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


In the Matter of                  )
                                                           )
NOE CORP. LLC                     )  File Number EB-03-IH-
                                 )  0508
Licensee of Station KNOE-TV,      )  NAL/Acct. No. 
Monroe, Louisiana                 )  200532080026 
                                 )  Facility ID No. 48975
                                    FRN No. 0001716588



         NOTICE OF APPARENT LIABILITY FOR FORFEITURE 

Adopted:  January 11, 2005              Released:  January 
13, 2005

By   the  Chief,   Investigations  and   Hearings  Division, 
Enforcement Bureau:

I.     INTRODUCTION

     1.   In this Notice of Apparent Liability for 
Forfeiture (``NAL''), issued pursuant to section 503(b) of 
the Communications Act of 1934, as amended (the ``Act'') and 
section 1.80 of the Commission's rules,1  we find that NOE 
Corp. LLC (``NOE''), licensee of Station KNOE-TV, Monroe, 
Louisiana, twice recorded telephone conversations for 
broadcast without informing parties to the calls of its 
intention to broadcast the conversations, in apparent 
willful and repeated violation of section 73.1206 of the 
Commission's rules.2  Based on our review of the facts, we 
conclude that NOE is apparently liable for a monetary 
forfeiture in the amount of $10,000.

II.     BACKGROUND

     2.   By letter dated September 23, 2003, Mack Calhoun, 
who serves on the Police Jury for Ouachita Parish in 
Louisiana,3 filed the first of three complaints with the 
Commission.4  Calhoun asserted that, on or about September 
12, 2003, Station KNOE-TV news reporter Ken Booth 
(``Booth'') telephoned Calhoun's residence and, without 
providing prior notice to Calhoun, recorded his outgoing 
voice mail message with the intent to broadcast the 
recording.5  According to Calhoun, who provided a video tape 
with his complaint, Station KNOE-TV broadcast the recorded 
voice mail message during its evening news on September 12, 
2003.6  Thereafter, by letters dated September 26, 2003, and 
April 20, 2004,7 Calhoun filed two more complaints with the 
Commission, each accompanied by video tapes.  Calhoun states 
in the latter correspondence that Booth telephoned his 
residence again on September 25, 2003.8  According to Mr. 
Calhoun's complaints, when he answered the telephone and 
Booth identified himself as the caller, Calhoun immediately 
hung up.9  Calhoun alleges that Booth did not notify him at 
the time that he was recording the exchange with the intent 
of broadcasting it over Station KNOE-TV.10  Calhoun states 
that Station KNOE-TV broadcast a recording of the brief 
dialogue during its newscast that evening.11  Calhoun also 
alleges in the latter complaint that Station KNOE-TV 
rebroadcast the initial recording of his outgoing voice mail 
message during yet another evening newscast on April 20, 
2004.12 

     3.   By letter of inquiry dated May 17, 2004, the 
Enforcement Bureau directed NOE to provide information about 
its broadcast of conversations involving Calhoun.13 In its 
initial response as well as a subsequent filing14 NOE admits 
that, on September 12, 2003, Booth telephoned Calhoun's 
residence for the purpose of conducting and recording for 
later broadcast an interview with Calhoun about a news story 
on which Booth was then working.15  NOE argues that it had 
no intent at the time to record Calhoun's outgoing voice 
mail message from his answering machine.16  Nevertheless, 
when no one answered the telephone, NOE concedes that Booth 
recorded Calhoun's outgoing voice mail message and Station 
KNOE-TV broadcast it that evening and again in April 2004.17  
Although NOE concedes that Booth did not notify Calhoun at 
the time of the telephone call that he was recording it for 
broadcast,18  it argues that such notification is 
unnecessary because a voice mail message does not constitute 
a ``conversation'' for purposes of triggering the 
notification requirement of section 73.1206.19  

     4.   NOE also concedes that Booth telephoned Calhoun on 
September 25, 2003, and, without notifying Calhoun, recorded 
their exchange in which Calhoun hung up upon learning that 
Booth was the caller.  Although NOE states that Station KNOE 
broadcast the exchange that evening, it denies that the 
broadcast included Calhoun's voice.20  

