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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

                              )
In the Matter of                        )
                              )    File No. EB-03-IH-0508
Noe Corp., L.L.C.                  )    NAL/Acct. No. 
200532080026
                              )    Facility ID No. 48975
Licensee of Station KNOE-TV, Monroe,    )    FRN No. 0001716588
Louisiana                     )    
                              )


                        FORFEITURE ORDER

Adopted: July 14, 2005                    Released: July 18, 2005

By the Chief, Investigations  and Hearings Division,  Enforcement 
Bureau

I.     INTRODUCTION

  1.   In this Forfeiture Order (``Order''), we issue a monetary 
     forfeiture against Noe Corp., L.L.C. (``Noe''), licensee of 
     Station KNOE-TV, Monroe, Louisiana, for willfully and 
     repeatedly violating section 73.1206 of the Commission's 
     rules1 by twice recording telephone conversations for 
     broadcast without informing the other party to the calls of 
     its intention to record for broadcast the conversations.  We 
     find that a Noe news reporter twice recorded for broadcast 
     the complainant's voice, including the complainant's 
     answering machine, without informing the complainant 
     beforehand.  We reject Noe's claims that the answering 
     machine message did not constitute a ``conversation'' under 
     our rules and that the purpose and the factual background 
     for the recordings exempted Noe from any notice requirement.  
     Although we affirm our earlier finding2 that Noe twice 
     violated section 73.1206, in light of Noe's history of 
     compliance with our rules, we reduce the forfeiture amount 
     from $10,000 to $8,000.  

II.                        BACKGROUND

  2.   The Bureau received a series of three complaints from 
     Mack Calhoun, who serves on a Police Jury for Ouachita 
     Parish in Louisiana.  In the first complaint, a letter dated 
     September 23, 2003,3 Mr. Calhoun asserted that, on or about 
     September 12, 2003, Station KNOE-TV news reporter Ken Booth 
     telephoned Mr. Calhoun's residence and, without providing 
     prior notice to Mr. Calhoun, recorded his outgoing voice 
     mail message with the intent to broadcast the recording.4  
     According to Mr. Calhoun, Station KNOE-TV broadcast the 
     recorded voice mail message later that day, during the 
     evening news.5  Mr. Calhoun filed additional complaints with 
     the Commission on September 26, 2003, and April 20, 2004,6 
     stating that Mr. Booth telephoned Mr. Calhoun's residence 
     again on September 25, 2003.7  According to the complaints, 
     when Mr. Calhoun answered the telephone and Mr. Booth 
     identified himself as the caller, Mr. Calhoun immediately 
     hung up.8  Mr. Calhoun alleges that Mr. Booth again did not 
     notify him at the time that he was recording the exchange 
     with the intent of broadcasting it over Station KNOE-TV.9  
     Mr. Calhoun states that Station KNOE-TV broadcast a 
     recording of that brief dialogue during its newscast that 
     evening.10  He also alleges in the April 20 Complaint that 
     Station KNOE-TV rebroadcast the September 12 recording of 
     his outgoing voice mail message during another evening 
     newscast, on April 20, 2004.11

  3.   After reviewing the complaints, the Bureau issued a 
     letter of inquiry (``LOI'') to Noe, directing Noe to provide 
     information about its broadcast of telephone conversations 
     involving Mr. Calhoun.12  In its initial response and 
     subsequent filing,13 Noe admitted that, on September 12, 
     2003, Mr. Booth telephoned Mr. Calhoun's residence for the 
     purpose of conducting and recording for later broadcast an 
     interview with Mr. Calhoun about an upcoming news story.14  
     Noe maintained that it had no intention at the time to 
     record Mr. Calhoun's outgoing voice mail message, but, 
     admitted that,  when no one answered,  Mr. Booth recorded 
     the message and that Station KNOE-TV broadcast the recording 
     that evening and again in April 2004.15  Noe conceded that 
     Mr. Booth did not notify Mr. Calhoun at the time of the 
     telephone call that he was recording it for broadcast.16  
     Noe also conceded that Mr. Booth telephoned Mr. Calhoun on 
     September 25, 2003, and recorded their exchange without 
     notifying Mr. Calhoun, but maintained that the broadcast did 
     not include Mr. Calhoun's voice.17 

