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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No. EB-05-IH-2006
RCK 1 Group, LLC NAL Account No. 200732080020
Licensee of Station WKKX(AM) Facility ID No. 72172
Wheeling, West Virginia FRN No. 0011339769
Adopted: February 17, 2009 Released: February 17, 2009
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Forfeiture Order, we assess a $3,200 forfeiture against RCK 1
Group, LLC (the "Licensee"), licensee of Station WKKX(AM), Wheeling,
West Virginia (the "Station"), for willfully violating Section 73.1206
of the Commission's rules, by broadcasting a live telephone
conversation without giving prior notice to the individual being
called of the Licensee's intention to do so.
2. As discussed in detail in the Notice of Apparent Liability for
Forfeiture ("NAL") issued in this case, the Commission received a
complaint that the Licensee violated Section 73.1206 by calling the
Complainant's home and broadcasting the call without giving the prior
notice required by that rule. In response to a Commission inquiry
regarding the allegations, the Licensee admitted that Mr. Blomquist, a
morning show host, initiated the alleged phone call as part of a talk
show segment titled "Wake Your Lazy Carcass Up," whereby the Station
randomly selects individuals from a telephone directory and calls them
with the opportunity to answer trivia questions to win prizes. Mr.
Blomquist stated that he first spoke to the Complainant's wife and
told her that she was "live on the radio" and asked "could I speak
with [Complainant]?" Mr. Blomquist further asserts that when the
Complainant picked up the phone, Mr. Blomquist said "Good morning.
You're live on the radio with the BloomDaddy Experience," after which
the Complainant promptly hung up the phone. The Licensee further
states that Mr. Blomquist advised both the Complainant and his wife
that they were live on the radio and, at most, each said "hello" and
the Complainant's wife also said "hold on."
3. As a result of the Licensee's admissions, the NAL proposed a $4,000
forfeiture. In response to the NAL, the Licensee filed a "Petition for
Reduction or Cancellation of Proposed Forfeiture Adopted and Released
March 6, 2007" ("Petition"). In its Petition, the Licensee seeks
reduction or cancellation of the proposed forfeiture in light of its
record of compliance, the nature of the violation, and the corrective
steps taken to insure its future compliance with the Commission's
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act, Section 1.80 of the
Commission's Rules, and the Commission's forfeiture guidelines set
forth in its Forfeiture Policy Statement. In assessing forfeitures,
Section 503(b) of the Act requires that we take into account the
nature, circumstances, extent, and gravity of the violation, and with
respect to the violator, the degree of culpability, any history of
prior offenses, ability to pay, and other matters as justice may
require. As discussed further below, we have examined RCK 1 Group,
LLC's response to the NAL pursuant to the aforementioned statutory
factors, our rules, and the Forfeiture Policy Statement, and find no
basis for cancellation of the forfeiture. We find, however, that a
reduction of the forfeiture amount from $4,000 to $3,200 based on RCK
1 Group, LLC's prior history of compliance with the Commission's
rules, and in view of the particular circumstances of this case, is
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 its
intention to broadcast 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."
6. As set forth in the NAL, the NAL was issued in part because the
Licensee admitted that its customary practice on the morning show was
to select a telephone number at random, call that number, and notify
the person answering the telephone that he or she was "live on the
radio with the BloomDaddy Experience" after the broadcast had begun.
The Licensee does not dispute that this conduct constituted a rule
violation because the notice required by Section 73.1206 must be given
prior to the call being placed on the air, but nevertheless seeks
reduction or cancellation of the forfeiture.
7. With respect to the forfeiture amount, the Licensee seeks a reduction
based on its record of compliance with the Commission's rules. Because
of the Licensee's record of compliance, we will make an appropriate
reduction. The Licensee also seeks a reduction because of the nature
of the violation in question, namely that the circumstances were not
offensive. We considered the nature and circumstances of the violation
in proposing a $4,000 forfeiture in the NAL, and the Licensee has
offered no new or previously undisclosed information relating to the
nature and circumstances of the violation warranting a reduction.
