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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File Number: EB-06-IH-2519
Cumulus Licensing LLC )
NAL/Acct. No.: 200932080002
Licensee of Station WTWR-FM (Luna )
Pier, MI) FRN #: 0002834810
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 18, 2009 Released: February 18, 2009
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
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"), we find that Cumulus Licensing LLC ("Cumulus" or
the "Licensee"), Licensee of Station WTWR-FM, Luna Pier, Michigan (the
"Station"), apparently willfully violated Section 73.1206 of the
Commission's Rules by recording for broadcast a live telephone
conversation without giving prior notice to the recipient of the call
of the Licensee's intention to do so. Based on a review of the facts
and circumstances, we find the Licensee apparently liable for a
forfeiture in the amount of $6,000.
2. We received a complaint (the "Complaint") from the owner of Tony's
Restaurant and Pub (the "Complainant"), alleging that, on June 13,
2006, personnel from the Station called the restaurant in light of
media coverage relating to football player Ben Roethlisberger's injury
in a motorcycle accident. The Complaint alleges that Station personnel
spoke with the restaurant's employee about the restaurant's "Big Ben"
burger, asked whether the restaurant would continue to offer the
burger in light of the recent accident, and joked about ways to serve
the burger. The Complainant alleges that Station personnel did not
identify the call as originating from a morning radio show, and that
the Station broadcast the conversation over the air on June 13 and 14,
2006, without consent from the employee or the restaurant.
3. The Enforcement Bureau issued a letter of inquiry ("LOI") to Cumulus
on August 23, 2006. In its LOI Response ("Response"), Cumulus admits
that its producer and on-air personality, Mr. John DiModica, initiated
the call, but denies that it recorded the conversation for broadcast
and broadcast the call without obtaining consent. Cumulus asserts that
Station personnel obtained consent from the restaurant's employee
after initiating the call but before the content of the conversation
was broadcast. Cumulus submitted a sworn declaration from Mr. DiModica
and an archival recording of the conversation to support this
assertion. According to Cumulus, the conversation, broadcast on June
13, 2006, at approximately 8:00 a.m., proceeded as follows:
Employee: Tony's Restaurant, may I help you?
Mr. DiModica: Good morning how are you today?
Mr. DiModica: You're on the air at Tower 98.3 Is that ok?
Mr. DiModica: Got a question for you. Don't you guys feature the Big Ben
Employee: Yes we do.
Mr. DiModica: Ok now, here's a question. Do you guys continue the burger
after y'know the whole incident yesterday?
Mr. DiModica: Do you guys put the burger in a like a blender and mix it up
like a smoothie now and serve it with a straw? So you can suck it down
Employee: Not hardly.
Mr. DiModica: Is there any teeth on that burger?
Employee: Yes there is.
Mr. DiModica: Is there?
Mr. DiModica: When the burger comes does it have a top bun on it or does
he forget to put the bun on it?
Employee: I really don't find this funny.
Mr. DiModica: Or does the burger come out really bloody?
Employee: (hang up)
Cumulus asserts that this practice does not violate Section 73.1206 by
"recording a telephone conversation for broadcast" or broadcasting a
telephone conversation "simultaneously with its occurrence," because the
Station uses a digital delay system, which "dumps" the content of the
conversation if the call recipient objects to broadcast of the
conversation, and broadcasts the call on a 10-second delayed basis if the
Station obtains consent. Further, Cumulus maintains that the use of the
digital delay system itself does not constitute a "recording."
4. Section 503(b)(1) of the Communications Act of 1934, as amended,
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. The term
"willful" as used in Section 503(b)(1) has been interpreted to mean
simply that the acts or omissions are committed knowingly. The term
"repeated" means that the action was committed or omitted more than
once, or lasts more than one day. As set forth in greater detail
below, we conclude under this standard that the Licensee is apparently
liable for a forfeiture for its apparent willful violation of Section
73.1206 of the Commission's Rules.