     5.   NOE argues, in any event, that section 73.1206 is 
inapplicable because this matter presents unique 
circumstances involving an individual who, because of his 
status as a public official, has waived any right to privacy 
that section 73.1206 is designed to protect.  NOE further 
states in this regard that Calhoun should be presumed to be 
aware that any conversation with him is likely to be 
broadcast, and Station KNOE-TV is entitled to use the 
telephone as a legitimate tool with which to conduct its 
investigative reporting.21  

III.     DISCUSSION

     6.   Section 73.1206 of the Commission's rules 
provides, in pertinent part:

     Before recording a telephone conversation for 
     broadcast . . . a licensee shall inform any party 
     to the call of the licensee's intention to 
     broadcast 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. Such 
     awareness is presumed to exist only when 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.

     7.   Under section 73.1206, a licensee must notify a 
party to a telephone call before it commences recording the 
conversation of its intention to record the conversation for 
broadcast.  In this regard, the Commission has stated that 
"[t]he recording of such conversation with the intention of 
informing the other party later -- whether during the 
conversation or after it is completed but before it is 
broadcast -- does not comply with the Rule . . . ."22  The 
rule reflects the Commission's longstanding policy 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.23  Thus, the Commission has held that 
the prior notification requirement ensures the protection of 
an individual's "right to answer the telephone without 
having [his or her] voice or statements transmitted to the 
public by a broadcast station" live or by recording for 
delayed airing.24

     8.   In the instant case, we find that NOE twice 
recorded a telephone conversation for broadcast without 
informing the other party thereto of its intent to do so.  
In the first instance, a Station KNOE-TV news reporter 
recorded Calhoun's outgoing voice mail message on September 
23, 2003, without notifying Calhoun of his intent to use the 
recording for later broadcast.  Station KNOE-TV subsequently 
broadcast the recording on two separate occasions: September 
23, 2003, and April 20, 2004.  In the second instance, the 
same Station KNOE-TV news reporter recorded a telephone 
conversation with Calhoun on September 25, 2003, again 
without notifying Calhoun of his intent to use the recording 
for later broadcast.  Station KNOE-TV subsequently broadcast 
the brief dialogue that evening.  Calhoun's voice as he 
answered the telephone just prior to hanging up is clearly 
audible. 

