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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                  )   File No. EB-02-IH-0624-GC   
     Infinity Radio Operations, Inc.   )   NAL/Acct. No. 200332080020  
     Licensee of Station WBLK(FM),     )   FRN 0004036711              
     Buffalo, New York                 )   Facility ID # 71215         

                                ORDER ON REVIEW

   Adopted:  May 17, 2007   Released:  May 24, 2007

   By the Commission:


    1. In this Order on Review, we grant in part and deny in part an
       Application for Review filed by Infinity Radio Operations, Inc.
       ("Infinity"). On August 12, 2004, the Enforcement Bureau ("Bureau")
       imposed a $4,000 forfeiture on Infinity for violating section 73.1206
       of the Commission's rules by broadcasting a telephone conversation
       without first informing the other party to the conversation of its
       intent to do so. The Bureau denied Infinity's Petition for
       Reconsideration, and the present Application challenges that
       Reconsideration Order. We reject Infinity's contention that the
       forfeiture should be cancelled or reduced because the Bureau referred
       to an unpaid, non-final forfeiture order against another Infinity
       affiliate in a prior proceeding to rebut Infinity's claim that this
       was an isolated incident. We grant in part, however, Infinity's
       request to cancel or reduce the forfeiture because of its
       pre-investigation corrective measures and reduce the forfeiture to


    2. Infinity, licensee of Station WBLK(FM), Buffalo, New York, admits that
       on June 26, 2002, WBLK(FM) broadcast a telephone conversation between
       one of its on-air personalities, Shae Moore, and Brenda Tanner, while
       the latter was working as a telephone customer service representative
       of Adelphia Communications, Inc., without informing her of the intent
       to broadcast the conversation. In imposing the base forfeiture amount
       for this admitted violation, the Bureau cited another forfeiture
       order, issued for Infinity's violation of section 73.1206 in a
       previous proceeding concerning a different Infinity station, to rebut
       Infinity's claim in the present proceeding that this was an isolated
       incident. The previous forfeiture order has not been paid or finally
       adjudicated in district court, and Infinity now argues that the
       Bureau's use here of the underlying facts from that prior proceeding
       violates section 504(c) of the Communications Act of 1934, as amended
       ("the Act"). In particular, Infinity notes that the applicable
       five-year statute of limitations on enforcement of that prior
       forfeiture order pursuant to section 504(a) of the Act has now expired
       and that the Bureau's subsequent use of those underlying facts in the
       present proceeding, without Infinity's having had a fair hearing to
       litigate them, undermines the effect of the limitations provision.

    3. Infinity also disputes the Bureau's rejection of its claim that the
       forfeiture amount should be reduced or cancelled because the Bureau
       failed to take into account Infinity's good faith efforts to comply
       both before and after the broadcast call. Infinity cites several other
       cases in which it claims that the Bureau has granted such relief under
       similar circumstances and argues that the Bureau must explain this
       disparate treatment.


   A.  Infinity Violated the Telephone Broadcast Rule

    4. The facts of this case are undisputed. By Infinity's own admission,
       Shae Moore, a WBLK(FM) personality, broadcast a telephone conversation
       with Brenda Tanner, an Adelphia customer service representative,
       without first notifying Ms. Tanner of her intention to broadcast the
       conversation. According to Ms. Tanner's complaint, which Infinity does
       not dispute, Ms. Moore posed as an Adelphia customer and did not
       reveal that the conversation would be on the air. She began the
       conversation by asking if Adelphia, which had recently declared
       bankruptcy, really was bankrupt. When Ms. Tanner confirmed the
       bankruptcy, Ms. Moore then asked several times if she still had to pay
       her cable bill. Ms. Tanner repeatedly told Ms. Moore that she had to
       do so, and referred her to Adelphia's web site and another phone
       number. Ms. Moore then asked if she could "bootleg" cable, to which
       Ms. Tanner reminded Ms. Moore that such behavior was illegal. Ms.
       Moore then asked Ms. Tanner if she was going to lose her job, and
       laughed when Ms. Tanner said she hoped not. At that point, Ms. Tanner
       told Ms. Moore that unless she had any real cable questions, she would
       end the call. After Ms. Moore continued in this vein, Ms. Tanner hung
       up the call. A few minutes later, Ms. Tanner received a call from an
       off-duty co-worker, who told her that her conversation with Ms. Moore
       was on the air.