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. Section 73.1206 reflects the Commission's longstanding policy that
prior notification is essential to protect individuals' legitimate
expectation of privacy, as well as to preserve their dignity by
avoiding nonconsensual broadcasts of their conversations. The
Commission specifically favored an individual's privacy interest when
balancing it against a broadcaster's interest in enhancing program
appeal with increased spontaneity and entertainment value using
telephone conversations. The Commission found that such enhancement
was not sufficiently critical as to justify intruding on individual
privacy. The Commission has held that the prior notification
requirement ensures the protection of an individual's "right to answer
the telephone without having [his or her] voice or statements
transmitted to the public by a broadcast station" live or by recording
for delayed airing. Consistent with this reasoning, the Commission has
defined "conversations" broadly "to include any word or words spoken
during the telephone call," and specifically has rejected arguments
that "utterances made by parties called in answering the phone" are
not subject to the rule's prior notification requirement. Thus, aside
from the narrowly-tailored exceptions noted above, neither of which is
applicable here, before any portion of a telephone conversation is
recorded for later broadcast or before any portion of a telephone
conversation is initiated for simultaneous broadcast, the licensee
must inform the other party that the conversation will be recorded for
broadcast purposes or will be broadcast live, as the case may be. As
the facts reflect, Cumulus violated Section 73.1206 because it failed
to comply with this notice requirement.
7. While the recording and transcript of the call in Cumulus's employee's
sworn declaration support Cumulus's assertion that it obtained
permission before broadcasting the telephone conversation between its
employee and the call recipient, Cumulus clearly did not obtain such
consent before it began recording, or as Cumulus puts it, before it
began to "capture a called party's words temporarily . . . . " Cumulus
asserts, however, that use of a digital delay device, which provides
for a delay in the broadcast of a telephone conversation sufficient to
let Cumulus decide whether to "dump" the data before broadcast of the
call if consent to broadcast is not obtained or proceed with a
broadcast on a delayed basis if consent is obtained, does not
constitute recording. On this point, Cumulus contends that its
assertion is supported by the Bureau's decision in Infinity
Broadcasting Corporation of Washington, D.C., in which the Bureau
cancelled a proposed forfeiture against Infinity Broadcasting even
though Infinity, in using a digital delay device, did not notify the
complainant therein of Infinity's intention to broadcast the
conversation before the conversation to be broadcast began. Cumulus
misconstrues the Bureau's decisions in Infinity Broadcasting
Corporation of Washington, D.C. Although the Bureau ultimately
cancelled the proposed forfeiture against Infinity, it did so in order
to reconcile prior rulings specifically against Infinity, but it did
not overrule the underlying decision -- which fit squarely in this
case -- that Infinity's procedures failed to comply with Section
8. In the Notice of Apparent Liability in Infinity Broadcasting
Corporation of Washington, D.C., issued on March 8, 2000, the
Enforcement Bureau rejected the same arguments raised here by Cumulus.
Infinity asserted that its use of a digital delay device afforded
called parties the opportunity to consent or decline to have their
voices broadcast by providing for a delay between the call and the
broadcast of it, with station employees using the machine's "DUMP"
function to erase content if the consent to broadcast is not obtained.
