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Federal Communications Commission
Washington, D.C. 20554
In The Matter Of )
Infinity Radio Operations, Inc. ) File No. EB-02-IH-0624-GC
) NAL/Acct. No. 200332080020
Licensee of Station WBLK(FM), ) FRN 0004036711
Buffalo, New York ) Facility ID # 71215
ORDER ON RECONSIDERATION
Adopted: February 23, 2005 Released: February 24,
By the Chief, Enforcement Bureau:
1. In this Order on Reconsideration, we deny a Petition
for Reconsideration (``Petition'')1 by Infinity Radio Operations,
Inc. (``Infinity''), of a Forfeiture Order (``Forfeiture Order'')
for $4,000 issued by the Enforcement Bureau (``Bureau'') on
August 12, 2004.2 In the Forfeiture Order, we found that
Infinity had violated section 73.1206 of the Commission's rules3
by broadcasting a telephone conversation without first informing
the party to the conversation of its intention to do so.
Infinity argues that our use of the underlying facts from an
unpaid, unadjudicated forfeiture order, issued for its violation
of section 73.1206 in a previous proceeding, to rebut its claim
in the present proceeding that it had no prior offenses violates
section 504(c) of the Communications Act of 1934, as amended
(``the Act'').4 Infinity also disputes our rejection of its
claim that the forfeiture amount should be reduced or canceled
based on its good faith efforts to comply because the Bureau has
done so recently for licensees in other proceedings that involve
allegedly comparable circumstances.
2. On August 5, 2003, we issued a Notice of Apparent
Liability for Forfeiture (``NAL''), 5 finding that Infinity,
licensee of Station WBLK(FM), Buffalo, New York, violated section
73.1206 of the Commission's rules. Specifically, we found that
WBLK(FM) had broadcast a telephone conversation on June 26, 2002,
between Shae Moore, a disc jockey employed by Infinity, and
Brenda Tanner, a telephone customer service representative
employed by Adelphia Communications, Inc., without informing Ms.
Tanner of the intent to broadcast the conversation. Based on the
facts and circumstances surrounding the apparent violation, we
proposed the base forfeiture amount of $4,000 for such a
violation.6 In discussing the statutory factors to be considered
in determining this forfeiture amount, we rejected Infinity's
prior claim in response to our letter of inquiry7 that the
broadcast was an ``isolated incident'' by citing another
proceeding, EZ Sacramento, in which the Commission assessed a
forfeiture against another Infinity affiliate for similar conduct
in violation of section 73.1206.8 After reviewing Infinity's
Response to Notice of Apparent Liability for Forfeiture, filed
September 4, 2003 (``NAL Response''),9 we issued the Forfeiture
Order, imposing the proposed base forfeiture amount.
3. On September 13, 2004, Infinity filed the Petition,
requesting the Bureau to reconsider the Forfeiture Order and
decline to impose any penalty on Infinity for two reasons.
First, Infinity contends, as it did in its NAL Response,10 that
the Bureau's reference to a prior offense by Infinity violates
section 504(c) of the Act, concerning the use of a notice of
apparent liability from another proceeding that has neither been
paid nor finally adjudicated.11 Second, Infinity argues, again
as it did in its NAL Response,12 that the Commission has reduced
or cancelled forfeitures in other proceedings that are comparable
to the present one in terms of the licensee's good faith efforts
A. The Forfeiture Order Did Not Violate Section 504(c) Of The Act
Or The Due Process Clause Of The Fifth Amendment
4. In the Petition, Infinity argues that the Forfeiture
Order should be reversed because the Bureau's reference in the
NAL and the Forfeiture Order to EZ Sacramento, which forfeiture
has neither been paid nor finally adjudicated by a court,
violates section 504(c) of the Act. Section 504(c) provides:
In any case where the Commission issues a notice of
apparent liability looking toward the imposition of a
forfeiture under this Act, that fact shall not be used,
in any other proceeding before the Commission, to the
prejudice of the person to whom such notice was issued,
unless (i) the forfeiture has been paid, or (ii) a
court of competent jurisdiction has ordered payment of
such forfeiture, and such order has become final.14
5. In the Forfeiture Order, we rejected Infinity's section
504(c) argument because the citation to EZ Sacramento was only to
rebut Infinity's inaccurate claim that the telephone broadcast
was an isolated incident. We explained that our reference was to
the underlying facts of similar conduct, rather than to the
existence of the contested notice of apparent liability as such,
a practice that the Commission specifically held permissible in a
rulemaking proceeding on this very issue.15
6. Infinity now contends that the distinction made in the
Commission's Forfeiture Policy Statement Reconsideration Order
and the Bureau's instant Forfeiture Order between the use of the
facts underlying an NAL or forfeiture order and the use of the
existence of the those orders per se is false and meaningless
because the punitive effect on the licensee is identical.16 In
this context, Infinity quotes the following language, with
emphasis supplied, from the legislative history of section
504(c): ``[T]he pendency of a forfeiture action, prior to final
adjudication thereof . . . shall be without prejudice to the
licensee in any other proceeding before the Commission.''17
Infinity argues that this language is clearly inconsistent with
the Commission's distinction between the use of underlying facts
and the use per se of an NAL or forfeiture order. Infinity also
claims, for the first time, that the specific use of EZ