    5. According to Infinity, the station suspended Ms. Moore without pay. It
       also reiterated its written policy to all station employees against
       airing or recording telephone conversations without permission.

   B.  The Forfeiture Order Did Not Violate Section  504(c) or the Statute of

    6. Rather than disputing whether it violated the telephone broadcast
       rule, Infinity focuses on the propriety of the forfeiture in this
       case. In issuing the forfeiture, the Bureau noted that this incident
       was not the first Infinity violation of the telephone broadcast rule.
       In imposing the base forfeiture amount of $4,000 for violation of
       section 73.1206, the Bureau rejected Infinity's prior claim that the
       broadcast was an "isolated incident" by citing another proceeding, EZ
       Sacramento, in which the Commission assessed a forfeiture against
       another Infinity affiliate for similar conduct in violation of section
       73.1206. Infinity  now argues, as it did in the Petition for
       Reconsideration, that the Forfeiture Order should be reversed and the
       forfeiture cancelled or reduced because the Bureau's reference in the
       Forfeiture Order to EZ Sacramento, which forfeiture has neither been
       paid nor finally adjudicated by a court, violates section 504(c) of
       the Act. Section 504(c) provides:

   In any case where the Commission issues a notice of apparent liability
   looking toward the imposition of a forfeiture under this Act, that fact
   shall not be used, in any other proceeding before the Commission, to the
   prejudice of the person to whom such notice was issued, unless (i) the
   forfeiture has been paid, or (ii) a court of competent jurisdiction has
   ordered payment of such forfeiture, and such order has become final.

    7. In the Reconsideration Order, the Bureau rejected Infinity's similar
       section 504(c) argument because the reference to EZ Sacramento was
       only to the underlying facts of similar conduct to assess Infinity's
       claim of no prior offenses, rather than for the existence of the
       contested notice of apparent liability as such. The Bureau noted that
       this practice was specifically held permissible in a rulemaking
       proceeding on that very issue and was consistent with Congressional
       intent as reflected in the legislative history of section 504(c).
       Referring to the rulemaking, the Bureau observed that the main policy
       reason for section 504(c) was to ensure that no party would be
       penalized for challenging an NAL rather than paying it. Accordingly,
       the Bureau stated, the facts underlying the prior order remain
       available for other appropriate purposes, such as to resolve whether
       the licensee is engaging in a pattern of non-compliant behavior.

    8. In the Application, Infinity now contends that the Bureau's
       interpretation in the Reconsideration Order is inconsistent with the
       plain language of section 504(c) because the statute makes no
       distinction between use of the facts underlying an NAL and use of the
       existence of the NAL per se. Infinity claims that in the face of this
       explicit language, arguments concerning legislative intent cannot
       trump the plain language of the statute.

    9. We reject Infinity's argument that the plain language of section
       504(c) unambiguously excludes use of the facts underlying a previous
       unpaid, unadjudicated forfeiture order. The statute states that where
       the Commission has issued an NAL, "that fact shall not be used in any
       other [Commission] proceeding. . ." to the party's prejudice unless it
       has been paid or become final. The provision's specific reference to
       "that fact," i.e., the NAL's issuance, indicates that it is the
       existence of the NAL per se that may not be used. There is nothing in
       the statutory language indicating that the facts underlying the NAL
       cannot be used in another Commission proceeding. Moreover, this
       reading of the statute is confirmed by explicit language in the Senate

   [Section 504(c)] is not intended to mean that the facts upon which a
   notice of forfeiture liability against a licensee is based cannot be
   considered by the Commission in connection with an application for renewal
   of a license, for example, or with respect to the imposition of other
   sanctions authorized by the Communications Act of 1934 . . . .

   Accordingly, we find that the language and intent of section 504(c)
   permits use of the underlying facts from a previous, non-final NAL--that
   has not been paid or finally adjudicated in district court--in a
   subsequent Commission proceeding.

   10. Infinity asserts a second argument that, notwithstanding its clear
       violation of the telephone broadcast rule, it should not be subject to
       forfeiture. It argues in its Application that the Reconsideration
       Order undermines the five-year statute of limitations that would be
       applicable to any section 504(a) final enforcement action for the EZ
       Sacramento  forfeiture because that period has already expired. It
       argues that allowing the Government an opportunity to litigate those
       facts would render the statute of limitations for enforcement of the
       EZ Sacramento  forfeiture meaningless.

