement Bureau:

I.   INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture 
(``NAL''), we find that, on March 25, 2003, Mid-Missouri 
Broadcasting, Inc. (``Mid-Missouri''), licensee of Station 
KOQL(FM), Ashland, Missouri, apparently willfully violated 
Section 73.1206 of the Commission's rules regarding the broadcast 
of telephone calls.1  Based upon our review of the facts and 
circumstances in this case, and for the reasons discussed below, 
we conclude that Mid-Missouri is apparently liable for a monetary 
forfeiture in the amount of $4,000.  

II.  BACKGROUND 

    2. The Commission received a complaint from the Interim 
Director of Life Crisis Services, Inc. (``Life Crisis 
Services''), which operates a gambling hotline for the State of 
Missouri, alleging that Station KOQL(FM) broadcast a telephone 
conversation on March 25, 2003, from approximately 8:10 to 8:15 
a.m., during ``The Cosmo & JC Radio Show'' between a station 
radio personality and one of the complainant's hotline crisis 
counselors that was a prank.2  

    3. After reviewing the complaint, we issued a letter of 
inquiry to Mid-Missouri.3  In its response,4 Mid-Missouri 
admitted that it recorded and broadcast the telephone 
conversation as alleged in the complaint, and that it did not 
inform the hotline counselor that the conversation was being 
recorded for broadcast. The transcript of the broadcast provided 
by Mid-Missouri reveals that, during the aired call to the 
hotline counselor, the radio personality pretended to have a 
gambling problem.  After posing a series of questions to the 
radio personality, the counselor determined the call was a prank 
and abruptly terminated the discussion.5  

    4. Mid-Missouri states that this was an isolated incident; 
that it has taken the necessary steps to ensure that such 
incidents do not reoccur; that the radio personality responsible 
for the prank apologized publicly and on the air to the employee 
and Life Crisis Services; and that Mid-Missouri has provided a 
link to the Life Crisis Services hotline on its station website.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 Mid-
Missouri 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 [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 notify any party to a 
telephone call, before recording a call for broadcast or 
simultaneously airing the call of its intention to record and/or 
broadcast the conversation.  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 policy that prior notification is 
essential to protect an individual's 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. As noted above, Mid-Missouri does not dispute that it 
violated the telephone broadcast rule.  Based upon the 
information before us, we conclude that, on March 25, 2003, Mid-
Missouri broadcast over Station KOQL(FM) a conversation between 
its radio personality and the helpline counselor without 
providing the counselor with prior notice that he intended to 
record and subsequently air the conversation, in apparent willful 
violation of section 73.1206 of the Commission's rules.  In light 
of this apparent misconduct, we find that Mid-Missouri apparently 
liable for a monetary forfeiture.  

    8. The Commission's Forfeiture Policy Statement sets a base 
forfeiture amount of $4,000 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  As noted 
above, Mid-Missouri states that it ``believes this was an 
isolated incident and it is taking the necessary steps to prevent 
an incident like this from happening again.  Additionally, Mid-
Missouri,....made an on-air apology to Life Crisis Services on 
April 4, 2003, and provided a link to the Life Crisis Hotline on 
its website....''16  Although such efforts are laudable, post-
violation actions are not relevant to our determination of 
appropriate forfeiture amount.17  Based upon the facts and 
circumstances presented here, we find the base amount of $4,000 
to be the appropriate proposed forfeiture amount.18

IV.  ORDERING CLAUSES

    9. Accordingly, IT IS ORDERED THAT, pursuant to section 
503(b) of the Communications Act of 1934, as amended,19 and 
sections 0.111, 0.311 and 1.80 of the Commission's rules,20 Mid-
Missouri Broadcasting, Inc., licensee of  Station KOQL(FM), 
Ashland, Missouri, is hereby NOTIFIED of its APPARENT LIABILITY 
FOR A FORFEITURE in the amount of $4,000 for willfully violating 
section 73.1206 of the Commission's rules on March 25, 2003.21

    10.   IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of 
the rules,22 within thirty (30) days of  the release date of this 
NOTICE OF APPARENT LIABILITY, Mid-Missouri Broadcasting, Inc. 
SHALL PAY the full amount of the proposed forfeiture or SHALL 
FILE a written statement seeking reduction or cancellation of the 
proposed forfeiture.  

