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

In the Matter of                  )
KOFI, Inc.                        )    File No. EB-03-IH-0742
                                 )    NAL Account No. 
Licensee of Station               )    200532080129 
KZMN(FM), Kalispell, Montana      )    FRN No. 0005072467
                                      Facility ID No. 35369


   Adopted:  March 17, 2005             Released:  March 17, 

By the Chief, Investigations and Hearings Division:


     1.   In this Notice of Apparent Liability for 
Forfeiture, 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 KOFI, 
Inc. (``KOFI''), licensee of Station KZMN(FM), Kalispell, 
Montana, apparently willfully violated section 73.1206 of 
the Commission's rules, 47 C.F.R. § 73.1206, by 
broadcasting, and recording for later broadcast, a telephone 
conversation without first informing a party to the 
conversation of its intention to do so.2  For the following 
reasons, based upon our review of the facts and 
circumstances, we find KOFI apparently liable for a 
forfeiture in the amount of $6,000.


     2.   The complainant alleges that, on November 14, 
          2003, Station KZMN(FM) broadcast, and recorded for 
          later rebroadcast, a telephone conversation 
          between her and Paul Gray, an on-air personality 
          of the station, without notifying the complainant 
          of its intention to do so.3   The complainant 
          states that she witnessed a turkey being suspended 
          from a second floor window of the station's 
          building and expressed to a coworker her concern 
          that this action was inhumane. When her coworker 
          called the station to complain, the person who 
          answered the phone transferred her call to Mr. 
          Gray, who was taking phoned-in donations for a 
          local food bank drive called ``Save the Turkey'' 
          live and over the air.  After the coworker advised 
          Mr. Gray of her unhappiness with the situation, 
          Mr. Gray asked to speak with the complainant.  He 
          explained to the complainant that the hanging 
          turkey was intended to promote the station's food 
          bank drive, told her to quit complaining and 
          directed her to listen to the station. The 
          complainant later learned that the station had 
          broadcast the conversation live and then broadcast 
          of a recording of it at a subsequent time.  She 
          states that she was neither aware of nor informed 
          that she was on the air live or that portions of 
          her conversation with Mr. Gray were being recorded 
          for later broadcast.4  

     3.   The Enforcement Bureau issued a letter of inquiry 
          to KOFI on August 25, 2004.5  In its Response, 
          KOFI admits that Station KZMN(FM) broadcast live 
          the conversation between the complainant and Mr. 
          Gray on November 14, 2003, and that portions of 
          the conversation were recorded and broadcast over 
          Station KZMN(FM) later that day.6  Although KOFI 
          states that Mr. Gray ``believed the call was from 
          a listener who wanted to make a donation,'' and 
          that all callers who participated in live 
          donations were informed that their calls would be 
          broadcast, it does not contend that it so informed 
          the complainant and admits that it did not advise 
          her that it would subsequently rebroadcast 
          portions of the recorded conversation.7  KOFI 
          states that it terminated Mr. Gray's employment 
          with the station on November 29, 2003, ``due to 
          his inappropriate actions discussing [the 
          complainant's] complaints on the air and 
          rebroadcasting a portion of her call.''8  KOFI 
          further states that the station apologized to the 
          complainant and adopted a written policy to ensure 
          compliance with the Commission's telephone 
          broadcast rules.9 


     4.   Section 73.1206 of the Commission's rules requires 
          that, before broadcasting or recording a telephone 
          conversation for later broadcast, a licensee must 
          inform any party to the call of its intention to 
          broadcast and/or record 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.  The Commission will presume such 
          awareness only where 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.''10  The purpose of section 73.1206 
          is to protect ``the legitimate expectation of 
          privacy in connection with the broadcast use of 
          telephone conversations.''11  KOFI admits that it 
          broadcast and recorded the telephone conversation 
          between Mr. Gray and the complainant on November 
          14, 2003, and that it did not inform her of its 
          intent to do so.  

     5.   KOFI states that callers donating to the food 
          drive were made aware their calls would be taken 
          live by the station announcers, and that Mr. Gray 
          believed the complainant was such a caller.12  We 
          find the statement unavailing.  The record 
          establishes that the complainant was neither aware 
          of nor informed that the conversation would be 
          aired and recorded.  We cannot presume such 
          knowledge in this case, because the complainant 
          has no association with the station and the call, 
          which was made to the station's main line, was not 
          in connection with a program in which Station 
          KZMN(FM) customarily aired telephone 
          conversations.. Thus, the limited exception to the 
          general notice requirement of section 73.1206 is 
          not applicable here. To the extent that Mr. Gray 
          assumed that the complainant knew that the call 
          would be aired, that assumption was without basis. 