Infinity contended that the delay device prevented Infinity from
simultaneously broadcasting any conversation simultaneously with its
occurrence. Infinity claimed that it did not "record" conversations by
using the digital delay device, relying on a dictionary definition of
"record" to assert that the digital delay device did not record
because it did not permanently preserve the material. The Bureau
rejected all of these arguments, finding that Infinity violated
Section 73.1206 -- independent of whether the use of a digital audio
delay device could be used to facilitate compliance with the rule or
whether such a device could be construed as not technically recording
-- because it never told the complainant that it was using a digital
audio delay device or that the device had the capability to prevent
her voice from being transmitted over the air. As the Enforcement
Bureau found, Infinity simply told the complainant that she was on the
air live without any opportunity for the complainant to decline having
her voice recorded or broadcast. The Enforcement Bureau also rejected
Infinity's arguments that it had not violated the rule because the
broadcast was neither "simultaneous" nor "recorded" because Infinity
itself had stated that the conversation was "live." The Bureau
reminded Infinity of the Commission's prior statements about the rule,
which is appropriate to reiterate here:
We remind all licensees that Section 73.1206 of our rules requires that
before a telephone conversation is recorded for later broadcast or is
begun for simultaneous broadcast, the licensee must inform the other party
that the conversation will be recorded for later broadcast or is begun for
simultaneous broadcast, the licensee must inform the other party that the
conversation will be recorded for broadcast purposes or will be broadcast
live, as the case may be. The recording of such conversation with the
intention of informing the other party later - whether during the
conversation or after it is completed before it is broadcast - does not
comport with the Rule if the conversation is recorded for possible
broadcast. Likewise, the initiation of a live broadcast of conversation
with the intention of seeking the other party's permission for its
broadcast sometime during the conversation, does not constitute
9. On April 10, 2000, Infinity filed a response to the Notice of Apparent
Liability and maintained that it did not violate the rule. The Bureau
rejected Infinity's arguments on reconsideration and, thereafter, issued
the resulting Forfeiture Order, for $4,000, against Infinity on May 17,
2000. On November 13, 2001, in a Memorandum Opinion and Order, the
Enforcement Bureau cancelled the $4,000 forfeiture imposed against
Infinity after consideration of Infinity's argument that the forfeiture
should be cancelled because it relied on prior decisions that, although
none of the prior decisions explicitly discussed or endorsed the delay
devices used by Infinity, led it to believe that its use of digital delay
devices ensured compliance with the rule. In the Memorandum Opinion and
Order, the Enforcement Bureau found that in three Mass Media Bureau
decisions cited by Infinity, the Mass Media Bureau had twice decided to
take no action because of conflicting stories about the broadcasts, and a
third time, issued a forfeiture premised on the broadcast of a portion of
the conversation that had occurred after the on-air broadcasters told the
complainant that she was on hold. These decisions "persuad[ed the
Enforcement Bureau] that Infinity could have reasonably believed that, at
the least, the Commission's staff had tacitly approved its procedures for
broadcasting telephone conversations. Thus, as applied to Infinity, [the
Bureau] believe[d] the rule was not sufficiently clear to justify a
forfeiture." The Enforcement Bureau also noted that Infinity planned to
file a request for declaratory ruling on the issue of whether a radio
station's use of a digital delay device, coupled with delivery of a
specified notice to the called party during the period of the digital
delay, was compliant with Section 73.1206, and that Infinity stated it
would implement steps in the production process to ensure that the show
would not contain the called party's voice until the called party was
provided notice of intent to broadcast. Accordingly, the Enforcement
Bureau granted Infinity's request for further reconsideration and
cancelled the forfeiture as to Infinity, but the Bureau was careful to
preserve its previous finding that Infinity's procedures were not in
accord with the rule's requirements. Therefore, contrary to Cumulus's
assertion, the Enforcement Bureau did not vacate the original substantive
findings in its Notice of Apparent Liability and Forfeiture Order in
Infinity Broadcasting Corporation of Washington, D.C., which are still
valid and not overruled, and serves as appropriate notice to Cumulus of
the requirements of the rule and appropriate precedent to guide our
decision in this case.
10. Based upon the evidence before us, we find that Cumulus apparently
willfully violated Section 73.1206 of the Commission's rules. The
Commission's forfeiture guidelines establish a base forfeiture amount of
$4,000 for the unauthorized broadcast of a telephone conversation. In
addition, the Commission's rules provide that base forfeitures 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."
Cumulus has previously been found to violate Section 73.1206. Having
considered the record in this case and the statutory factors, we find that
Cumulus is apparently liable for a forfeiture in the amount of $6,000.
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, 0.314
and 1.80 of the Commission's rules, that Cumulus Licensing LLC is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
$6,000 for violating Section 73.1206 of the Commission's rules.
