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Federal Communications Commission
Washington, D.C. 20554
File Nos. EB-06-IH-1772 and
In the Matter of )
REJOYNETWORK, LLC )
Licensee of Station WAAW(FM), )
NAL Account No. 200932080012
Williston, South Carolina )
Facility ID No. 4094
Adopted: February 4, 2010 Released: February 4, 2010
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Forfeiture Order, we assess a monetary forfeiture in the
amount of $4,000 against Rejoynetwork, LLC ("Rejoynetwork" or the
"Licensee"), licensee of Station WAAW(FM), Williston, South Carolina
(the "Station"), for its willful and repeated violation of Section
73.1206 of the Commission's Rules. As discussed below, Rejoynetwork
violated the Commission's rules by broadcasting multiple telephone
conversations without giving prior notice to the individuals being
called of its intention to do so.
2. On October 16, 2008, the Investigations and Hearings Division of the
FCC's Enforcement Bureau (the "Bureau") issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $4,000 against
Rejoynetwork for apparently broadcasting multiple telephone
conversations without giving prior notice to the individuals being
called of its intention to do so, in violation of Section 73.1206. As
discussed in the NAL, the Commission received multiple complaints that
the Licensee broadcast telephone calls without giving the prior notice
required by Section 73.1206. The complaints allege that on March 23,
2006, between approximately 10:45 a.m. and 11:15 a.m., a Station radio
personality, Ryan B., called airport officials Raquel Oliver, Willis
M. ("Buster") Boshears, Jr., and Cedric Jerome Johnson and broadcast
each conversation on-air over the Station without first informing the
individuals being called that the conversations would be so broadcast.
3. The facts and circumstances surrounding the broadcast of the telephone
conversations are described in detail in the NAL, incorporated by
reference here, and need not be reiterated. In its NAL Response, the
Licensee did not challenge our findings in the NAL, but instead argued
that the NAL is invalid because (1) the Licensee stated that the
program host identified himself by name and said that he was calling
from the radio station when he called the airport officials and argued
that those officials could have immediately terminated the call; (2)
Section 73.1206 is an invalid and unenforceable restraint on free
speech violating the First Amendment and Section 326 of the
Communications Act of 1934, as amended (the "Act"); and (3) the
Commission has not complied with its obligations under the Small
Business Regulatory Enforcement Fairness Act of 1996 ("SBREFA"). We
reject these arguments, as explained in detail below.
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the 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
further discussed below, we have examined Rejoynetwork's response to
the NAL pursuant to the aforementioned statutory factors, our rules,
and the Forfeiture Policy Statement, and find no basis for
cancellation or reduction of the forfeiture.
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. The Licensee in the NAL Response admitted that the airport officials
were placed directly on the air but stated that the program host
identified himself by name and station and noted that either call
recipient could have terminated the call after saying "hello." This
disclosure does not satisfy the rule. Mere identification of oneself
by name and as calling from a radio station does not provide notice
that the call is being broadcast or recorded for broadcast. Further,
as we explained in the NAL, any notice Ryan B. gave on-air was given
too late since it occurred after Messrs. Boshears and Johnson began
speaking and after Ryan B. had started recording and broadcasting the
telephone conversations. Section 73.1206 clearly requires that such
notice be provided "[b]efore recording a telephone conversation for
broadcast, or broadcasting such a conversation simultaneously with its
occurrence . . . ." As we held in the NAL, the recordings themselves
demonstrate that the recipients of the call were not informed they
were being broadcast as required by the rule.
7. The Licensee next contends in the NAL Response that Section 73.1206
violates the First Amendment and Section 326 of the Act because it
restrains the exercise of free speech. In support of its position, the
Licensee argues that because Section 73.1206 restricts the manner in
which broadcast stations can conduct discussions and interviews with
public officials and members of the public it impinges on the ability
of broadcast stations to conduct discussions of public issues, so
there must be a compelling legitimate governmental interest for the
rule and the rule must be narrowly drawn. The Licensee claims that the
Commission did not establish that a legitimate and compelling
governmental interest exists for the rule's restrictions on speech or
that the rule serves a legitimate public purpose. The Licensee argues
that the context in which the telephone conversations which are the
subject of the NAL were broadcast is one especially deserving of the
fullest protections accorded by the First Amendment and Section 326 of
the Act because the Station was discharging its responsibility as a
public trustee, airing a robust and open discussion of a current
8. In enacting this rule, the Commission explicitly addressed the rule's
constitutionality and found that constitutional requirements were met.
