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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of              )                                
                                       File Number: EB-07-IH-8320   
     WSKQ Licensing, Inc.          )                                
                                       NAL/Acct. No.: 201032080016  
     Licensee of Station WSKQ-FM   )                                
                                       FRN #: 0004976882            
     New York, New York            )                                


   Adopted: February 4, 2010 Released: February 4, 2010

   By the Chief, Investigations and Hearings Division, Enforcement Bureau:


    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we assess
       a monetary forfeiture in the amount of $16,000 against WSKQ Licensing,
       Inc. ("WSKQ Licensing" or the "Licensee"), licensee of WSKQ-FM, New
       York, New York, for its apparent willful and repeated violation of
       Section 73.1206 of the Commission's Rules. As discussed below, we find
       that WSKQ Licensing apparently violated the telephone broadcast rule
       by broadcasting a telephone conversation without giving prior notice
       to the individual being called of its intention to do so.


    2. The Enforcement Bureau ("Bureau") received a complaint (the
       "Complaint") alleging that on August 23, 2007, a Station employee made
       a call to a woman (the "Call Recipient") claiming to be an employee of
       a local hospital and told her that her husband had been seriously
       injured in a motorcycle accident and that he died at the hospital. The
       Complaint also alleges that the Call Recipient became distraught when
       she received this information. Thereafter, the Station employee
       informed her that the call was a "joke."

    3. The Bureau issued a letter of inquiry ("LOI") to WSKQ Licensing on
       September 25, 2008, regarding the complaint at issue. In its LOI
       Response ("Response"), WSKQ Licensing states that its parent company,
       Spanish Broadcasting System, Inc., contracted with a vendor, "Rubin
       Ithier," who recorded the call for a prank call feature show.  The
       Licensee admits that Ithier initiated the call broadcast by the
       Station, that the call was made at the call recipient's husband's
       request, and that Ithier performed the prank. In its LOI Response, the
       Licensee further admits that Mr. Ithier did not inform the call
       recipient that the call was being recorded for later broadcast until
       after the call had been recorded and played over the air. The licensee
       provided a transcript of the program, the content of which confirms
       that the call recipient was not given notice prior to the call being
       recorded that it was being recorded for future broadcast. The Licensee
       admits that the Station broadcast the call twice on August 23, 2007.

    4. The Licensee included a recording and transcript of the broadcast of
       the call which included, in pertinent part, the following:

   Mr. Ithier: Can I speak with Ms. Juliana please?

   Call Recipient: Who is this?

   Mr. Ithier: The Doctor Raymond Martinez, I'm just calling from [bleeped


   Call Recipient: Aha? Yes Juliana

   Mr. Ithier: Do you know anybody with the name Luis, Luis Miguel?

   Call Recipient: Yes

                                   * * * * *

   Mr. Ithier: OK, this person had an accident in mid afternoon.

   Call Recipient: OK

   Mr. Ithier: on a motorcycle.

   Call Recipient: How is he? How is he?

   Mr. Ithier: He cannot move his hands, he can't move his arms, he suffered

   he was not wearing his helmet. He suffered, a, a on his neck.

   Call Recipient: Aha

   Mr. Ithier: And, he can't yet but the problem is that we need a blood

   Call Recipient: A blood transfusion?

   Mr. Ithier: Yes, he needs blood because it is possible that he might even
   loose his

   sight, he is not a complete vegetable but we need a blood transfusion.

   Call Recipient: Oh my God! OK, OK. Uhmm! Who am I speaking to?

   Mr. Ithier: Raymond Martinez.

                                   * * * * *

   [The Call Recipient hands over the phone to a friend who proceeds to ask
   Mr. Ithier additional questions.]

   Mr. Ithier: Right now he is on the operation table, because, on his neck
   he suffered a fracture, very serious.

   Call Recipient's Friend: OK, but he is stable?

   Mr. Ithier: No, I don't think so. I don't think he'll make it. I don't
   think he'll make

   it. Can I speak with Julian, Juliana please? I feel like you, you are

   interrogating me or something like that.

   Call Recipient's Friend: No, it's that she is not well and doesn't know
   how to explain what they

   told her about Luis. That's why I wanted to call.

