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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Scripps Howard Broadcasting ) File Number EB-03-IH-
Company ) 0526
) NAL/Acct. No.
Licensee of Station WEWS-TV, ) 200532080027
Cleveland, Ohio Facility ID No. 59441
FRN No. 003957487
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 11, 2005 Released: January
By the Chief, Investigations and Hearings Division,
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
Scripps Howard Broadcasting Company (``Scripps Howard''),
licensee of Station WEWS-TV, Cleveland, Ohio, recorded a
telephone conversation for broadcast and twice aired a
portion of that recording without informing a party to the
conversation of its intention to do so, in apparent willful
violation of section 73.1206 of the Commission's rules.2
Based upon our review of the facts, we conclude that Scripps
Howard is apparently liable for a monetary forfeiture in the
amount of $6,000.
2. On November 6, 2003, the Commission received a
complaint from Medical Mutual (``MedMutual''), a health
insurance company doing business in Ohio.3 In its
complaint, MedMutual states that, on or about the afternoon
of September 18, 2003, its Manager of Media Relations, Don
Olson, received a telephone call from Station WEWS-TV news
reporter Duane Pohlman.4 According to the Complaint, Mr.
Pohlman requested permission to conduct an on-camera
interview with Mr. Olson about a news story that Station
WEWS-TV was then preparing about a claim for benefits filed
by one of MedMutual's insured.5 MedMutual further states
that Mr. Olson informed Mr. Pohlman that he could not
conduct such an interview because of privacy issues.6 At no
time during their telephone call, according to MedMutual,
did Mr. Pohlman inform Mr. Olson that their conversation was
being recorded for broadcast.7
3. Subsequently, according to MedMutual, on October
21, 2003, at approximately 11:00 p.m., Station WEWS-TV
broadcast a news story containing a portion of the recording
of the September 18 telephone conversation.8 MedMutual
states that Mr. Olson contacted Station WEWS-TV the next day
to express his dissatisfaction that a portion of the
telephone conversation had been broadcast without
MedMutual's knowledge or consent.9 MedMutual alleges in its
Complaint that, despite Mr. Olson's objection, Station WEWS-
TV again broadcast the same news report -- including the
portion of the telephone conversation - on October 25,
4. By letter of inquiry dated June 16, 2004, the
Enforcement Bureau directed Scripps Howard to provide
information about the telephone conversation and broadcasts.
11 Scripps Howard responded on July 14, 2004.12 In its
Response, Scripps Howard admits that, on September 18, 2003,
Mr. Pohlman placed the telephone call to Mr. Olson and
recorded their conversation with the intention of
subsequently broadcasting a portion of it over Station WEWS-
TV.13 According to Scripps Howard, Station WEWS-TV
broadcast excerpts from the telephone conversation on
October 21 and 24 (not October 25, as MedMutual alleges).14
5. Scripps Howard concedes that Mr. Pohlman did not
inform Mr. Olson during the call of Scripps Howard's intent
to record the conversation and broadcast a portion of it.15
It contends, however, that it was not required to do so
because Mr. Pohlman ``assumed that Mr. Olson knew the
conversation was being recorded and that it would or could
be used in a subsequent broadcast.''16 In support, Scripps
Howard maintains that: (a) Mr. Pohlman had identified
himself to Mr. Olson as an investigative reporter, a fact
which Mr. Olson admitted during the conversation: (b) Mr.
Olson had previously been an investigative reporter; (c) Mr.