     9.   We find no merit to NOE's claim that it was 
unnecessary to provide the notification required by section 
73.1260 because a voice mail message does not constitute a 
``conversation'' within the meaning of the rule.  We have 
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.''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  Thus, 
in order to ensure the protection of an individual's 
``privacy rights, a broadcast station must give notice of 
its intent to broadcast the conversation before transmitting 
or recording for later transmission of the telephone 
call.''27  Additionally, we also stated that the term 
```[c]onversation]' as used in the rule includes any word or 
words spoken during the call.''28  In the instant case, 
Calhoun's outgoing voice mail message satisfies the 
requirements of a ``conversation,'' thus requiring NOE to 
have provided appropriate notice.  
 
     10.  We also find no merit to NOE's claim that Calhoun 
``is a party presumed to be aware that his voice mail 
message would likely be broadcast.''29  Section 73.1206 sets 
forth the limited circumstances under which one may be 
assumed to be aware that a telephone conversation in which 
he is a party is being recorded for broadcast, none of which 
is applicable here.  Under section 73.1206, such awareness 
is presumed only when the party to the call is associated 
with the station or where the party originates the call and 
it is obvious that it is in connection with a program in 
which the station customarily broadcasts telephone 
conversations.  In the instant case, Calhoun was not 
associated with Station KNOE-TV and he did not originate the 
telephone calls in question.  

     11.  We also reject NOE's argument that Calhoun somehow 
waived his right to privacy because of his status as a 
public official.  Such status does not establish a legal 
basis for assuming that any telephone conversation with 
Calhoun could be recorded and subsequently broadcast without 
prior notice.30  Similarly, the fact that Booth previously 
called Calhoun and left messages requesting an interview 
does not exempt NOE from providing the required prior 
notification incident to the September 12, 2003, telephone 
call.  

     12.  Finally, NOE's claim that Station KNOE-TV's 
broadcast of Calhoun's ``was fully protected by the First 
Amendment'' is also without merit.  While the Commission 
recognizes broadcasters' First Amendment concerns regarding 
section 73.1206 notice requirements, 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.'' 31

     13.  Section 503(b) of the Act, 47 U.S.C.  503(b), and 
section 1.80(a) of the Commission's rules, 47 C.F.R  1.80, 
both state that any person who willfully or repeatedly fails 
to comply with the provisions of the Act or the rules shall 
be liable for a forfeiture penalty.  For purposes of section 
503(b) of the Act, the term ``willful'' means that the 
violator knew it was taking the action in question, 
irrespective of any intent to violate the Commission's 
rules.32  Based on the material before us, it appears that 
on September 12, 2003 and September 25, 2003, NOE apparently 
willfully and repeatedly violated section 73.1206 of the 
Commission's rules by recording a telephone conversation for 
broadcast without providing the requisite notification.  

     14.   The Commission's Forfeiture Policy Statement sets 
a base forfeiture amount of $4,000 for the unauthorized 
broadcast of a telephone conversation33 and provides that 
base forfeitures may be adjusted based upon consideration of 
the factors enumerated in section 503(b)(2)(D)34 and 
1.80(a)(4),35 which include "the nature, circumstances, 
extent, and gravity of the violation ... and the degree of 
culpability, any history of prior offenses, ability to pay, 
and such other matters as justice may require."36  In light 
of NOE's rebroadcast of the first recording, we find that an 
upward adjustment to the base forfeiture amount is 
appropriate for the September 12, 2003 violation.  
Therefore, based upon the facts and circumstances presented 
here, we find that NOE is 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.

IV.     ORDERING CLAUSES

     15.  ACCORDINGLY, IT IS ORDERED THAT, pursuant to 
section 503(b) of the Communications Act of 1934, as 
amended,37 and sections 0.111, 0.311 and 1.80 of the 
Commission's rules,38 NOE, LLC, licensee of Station KNOE-TV, 
Monroe, Louisiana, is hereby NOTIFIED of its APPARENT 
LIABILITY FOR A FORFEITURE in the amount of $10,000.00 for 
apparently willfully and repeatedly violating section 
73.1206 of the Commission's rules.  

     16.  IT IS FURTHER ORDERED THAT, pursuant to section 
1.80 of the rules,39 within thirty (30) days of this NOTICE 
OF APPARENT LIABILITY, NOE, LLC, SHALL PAY the full amount 
