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                           Before the
                Federal Communications Commission
                      Washington, DC 20554


In the Matter of                 )
                                )
CUMULUS LICENSING CORP.,         )    File No. EB-03-IH-0257
                                )    NAL Account No. 
Licensee of Station WSEA-FM,     )    200432080015
Atlantic Beach, South Carolina   )    Facility ID No. 3221
                                )    FRN No. 0005260377
                                )



           NOTICE OF APPARENT LIABILITY FOR FORFEITURE


   Adopted:  February 17, 2004          Released:  February 19, 
2004

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''), we  find that,  on March  7, 2003,  Cumulus  Licensing 
Corp.  (``Cumulus''),  licensee  of  Station  WSEA(FM),  Atlantic 
Beach, South Carolina, apparently violated section 73.1206 of the 
Commission's rules, which relates  to the broadcast of  telephone 
conversations.1   Based  upon  our   review  of  the  facts   and 
circumstances in this case, and for the reasons discussed  below, 
we conclude  that Cumulus  is apparently  liable for  a  monetary 
forfeiture in the amount of Four Thousand Dollars ($4,000.00).  
  
                         II.  BACKGROUND

     2.   We received a complaint that, on March 7, 2003, Cumulus 
broadcast a telephone conversation between Dan Hockert, a Cumulus 
radio personality, and Anne Crutchman, a receptionist for a radio 
station that is  a WSEA(FM) competitor,  without Ms.  Crutchman's 
knowledge.2  Mr. Hockert  apparently called  the competing  radio 
station, and Ms. Crutchman answered the telephone and  identified 
the competing station.  Without  identifying himself and  without 
informing Ms. Crutchman that the  telephone call was going to  be 
broadcast,  Mr.  Hockert  asked  Ms.  Crutchman  if  his   friend 
``Emily'' was  in  the lobby.   Ms.  Crutchman confirmed  that  a 
person identifying herself as Emily was there.  Mr. Hockert asked 
if he could speak with Emily and Ms. Crutchman said that he could 
and asked  him to  hold.  Mr.  Hockert then  asked Emily  several 
times to state from whom she had won concert tickets, asking  her 
to loudly identify Cumulus' station several times in the lobby of 
its competitor.  Ms. Crutchman  immediately related the  incident 
to the  program director  of the  competing radio  station.   The 
program  director  made   a  cassette  copy   of  the   telephone 
conversation as it was being broadcast.3  Ms. Crutchman  enclosed 
the cassette with her complaint.

       

     3.   On October 27,  2003, the Commission  sent a letter  of 
inquiry (``LOI'') to  Cumulus, enclosing as  Attachment A to  the 
LOI  a  transcript  of  the   cassette  copy  of  the   telephone 
conversation broadcast by Cumulus.4  The Commission asked Cumulus 
whether one of its stations broadcast the telephone  conversation 
transcribed in  Attachment  A to  the  LOI, and  if  so,  whether 
Cumulus informed  all parties  to the  conversation that  it  was 
going to be  broadcast.  The Commission  asked Cumulus to  verify 
the accuracy of the transcript  of the broadcast, and to  provide 
their own audio recordings, transcripts or other documentation of 
the broadcast of the telephone conversation.  In its response  to 
the  LOI,   Cumulus  states   that  it   broadcast  a   telephone 
conversation that was  ``similar if  not identical''  to the  one 
transcribed in Attachment  A to  the LOI.5   Cumulus also  states 
that  Ms.  Crutchman   was  not  informed   that  her   telephone 
conversation with  Mr.  Hockert  would  be  broadcast.6   Cumulus 
states that WSEA(FM) has a copy of relevant Commission rules, and 
Cumulus now requires that its Myrtle Beach on-air employees state 
in writing that they understand and will abide by section 73.1206 
of the Commission's rules.7   

          

                       III.     DISCUSSION

     4.   Under section 503(b)(1) of the  Act, 8  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.9  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.10  As we set forth  in 
greater detail  below,  we  conclude  under  this  standard  that 
Cumulus is apparently  liable for a  forfeiture for its  apparent 
willful violation of section 73.1206 of the Commission's rules. 