Olson had previously entertained requests from Mr. Pohlman's
producer for an on-camera interview; (d) Ohio is a ``one-
party consent state'' for recording telephone conversations;
and (e) Mr. Pohlman believed that Mr. Olson was conversing
with him ``on the record.''17 Scripps Howard also
represents that it has engaged special communications
counsel to conduct an internal investigation regarding this
matter, and that it is in the process of drafting a policy
for all of its stations to ensure future compliance with
section 73.1206 of the Commission's rules.18 Scripps Howard
also maintains that its record of compliance before the
Commission is exemplary, and that this matter was an
6. Section 73.1206 of the Commission's rules requires
a licensee, ``[b]efore recording a telephone conversation
for broadcast ... [to] 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.''20 Thus, under section
73.1206, a licensee must generally notify a party to a
telephone call of its intention to record the conversation
for broadcast before it commences such recording. 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 avoiding nonconsensual broadcasts of their
conversations.21 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
7. In the instant case, Scripps Howard concedes that
it initiated the conversation in question, with the
intention of subsequently broadcasting a portion over
Station WEWS-TV. Moreover, Scripps Howard admits that it
did not notify Mr. Olson, the recipient of the call, of its
intention to so record and that it subsequently broadcast
excerpts of the conversation on October 21 and 24 (or 25),
2003. We therefore conclude that Scripps Howard recorded a
telephone conversation for broadcast without informing the
other party thereto of its intention to do so.
8. Section 73.1206 articulates the limited
circumstances under which no notice is required because it
may be presumed that all parties are aware that their
telephone conversation is being recorded for broadcast, none
of which is applicable here. Under that rule, such
awareness is presumed only when the party to the call is
associated with the station or originates the call and it is
obvious that the call is in connection with a program during
which the station customarily broadcasts telephone
conversations. Scripps Howard does not claim that these
factors existed here. Indeed, in the instant case, Mr.
Olson was neither associated with Station WEWS-TV, nor did
he originate the telephone call in question.
9. We reject Scripps Howard's claim that it
reasonably assumed Mr. Olson consented to the recording of
his conversation for broadcast.23 None of the factors
articulated by Scripps Howard are relevant. With the
exception of the circumstances described in our rule, a
licensee must provide clear notice to an interviewee of the
licensee's intent to record that person for broadcast before
initiating that recording. Scripps Howard failed to provide
such notice and therefore violated our rule.
10. Finally, Scripps Howard cites its ``exemplary''
record of compliance with FCC rules as well as its efforts
since Mr. Olson's complaint to avoid future violations of
the telephone broadcast rule, including the hiring of
counsel to investigate the incident. Scripps Howard also
states that it will develop training measures and institute
a policy to ensure that such an incident does not reoccur.24
As we have held previously, however, such post-violation
efforts are irrelevant to our forfeiture analysis in such
cases.25 While Scripps Howard's promises of compliance
measures are laudable, those measures should have been
instituted before the broadcast at issue, not after. We
also note that Scripps Howard's record of compliance is not
sufficiently clean to warrant a reduction in the forfeiture
amount on that basis.26
11. 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.27 Based on the material before us, it appears that
Scripps Howard apparently willfully violated section 73.1206
of the Commission's rules by recording a telephone
conversation for broadcast on September 18, 2003, without
providing the requisite prior notification.28
12. The Commission's Forfeiture Policy Statement
sets a base forfeiture amount of $4,000 in this area.29 The
Forfeiture Policy Statement also specifies that the
Commission shall adjust a forfeiture based upon
consideration of the factors enumerated in section
503(b)(2)(D) of the Act, 47 U.S.C. § 503(b)(2)(D), such as
``the nature, circumstances, extent and gravity of the
violation, and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay,
and such other matters as justice may require.''30
Based on our review of each of these factors, we find that
an upward adjustment from the base amount is warranted here,
particularly in light of Scripps Howard's decision to repeat
the offending broadcast after Mr. Olson complained to the
station. We therefore propose a forfeiture of $6,000 in
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to
section 503(b) of the Communications Act of 1934, as
amended,31 and sections 0.111, and 1.80 of the Commission's
rules,32 Scripps Howard Broadcasting Company, licensee of
Station WEWS-TV, Cleveland, Ohio, is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of $6,000
for apparently willfully violating section 73.1206 of the
14. IT IS FURTHER ORDERED that, pursuant to section
1.80 of the rules, within thirty (30) calendar days of the
release of this NOTICE OF APPARENT LIABILITY, Scripps Howard
Broadcasting Company SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
15. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must 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
