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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                 )   File No. EB-07-IH-8314        
     Courier Communications Corp.     )   NAL Account No. 200832080009  
     Licensee of Station              )   FRN No. 0009758095            
     WNOV(AM), Milwaukee, Wisconsin   )   Facility ID No. 36069         


   Adopted: February  20, 2008 Released: February 20, 2008

   By the Acting 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, we find that
   Courier Communications Corp. ("Courier" or the "Licensee"), Licensee of
   Station WNOV(AM), Milwaukee, Wisconsin (the "Station"), apparently
   willfully violated Section 73.1206 of the Commission's rules by
   broadcasting a telephone conversation without first informing the other
   party to the conversation of its intention to do so. Based on our review
   of the facts and circumstances, we find Courier apparently liable for a
   forfeiture in the amount of $4,000.

   II. background

    2. The Commission received a complaint (the "Complaint") from Mr. Keith
       Conrad alleging that, on February 23, 2007, the Station called his
       mobile phone and played his voicemail greeting over the air without
       permission. After reviewing the Complaint, we issued a letter of
       inquiry (the "LOI") to the Licensee, asking whether the Station
       broadcast the voicemail message of Mr. Conrad on or about February 23,
       2007. We directed the Licensee to provide tapes and transcripts of any
       such broadcasts, and instructed the Licensee to serve a copy of its
       response to the LOI ("LOI Response") on the Complainant.

    3. In its December 3, 2007 LOI Response, the Licensee states that it did
       not provide the programming on the day of the alleged violation, but
       that it had a verbal contract with an on-air personality, Michael
       McGee, Sr., who aired his show, "Word Warriors," on the day of the
       alleged violation. The Licensee further states that "[a]ll programming
       decisions were made by McGee" and that it was during this program that
       "McGee, or his guest, made a call to Conrad on February 23, 2007 . . .
       . without the knowledge or consent of Courier." The Licensee does not
       deny that part of the voicemail greeting was broadcast over the air,
       but states that it "did not know of, and did not approve of, the
       actions taken solely by McGee," who, it asserts, was an independent
       contractor. Courier adds that it ran its standard disclaimer informing
       listeners that the opinions expressed during the program were those of
       the host, not the Station.


    4. Under Section 503(b)(1) of the Act, any person who is determined by
       the Commission to have willfully or repeatedly failed to comply with
       any provision of the Act or any rule, regulation, or order issued by
       the Commission shall be liable to the United States for a forfeiture
       penalty. Section 312(f)(1) of the Act defines willful as "the
       conscious and deliberate commission or omission of [any] act,
       irrespective of any intent to violate" the law. The legislative
       history to Section 312(f)(1) of the Act clarifies that this definition
       of willful applies to both Sections 312 and 503(b) of the Act, and the
       Commission has so interpreted the term in the Section 503(b) context.
       The Commission may also assess a forfeiture for violations that are
       merely repeated, and not willful.  "Repeated" means that the act was
       committed or omitted more than once, or lasts more than one day. In
       order to impose such a penalty, the Commission must issue a notice of
       apparent liability, the notice must be received, and the person
       against whom the notice has been issued must have an opportunity to
       show, in writing, why no such penalty should be imposed. The
       Commission will then issue a forfeiture if it finds, by a
       preponderance of the evidence, that the person has willfully or
       repeatedly violated the Act or a Commission rule. As described in
       greater detail below, we conclude under this procedure that Courier is
       apparently liable for a forfeiture in the amount of $4,000 for its
       apparent willful failure to comply with the Commission's telephone
       broadcast requirements.

    5. 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 the
       licensee's intention to broadcast 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 purpose of Section 73.1206 is to protect "the
       legitimate expectation of privacy in connection with the broadcast use
       of telephone conversations." The Enforcement Bureau has specifically
       found that a recorded answering machine message is a conversation
       within the meaning of this rule and that airing such messages without
       permission is a violation. In this case, the Station does not deny
       that the material telephone call, and possibly part of a voicemail
       greeting, was broadcast over the air. Instead, the Licensee disclaims
       responsibility for the broadcast, stating that all programming
       decisions were made by McGee, and it did not know or approve of the
       telephone call.

    6. The Commission has long held that licensees are responsible for the
       programming aired on their stations and for violations of Commission
       rules by employees or independent contractors. Courier concedes that
       it had a contract with Mr. McGee, as an independent contractor, to
       appear on the Station as part of his "Word Warriors" program. Thus,
       defenses offered by the Licensee that Courier did not know of the
       telephone call, that the programming decisions were made by Mr. McGee,
       and that the Station ran its standard disclaimer prior to the
       broadcast, are all unavailing. As a result, we find that the Licensee
       apparently violated Section 73.1206 by allowing the Complainant's
       voicemail greeting to be aired over the Station without first
       obtaining his consent.

    7. Pursuant to the Commission's Forfeiture Policy Statement and Section
       1.80 of the rules, the base forfeiture amount for the unauthorized
       broadcast of a telephone conversation is $ 4,000. The Forfeiture
       Policy Statement and Section 1.80 provide that a base forfeiture may
       be adjusted based upon consideration of the factors enumerated in
       Section 503(b)(2)(D) of the Act and Section 1.80(a)(4) of the
       Commission's rules, 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." Based upon our review of all the pertinent
       factors as required by Section 503(b)(2)(D) of the Act, the Forfeiture
       Policy Statement, and Section 1.80, we conclude that Courier is
       apparently liable for a forfeiture in the amount of $ 4,000 for
       violating Section 73.1206 of the Commission's rules.


