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Federal Communications Commission
Washington, D.C. 20554
In The Matter Of )
SAGA COMMUNICATIONS OF NEW ) File No. EB-01-IH-0230
ENGLAND, INC. ) NAL/Acct. No.
Licensee of Station WLZX(FM), )
Northampton, Massachusetts ) Facility ID No. 46963
FRN No. 0002749406
ORDER ON RECONSIDERATION
Adopted: March 1, 2005 Released: March 2, 2005
By the Chief, Enforcement Bureau:
1. In this Order on Reconsideration, we deny a Petition
for Reconsideration (``Petition'')1 by Saga Communications of New
England, Inc. (``Saga'') of a Forfeiture Order (``Forfeiture
Order'') for $4,000.2 In the Forfeiture Order, we found that
Saga had violated section 73.1206 of the Commission's rules3 by
recording a telephone conversation for broadcast without first
informing the other party to the conversation of its intention to
do so. The Forfeiture Order was based on a complaint by Western
Mass Radio Company, licensee of Station WRNX(FM), Amherst,
Massachusetts, alleging that a Saga on-air personality initiated
and recorded a telephone conversation with an on-air personality
of WRNX(FM) while pretending to be a listener, and later
broadcast the conversation without authorization.4 In the
Petition, Saga first argues that, as a company, it did not
``willfully'' violate section 73.1206 because it had taken
reasonable precautions to prevent such violations by its
employees, and that these precautions and certain remedial steps
thereafter show that it acted in good faith. Second, Saga claims
that the Forfeiture Order improperly considered two prior Notices
of Violation against it in determining the forfeiture amount
because there has been no final disposition in those proceedings.
A. The Violation Was ``Willful'' And Saga's Claimed Good Faith
Does Not Relieve It Of Liability
2. Saga concedes that its employee deliberately called and
recorded the employee of the other station without notice and
later broadcast the recorded conversation once.5 As it did in
response to the Notice of Apparent Liability (``NAL'') in this
proceeding,6 Saga again claims, however, that this isolated
broadcast of an unauthorized telephone conversation¾against its
prior directive to employees regarding compliance with section
73.1206¾is not a ``willful'' violation by Saga as a company when
it had taken all reasonable precautions to avoid such violations
by its employees.7 Saga further argues that, even if its
employee acted ``willfully'' in violating the Commission's rule,
Saga's good faith precautions and subsequent remedial measures to
prevent future violations should relieve it of liability as a
company for its employee's wrongful act.8
3. We rejected these arguments in the Forfeiture Order,9
and we do so again.10 A ``willful'' violation under section
503(b) of the Communications Act of 1934, as amended (the
``Act''),11 means the conscious and deliberate commission or
omission of an act, irrespective of any intent to violate the
law.12 Moreover, a licensee is responsible for the acts and
omissions of its employees, and when the actions of employees
have resulted in violations, we will not excuse licensees from
forfeiture penalties.13 Saga's assertion that, as a company, it
took precautions against such violations is immaterial to a
finding under these principles that it committed a willful
violation. In addition, we reject Saga's argument that these
precautions, in conjunction with certain claimed remedial
measures, show sufficient good faith for us to cancel or reduce
the forfeiture for the admittedly willful act of this employee.14
We have consistently refused to consider post-investigation
remedial measures in other cases involving potential violations
of section 73.1206.15
B. The Forfeiture Order Properly Considered Notices Of Violation
In Other Proceedings In Determining The Forfeiture Amount
4. The Forfeiture Order imposed a $4,000 forfeiture
against Saga,16 which is the base forfeiture amount established
under the Forfeiture Policy Statement for the unauthorized
broadcast of a telephone conversation.17 In making this
determination, we rejected Saga's contention that we should
reduce the forfeiture because of its asserted history of overall
compliance with the Act and the Commission's rules. We noted
that the Bureau had, in fact, found various Saga affiliates in
violation of the Commission's rules in several other proceedings
in the past four years, two of which we cited by way of
example.18 The Petition states that in both cases, Saga had
responded to the Notice of Violation and there was no final
disposition of the matter.19 Accordingly, Saga maintains, the
Bureau's reference to these prior proceedings violates section
504(c) of the Act.20
5. We properly cited the two prior violations to rebut
Saga's claim of a record of overall compliance. Moreover, as
Saga must be aware, in addition to these two cited examples,
there were three other such proceedings in the four-year period
ending December 2002.21 Saga's reliance on section 504(c) is
inapposite here since that provision applies only to the reliance
of unpaid, non-court adjudicated NALs in subsequent proceedings
and not to reliance on Notices of Violation. In each of the NOVs
mentioned above, the Commission staff found violations of various
FCC rules. The fact that the staff did not take more severe
enforcement action (e.g., issuance of an NAL) following Saga's
response to these NOVs does not negate the violations listed in
the NOVs. The Commission has consistently rejected history of
overall compliance claims based on issuance of NOVs in other
III. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT the Petition for
Reconsideration filed on November 15, 2004 by Saga Communications
of New England, Inc. IS DENIED.