The rule requires only that broadcasters provide prior notice to any
party to a call that they are being broadcast. The Commission found
that the prior notice requirements of Section 73.1206 "pursue a
legitimate, substantial governmental interest in protecting privacy
with respect to the broadcast use of telephone conversations and are
sufficiently narrowly drawn to achieve this purpose to pass
constitutional muster." The Commission further stated that "these
limitations are both reasonable and necessary to protect the
legitimate interests of the public in privacy in communications" and
do not infringe upon broadcasters' right to gather information
"important to their broadcast functions." Therefore, we reject the
Licensee's challenge to the rule.
9. Finally, the Licensee contends that the NAL does not comply with the
Commission's obligations under the SBREFA. The Licensee argues that
until the Commission adopts a policy or program for reducing or
waiving civil penalties for violations by small entities, the
Commission lacks the legal authority to impose penalties on small
entities, such as Rejoynetwork.
10. The SBREFA requires agencies to establish a policy providing for the
reduction and, under appropriate circumstances, the waiver of civil
penalties imposed on small entities. As part of this policy, under
appropriate circumstances, the agency may consider ability to pay in
determining penalty assessments on small entities. Such circumstances
may include, among others, violations discovered because the small
entity participated in a compliance assistance or audit program, and
good faith efforts demonstrated by the entity to comply with the law.
The Commission has held that the Commission's existing policies, as
reflected in our precedent, comply with Section 223 of the SBREFA.
Warnings, rather than forfeitures, may be appropriate for small
entities and others, and the Commission considers inability to pay a
relevant factor in assessing forfeitures. Certain factors considered
by the Enforcement Bureau to adjust forfeiture amounts encompass many
of the conditions and exclusions listed in Section 223 of the SBREFA.
The Commission has found that its existing policies apply to small
entities and therefore fulfill its requirements under the SBREFA.
Therefore the SBREFA does not prevent the Commission from imposing a
forfeiture on a small entity and application of the forfeiture policy
and procedure to Rejoynetwork satisfies the Commission's obligations
under the SBREFA.
11. Furthermore, the SBREFA provides that a small business entity may be
excluded from consideration for waiver or reduction of forfeiture if
"multiple enforcement actions" have been taken against it by an
agency. It was previously held that Frank Neely, the principal of the
Licensee, should be excluded from the SBREFA. Commission records
confirm that Frank Neely does not have a history of overall compliance
with the requirements of the Act and the Commission's Rules. Therefore
we reject the Licensee's contention that the SBREFA precludes this
forfeiture. To the extent the Licensee argued in the NAL Response that
the forfeiture should be reduced or cancelled because Rejoynetwork is
a small entity and therefore is unable to pay the forfeiture, we have
not considered a reduction or cancellation of the forfeiture due to
its inability to pay in this matter because the Licensee did not
provide the required, supporting documentation described in the NAL.
12. Having considered the record in this case, the statutory factors, and
the matters raised by the Licensee in response to the NAL, we affirm
the NAL and issue a forfeiture in the amount of $4,000.
IV. ORDERING CLAUSES
13. 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 Rejoynetwork, LLC IS LIABLE FOR
A MONETARY FORFEITURE in the amount of four thousand dollars ($4,000)
for repeated and willful violation of Section 73.1206 of the
Commission's Rules, 47 C.F.R. S: 73.1206, as described in the
paragraphs above and in the NAL.
14. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the rules within thirty (30) days of the release of
this Forfeiture Order. 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.
Rejoynetwork will also send electronic notification on the date said
payment is made to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, and
15. IT IS FURTHER ORDERED, that a copy of this FORFEITURE ORDER shall be
sent by Certified Mail, Return Receipt Requested, to Rejoynetwork, LLC
at its address of record and to its
counsel, David Tillotson, Esq., Law Office of David Tillotson, 4606
Charleston Terrace, N.W., Washington, D.C. 20007-1911.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
See 47 C.F.R. S: 73.1206. Station WAAW(FM) was licensed to Frank Neely at
the time of the violations. The licensee of the Station was later assigned
pro forma from Mr. Neely to Rejoynetwork. See FCC File No.
BAL-20080314ABZ, granted March 20, 2008 and consummated April 4, 2008.
According to that application, Mr. Neely is the sole manager and sole
member of Rejoynetwork.
See Rejoynetwork, LLC, Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 14917 (Enf. Bur., Investigations & Hearings Div. 2008) ("NAL").