     5.   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 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  . . .  .''11  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.12    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.13  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.14

     6.   Based upon the information before us, it appears  that, 
on March  7, 2003,  Cumulus  broadcast a  telephone  conversation 
between Mr.  Hockert and  Ms.  Crutchman, without  informing  Ms. 
Crutchman that Cumulus intended to broadcast the 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 Cumulus be assessed a monetary forfeiture.   The 
Commission's forfeiture  guidelines establish  a base  forfeiture 
amount of $4,000.00 for the unauthorized broadcast of a telephone 
conversation15 and provide that base forfeitures may be  adjusted 
based upon  consideration of  the factors  enumerated in  Section 
503(b)(2)(D) of the Communications Act  of 1934, as amended  (the 
``Act''),16 and section 1.80(a)(4)  of the Commission's  rules,17 
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.''18  Although we commend Cumulus' efforts to  remind 
its Myrtle Beach on-air employees  of the obligations of  section 
73.1206, Cumulus' subsequent  remedial efforts do  not alter  the 
fact that the violation took place or justify further  mitigation 
or cancellation of the  proposed forfeiture penalty.  Based  upon 
these facts  and considering  all  of the  circumstances  present 
here, we find $ 4,000  to be the appropriate proposed  forfeiture 
amount.

                      IV.  ORDERING CLAUSES

     7.   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, 
Cumulus Licensing Corp., licensee  of Station WSEA(FM),  Atlantic 
Beach,  South  Carolina,  is  hereby  NOTIFIED  of  its  APPARENT 
LIABILITY FOR A FORFEITURE in the amount of four thousand dollars 
($4,000.00) for apparently willfully violating section 73.1206 of 
the Commission's rules on March 7, 2003.21

     8.   IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of 
the rules,22 within thirty (30)  days of this NOTICE OF  APPARENT 
LIABILITY, Cumulus Licensing Corp., 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.

     9.   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  3-B443,  Washington,  D.C.  20554  and  MUST 
INCLUDE THE NAL/Acct. No. referenced above.  

     10.  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 

     11.  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.  

     12.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall  be sent  by  Certified Mail  -  Return 
Receipt Requested to Richard S. Denning, General Counsel, Cumulus 
Licensing  Corp.,  Building  14,  3535  Piedmont  Road,  Atlanta, 
Georgia 30305;  and Lewis  J. Paper,  Esquire, Dickstein  Shapiro 
Morin & Oshinsky LLP, 2101  L Street NW, Washington, D.C.  20037-
1526. 


                         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  Anne Crutchman  to  the  Investigations  and 
Hearings Division,  Enforcement  Bureau,  Federal  Communications 
Commission, dated March 28, 2003 (``Letter Complaint'').   
3 Id. at 1.
4 Letter  from Maureen  F. Del  Duca, Chief,  Investigations  and 
Hearings Division,  Enforcement  Bureau,  Federal  Communications 
Commission  to  Cumulus  Media,  Inc.,  dated  October  27,  2003 
(``LOI'').
5 Letter from Richard S. Denning, General Counsel, Cumulus 
Licensing Corp. to David Janas, Investigations and Hearings 
Division, Enforcement Bureau, Federal Communications Commission, 
dated November 26, 2003, at 2 (``Cumulus Response to Inquiry''). 
6 Id.
7 Id. at 3.
8 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.    
9 47 U.S.C.  503(b); 47 C.F.R.  1.80(f).
10 See, e.g.,  SBC Communications, Inc.,  Apparent Liability  for 
Forfeiture, Forfeiture Order, 17 FCC  Rcd 7589, 7591,  4  (2002) 
(forfeiture paid). 
11  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'').  
12  See  Amendment  of  Section  1206:  Broadcast  of   Telephone 
Conversations, 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, 23  FCC 2d 1, 2  (1970); see also  EZ 
Sacramento, Inc. and Infinity  Broadcasting Corp. 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  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).  
13 1988 Order, 3 FCC Rcd at 5463.
14 Heftel  Broadcasting-Contemporary, Inc.,  52  FCC 2d  at  1006 
(emphasis added).
15 47 C.F.R. 1.80(b)(4) note.  See also 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) (``Forfeiture Policy 
Statement'').
16 47 U.S.C. 503(b)(2)(D).
17 47 C.F.R. 1.80(a)(4).
18 47  C.F.R.  1.80(b)(4)  note.   See  also  Forfeiture  Policy 
Statement at 17100-01.
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.