7. IT IS FURTHER ORDERED THAT a copy of this Order on
Reconsideration shall be sent by Certified Mail - Return Receipt
Requested to: Lawrence D. Goldberg, Vice President, Saga
Communications of New England, Inc., 15 Hampton Avenue,
Northampton, Massachusetts 01060; and its counsel, Gary S.
Smithwick, Esquire, Smithwick & Belendiuk, P.C., 5028 Wisconsin
Avenue, N.W., Suite 301, Washington, D.C. 20016.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1Saga Communications of New England, Inc., Petition for
Reconsideration, filed November 15, 2004 (``Petition'').
2Saga Communications of New England, Inc., Forfeiture Order, 19
FCC Rcd 19743 (Enf. Bur. 2004) (``Forfeiture Order'').
3Section 47 C.F.R. § 73.1206.
4See Letter from Thomas G. Davis, President, Western Mass Radio
Company, to Magalie Roman Salas, Secretary, Federal
Communications Commission, dated February 1, 2001. The WRNX(FM)
employee was not on the air at WRNX(FM) at the time of the
5Petition at 2-3.
6See Saga Communications of New England, Inc., Notice of Apparent
Liability, 19 FCC Rcd 2741 (Enf. Bur. 2004) (``NAL'').
7Id. at 3-5 (cf. Saga Response to Notice of Apparent Liability
for Forfeiture, filed March 22, 2004, at 3-7).
8Id. at 4-5.
9See Forfeiture Order, 19 FCC Rcd at 19744-45, ¶¶ 4-6.
10Reconsideration is appropriate only where the petitioner either
shows a material error or omission in the original order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters. A
petition that simply reiterates arguments previously considered
and rejected will be denied. WWIZ, Inc., 37 FCC 685, 686 (1964),
aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir.
1965), cert. denied, 383 U.S. 967 (1966); Pinnacle
Communications, Inc., Memorandum Opinion and Order, 11 FCC Rcd
15496, ¶ 1 (1996); 47 C.F.R. § 1.106(c).
1147 U.S.C. § 503(b).
12See 47 U.S.C. § 312(f)(1); Application for Review of Southern
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387,
4387-88, ¶ 5 (1991) (``Southern Broadcasting''). Saga
mischaracterizes Southern Broadcasting, incorrectly stating that
the forfeiture in that case was decided on the basis of the
misconduct being a repeated violation and that the Commission did
not reach the question of willfulness. See Petition at 3-4. On
the contrary, willfulness was the chief basis for forfeiture in
Southern Broadcasting, and repetition was mentioned only as an
alternative ground. See 6 FCC Rcd at 4387-88, ¶ 5.
13See, e.g., Eure Family Limited Partnership, Memorandum Opinion
and Order, 17 FCC Rcd 21861, 21863-64, ¶ 7 (2002). See also
Forfeiture Order, 19 FCC Rcd at 19744, ¶ 5, n. 12 & n. 13 for
further decisions to this effect.
14In response to the Forfeiture Order's rejection of this
argument, 19 FCC Rcd at 19744-45 & n. 15, Saga again cites
Infinity Broadcasting Corporation, Memorandum Opinion and Order,
16 FCC Rcd 20156 (Enf. Bur. 2001) and Long Nine, Inc., Forfeiture
Order, 15 FCC Rcd 15747 (Enf. Bur. 2000) to support its claim
that it acted in good faith as a company. Petition at 4-5 & n.
6. Both of these decisions, however, concern section 73.1206
violations in which the on-air employee himself could have
reasonably believed that the recording and broadcast were
authorized, whereas in Saga's case, the employee could not have
reasonably believed that they were authorized.
15See, e.g., Mid-Missouri Broadcasting, Inc., Notice of Apparent
Liability for Forfeiture, DA 04-3683 (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 the licensee had taken remedial measures).
16See Forfeiture Order, 19 FCC Rcd at 19744-45, ¶ 6.
17See The 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 17087, 17115 (1997)
(``Forfeiture Policy Statement''), recon. denied, 15 FCC Rcd 303
18See Forfeiture Order, 19 FCC Rcd at 19745 & n. 17.
19Petition at 6-8.
2047 U.S.C. § 504(c).
21See, e.g., Saga Communications of Iowa, Inc., Notices of
Violation, EB-01-KC-228 to EB-01-KC-233 (Enf. Bur. Kansas City
Office, Jan. 25, 2001) (various part 11and part 73 radio
broadcasting violations, 47 C.F.R. parts 11, 73).
Coincidentally, the multiple violations cited in this series of
five notices, listing a total of 26 violations, occurred on the
exact same date¾January 25, 2001¾as Saga's unauthorized recording
and broadcast over WLZX(FM) in the instant proceeding.
22See Forfeiture Policy Statement, 12 FCC Rcd at 17102-04, ¶¶
32-36; on recon., 15 FCC Rcd at 303-305, ¶¶ 3-5 (1999).