  4.   On January 13, 2005, the Bureau issued the NAL against 
     Noe, proposing a forfeiture in the amount of $10,000.  In 
     the NAL, the Bureau tentatively concluded that Noe had 
     broadcast conversations between Mr. Booth and Mr. Calhoun 
     without providing prior notice to Mr. Calhoun that the 
     licensee intended to air the conversations, in apparent 
     willful and repeated violation of section 73.1206 of the 
     Commission's rules.18  Particularly in light of Noe's 
     rebroadcast of the first recording, the Bureau found that an 
     upward adjustment to the base forfeiture amount was 
     appropriate for the September 12, 2003 violation.19  
     Therefore, based upon the facts and circumstances presented, 
     Noe was found to be apparently liable in the amount of 
     $10,000 for violating the telephone broadcast rule on two 
     occasions, $6,000 for the September 12 recording and $4,000 
     for the September 25 recording.  

  5.   Noe has submitted a response to the NAL challenging the 
     Bureau's conclusion that it violated section 73.1206 or, in 
     the event a violation is found, seeking reduction or 
     cancellation of the proposed forfeiture.20  Although we 
     conclude that Noe willfully and repeatedly violated section 
     73.1206, we hereby grant Noe's request for a reduction of 
     the forfeiture amount.

III.      DISCUSSION

  6.   In its response to the NAL, Noe challenges the Bureau's 
     conclusion that it apparently willfully and repeatedly 
     violated section 73.1206 of the Commission's rules for the 
     following reasons: 1) the voice mail message and ``hello'' 
     should not be considered to constitute conversations; 2) 
     that no notice was required under the circumstances in this 
     case as Mr. Calhoun's status as a public official, his 
     status as suspect in a public corruption scandal, the call 
     was made during an investigative report, and/or Mr. 
     Calhoun's invitation that members of the public contact him 
     to discuss the situation, resulted in a waiver of his rights 
     to privacy; and 3) Noe's broadcast of Mr. Calhoun's voice 
     mail message was ``fully protected by the First Amendment to 
     the Constitution of the United States.''21  

  7.   We reject Noe's argument that no notice was necessary 
     because the material broadcast did not constitute a 
     conversation.  The Commission has previously stated that the 
     term ```[c]onversation]' as used in section 73.1206 includes 
     any word or words spoken during the call.''22  As we have 
     held previously, an outgoing voice mail message satisfies 
     the requirements of a conversation.23  In the instant case, 
     Mr. Calhoun's outgoing voice mail message warrants the same 
     treatment.  Moreover, the Commission has previously held 
     that ``it is reasonable and desirable to retain for 
     individuals the right to answer the telephone without having 
     their voices or statements transmitted to the public by a 
     broadcast station in the absence of prior notice.''24  As we 
     noted in the NAL in rejecting a similar argument by Noe,25 
     the ``right to answer without having one's voice transmitted 
     to the public exists irrespective of whether the voice 
     broadcast or recorded for later broadcast is live or is 
     lifted from an answering machine.''26  This 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.''27  Thus, in order to ensure the protection 
     of an individual's ``privacy rights, the Commission has 
     determined that a broadcast station must give notice of its 
     intent to broadcast the conversation before transmitting or 
     recording for later transmission of the telephone call.''28  