    11.   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, Illinois  60661.   Payment by wire transfer 
may be made to ABA Number 071000013, receiving bank Bank One, and 
account number 1165259.

    12.   The response, if any, must be mailed to William H. 
Davenport, Chief, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, 445 12th 
Street, S.W., Room 4-C330, Washington, D.C. 20554 and MUST 
INCLUDE THE NAL/Acct. No. referenced above.  

    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. 20554.23 

    14.   Accordingly, IT IS ORDERED that the complaint filed 
against Mid-Missouri Broadcasting, Inc., licensee of Station 
KOQL(FM), Ashland, Missouri, IS GRANTED to the extent set forth 
herein.24

    15.   IT IS FURTHER ORDERED that a copy of this NOTICE OF 
APPARENT LIABILITY shall be sent by Certified Mail - Return 
Receipt Requested to Mid-Missouri Broadcasting, Inc., 503 Old 
Highway 63 North, Columbia, Missouri 65201, with copy to its 
counsel, Mark N. Lipp, Esq., Vinson & Elkins, L.L.P., 1455 
Pennsylvania Ave., N.W., Washington, D.C. 20004 and to the 
complainant, Susan M. Self, LCSW, Interim Director, Life Crisis 
Services, 1423 S. Big Bend Blvd., St. Louis, Missouri 63117.  


                         FEDERAL COMMUNICATIONS COMMISSION



                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1 47 C.F.R.  73.1206.
2 Life Crisis Services,  Inc. operates 888-BETS-OFF, a  telephone 
hotline for those Missouri residents with gambling addictions.  
3 See Letter from William H. Davenport, Chief, Investigations and 
Hearings Division,  Enforcement  Bureau,  Federal  Communications 
Commission, to  Mid-Missouri Broadcasting,  Inc., dated  June  4, 
2004.
4 Letter  from  Mark  N. Lipp,  Esq.,  counsel  for  Mid-Missouri 
Broadcasting, Inc., to the Investigations and Hearings  Division, 
Enforcement Bureau, Federal Communications Commission, dated July 
6, 2004 (``Response'').   
5 Id. at 5-6.
6 Id. at 2.
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., 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., Memorandum Opinion 
and Order, 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., 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).  
12 1988 Order, 3 FCC Rcd at 5463. 
13 Heftel Broadcasting-Contemporary, Inc., 52 FCC 2d at 1006.
14 See Commission's Forfeiture Policy Statement and Amendment  of 
Section  1.80  of  the   Rules  to  Incorporate  the   Forfeiture 
Guidelines, Report  and Order,  12 FCC  Rcd 17087,  17113  (1997) 
(``Forfeiture Policy Statement''), Memorandum Opinion and  Order, 
recon. denied, 15 FCC Rcd 303 (1999).
15 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01.  
16 See Response at 2.  
17 See, e.g.,  AT&T Wireless Services,  Inc., Memorandum  Opinion 
and Order,  17  FCC  Rcd   21866,  21871  (2002);  Seawest  Yacht 
Brokers, Notice of  Forfeiture, 9  FCC Rcd  6099 (1994);  Station 
KGVL, Inc.,  Memorandum Opinion  and Order,  42 FCC  2d 258,  259 
(1973).   
18 See, e.g.,  El Mundo  Broadcasting Corp.,  Notice of  Apparent 
Liability, 15 FCC Rcd. 20377 (Enf. Bur. 2000), Forfeiture  Order, 
16 FCC Rcd 4513 (Enf. Bur. 2001) (forfeiture lowered from  $6,000 
to $4,000).
19 47 U.S.C.  503(b).
20 47 C.F.R.  0.111, 0.311 and 1.80.
21 47 C.F.R.  73.1206.
22 47 C.F.R.  1.80.
23 47 C.F.R.  1.1914.
24  Consistent  with section  503(b) of  the Act  and  Commission 
practice, for the purpose of the forfeiture proceeding  initiated 
by this NAL,  Mid-Missouri Broadcasting, Inc.  shall be the  only 
party to this proceeding, 47 U.S.C.  503(b).