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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
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
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.
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
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
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.
I. ORDERING CLAUSES
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
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
$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: ARINQUIRIES@fcc.gov 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
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.
14. IT IS FURTHER ORDERED that copies of this NOTICE OF APPARENT LIABILITY
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,
FEDERAL COMMUNICATIONS COMMISSION
Benigno E. Bartolome
Acting Chief, Investigations & Hearings Division
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 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, 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