Sacramento here violates the Due Process Clause of the Fifth
Amendment to the United States Constitution18 because there has
been an unreasonable delay by the Department of Justice in
bringing final enforcement action in the ``highly contested'' EZ
Sacramento proceeding. Infinity notes that EZ Sacramento
concerned events in 1998 and argues that it would have difficulty
in presenting a defense on the merits of the facts at this late
7. We reject Infinity's argument that the ``punitive
effect'' is the same whether the reference is to the facts
underlying the NAL and forfeiture order or to the existence of
those orders per se. Infinity ignores the main policy reason for
section 504(c), as recognized in the Forfeiture Policy Statement
Reconsideration Order, i.e., not to penalize someone for
challenging the NAL rather than paying it.20 In either case, the
factual findings determined in those orders remain available for
other appropriate purposes, such as to resolve whether the
licensee is engaging in a pattern of non-compliant behavior.
8. In addition, Infinity's quotation from the legislative
history is misleading. After the general language quoted above,
which simply tracks the language of the statute itself, that same
passage specifies that:
[Section 504(c)] is not intended to mean that the
facts upon which a notice of forfeiture liability
against a licensee is based cannot be considered by
the Commission in connection with an application for
renewal of a license, for example, or with respect to
the imposition of other sanctions authorized by the
Communications Act of 1934 . . . .
Once Infinity raised the issue of prior offenses, the Bureau's
reference to the facts underlying EZ Sacramento to rebut that
claim and to evaluate Infinity's overall pattern of compliance
was entirely consistent with the intent of section 504(c) as
specifically stated in the legislative history and as previously
indicated by the Commission Reconsideration Order.21
9. Finally, we find no merit in Infinity's argument that
any delay by the Department of Justice in bringing final
forfeiture enforcement action (or decision by the Department of
Justice not to do so) in EZ Sacramento violates Due Process to
the extent we use the facts underlying EZ Sacramento here. In
any proceeding in court regarding this proceeding, Infinity is
free to argue that the facts in EZ Sacramento did not constitute
violations. In this regard, we note that throughout the EZ
Sacramento proceeding, Infinity only disputed the applicable law,
not the facts on which the ruling was originally based.22
Accordingly, Infinity cannot credibly claim that it has been
denied a fair hearing or that it would have difficulty in
preparing a defense on the facts determined in the first
proceeding in order to oppose use of those facts in the second
10. In any event, we conclude that even if this were an
isolated incident, a forfeiture for the base amount of $4,000 is
B. Infinity's Post-Investigation Remedial Efforts Do Not Entitle
It To A Reduced Or Cancelled Forfeiture
11. Infinity represents that the actions of its disc
jockey, Ms. Moore, were inconsistent with its written policy,
that it took disciplinary action against her, and that it
distributed a memo to all of its WBLK(FM) on-air personalities
reiterating that policy.23 In its Petition, Infinity again
maintains, as it did in its NAL Response,24 that the Bureau
should cancel or reduce the forfeiture because the Commission has
routinely done so in other comparable cases for good faith
efforts to comply.25 In addition to American Family, already
cited in the NAL Response, Infinity offers four more decisions in
support of this claim.26 Moreover, in reliance on Melody Music
v. FCC, it again argues that the Commission must explain the
disparate treatment of similarly situated parties in this
12. We reject Infinity's contention that its asserted good
faith efforts to comply are grounds for cancellation or reduction
of the base forfeiture amount of $4,000 because other similarly
situated licensees have been afforded such relief. All of the
cited decisions involved situations in which the licensee had
undertaken substantial steps to comply with various technical
broadcasting requirements before actually being notified of a
possible violation. The only thing Infinity had done prior to
our investigation was to maintain a written policy, which
evidently had not been adequately brought to the attention of all
its employees. That hardly constitutes good faith efforts, let
alone the kind of good faith efforts that have led to forfeiture
reductions. Indeed, the Commission has consistently refused to
consider post-investigation remedial measures in other cases,
both generally and in cases involving potential violations of our
telephone broadcast rule.28
13. For the same reason, we reject Infinity's disparate
treatment claim. Infinity and the parties involved in the cases
cited in the Petition are not ``similarly situated.'' The case
cited by Infinity, Melody Music v. FCC, involved disparate
treatment of parties involved in the same course of events, i.e.,
after a television quiz show scandal during the 1950's, two
former producers of the programs were denied license renewals for
their new, unrelated radio station, whereas the network
corporation responsible for the quiz show was granted its own
renewal over objections based on the scandal. Compared with
Infinity's situation here, the cases it cites involve a
relatively small sample with different facts, different rules,
and different types of efforts to comply.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED THAT the Petition for
Reconsideration filed on September 13, 2004, by Infinity Radio
Operations, Inc. IS DENIED.