Despite the Licensee's assertion that the Complainant's wife said
"hold on," in apparent acquiescence to participation in the call being
broadcast, the rule does not require consent; it requires prior
8. Finally, the Licensee has submitted affidavits relating to corrective
measures it has undertaken to ensure future compliance with the Rule.
While these measures are commendable, the Commission has repeatedly
found that corrective measures taken after the Commission commences an
investigation do not nullify or reduce liability for forfeitures.
9. The Commission's forfeiture guidelines establish a base forfeiture
amount of $4,000 for the unauthorized broadcast of a telephone
conversation. Having considered the record in this case, the statutory
factors, and the matters raised by the Licensee in response to the
NAL, we find that the Licensee is apparently liable for a forfeiture
in the amount of $3,200.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, Section 1.80 of the
Commission's rules, and authority delegated by Sections 0.111 and
0.311 of the Commission's Rules, that RCK 1 Group, LLC IS LIABLE FOR A
MONETARY FROFEITURE in the amount of three thousand two hundred
dollars ($3,200) for willful violation of Section 73.1206 of the
Commission's rules, 47 C.F.R. S: 73.1206, as described in the
11. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Commission's rules, 47 C.F.R. S: 1.80, within
thirty (30) days of the release date of this Order. If the forfeiture
is not paid within the period specified, the case may be referred to
the Department of Justice for collection pursuant to Section 504(a) of
the Act. 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). RCK1Group will also
send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Rebecca.Hirselj@fcc.gov and
William.Knowles-Kellett@fcc.gov. 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.
12. IT IS FURTHER ORDERED, that a copy of this FORFEITURE ORDER shall be
sent by Certified Mail, Return Receipt Requested, and regular mail, to
the Licensee at its address of record and Robert P. Fitzsimmons, Esq.,
Fitzsimmons Law Offices, 1609 Warwood Ave., Wheeling, West Virginia
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
See 47 C.F.R. S: 73.1206.
See RCK 1 Group, LLC, Notice of Apparent Liability for Forfeiture, 22 FCC
Rcd 4507 (Enf. Bur., Investigations and Hearings Div., 2007) ("NAL"); see
also Complaint filed by David Delk ("Complainant") to the Consumer and
Governmental Affairs Bureau, Federal Communications Commission ("FCC"),
received September 8, 2005.
See Response to Complaint dated February 17, 2006 (the "LOI Response"), at
Id. at Blomquist Affidavit ("Blomquist Aff.") P: 12.
See id. at 4 & Blomquist Aff. P: 14.
See Petition for Reduction or Cancellation of Proposed Forfeiture Adopted
and Released March 6, 2007, filed March 21, 2007 ("Petition").
See id. at 1-3.
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80.
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 (1997), recons. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
See 47 U.S.C. S: 503(b)(2)(E).
See 47 C.F.R. S: 73.1206.
See NAL, 22 FCC Rcd at 4509 P: 7; see also LOI Response at Blomquist Aff.
See Petition at 2.
See id. at 1.
See id. at 2.
See 47 C.F.R. S: 73.1206.
See Petition at Exhibits 1 and 2.
See AT&T Wireless Services, Inc., Forfeiture Order, 17 FCC Rcd 21866,
21875 P:P: 26-28 (2002); Seawest Yacht Brokers, Notice of Forfeiture, 9
FCC Rcd 6099, 6099 P: 7 (1994); TCI Cablevision of Maryland, Inc.,
Memorandum Opinion and Order, 7 FCC Rcd 6013, 6014 P: 8 (1992); Miami
Radio, Inc., Memorandum Opinion and Order, 45 FCC 2d 612 P: 4 (1974);
Executive Broadcasting Corp., Memorandum Opinion and Order, 3 FCC 2d 699
P: 6 (1966); see also Johannus Orgebouw B.V. The Netherlands, Forfeiture
Order, 19 FCC Rcd 7196, 7198-99 P: 9 (Enf. Bur. 2004).
See Forfeiture Policy Statement, supra; 47 C.F.R. S:1.80.
See 47 U.S.C. S: 503(b); 47 C.F.R. S:S: 1.80, 0.111, 0.311, 73.1206.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA-09-252
Federal Communications Commission DA-09-252