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                         Before the
              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 
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 
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.

II.     BACKGROUND

     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, 
2003.10  

     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 
isolated incident.19

III.     DISCUSSION

     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 
airing.22  

     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 
this instance.

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 
Commission's rules.  

     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 
forfeiture.

     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 
1165259.

     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 
                         Division
                         Enforcement Bureau
                           

_________________________

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 
(``Complaint'').

4Complaint at 1.

5Id.

6Id.

7Id.

8Id.

9Id. at 2.

10Id. 

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 
("Response").

13Response at 1-2.

14Id.
 
15Id. at 2.

16Id.

17Id.

18Id. at 3.

19Id.

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. 
2004).
 
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 
Complaint. 

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).