15. IT IS FURTHER ORDERED THAT a copy of this Order on
Reconsideration shall be sent by Certified Mail Return Receipt
Requested to Stephen A. Hildebrandt, Vice President, Infinity
Radio Operations, Inc., 14 Lafayette Square, Suite 1300, Buffalo,
New York 142203, with a copy to its counsel, attn: Robert-Paul
Sagner, Leventhal, Senter & Lerman PLLC, 2000 K Street N.W.,
Washington, D.C. 20006-1890.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1Infinity Radio Operations, Inc., Petition for Reconsideration,
filed September 13, 2004 (``Petition'').
2See Infinity Radio Operations, Inc. (WBLK(FM)), Forfeiture
Order, 19 FCC Rcd 15,460 (Enf. Bur. 2004) (``Forfeiture Order'').
3Section 47 C.F.R. § 73.1206.
447 U.S.C § 504(c) (generally prohibiting the use of a notice of
apparent liability for forfeiture (NAL) that has neither been
paid nor finally adjudicated in another proceeding to the
detriment of the person to whom the notice was issued).
5Infinity Radio Operations, Inc. (WBLK(FM)), Notice of Apparent
Liability for Forfeiture, 18 FCC 16,191 (Enf. Bur. 2003)
6Id., 18 FCC Rcd at 16,192, ¶ 6.
7See Letter, dated September 17, 2002, from Stephen A.
Hildebrandt, Vice President, Radio Station WBLK(FM), to Charles
W. Kelley, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission (``LOI
Response'') at 1-2.
8EZ Sacramento, Inc., 16 FCC Rcd 4958 (denying application for
review of denial of petitions for reconsideration of forfeiture
orders) (2001) (``EZ Sacramento''), recon. dismissed, 16 FCC Rcd
9Infinity Radio Operations, Inc., Response to Notice of Apparent
Liability for Forfeiture, filed September 4, 2003 (``NAL
10Id. at 2-3.
11Petition at 1-7.
12NAL Response at 3-4.
13Petition at 6-7.
1447 U.S.C. § 504(c).
15The 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 17,087, 17,102-04, ¶¶
32-36 (1997) (``Forfeiture Policy Statement Report and Order'');
on recon., 15 FCC Rcd 303, 303-305, ¶¶ 3-5 (1999) (``Forfeiture
Policy Statement Reconsideration Order'') (collectively, the
``Forfeiture Policy Statement Rulemaking''). In the instant
proceeding, Infinity did not mention the rulemaking disposition
of this precise issue until its Petition, even though it was one
of the principal commenting parties on the question in the
Forfeiture Policy Statement Report and Order (id., 12 FCC Rcd at
17,102, ¶32) and a subsidiary of the company that filed a
petition for reconsideration on this issue that the Commission
denied in the Forfeiture Policy Statement Reconsideration Order.
16Petition at 4. Infinity also maintains in this connection that
the Forfeiture Order used EZ Sacramento as substantive support to
penalize Infinity to its detriment, as well as rebuttal to
counter its assertion of no prior offenses. Id. at 5. This is
based on the fact that the Forfeiture Order, in rejecting
Infinity's alternative claim of comparable good faith efforts to
comply (to be discussed below), repeats that this was not first
time Infinity had violated section 73.1206. See Forfeiture
Order, 19 FCC Rcd at 15,462, ¶ 8.
17Petition at 5 (citing 106 Cong. Rec. 17623 (Aug. 25, 1960); S.
Rep. No. 1857, 86th Cong., 2d Sess. at 10-11 (1960)).
18U.S. CONST., amend. V.
19Petition at 3, 5-6. In fact, Infinity states here that,
because the five-year statute of limitations has expired in EZ
Sacramento, the proceeding can never be finalized through a
district court decision.