   11. Contrary to Infinity's argument, the reference to EZ Sacramento in
       this case does not render the statute of limitations for enforcement
       of the EZ Sacramento forfeiture meaningless. As the Commission
       explained in Eastern Broadcasting Corp, citing the Supreme Court's
       decision in Machinists Local v. NLRB, we may consider facts that occur
       outside the statute of limitations to determine the "degree of
       culpability" of a violator for violations that occurred within the
       statute of limitations because such facts "shed light on the true
       character of matters occurring within the [statute of] limitations
       period." In Machinists Local, the Court made clear, in a similar
       context, that a statute of limitations period barred only the use of
       facts occurring outside the statute of limitation period when such
       facts were necessary to show that a violation occurred within the
       limitations period. That is clearly not the case here. In this case,
       reference to the prior violation was not necessary to establish that
       Infinity violated Section 73.1206 of our rules on June 26, 2002,
       because that violation was willful. Thus, a forfeiture is appropriate
       even if this was an isolated rather than repeated incident. Moreover,
       the $4,000 forfeiture imposed here was the base forfeiture amount, and
       was not increased as a result of the prior incident. The
       Reconsideration Order  noted that the Forfeiture Order had  referenced
       EZ Sacramento  only to rebut Infinity's assertion that the forfeiture
       should be reduced because of its history of compliance.

   12. In sum, we conclude that Section 504(c) of the Act permits reference
       to the facts underlying a prior unpaid, unadjudicated NAL in a
       subsequent Commission proceeding. Moreover, we conclude that the
       reference to those facts in the present case does not undermine the
       statute of limitations applicable to a section 504(a) enforcement
       action in the first proceeding or create unfairness in this

   C.  Reduction of the Forfeiture for Infinity's Pre-Investigative Remedial

   13. Finally, Infinity claims that we should reduce or eliminate the
       forfeiture based on its good faith efforts to comply with the
       telephone broadcast rule. Throughout this proceeding, Infinity has
       represented that: (1) the actions of its disc jockey, Ms. Moore, were
       inconsistent with its written policy; and (2) after the incident, it
       took disciplinary action against her and distributed a memo to all of
       its WBLK(FM) on-air personalities reiterating that policy.
       Accordingly, Infinity has maintained that the Bureau should have
       cancelled or reduced the forfeiture because it has done so for good
       faith efforts to comply in several other comparable cases. Moreover,
       in reliance on Melody Music v. FCC, Infinity has argued that the
       Commission must explain this disparate treatment of similarly situated

   14. In the Reconsideration Order, the Bureau rejected this argument,
       stating that, unlike Infinity, the cited licensees had undertaken
       substantial steps to comply with various technical broadcasting
       requirements before actually being notified of a possible violation.
       Moreover, the Bureau noted that the Commission has consistently
       refused to consider post-investigation remedial measures. Finally, the
       Bureau stated that Melody Music  involved disparate treatment between
       parties that were far more similarly situated with each other than
       Infinity is with these cited licensees.

   15. Infinity now argues in its Application that the fact that the other
       comparable decisions involved technical regulations is irrelevant and
       that regulations with public safety implications are, if anything,
       more serious. Moreover, Infinity notes that two of these cases
       concerned good faith measures taken after the inspections that
       uncovered the violations and two others concerned such measures before
       an inspection. Infinity emphasizes that, contrary to the Bureau's
       statement, it took disciplinary action and distributed the memo the
       day immediately after the broadcast, which was well before the first
       actual notice of an investigation by receipt of the Bureau's Letter of
       Inquiry over a month later. Furthermore, Infinity states for the first
       time that in addition to having a written policy, it made the
       requirements of section 73.1206 very clear to its on-air personnel
       long before the incident. Infinity argues that the Bureau has not
       explained what more substantial steps it could have taken.

   16. We find that Infinity is correct that its disciplinary action and memo
       occurred before notice of an investigation. Although corrective
       measures before the licensee is notified of an investigation are not
       necessarily sufficient to avoid enforcement action, we find that,
       under the circumstances presented here, such measures present a
       mitigating factor. On the other hand, Infinity's pre-investigative
       remedial measures cannot undo the damage to Ms. Tanner's legitimate
       expectation of privacy that section 73.1206 was meant to protect.
       Weighing all these circumstances under the standards of section
       503(b)(2)(D) of the Act, we reduce the $4,000 base forfeiture to
       $3,000 for Infinity's remedial measures taken prior to learning of
       this investigation.