     6.   Having determined that KOFI apparently willfully 
          violated section 73.1206 of the Commission's 
          rules, we turn to an analysis of whether, and to 
          what extent, we should propose a sanction in this 
          instance. The Commission's forfeiture guidelines 
          establish a base forfeiture amount of $4,000 for 
          the unauthorized broadcast of a telephone 
          conversation,13 and provide that base forfeitures 
          may be adjusted based upon consideration of the 
          factors enumerated in Section 503(b)(2)(D) of the 
          Act,14 and section 1.80(a)(4) of the Commission's 
          rules,15 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.''16  
          The record reflects that the conversation was not 
          only aired live over the station, but that Mr. 
          Gray  exacerbated the violation by rebroadcasting 
          a portion of the call on at least one occasion. 
          Based upon the facts, we believe that an upward 
          adjustment of the base forfeiture amount is 
          appropriate,17 and propose a forfeiture of $6,000.   


     7.   ACCORDINGLY, IT IS ORDERED THAT, pursuant to 
          Section 503(b) of the Communications Act of 1934, 
          as amended, KOFI, Inc. is hereby NOTIFIED of its 
          apparently willfully violating section 73.1206 of 
          the Commission's rules.  

     8.   IT IS FURTHER ORDERED THAT, pursuant to section 
          1.80 of the rules, KOFI, Inc. SHALL PAY the full 
          amount of the proposed forfeiture within thirty 
          (30) days of the release of this Notice, or SHALL 
          FILE a written statement seeking reduction or 
          cancellation of the proposed forfeiture.  

     9.   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 

     10.  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.  

     11.  The Commission will not consider reducing or 
          canceling a forfeiture in response to a claim of 
          inability to pay unless the respondent submits: 
          (1) federal tax returns for the most recent three-
          year period; (2) financial statements prepared 
          according to generally accepted accounting 
          practices (``GAAP''); or (3) some other reliable 
          and objective documentation that accurately 
          reflects the respondent's current financial 
          status.  Any claim of inability to pay must 
          specifically identify the basis for the claim by 
          reference to the financial documentation 

     12.  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. 20554.18 

     13.   IT IS FURTHER ORDERED THAT copies of this NOTICE 
          OF APPARENT LIABILITY shall be sent by Certified 
          Mail - Return Receipt Requested to KOFI, Inc., 
          P.O. Box 608, Kalispell, Montana 59903, to its 
          attorney,  Dennis F. Begley, Esquire, Reddy, 
          Begley & McCormick, LLP, 1156 15th Street, N.W., 
          Suite 610, Washington, D.C.20005-1770, and to the 


                         William H. Davenport, 
                         Chief, Investigations and Hearings 


1 47 U.S.C. § 503; 47 C.F.R. § 1.80.
2 47 C.F.R. § 73.1206.
3  See Letter  from  complainant to  the Investigations  and 
Hearings     Division,    Enforcement     Bureau,    Federal 
Communications   Commission,   dated   November   14,   2003 
4 Id.
5 See Letter from William H. Davenport, Chief, 
Investigations and Hearings Division, Enforcement Bureau, 
Federal Communications Commission to KOFI, Inc., dated 
November 25, 2004  (``LOI'').
6 See Letter from KOFI, Inc. to William H. Davenport, Chief, 
Investigations and Hearings Division, Enforcement Bureau, 
Federal Communications Commission, dated September 22, 2004 
(``Response''); Letter from KOFI, Inc. to David Brown, 
Assistant Chief, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, dated 
March 14, 2005; Email from Dennis F. Begley, Esquire to 
William D, Freedman, Deputy Chief, Investigations and 
Hearings Division, Enforcement Bureau, Federal 
Communications Commission, dated March 15, 2005.
7 Id. at 2.
8 Id..
9 Id.
10 47 C.F.R. §73.1206.
11  Amendment of  Section  73.1206:  Broadcast of  Telephone 
Conversations,  Report  and  Order,  3 FCC  Rcd  5461,  5463 
12 Response at 1.
13 47 C.F.R. §1.80(b)(4).  See also 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'').
14 47 U.S.C. §503(b)(2)(D).
15 47 C.F.R. §1.80(a)(4).
16 47 C.F.R. §1.80(b)(4) note.  See also Forfeiture Policy 
Statement at 17100-01.
17  See,  Scripps  Howard Broadcasting  Company,  Notice  of 
Apparent Liability  for Forfeiture,  DA 05-60 (Inv.  & Hrng. 
Div., rel. January 13, 2005).
18 47 C.F.R. § 1.1914.