See Complaint of Iain Crawford, submitted to the FCC on March 27, 2006 (IC
Number 06-WB11627850) (alleging that Ryan B. called the city administrator
and airport director on-air over the Station on March 23, 2006, and did
not inform either that they were on-air); Complaint of Willis M. Boshears,
Jr., dated March 27, 2006 (including statements from Ms. Oliver and other
persons allegedly with first-hand knowledge of Mr. Boshears' telephone
conversation with Ryan B.); Complaint of Tonya Riddle, submitted to the
FCC on March 27, 2006 (IC Number 06-WB11628201) (alleging that Ryan B.
failed to inform Mr. Boshears that the telephone conversation was being
aired live); Complaint of Cedric Jerome Johnson, dated April 20, 2006
(alleging Ryan B. failed to properly notify him and Mr. Boshears that his
telephone conversations with each of them were broadcast live); E-mails
from Iain Crawford to FCCINFO, dated Oct. 6, 2006.
See Rejoynetwork, LLC, Opposition to Notice of Apparent Liability for
Forfeiture, dated Oct. 23, 2008. On November 4, 2008, the Commission
received a Supplement to Opposition to Notice of Apparent Liability for
Forfeiture, dated Oct. 27, 2008, which included the supporting Declaration
of Frank Neely (the Opposition to Notice of Apparent Liability for
Forfeiture and Supplement to Opposition to Notice of Apparent Liability
for Forfeiture, together, will be referred to hereinafter as "NAL
See id. at 5-6.
See id. at 2-7.
See Pub. L. No. 104-121, S: 223, 110 Stat. 847, 862 (1996), 5 U.S.C. S:
601 Note (hereinafter "S: 223").
See NAL Response at 7-9.
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) ("Forfeiture Policy Statement"), recons.
denied, 15 FCC Rcd 303 (1999).
See 47 U.S.C. S: 503(b)(2)(E).
See 47 C.F.R. S: 73.1206.
See NAL Response at 5-6.
See NAL, 23 FCC Rcd at 14922, P: 10 n.48.
See NAL Response at 2-7.
See id. at 2-3 (citing Martin v. City of Struthers, 319 U.S. 141 (1943);
Thornhill v. Alabama, 310 U.S. 88 (1940); Hague v. CIO, 307 U.S. 496
See NAL Response at 4.
See id. at 5-6. The Licensee also noted that the level of possible
embarrassment in this context for an on-air radio discussion is less than
that of on-air television experience. See id. at 6-7.
See Amendment of Section 73.1206: Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5464, P: 21 (1988).
Id. at 5464, P: 24.
Id. at 5464, P: 21.
See NAL Response at 7-9.
See id. The Declaration of Frank Neely included with the NAL Response
notes that Rejoynetwork's annual revenues are below the cut-off amount for
a business to qualify as a "small business." See id. at Declaration of
See S: 223.
See Forfeiture Policy Statement, 12 FCC Rcd at 17109, P:P: 51-52. See also
U.S. v. Frank Neely, 595 F.Supp. 2d 662 (D.S.C. 2009) ("U.S. v. Frank
Neely") (finding that the FCC encompassed the spirit of the SBREFA in the
mitigation factors set out in its amended Forfeiture Policy Statement and
applied them as required to Frank Neely).
See Forfeiture Policy Statement, 12 FCC Rcd at 17102, P: 31 (stating the
Commission has broad discretion to issue warnings instead of forfeitures).
See 47 U.S.C. S: 503(b)(2)(E); 47 C.F.R. S: 1.80(b)(4).
Compare id. and Forfeiture Policy Statement with S: 223.
See Forfeiture Policy Statement, 12 FCC Rcd at 17109, P: 52.
See S: 223(b)(3) (excluding from the scope of the statute "small entities
that have been subject to multiple enforcement actions by the agency.").
See U.S. v. Frank Neely, 595 F.Supp. 2d at 670-71 (finding sufficient
grounds under Section 223(b)(3) of the SBREFA upon which to conclude that
Neely is precluded from obtaining any relief under Section 223(a) of the
See Frank Neely, Forfeiture Order, 23 FCC Rcd 11922 (Media Bur., Audio
Div. 2008) (finding Neely liable for $9,000 for repeated violation of
Section 73.3526 of the Commission's Rules); Frank Neely, Forfeiture Order,
19 FCC Rcd 16135 (Enf. Bur. 2004) (finding Neely liable for $4,000 for
repeated violation of Section 73.1745(a) of the Commission's Rules),
recons. denied, 22 FCC Rcd 1434 (Enf. Bur. 2007), aff'd in part, U.S. v.
Frank Neely, supra notes 29 and 35.
See NAL, 23 FCC Rcd at 14924-925, P: 19 (setting forth inability to pay
document submission requirements).
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: 1.80.
Federal Communications Commission DA 10-19
Federal Communications Commission DA 10-19