12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules that within thirty (30) days of the release date of this Notice,
Cumulus Licensing LLC SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of the
13. 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. Cumulus Licensing LLC will also
send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov,
14. The response, if any, shall be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W, Room 4-C330, Washington
D.C. 20554, and 20554 and SHALL INCLUDE the NAL/Acct. No. referenced
above. The Licensee shall also, to the extent practicable, transmit a copy
of the response via e-mail to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov, and
15. 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.
16. IT IS FURTHER ORDERED, that the Complaint filed by the owner of Tony's
Restaurant and Pub IS GRANTED to the extent indicated herein and IS
OTHERWISE DENIED, and the Complaint proceeding IS HEREBY TERMINATED.
17. IT IS FURTHER ORDERED, that a copy of this NOTICE OF APPARENT
LIABILITY shall be sent, by Certified Mail/Return Receipt Requested, to
Cumulus Licensing LLC at its address of record and to its counsel, Lewis
J. Paper and Gregory D. Kwan, Dickstein Shapiro LLP, 1825 Eye Street NW,
Washington, DC 200006-5403.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 73.1206.
See Complaint from Owner of Tony's Restaurant & Pub, to the Federal
Communications Commission, received July 5, 2006.
See id. at 1. The Complaint alleges that the on-air personality inquired
about whether the restaurant planned to serve the burger as "a smoothie,"
"bloody," or "without a top bun" since the football player wasn't wearing
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission
to Cumulus Licensing LLC, dated August 23, 2006 ("LOI").
See Letter from Cumulus Licensing, LLC, to Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, dated
September 22, 2006 ("Response").
See id. at 2. As shown in the transcript of the call, cited infra, the
producer and on-air personality of its show began his call, already being
captured by the digital delay device, by telling the restaurant employee:
"You're on the air at Tower 98.3. Is that ok?" According to Cumulus, the
restaurant employee then consented, and then the rest of the conversation
took place. Since the broadcast occurred on a delayed basis, Cumulus
asserts, the Station broadcast the conversation after obtaining consent.
See id. at Declaration of John DiModica, Producer and On-Air Personality
for WTWR-FM, at 2-3. Although it was afforded the opportunity, the
Complainant did not reply to Cumulus's Response, thus this transcript,
supported by the recording, will be treated as an accurate representation
of the conversation for the purpose of this proceeding.
See id. (citing 47 C.F.R. S: 73.1206).
See id. at 2, 4.
See id. at 2.
See 47 U.S.C. S: 503(b)(1).
Section 312(f)(1) of the Communications Act, or 1934, as amended, 47
U.S.C. S: 312(f)(1), which applies to violations for which forfeitures are
assessed under Section 503(b) of the Act, provides that "[t]he term
'willful', when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of such
act, irrespective of any intent to violate any provision of this Act or
any rule or regulation of the Commission authorized by this Act...." See
Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC
Rcd 4387 (1991).
See Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of Apparent
Liability, 16 FCC Rcd 1359, 1362 (2001).
See 47 C.F.R. S: 73.1206.
See Amendment of Section 1206: Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5463-64 (1988) ("1988 Order re the
Broadcast of Telephone Conversations"); Station-Initiated Telephone Calls
Which Fail to Comply With Section 73.1206 of the Rules, Public Notice, 35
FCC 2d 940, 941 (1972); Amendment of Part 73 of the Commission's Rules and
Regulations with Respect to the Broadcast of Telephone Conversations,
Report and Order, 23 FCC 2d 1, 2 (1970); see also WXJD Licensing, Inc.,
Forfeiture Order, 19 FCC Rcd 22445 (Enf. Bur. 2004) (issuing forfeiture
for failure to obtain consent before recording telephone conversation for
broadcast; forfeiture paid).
See 1988 Order re the Broadcast of Telephone Conversations, 3 FCC Rcd
See id. at 5463.
See Heftel Broadcasting-Contemporary, Inc., 52 FCC 2d 1005, 1006 (1975)
(holding that "conversation" was defined for the purpose of Section
73.1206 as including any word or words spoken during the telephone call
and imposing $2,000 forfeiture for failure to provide notice and obtain
consent prior to recording any conversation).