20 Forfeiture Policy Statement Reconsideration Order, 15 FCC Rcd
at 304, ¶ 3.
21With respect to Infinity's argument that the Bureau used EZ
Sacramento substantively in rejecting its claim of comparative
good faith compliance (see note 16, supra), the Bureau properly
referred to EZ Sacramento only for the underlying facts of the
earlier case, as permitted under section 504(c). In any event,
as discussed below, without regard to any prior violations,
Infinity is not entitled to a reduction for good faith efforts.
22The legal issue in the twin proceedings that were eventually
consolidated into EZ Sacramento concerned whether a prior notice
of intent to broadcast effectively ceases and must be renewed
when the caller has been put on hold. See EZ Sacramento, Inc.
(Licensee of KHTK(AM)), Notice of Apparent Liability for
Forfeiture, 14 FCC Rcd 4599 (MMB 1999); Infinity Broadcasting
Corp. of Washington, D.C. (Licensee of WJFK(FM)), Notice of
Apparent Liability, 14 FCC Rcd 5539 (MMB 1999); EZ Sacramento,
Inc. (Licensee of KHTK(AM)), Forfeiture Order, 14 FCC Rcd 13,539
(MMB 1999); Infinity Broadcasting Corp. of Washington,
D.C.(Licensee of WJFK(FM)), Forfeiture Order, 14 FCC Rcd 13,541
(MB 1999). Once consolidated, these became EZ Sacramento
(Licensee of KHTK(AM)) Inc. and Infinity Broadcasting
Corp.(Licensee of WJFK(FM)), recon. denied, 15 FCC Rcd 18,257
(Enf. Bur. 2000); app. rev. denied, 16 FCC 4958 (2001); recon.
dismissed, 16 FCC Rcd 15,605 (2001).
23LOI Response at 1-2; NAL Response at 2; Petition at 2, 6-7.
24NAL Response at 2-4 (citing American Family Association, Inc.,
Memorandum Opinion and Order, 18 FCC Rcd 16,530 (Enf. Bur. 2003))
(``American Family'') (forfeiture for failure to maintain local
public inspection file cancelled for good faith efforts to comply
because the documents were unfiled but at least present at the
site before licensee was actually notified of a possible
25Petition at 2, 6-7.
26Id. at 6-7 (citing St. Louis Mobile Systems, Inc., Memorandum
Opinion and Order, 19 FCC Rcd 17,712 (Enf. Bur. 2004)
(forfeiture for failure to register tower reduced to admonishment
for inability to pay, not for good faith efforts to comply before
being notified of a possible violation); Capstar Radio Operating
Company, Forfeiture Order, 19 FCC Rcd 15,374 (Enf. Bur. 2004)
(forfeiture for failure to display antenna registration reduced
for good faith efforts to comply after an inspection, but before
being notified of a possible violation); Forrester, et al.,
Forfeiture Order, 19 FCC Rcd 11,030 (Enf. Bur. 2004) (forfeiture
for failure to enclose antenna tower with fence reduced for good
faith efforts to comply because fence was being built before
being notified of a possible violation); Aracelis Ortiz,
Executrix for the Estate of Carlos Ortiz, Forfeiture Order, 19
FCC Rcd 2632 (Enf. Bur. 2004) (forfeitures for failure to
maintain EAS system and studio in locale reduced for good faith
efforts to comply because steps had been undertaken before being
notified of a possible violation).
27Id. at 7 (citing Melody Music, Inc. v. Federal Communications
Commission, 345 F.2d 730, 732 (D.C. Cir. 1965) (``Melody Music v.
28See, e.g., AT&T Wireless Services, Inc., Memorandum Opinion and
Order, 17 FCC Rcd 21,866, 21,871, ¶ 14 (2002); SBC
Communications, Inc., Order of Forfeiture, 5535, 5542, ¶ 18
(2001); Seawest Yacht Brokers, Notice of Forfeiture, 9 FCC Rcd
6099, ¶ 9 (1994); Station KGVL, Inc., 42 FCC 2d 258, 259, ¶ 6
(1973`); Mid-Missouri Broadcasting, Inc., Notice of Apparent
Liability for Forfeiture, DA 04-3683, ¶ 8 (Enf. Bur. rel. Nov.
24, 2004) (regarding prank call by on air-radio personality to
crisis hotline without prior notification of intent to broadcast,
Bureau proposed base forfeiture amount for section 73.1206
violation notwithstanding licensee's claim that this was an
``isolated incident'' and that it had taken remedial measures).