of the proposed forfeiture or SHALL FILE a written statement 
seeking reduction or cancellation of the proposed 
forfeiture. 

     17.  IT IS FURTHER ORDERED THAT payment of the 
forfeiture shall be made by check or similar instrument, 
payable to the order of the Federal Communications 
Commission.  The payment shall include the NAL/Acct. No. and 
FRN No. referenced above.  Payment by check or money order 
may be mailed to Forfeiture Collection Section, Finance 
Branch, Federal Communications Commission, P.O. Box 73482, 
Chicago, Illinois 60673-7482.  Payment by overnight mail may 
be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor 
Mailroom, Chicago, Illinois  60661.   Payment by wire 
transfer may be made to ABA Number 071000013, receiving bank 
Bank One, and account number 1165259.

     18.  IT IS FURTHER ORDERED THAT the response, if any, 
shall be mailed to William H. Davenport, Chief, 
Investigations and Hearings Division, Enforcement Bureau, 
Federal Communications Commission, 445 12th Street, S.W., 
Room 4-C330, Washington, D.C. 20554 and MUST INCLUDE THE 
NAL/Acct. No. referenced above. 

     19.   IT IS FURTHER ORDERED THAT requests for payment 
of the full amount of this Notice of Apparent Liability 
under an installment plan shall be directed to: Chief, 
Revenue and Receivables Operations Group, 445 12th Street, 
S.W., Washington, D.C. 20554.40 
     20.  IT IS FURTHER ORDERED that a copy of this NOTICE 
OF APPARENT LIABILITY shall be sent by Certified Mail - 
Return Receipt Requested to NOE, LLC, 1400 Oliver Road, 
Monroe, LA  71201 and to NOE, LLC's counsel: Robert B. 
Jacobi, Esquire, Cohn and Marks, LLP, Suite 300, 1920 N. 
Street, N.W., Washington, DC  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, LA 
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. 

247 C.F.R.  73.1206.

3 This position is similar to the county commissioners of 
other states.

4See Letter from R. Steven Calhoun, Esq., counsel for Mack 
Calhoun, to Enforcement Bureau, Federal Communications 
Commission, dated September 23, 2003 (``September 23 
Complaint'').

5Id. at 1.

6Id.
 
7See 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'').

8September 26 Complaint at 1; April 20 Complaint at 1-2.

9April 20 Complaint at 1-2.

10Id. at 3.

11Id. 

12Id. 

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

14See Letter from Robert B. Jacobi, counsel for NOE Corp., 
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., to William Knowles-Kellett, Esq., 
Investigations and Hearings Division, Enforcement Bureau, 
Federal Communications Commission, dated August 13, 2004 
(``NOE August 13, 2004, letter'').  

15NOE June 16, 2004 letter at 2.

16Id. at 3.

17NOE August 13, 2004, letter at 4.

18NOE June 16, 2004 letter at 4.

19 Memorandum in Support of KNOE-TV Response to Commission 
Letter of Inquiry, attached to the NOE June 16, 2004 letter, 
at 2.

20NOE August 13, 2004, letter at 4.

21Memorandum in Support of KNOE-TV Response to Commission 
Letter of Inquiry, attached to the NOE June 16, 2004 letter, 
at 5-6.

22Station-Initiated Telephone Calls which Fail to Comply 
with Section 73.1206 of the Rules, Public Notice, 35 FCC 2d 
940, 941 (1972) (``1972 Public Notice'').

23 See Amendment of Section 1206: Broadcast of Telephone 
Conversations, Report and Order, 3 FCC Rcd 5461, 5463-64 
(1988) (``1988 Order''); 1972 Public Notice, 35 FCC 2d at 
941; Amendment of Part 73 of the Commission's Rules and 
Regulations with Respect to the Broadcast of Telephone 
Conversations, Report and Order, 23 FCC 2d 1, 2 (1970); see 
also WXJD Licensing, Inc., Forfeiture Order, 19 FCC Rcd 
22445 (Enf. Bur. 2004); Saga Communications of New England 
Inc, Forfeiture Order, 19 FCC Rcd 19743, (Enf. Bur. 2004) .  

24 1988 Order, 3 FCC Rcd at 5463.

25 AMFM Radio Licenses, Notice of Apparent Liability, 17 FCC 
Rcd 5032, 5033 (Enf. Bur. 2002) (NAL paid).

26Id.

27Id.

28Id.
29
 Memorandum in Support of KNOE-TV Response to Commission 
Letter of Inquiry, attached to the NOE June 16, 2004 letter, 
at 3.
.

30 El Mundo Broadcasting Corporation, Memorandum Opinion and 
Order, 15 FCC Rcd 20377, 20379 (Enf. Bur. 2000) (Bureau 
refused to recognize an exception to Section 73.1206 notice 
requirements where the conversation recorded and 
subsequently broadcast involved a well known on-air 
personality and a government official.)
31 Amendment of Section 1206: Broadcast of Telephone 
Conversations, 3 FCC Rcd 5461 (1988).

32See Southern California Broadcasting Co., Memorandum 
Opinion and Order, 6 FCC Rcd 4387, 4387-88 (1991).

33 47 C.F.R.  1.80.

34 47 U.S.C.  503(b)(2)(D).

35 47 C.F.R. 1.80(a)(4).

36 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01.

37 47 U.S.C.  503(b).

38 47 C.F.R.  0.111, 0.311 and 1.80.

39 47 C.F.R.  1.80.

40 47 C.F.R.  1.1914.