16. The response, if any, must 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.
17. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.33
18. Accordingly, IT IS ORDERED that the complaint
filed against Scripps Howard Broadcasting Company, licensee
of Station WEWS-TV, Cleveland, Ohio IS GRANTED to the extent
set forth herein.34
19. IT IS FURTHER ORDERED that a copies of this
NOTICE OF APPARENT LIABILITY shall be sent by Certified Mail
- Return Receipt Requested to Scripps Howard Broadcasting
Company, 312 Walnut Street, Cincinnati, Ohio 45202; its
counsel, Henry M. Rivera, Esquire, and Mark N. Lipp,
Esquire, Vinson & Elkins, LLP, The Willard Office Building,
1455 Pennsylvania Avenue, N.W., Washington, D.C. 20004; and
to Paul Mancino, III, Director, Legal Affairs and Senior
Corporate Counsel, Medical Mutual, 2060 East Ninth Street,
Cleveland, Ohio 44115.
FEDERAL COMMUNICATIONS COMMISSION
William H. Davenport
Chief, Investigations and Hearings
147 U.S.C. § 503(b), 47 C.F.R. § 1.80.
247 C.F.R. § 73.1206.
3See Letter from Paul Mancino, III, Director, Legal Affairs
and Senior Corporate Counsel, Medical Mutual, to Enforcement
Bureau, Federal Communications Commission, dated October 31,
2003, as corrected by letter dated November 3, 2003
4Complaint at 1.
9Id. at 2.
11See Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, to Scripps Howard
Broadcasting Company, dated June 16, 2004.
12See Letter from Henry M. Rivera, Esq. and Mark N. Lipp,
Esq., counsel for Scripps Howard, to David Brown, Esq.,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, dated July 14, 2004
13Response at 1-2.
15Id. at 2.
18Id. at 3.
20 47 C.F.R. § 73.1206.
21See 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) .
221988 Order, 3 FCC Rcd at 5463.
23Response at 2.
24Id. at 3.
25See, e.g., AT&T Wireless Services, Inc., Memorandum
Opinion and Order, 17 FCC Rcd 21866, 21871 (2002); Seawest
Yacht Brokers, Notice of Forfeiture, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., Memorandum Opinion and Order, 42 FCC 2d
258, 259 (1973); see also Mid-Missouri Broadcasting Inc.,
Notice of Apparent Liability, 19 FCC Rcd 22900 (Enf. Bur.
26See, e.g., Enforcement Bureau Field Operations List of
Actions Taken, Public Notice, 17 FCC Rcd 1599 (2002)
(listing Notice of Violation against Scripps Howard Station
WFTS-TV, Tampa, Florida for violation of Commission rule
section 17.23, 47 C.F.R. § 17.23, relating to the painting
and lighting of antenna structures).
27See Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4387-88 (1991).
28 MedMutual also complains that Scripps Howard improperly
aired a September 29, 2003, on-camera interview with Mr.
Olson to which he had consented on the condition that Mr.
Pohlman state in the telecast that Mr. Olson agreed to an
on-camera interview only after receiving written permission
from the MedMutual member discussed in the interview.
Complaint at 2. According to the Complaint, contrary to that
understanding, Scripps Howard did not air that statement
during the telecast. Scripps Howard does not respond to
this allegation. MedMutual does not allege that the
September 29, 2003, interview or its subsequent broadcast
violated the Communications Act or any Commission rule.
Accordingly, we take no action on this aspect of the
29See Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, Memorandum Opinion and Order, 12 FCC Rcd 17087,
17113 (1997), recon. denied 15 FCC Rcd 303 (1999)
(``Forfeiture Policy Statement''); 47 C.F.R. § 1.80(b).
30Id., 12 FCC Rcd at 17110.
3147 U.S.C. § 503(b).
3247 C.F.R. §§ 0.111and 1.80.
33 47 C.F.R. § 1.1914.
34 Consistent with section 503(b) of the Act and Commission
practice, for the purpose of the forfeiture proceeding
initiated by this NAL, Scripps Howard shall be the only
party to this proceeding, 47 U.S.C. § 503(b).