   Mr. Ithier: Give me a second, give me a second, here comes the doctor, one

   hold on one second. Yeah doctor, what happened? On no, do I have to

   say that? No, no, no, ay.

   Call Recipient's Friend: Yeah?

   Mr. Ithier: Oh my God! He died. I'm so sorry. Too late!

   Call Recipient's Friend: Excuse me?

   Mr. Ithier: He died, he died already. That's what the doctor just told me
   now. So if

   you want to stop by here to pick up or identify the body or something.

   Call Recipient: (can be heard crying in the background)

                                   * * * * *

   [Call Recipient's Friend then hands over the phone to the Call Recipient]

   Call Recipient: Hello?

   Mr. Ithier: Juliana, oh, oh I'm so sorry he just died right now.

   Call Recipient: (crying)

   Mr. Ithier: I will, Juliana I want to ask you something. Just two or three

   please. I can't hear you.

   Call Recipient: What?

   Mr. Ithier: So this is for when you come here you don't have to ask too

   questions when you identify him.

   Call Recipient: No, no, I'm going over there right now.

   Mr. Ithier: OK, ah, Juliana?

   Call Recipient: Yes

   Mr. Ithier: OK, you listen to El Vacilon de la Manana?

   (Ithier's cohort): Ayh No!

   Call Recipient: Yes

   Mr. Ithier: Well this was a joke mami. He is alive and kicking.

   Call Recipient: Your [bleeped out] kidding me! (and then hangs up)

   Mr. Ithier: Hello? Why are people always hanging up on me?

   The Transcript indicates that the Call Recipient hung up the phone when
   she learned that the call was a prank, and that Mr. Ithier telephoned her
   again to obtain her permission to broadcast the call.


    5. 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 WSKQ
       Licensing is apparently liable for a forfeiture in the amount of
       $16,000 for its apparent willful and repeated violation of Section

    6. 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."

    7. Section 73.1206 reflects the Commission's longstanding policy that
       prior notification is essential to protect individuals' legitimate
       expectation of privacy and 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.

    8. As the record reflects, WSKQ Licensing failed to comply with the
       notice requirement required by Section 73.1206. WSKQ Licensing asserts
       that its independent contractor obtained the call recipient's
       permission to broadcast the call before the Station broadcast it, but
       acknowledges that such permission was requested after the telephone
       conversation had been recorded. The failure to inform the call
       recipient prior to recording the call that it was intended for
       broadcast is a violation of Section 73.1206. Here the transcript and
       the Licensee's admissions establish that the independent contractor,
       based on its contract with the Licensee and without prior notice to
       the call recipient, proceeded to record the conversation with the
       recipient. This is the type of behavior - entertainment at the expense
       of an individual's right to privacy - that Section 73.1206 was enacted
       to sanction. 

    9. We further find - contrary to WSKQ Licensing's contention - that the
       call's origination and recording by an independent contractor, rather
       than the Licensee itself, does not exculpate the Licensee from
       liability. The "Commission has long held that licensees and other
       Commission regulatees are responsible for the acts and omissions of
       their employees and independent contractors," and the Commission has
       "consistently refused to excuse licensees from forfeiture penalties
       where actions of employees or independent contractors have resulted in
       violations." Nothing in the record here suggests that this precedent
       does not or should not apply. Rather, the independent contractor had a
       contract to provide prank call feature programming, suggesting that
       the independent contractor was acting pursuant to a regular and
       ongoing agreement condoning the type of practice for which we find the
       Licensee apparently liable here. For the foregoing reasons, we find
       that the Licensee apparently willfully and repeatedly violated Section

   10. 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)(E) 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." In another case involving the
       same licensee, we proposed a $16,000 forfeiture for very similar
       conduct. The events underlying that proceeding occurred
       contemporaneously with the events in this case. Given those facts, and
       given that we issued our earlier NAL well after the events of this
       case, we find that $16,000 is also an appropriate forfeiture here.
       Accordingly, having considered the record in this case and the
       statutory factors identified above, we find that WSKQ Licensing is
       apparently liable for a forfeiture in the amount of $16,000. Although
       we exercise discretion in this instance in not imposing a higher
       forfeiture, we warn the Licensee that future violations of this nature
       may result in harsher enforcement action, including license revocation


   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 WSKQ Licensing, Inc. is
       amount of sixteen thousand dollars ($16,000) for apparently willfully
       and repeatedly 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 NAL,
       WSKQ Licensing, Inc., SHALL PAY the full amount of the proposed
       forfeiture or SHALL FILE a written statement seeking reduction or
       cancellation of the proposed forfeiture.