   17. Accordingly, IT IS ORDERED THAT the Application for Review filed on
       March 28, 2005 by Infinity Radio Operations, Inc. IS GRANTED to the
       extent discussed above and is otherwise DENIED.

   18. IT IS FURTHER ORDERED THAT a copy of this Order on Review shall be
       sent by Certified Mail Return Receipt Requested to Stephen A.
       Hildebrandt, Vice President, Infinity Radio

   Operations, Inc., 14 Lafayette Square, Suite 1300, Buffalo, New York
   142203, with a copy to its counsel, attn: Robert-Paul Sagner, Leventhal,
   Senter & Lerman PLLC, 2000 K Street N.W., Washington, D.C. 20006-1890.


   Marlene H. Dortch


   Infinity Radio Operations, Inc., Application for Review, filed on March
   28, 2005 ("Application").

   47 C.F.R. S 73.1206.

   See Infinity Radio Operations, Inc. (WBLK(FM)), Forfeiture Order, 19 FCC
   Rcd 15460 (Enf. Bur. 2004) ("Forfeiture Order"); see also Infinity Radio
   Operations, Inc. (WBLK(FM)), Notice of Apparent Liability for Forfeiture,
   18 FCC Rcd 16191 (Enf. Bur. 2003) ("NAL").

   Infinity Radio Operations, Inc. (WBLK(FM)), Order on Reconsideration, 20
   FCC Rcd 4028 (Enf. Bur. 2005) ("Reconsideration Order").

   Application at 2. See also NAL, 18 FCC Rcd at 16191, P 2.

   47 U.S.C S 504(c). Section 504(c) generally prohibits use of the fact that
   the Commission has issued a notice of apparent liability for forfeiture
   (NAL) in another Commission proceeding to the detriment of the person to
   whom the notice was issued, unless that NAL has either been paid or
   finally adjudicated in a district court trial de novo.

   47 U.S.C S 504(a). Section 504(a) provides that recovery of a forfeiture
   under the Act shall be by trial de novo in a civil suit in United States
   district court.

   EZ Sacramento, Inc., Memorandum Opinion and Order, 16 FCC Rcd 4958 (2001)
   (denying application for review of denial of petitions for reconsideration
   of forfeiture orders) ("EZ Sacramento"); recon. dismissed, 16 FCC Rcd
   15605 (2001).

   Forfeiture Order, 18 FCC Rcd at 15461, PP 5-6.

   Infinity Radio Operations, Inc., Petition for Reconsideration, filed on
   September 13, 2004 ("Reconsideration Petition"), at 3-6.

   Application at 4-7 (citing 47 U.S.C. S 504(c)).

   Reconsideration Order, 20 FCC Rcd at 4030-31, PP 7-8. In its
   Reconsideration Petition, Infinity had argued that the distinction between
   use of the NAL per se and use of the NAL's underlying facts was
   meaningless because they both have "the same punitive effect." See
   Reconsideration Order, 20 FCC Rcd at 4030, PP 6-7.

   See The Commission's Forfeiture Policy Statement and Amendment of Section
   1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
   Order, 12 FCC Rcd 17087, 17102-04, PP 32-36 (1997); on recon., 15 FCC Rcd
   303, 303-05, PP 3-5 (1999) ("Forfeiture Policy Statement Reconsideration

   Reconsideration Order, 20 FCC Rcd at 4030-31, P 8 (citing 106 Cong. Rec.
   17623 (Aug. 25, 1960); S. Rep. No. 1857, 86^th Cong., 2d Sess. at 10-11
   (1960)). We note that Infinity had adequate opportunity to address this
   issue and did so. Forfeiture Policy Statement Report and Order, 12 FCC Rcd
   at 17102, P 32 (1997).

   Id., 20 FCC Rcd at 4030, P 7 (citing Forfeiture Policy Statement
   Reconsideration Order, 15 FCC Rcd at 304, P 3).

   Application  at 5-6.

   Id. at 5 (citing Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (in
   determining whether the term "employee" in a Title VII action includes
   former employees, the inquiry must cease if the statutory language is
   unambiguous and the statutory scheme is coherent and consistent)).

