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                           Before the 
                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, 
2005                                    

By the Chief, Enforcement Bureau:

I. INTRODUCTION

     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.   

II. BACKGROUND  

     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 
to comply.13    

III. DISCUSSION

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 
stage.19  

     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 
proceeding. 

     10.  In any event, we conclude that even if this were an 
isolated incident, a forfeiture for the base amount of $4,000 is 
appropriate.

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 
context.27   

     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) 
(``NAL''). 
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 
15,605 (2001).
9Infinity Radio Operations, Inc., Response to Notice of Apparent 
Liability for Forfeiture, filed September 4, 2003 (``NAL 
Response'').  
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 
violation)). 
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. 
FCC'')). 
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).