  8.   We also reject Noe's contention that no notice was 
     necessary because there were no privacy rights to protect.  
     Noe asserts that Mr. Calhoun waived his right to privacy 
     because 1) at the time of the report, he was a public 
     official, 2) he was a suspect in a public corruption 
     scandal, 3) he was the subject of an investigative report, 
     and/or 4) he invited members of the public to call him to 
     discuss the matter.29  As we noted in the NAL in rejecting 
     this contention by Noe,30 Mr. Calhoun's status as a public 
     official involved in a matter of public interest does not 
     establish a legal basis for assuming that any telephone 
     conversation with Mr. Calhoun could be recorded and 
     subsequently broadcast without prior notice.31  In El Mundo 
     Broadcasting Corporation,32 we explicitly refused to 
     recognize an exception to section 73.1206's notice 
     requirements where a licensee failed to inform a government 
     official of the licensee's intention to record and broadcast 
     the conversation between the official and an on-air 
     personality.33  In section 73.1206, the Commission 
     specifically enumerated the instances in which a licensee is 
     not required to inform a party of the licensee's intention 
     to broadcast a conversation:  ``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.''34  Specifically section 73.1206 provides that 
     the licensee may make such a presumption only when the party 
     to the call is ``associated with the station,'' such as an 
     employee or part-time reporter, or when the other party 
     originates the call and it is obvious that the call is ``in 
     connection with a program in which the station customarily 
     broadcasts telephone conversations.''  Noe does not claim 
     that either of these exceptions applies to this case.  
     Accordingly, because the requirements for the exception are 
     not met in this case, Noe was not exempted from the 
     requirement to provide Mr. Calhoun with notice of its 
     intention to record the conversations for broadcast.  

  9.   We also note that Mr. Calhoun did not forego his right to 
     the notice required by section 73.1206 by inviting the 
     public to call and discuss the matter with him.  Noe would 
     have us take from the alleged invitation that Mr. Calhoun 
     invited them to broadcast their calls to him.  The facts as 
     presented by Noe make it clear that Mr. Calhoun objected to 
     being the subject of any broadcast -- Noe admits that he 
     repeatedly rejected its invitation to be interviewed in this 
     matter.35  

  10.  Finally, we again reject Noe's claim that Station KNOE-
     TV's broadcast of the telephone conversations ``was fully 
     protected by the First Amendment.''36  Although the 
     Commission recognizes broadcasters' First Amendment concerns 
     regarding section 73.1206 notice requirements,37 the rule 
     requires only that broadcasters provide prior notice to any 
     party to a call and does not restrict a broadcaster's right 
     to free speech.  The Commission has held that ``these 
     limitations are both reasonable and necessary to protect the 
     legitimate interests of the public in privacy in 
     communications'' and do not infringe upon broadcasters' 
     right to gather information ``important to their broadcast 
     function.''38  For the foregoing reasons, we hereby conclude 
     that Noe willfully and repeatedly violated section 73.1206 
     of the Commission's rules.

  11.  In support of its request for cancellation or reduction 
     of the proposed forfeiture, Noe asks the  Bureau to consider 
     the following mitigating factors:  1) Station KNOE-TV has 
     never previously received a notice of apparent liability, a 
     forfeiture order or other monetary sanction, 2) other than 
     minor technical violations approximately 15 to 20 years ago, 
     Station KNOE-TV has been in compliance with the Commission's 
     rules and regulations during the station's 51-year history, 
     3) the telephone call was not intended to pry into personal 
     matters, was not a prank, and was not part of a contest or 
     promotion, but rather was made in connection with an ongoing 
     station investigation that had the objective of protecting 
     the public interest, and 4) the station's efforts to contact 
     Mr. Calhoun prior to the September 12 telephone call 
     provided him with sufficient notice of the station's efforts 
     to contact him, as well as notice that the telephone call 
     might be broadcast as part of the ongoing news story.39