   47 U.S.C S 504(c) (emphasis supplied).

   See note 14, supra. In the Reconsideration Order, the Bureau found that
   Infinity's Reconsideration Petition had misleadingly quoted another, more
   general excerpt from the Senate Report that merely tracked the language of
   the statute, while ignoring this relatively specific excerpt. See
   Reconsideration Order, 20 FCC Rcd at 4030-31, PP 7-8.

   Application at 5-7 (citing Action for Children's Television v. FCC, 59
   F.3d 1249, 1254 (D.C. Cir. 1995) (the general five-year period of
   limitations on forfeiture proceedings in 28 U.S.C. S 2462 governs section
   504(a) enforcement actions)).

   Application  at 5-6.

   Eastern Broadcasting Corp., 10 FCC 2d 37, 38 at P 3 (1967), citing
   Machinists Local v. NLRB, 362 U.S. 411 (1960).

   Machinists Local, 362 U.S. at 416 (finding that the NLRB could not find an
   unfair labor practice when "conduct occurring with the limitations period
   can be charged to be an unfair labor practice only through reliance on an
   earlier unfair labor practice" occurring outside the limitations period.).

   See 47 U.S.C. S 503(b)(1)(B) (forfeiture penalty may be imposed for rule
   violations that are willful or repeated).

   See Reconsideration Order, 20 FCC Rcd at 4028-29, P 2. Section 1.80 of the
   Commission's rules states that, in assessing forfeitures, the Commission
   may consider prior violations of FCC rules and the licensee's history of
   overall compliance as upward and downward adjustment criteria,
   respectively. 47 C.F.R. S 1.80.

   See, e.g., Reconsideration Petition at 2, 6-7.

   Id. at 6-7 (citing American Family Association, Inc., Memorandum Opinion
   and Order, 18 FCC Rcd 16530 (Enf. Bur. 2003) (forfeiture for failure to
   maintain local public inspection file cancelled for good faith efforts to
   comply because the documents were unfiled but at least present at the site
   before inspection and notification of a possible violation) ("American
   Family"); Capstar Radio Operating Company, Forfeiture Order, 19 FCC Rcd
   15374 (Enf. Bur. 2004) (forfeiture for failure to display antenna
   registration reduced for good faith efforts to comply after inspection,
   but before notification of a possible violation) ("Capstar"); Forrester,
   et al., Forfeiture Order, 19 FCC Rcd 11030 (Enf. Bur. 2004) (forfeiture
   for failure to enclose antenna tower with fence reduced for good faith
   efforts to comply because fence was completed soon after inspection, but
   before notification of a possible violation) ("Forrester"); Aracelis
   Ortiz, Executrix for the Estate of Carlos Ortiz, Forfeiture Order, 19 FCC
   Rcd 2632 (Enf. Bur. 2004) (forfeitures for failure to maintain EAS system
   and studio in locale reduced for good faith efforts to comply because
   steps had been undertaken before inspection and notification of a possible
   violation) ("Ortiz")).

   Id. at 7 (citing Melody Music, Inc. v. Federal Communications Commission,
   345 F.2d 730, 732 (D.C. Cir. 1965) ("Melody Music")).

   Reconsideration Order, 20 FCC Rcd at 4032, P 12 and notes 24 & 26 (citing,
   inter alia, the cases in note 27, supra).

   Id. (citing, e.g., Mid-Missouri Broadcasting, Inc., Notice of Apparent
   Liability for Forfeiture, 19 FCC Rcd 22900 (Enf. Bur. 2004) (regarding
   prank call by on air-radio personality to crisis hotline without prior
   notification of intent to broadcast, Bureau proposed base forfeiture
   amount for section 73.1206 violation notwithstanding licensee's claim that
   this was an "isolated incident" and that it had taken remedial measures
   approximately two weeks after the incident, but before the Bureau notified
   it of a possible violation well over a year after the incident)

   Id. at P 13.

   Application at 7-10 (citing Capstar; Forrester; Ortiz; American Family).

   Id. at 8-9.

   Id. at 9.

   See Infinity Radio Operations, Inc., Response to Notice of Apparent
   Liability, filed on September 4, 2003, at 2.

   See Mid-Missouri, 19 FCC Rcd at 22902-03, P 8.

   See Amendment of Section 1206: Broadcast of Telephone Conversations,
   Report and Order, 3 FCC Rcd 5461, 5463-64 (1988).

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

   (...continued from previous page)


   Federal Communications Commission FCC 07-93


   Federal Communications Commission FCC 07-93