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.
Federal Communications Commission
Washington, DC 20554
In the Matter of )
KOFI, INC. ) File No. EB-03-IH-0742
) NAL Account No.
Licensee of Station KZMN(FM), ) 200532080129
Kalispell, Montana ) Facility ID No. 35369
) FRN No. 0005072467
Adopted: November 14, 2005 Released: November 15,
By the Chief, Investigations and Hearings Division, Enforcement
1. In this Forfeiture Order, we impose a monetary
forfeiture of $4,000 against KOFI, Inc. (``KOFI''), licensee of
Station KZMN(FM), Kalispell, Montana for violating section
73.1206 of the Commission's rules1 by broadcasting and recording
for rebroadcast a telephone conversation without first informing
the other party to the conversation of its intention to do so.
2. On March 17, 2005, we issued a Notice of Apparent
Liability (``NAL'')2 for $6,000 based on a complaint from Lisa
Simmer. Ms. Simmer alleged, and KOFI acknowledged, that Station
KZMN(FM) broadcast live and recorded for rebroadcast a telephone
conversation between herself and the on-air personality Paul
Gray, without providing her prior notice of such recording and
broadcast.3 Specifically, Ms. Simmer stated that on November
14, 2003, Station KZMN(FM) broadcast, and recorded for later
rebroadcast, a telephone conversation between her and Mr. Gray,
without notifying Ms. Simmer of its intention to do so.4 The
complainant states that she witnessed a turkey being suspended
from a second floor window of the station's building and
expressed to a coworker her concern that this action was
inhumane. When her coworker called the station to complain, the
person who answered the phone transferred her call to Mr. Gray,
who was taking phoned-in donations for a local food bank drive
called ``Save the Turkey'' live and over the air. After the
coworker advised Mr. Gray of her unhappiness with the situation,
Mr. Gray asked to speak with Ms. Simmer. He explained to Ms.
Simmer that the hanging turkey was intended to promote the
station's food bank drive, told her to quit complaining and
directed her to listen to the station. The complainant later
learned that the station had broadcast the conversation live and
then broadcast of a recording of it at a subsequent time. Ms.
Simmer states that she was neither aware of nor informed that she
was on the air live or that portions of her conversation with Mr.
Gray were being recorded for later broadcast.5
3. On April 15, 2005, KOFI responded to the NAL. In its
response to the NAL, KOFI states that Mr. Gray did not advise Ms.
Simmer that her ``call was being broadcast live or that the
station would subsequently rebroadcast portions of the recorded
conversation since Mr. Gray believed the call was from a listener
who wanted to make a donation and that all callers who
participated in the live donations had been advised over the air
that such calls would be broadcast.''6 It does, however, concede
that ``once Mr. Gray realized Ms. Simmer was not calling to make
a donation he never should have rebroadcast a recording of the
conversation.''7 KOFI further states that, in any case, it
terminated Mr. Gray's employment with Station KZMN(FM) due to
``his inappropriate actions discussing Ms. Simmer's complaint on
the air and rebroadcasting a portion of her call,''8 and adopted
a written policy to ensure future compliance with the
Commission's telephone broadcast rules.9
4. KOFI argues the forfeiture should be cancelled or
reduced because its conduct in this matter ``was not willful''
and that it ``has a history of overall compliance with the
Commission's rules.''10 Specifically, KOFI contends that its
``inability to predict that its employee would broadcast the
conversation'' indicates that the violation was not ``conscious
and deliberate.''11 It also states that it has ``rectified the
problem and took steps to prevent a reoccurrence.''12
5. Section 73.1206 of the Commission's rules requires
that, before broadcasting or recording a telephone conversation
for later broadcast, a licensee must inform any party to the call
of its intention to broadcast and/or record 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. The Commission will presume such
awareness only where the ``other party to the call is associated
with the station (such as an 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.''13 The purpose
of section 73.1206 is to protect ``the legitimate expectation of
privacy in connection with the broadcast use of telephone
6. KOFI admits that it broadcast and recorded the
telephone conversation between Mr. Gray and the complainant on
November 14, 2003, and that it did not inform her of its intent
to do so. We reject KOFI's contention that the forfeiture should
be rescinded under these circumstances. As discussed in more
detail in the NAL, the facts simply do not indicate that Mr. Gray
believed he had acquired or did not need to acquire consent to
broadcast the live conversation. 15 First, the call was
transferred from a receptionist, and was not directed to the
studio. During the conversation, Mr. Gray directed Ms. Simmer to
listen to the station. Second, KOFI acknowledges that ``once
Mr. Gray realized Ms. Simmer was not calling to make a donation
he never should have rebroadcast a recording of the
7. We also reject KOFI's argument that the violation was
not ``willful.'' A ``willful'' violation under section 503(b)
means ``the conscious and deliberate commission or omission of
[any] act, irrespective of any intent to violate'' the law.17
KOFI argues that it did not ``consciously or deliberately''
broadcast Ms. Simmer's conversation. It claims that it ``should
not be held liable for a forfeiture for a willful violation
where it has taken all reasonable precautions to avoid the
violation and an employee simply went beyond his authority and
violated the rule.18 But the ``Commission has long held that
licensees and other Commission regulatees are responsible for the
acts and omissions of their employees and independent
contractors,'' 19 and when the actions of independent contractors
or employees have resulted in violations, the Commission has
``consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent contractors
have resulted in violations.''20 Nothing in the record here
suggests that this precedent does not apply.