  12.  We reject Noe's claim that Station KNOE-TV's previous 
     attempts to contact Mr. Calhoun provided him with sufficient 
     notice to make him aware of the station's intent to 
     broadcast the conversations.  Section 73.1206 explicitly 
     requires broadcasters to ``inform any party to the call of 
     its intention to broadcast and/or record the 
     conversation.''40  Noe's claimed multiple attempts to 
     contact Mr. Calhoun do not satisfy this requirement.  We 
     also reject Noe's claim that its purpose in making the 
     recordings should cause us to reduce the proposed 
     forfeiture.  In prior telephone broadcast cases, we have not 
     considered the fact that the violation occurred in a news 
     gathering context as a mitigating factor.41  Nevertheless, 
     based on Noe's overall history of compliance with the 
     Commission's rules, we find that a reduction in the 
     forfeiture amount to the base amount of $4,000 per violation 
     is warranted, for a total forfeiture of $8,000.42




IV.ORDERING CLAUSES

  13.  ACCORDINGLY, IT IS ORDERED that, pursuant to section 
     503(b) of the Communications Act of 1934, as amended (the 
     ``Act''), and section 1.80 of the Commission's rules,43 Noe 
     Corp., L.L.C., IS LIABLE FOR A MONETARY FORFEITURE in the 
     amount of $8,000 for willfully and repeatedly violating 
     section 73.1206 of the Commission's rules.

  14.  IT IS FURTHER ORDERED THAT, payment of the forfeiture 
     shall be made in the manner provided for in section 1.80 of 
     the Rules44 within thirty (30) days of the release of this 
     Order.  If the forfeiture is not paid within the period 
     specified, the case may be referred to the Department of 
     Justice for collection pursuant to section 504(a) of the 
     Act.45  

  15.  IT IS FURTHER ORDERED that 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 bycheck or money order may be mailed to Federal 
     Communications Commission, P.O. Box358340, Pittsburgh, PA 
     15251-8340. Payment by overnight mail may be sent toMellon 
     Bank/LB 358340,500 Ross Street, Room 1540670, Pittsburgh, 
     PA 15251.Payment by wire transfer may be made to ABA 
     Number043000261, receiving bankMellon Bank, and account 
     number911-6106.

  16.  IT IS FURTHER ORDERED THAT requests for full payment 
     under an installment plan should be sent to Chief, Revenue 
     and Receivables Group, 445 12th Street, S.W., Washington, 
     D.C. 20554.46

  17.  IT IS FURTHER ORDERED that a copy of this Order shall be 
     sent by First Class Mail and Certified Mail - Return Receipt 
     Requested to Noe Corp., L.L.C., 1400 Oliver Road, Monroe, 
     Louisiana 71201 and to its counsel, Robert B. Jacobi, 
     Esquire, Cohn and Marks, LLP, Suite 300, 1920 N. Street, 
     N.W., Washington, D.C. 20036; and by regular mail to R. 
     Steven Calhoun, Esquire, The Law Office of R. Steven 
     Calhoun, APLC, 3711 Cypress Street, Suite 4, West Monroe, 
     Louisiana 71291.


                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         William H. Davenport
                         Chief,   Investigations   and   Hearings 
Division
                         Enforcement Bureau

_________________________

147 U.S.C. 503(b), 47 C.F.R. 1.80, 47 U.S.C.  73.1206.

2Noe Corp., LLC, Notice of Apparent Liability for Forfeiture, 20 
FCC Rcd 595 (Enf. Bur 2005).

3 See Letter from R. Steven Calhoun, Esq., counsel for Mack 
Calhoun, to Enforcement Bureau, Federal Communications 
Commission, dated September 23, 2003 (``September 23 
Complaint'').

4Id. at 1.

5Id.

6See Letter from R. Steven Calhoun, Esq., counsel for Mack 
Calhoun, to Enforcement Bureau, Federal Communications 
Commission, dated September 26, 2003 (``September 26 
Complaint''); Letter from R. Steven Calhoun, Esq., counsel for 
Mack Calhoun, to Enforcement Bureau, Federal Communications 
Commission, dated April 20, 2004, (``April 20 Complaint'').

7September 26 Complaint at 1; April 20 Complaint at 1-2.

