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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
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
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
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.
II. ORDERING CLAUSES
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
APPARENT LIABILITY FOR A FORFEITURE of $6,000 for
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
FEDERAL COMMUNICATIONS COMMISSION
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
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.
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.