8. A review of KOFI's broadcast record, however, reveals
no other sanctions for violation of Commission rules. In light
of KOFI's history of overall compliance prior to this
broadcast,21 we will lower the $6,000 forfeiture to the statutory
base of $4,000.22
IV. ORDERING CLAUSES
9. 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,23 KOFI,
Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000
for willfully and repeatedly violating section 73.1206 of the
10. IT IS FURTHER ORDERED that, payment of the forfeiture
shall be made in the manner provided for in section 1.80 of the
Rules24 within thirty (30) days of the release of this Forfeiture
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.25
11. Payment of the forfeiture may be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Account Number and the FRN No. referenced above. Payment by
check or money order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, Pennsylvania 15251-8340.
Payment by overnight mail may be sent to Mellon Bank/LB 358340,
500 Ross Street, Room 1540670, Pittsburgh, Pennsylvania 15251.
Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
12. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Associate Managing
Director -- Financial Operations, 445 12th Street, S.W., Room 1-
A625, Washington, D.C. 20554.26
13. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent, by Certified Mail - Return Receipt
Requested, to KOFI, Inc., P.O. Box 608, Kalispell, Montana 59903,
and to its attorney, Dennis F. Begley, Esq., Reddy, Begley &
McCormick, 1156 15th Street, N.W., Suite 610, Washington, DC
FEDERAL COMMUNICATIONS COMMISSION
William H. Davenport
Chief, Investigations and Hearings Division
1 47 C.F.R. § 73.1206.
2 See KOFI, Inc., Notice of Apparent Liability, 20 FCC Rcd 5995
3 See Letter from complainant to the Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission,
dated November 16, 2003 (``Complaint'').
4 See Letter from complainant to the Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission,
dated November 14, 2003 (``Complaint'').
6 See Response to Notice of Apparent Liability for Forfeiture
dated April 15, 2005 at 3. (``NAL Response'').
7 Id. at 4.
8 Id. at 3.
11 Id. at 4.
13 47 C.F.R. §73.1206.
14 Amendment of Section 73.1206: Broadcast of Telephone
Conversations, Report and Order, 3 FCC Rcd 5461, 5463 (1988).
15 See NAL, 20 FCC Rcd at 5997 ¶ 5. Compare Long Nine, Inc.,
Forfeiture Order, 15 FCC Rcd 15747, 15748 (2000) (on-air
personality made an attempt to acquire consent before recording
and broadcasting a telephone conversation involving two callers,
but mistakenly interpreted the consent of one caller to apply to
16 Response at 4.
17 See 47 U.S.C. § 312(f)(1); Application for Review of Southern
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387,
18 Response at 4.
19 Eure Family Limited Partnership, Memorandum Opinion and Order,
17 FCC Rcd 21861, 21863-64 ¶ 7 (2002); MTD, Inc., Memorandum
Opinion and Order, 6 FCC Rcd 34 (1991) (holding that a company's
reliance on an independent contractor to construct a tower in
compliance of FCC rules does not excuse that company from a
forfeiture); Wagenvoord Broadcasting Co., Memorandum Opinion and
Order, 35 FCC 2d 361 (1972) (holding a licensee responsible for
violations of FCC rules despite its reliance on a consulting
engineer); Petracom of Joplin, L.L.C., Forfeiture Order, 19 FCC
Rcd 6248 (Enf. Bur. 2004) (holding a licensee liable for its
employee's failure to conduct weekly EAS tests and to maintain
the ``issues/programs'' list).
20 American Paging, Inc. of Virginia, Notice of Apparent
Liability for Forfeiture, 12 FCC Rcd 10417, 10420 ¶ 11 (Enf. &
Cons. Inf. Div., Wireless Tel. Bur. 1997) (quoting Triad
Broadcasting Company, Inc., 96 FCC 2d 1235, 1244 (1984)).
21 See KGB, Inc., Memorandum Opinion and Order and Forfeiture
Order, 13 FCC Rcd 16396 (1998) (reducing proposed forfeiture due
to licensee's overall history of compliance with FCC rules).
22 47 C.F.R. § 1.80 (b)(4).
2347 U.S.C.. § 503(b), 47 C.F.R. § 1.80.
2447 C.F.R. § 1.80.
25 47 U.S.C. § 504(a).
26 See 47 C.F.R. § 1.1914.