See Response at 4.
See id. at 2, 4.
See id. at 2 (citing Infinity Broadcasting Corporation of Washington,
D.C., Forfeiture Order, 15 FCC Rcd 10387 (Enf. Bur. 2000), recons.
granted, Memorandum Opinion and Order, 16 FCC Rcd 20156 (Enf. Bur. 2001)).
See Infinity Broadcasting Corporation of Washington, D.C., Notice of
Apparent Liability for Forfeiture, 15 FCC Rcd 12391 (Enf. Bur. 2000),
affirmed, 15 FCC Rcd 10387 (Enf. Bur. 2000) ("Infinity Broadcasting
Forfeiture Order"), recons. granted, Memorandum Opinion and Order, 16 FCC
Rcd 20156 (Enf. Bur. 2001) ("Infinity Broadcasting MO&O").
See id. at 12392.
See id. at 12393.
Id. (citing Station-Initiated Telephone Calls Which Fail to Comply with
Section 73.1206 of the Rules, 24 RR 2d 1814 (1972).
See Infinity Broadcasting Forfeiture Order, supra note 28.
See Infinity Broadcasting MO&O, 16 FCC Rcd 20156.
See id. at 20157 (citing Letter from Norman Goldstein to Bernard A.
Solnik, Esq., Case No. 02120518 (Mass Media Bur. March 25, 1996); Letter
from Norman Goldstein to Kenneth C. Stevens, Esq., Case Nos. 96010161 and
96040220) Mass Media Bur. June 4, 1996); Infinity Broadcasting Corp. of
Washington, D.C., 14 FCC Rcd 5539 (Mass Media Bur. 1999)).
See id. at 20157 (emphasis added).
See id. ("Thus, as applied to Infinity, we believe the rule was not
sufficiently clear to justify a forfeiture.")
The Commission and its components have not used the terms "cancel" and
"vacate" synonymously with respect to forfeitures. Compare Tri-Valley
Broadcasters, Inc., Memorandum Opinion and Order and Notice of Forfeiture,
12 FCC Rcd. 9938 (1997) (vacating a previously imposed forfeiture due to
lack of consideration of a filed pleading and reissuing forfeiture after
consideration of pleading) with Blackstone Calling Card, Inc., Memorandum
Opinion and Order, 22 FCC Rcd 13031 (Enf. Bur. 2007) (cancelling
forfeiture due to additional information indicating that the company was
not a telecommunications carrier at the time of the alleged violation).
See also Emmis Communications Corp., Order, 19 FCC Rcd. 16003, 16007
(2004) (agreeing that the Commission will "rescind, vacate, and cancel the
MO&O and the Forfeiture Orders" subject to a Consent Decree between the
Commission and the licensee) (emphasis added) (subsequent history
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, 17115 (1997), recons. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement"); 47 C.F.R. S:1.80.
See 47 U.S.C. S: 503(b)(2)(D).
47 C.F.R. S: 1.80(a)(4).
See Cumulus Licensing Corp., Notice of Apparent Liability for Forfeiture,
19 FCC Rcd 2753 (Enf. Bur. 2004) (imposing $4,000 forfeiture for Cumulus's
broadcasting of call between its station personnel and that of a rival
station's without obtaining consent to broadcast such call, in apparent
violation of Section 73.1206 of the Commission's Rules; NAL paid).
See Clear Channel Broadcasting Licenses, Notice of Apparent Liability, 17
FCC Rcd 5893, 5894 (Enf. Bur. 2002) (imposing $6,000 forfeiture for
violation of Section 73.1206 based on licensee's prior history of
violating that rule; NAL paid). See also authorities cited, supra, notes
21 and 47.
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1206.
See 47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
For purposes of this forfeiture proceeding initiated by this NAL, Cumulus
Licensing LLC shall be the only party to this proceeding.
(Continued from previous page)
Federal Communications Commission DA 09-255
Federal Communications Commission DA 09-255