8April 20 Complaint at 1-2.

9Id. at 3.

10Id.

11Id.

12See Letter from William D. Freedman, Deputy Chief, 
Investigations and Hearings Division, Enforcement Bureau, Federal 
Communications Commission, to Noe Corp. LLC, dated May 17, 2004.

13See Letter from Robert B. Jacobi, counsel for Noe Corp., 
L.L.C., to William Knowles-Kellett, Esq., Investigations and 
Hearings Division, Enforcement Bureau, Federal Communications 
Commission, dated June 16, 2004 (``Noe June 16, 2004, letter'').  
Letter from Robert B. Jacobi, counsel for Noe Corp.,L.L.C., to 
William Knowles-Kellett, Esq., Investigations and Hearings 
Division, Enforcement Bureau, Federal Communications Commission, 
dated August 13, 2004 (``Noe August 13, 2004, letter'').

14Noe June 16, 2004, letter at 2.

15 Id. at 3; Noe August 13, 2004, letter at 4.

16Noe June 16, 2004, letter at 4.

17Noe August 13, 2004, letter at 4.

18Id. at 1.

19Id. at 5-6.

20See Letter from Robert B. Jacobi, Esquire, counsel for Noe 
Corp., L.L.C., to William H. Davenport, Chief, Investigations and 
Hearings Division, Enforcement Bureau, Federal Communications 
Commission, dated February 14, 2005 (``Response to NAL'')

21Id. at 1-4 and supporting Memorandum of Law at 11 et seq.

22Heftel Broadcasting, Memorandum Opinion and Order, 52 FCC 2d 
1005, 1006 4 (1975).  See also AMFM Radio Licenses, Notice of 
Apparent Liability, 17 FCC Rcd 5032, 5033  6 (Enf. Bur. 2002) 
(forfeiture paid).

23AMFM Radio Licenses,  17 FCC Rcd  at 5033  6; Citicasters, 
Co., Notice of Apparent Liability, 15 FCC Rcd 13805, 13806-07  
5-6 (Enf, Bur. 2000) (forfeiture paid).

24Amendment of Section 73.1206: Broadcast of Telephone 
Conversations, Report and Order, 3 FCC Rcd 5461, 5463 (1988).

25 NAL ,20 FCC Rcd 595 at 598,  9 (quoting AMFM Radio Licenses, 
17 FCC Rcd at 5033,  6).

26Id.

27Id.

28Id.

29Id. at 2.

30 NAL, 20 FCC Rcd 595 at 599,  11.

31 El Mundo Broadcasting Corporation, Memorandum Opinion and 
Order, 15 FCC Rcd 20377, 20379 (Enf. Bur. 2000).

32Id.

33Id.

3447 C.F.R.  73.1206.  

35Response to NAL at 3.

36Id..  See NAL, 20 FCC Rcd 599, 12.

37Amendment of Section 73.1206: Broadcast of Telephone 
Conversations, Report and Order, 3 FCC Rcd 5461, 5464,  21 
(1988).

38Id.

39Response to NAL at 3-6.

4047 C.F.R.  73.1206.

41See Scripps Howard Broadcasting Company, Notice of Apparent 
Liability for Forfeiture, 20 FCC Rcd 602 (Inv. & Hearings Div., 
Enf. Bur. 2005) (NAL paid) (imposing forfeiture for recording 
complainant's conversation with station news reporter for 
broadcast without notice; increasing proposed forfeiture beyond 
base amount because station broadcast recording twice).  

42WXDJ Licensing, Inc., Forfeiture Order, 19 FCC Rcd. 22445 (Enf. 
Bur. 2004). (forfeiture amount reduced based on WXDJ's history of 
overall compliance with the Commission's regulations).

4347 U.S.C..  503(b), 47 C.F.R.  1.80.

4447 C.F.R.  1.80.

45 47 U.S.C.  504(a).

46See 47 C.F.R.  1.1914.