    8. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.311, and
       1.80 of the Commission's rules Courier Communications Corp. is hereby
       $4,000 for willfully violating Section 73.1206 of the Commission's

    9. IT IS FURTHER ORDERED  that, pursuant to Section 1.80 of the
       Commission's rules within thirty (30) days of the release of this
       Notice, Courier Communications Corp. SHALL PAY the full amount of the
       proposed forfeiture or SHALL FILE a written statement seeking
       reduction or cancellation of the proposed forfeiture.

   10. 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/Account Number and FRN Number referenced
       above. Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
       Payment by overnight mail may be sent to U.S. Bank - Government
       Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
       63101. Payment by wire transfer may be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and account number 27000001. For payment by
       credit card, an FCC Form 159 (Remittance Advice) must be submitted.
        When completing the FCC Form 159, enter the NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to:  Chief Financial Officer -
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C.  20554.  Please contact the Financial Operations Group Help Desk
       at 1-877-480-3201 or Email: with any questions
       regarding payment procedures.

   11. The response, if any, must be mailed to Benigno E. Bartolome, Acting
       Chief, Investigations and Hearings Division, Enforcement Bureau,
       Federal Communications Commission, 445 12th Street, S.W., Room 4-A465,
       Washington, D.C. 20554 and MUST INCLUDE the NAL/Account Number
       referenced above.

   12. 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 submitted.

   13. IT IS FURTHER ORDERED that the complaint filed by Keith Conrad IS
       GRANTED to the extent indicated herein and IS OTHERWISE DENIED, and
       the complaint proceeding IS HEREBY TERMINATED.

       SHALL BE SENT by Certified Mail - Return Receipt Requested to M.
       Gustave Pick, Gatzke & Ruppelt, S.C., counsel to Courier
       Communications Corp., 15730 W. National Avenue, New Berlin, Wisconsin
       53151, and to Mr. Keith Conrad, 5119 Brookwood Valley Circle, Atlanta,
       Georgia 30309.


   Benigno E. Bartolome

   Acting Chief, Investigations & Hearings Division

   Enforcement Bureau

   See 47 U.S.C. S: 503.

   See 47 C.F.R. S: 1.80.

   See 47 C.F.R. S: 73.1206.

   See Complaint of Keith Conrad, submitted to the FCC on March 1, 2007 (IC
   Number 07-WB12797335). A second complaint regarding the same alleged
   violation was filed by another party with the Commission on March 5, 2007
   (IC Number 07-WB12800011).

   See Complaint.

   See Letter from Jennifer Lewis Hershman, Assistant Chief, Investigations
   and Hearings Division, Enforcement Bureau, Federal Communications
   Commission to Courier Communications Corp., dated November 8, 2007 (the

   See id. at 4-6. Mr. Conrad did not file a response.

   See Letter from M. Gustave Pick, Counsel to Courier Communications Corp.
   to Guy Benson, Attorney, Investigations and Hearings Division, Enforcement
   Bureau, Federal Communications Commission, dated December 3, 2007 ("LOI

   Id at 2.



   See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).

   47 U.S.C. S: 312(f)(1).

   See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

   See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
   Order, 6 FCC Rcd 4387, 4388 (1991).

   See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
   Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P: 10
   (2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
   for, inter alia, a cable television operator's repeated signal leakage).

   See Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.

   See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).

   See, e.g., SBC Communications, Inc.,  Forfeiture Order, 17 FCC Rcd 7589,
   7591 P: 4 (2002) (forfeiture paid).

   See 47 C.F.R. S: 73.1206.

   Amendment of Section 73.1206: Broadcast of Telephone Conversations, Report
   and Order, 3 FCC Rcd 5461, 5463 (1988).

   See AMFM Radio Licenses,  Notice of Apparent Liability For Forfeiture, 17
   FCC Rcd 5032 P: 6 (Enf. Bur. 2002) (finding that a right to answer without
   having one's voice transmitted to the public exists irrespective of
   whether the voice is live or is lifted from an answering machine); NOE
   Corp., LLC, Forfeiture Order, 20 FCC Rcd 12339 (Enf. Bur., Investigations
   & Hearings Div. 2007) (finding that an answering machine message
   constituted a conversation protected under Section 73.1206).

   See LOI Response at 2.

   See id.

   See, e.g., Complaints Against Various Television Licensees Concerning
   Their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show, 
   21 FCC Rcd 2760, 2772 P: 23 (2006), Recons. Denied, 21 FCC Rcd 6653 (2006)
   (broadcast licensees' responsibility for programming may not be
   delegated); Yale Broadcasting Co. v. FCC, 478 F.2d 594 (D.C. Cir.), cert.
   denied, 414 U.S. 914 (1973) (affirmed action of Commission reminding
   broadcast licensees of their duty to have knowledge of the content of
   their programming); Wagenvoord Broadcasting Co., 35 FCC 2d 361 (1972)
   (reliance on independent contractor does not absolve licensee of
   responsibility for compliance with Commission rules); Eure Family Ltd.
   Partnership, 17 FCC Rcd 7042, 7044 P: 7 (Enf. Bur. 2002) ("[I]t is a basic
   tenet of agency law that the actions of an employee or contractor are
   imputed to the employer and `the Commission has consistently refused to
   excuse licensees from forfeiture penalties where actions of employees or
   independent contractors have resulted in violations.'"). Id.

   See 47 C.F.R S: 73.1206.

   See 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), recons. denied, 15 FCC Rcd 303
   (1999) ("Forfeiture Policy Statement").

   47 C.F.R. S: 1.80.

   47 U.S.C. S: 503(b)(2)(D); 47 C.F.R. S: 1.80(b)(4).

   See 47. U.S.C. S: 503(b).

   See 47 C.F.R. S: 73.1206.

   Federal Communications Commission DA-08-262


   Federal Communications Commission DA-08-262