   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: with any questions
       regarding payment procedures. WSKQ Licensing, Inc. will also send
       electronic notification on the date said payment is made to,,

   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 MUST INCLUDE the NAL/Account Number
       referenced above. To the extent practicable, any response should also
       be sent by e-mail to,, 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 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 NAL shall be sent, by
       Certified Mail/Return Receipt Requested, to WSKQ Licensing, Inc. at
       its address of record and to its counsel, Bruce A. Eisen, Kaye Scholer
       LLP, 901 Fifteenth Street, N.W., Washington, D.C. 20005.


   Hillary S. DeNigro

   Chief, Investigations and Hearings Division

   Enforcement Bureau

   See 47 C.F.R. S: 73.1206 (the "telephone broadcast rule").

   See Complaint to Federal Communications Commission, dated August 23, 2007
   ("Complaint"). Because the complainant has not authorized disclosure, the
   complainant's identity will remain anonymous.

   See Complaint at 1. See paragraph 4, infra (excerpt of transcript of prank


   See Letter from Rebecca Hirselj, Assistant Chief, Investigations and
   Hearings Division, Enforcement Bureau, Federal Communications Commission
   to WSKQ Licensing, Inc., dated September 25, 2008 ("LOI").

   See Letter from Bruce A. Eisen, counsel for WSKQ Licensing, In., to
   Marlene Dortch, Secretary, Federal Communications Commission, dated
   October 27, 2008 ("LOI Response").

   See id. at 1-2 & Translation at 4-5.

   See id. at 3, Declaration at 1 & Translation at 6.

   See id.

   See id. at 4.

   See id. at Translation of the August 23, 2007 call. A transcript in
   Spanish and an English Translation were provided.

   See id.

   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).

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

   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.


   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 WXDJ Licensing, Inc.,
   Forfeiture Order, 19 FCC Rcd 22445 (Enf. Bur. 2004) (assessing a
   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 at

   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 LOI Response at 3-4.

   See supra paragraph 4.

   See supra note 26.

   See KOFI, Inc., Forfeiture Order, 20 FCC Rcd 17886, 17888 (Enf. Bur.,
   Investigations & Hearings Div. 2005) (holding that liability on employee
   or independent contractor's part does not excuse licensee from liability
   for violating telephone broadcast rule and assessing $4,000 forfeiture;
   forfeiture paid).

   Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
   21861, 21863-864 (2002). Accord MTD, Inc., Memorandum Opinion and Order, 6
   FCC Rcd 34 (1991) (holding that a company's reliance on an independent
   contractor to construct a tower in compliance with FCC rules does not
   excuse that company from a forfeiture); Wagenvoord Broadcasting Co.,
   Memorandum Opinion and Order, 35 FCC 2d 361 (1972) (holding a licensee
   responsible for violations of FCC rules despite its reliance on a
   consulting engineer); Petracom of Joplin, L.L.C., Forfeiture Order, 19 FCC
   Rcd 6248 (Enf. Bur. 2004) (holding a licensee liable for its employee's
   failure to conduct weekly EAS tests and to maintain the "issues/programs"

   American Paging, Inc. of Virginia, Notice of Apparent Liability for
   Forfeiture, 12 FCC Rcd 10417, 10420 (WTB 1997) (quoting Triad Broadcasting
   Company, Inc., 96 FCC 2d 1235, 1244 (1984)).

   See LOI Response at 2-3.

   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)(E).

   47 C.F.R. S: 1.80(a)(4).

   See WSKQ Licensing, Inc., Notice of Apparent Liability for Forfeiture, 23
   FCC Rcd 14933 (Enf. Bur., Investigations & Hearings Div. 2008) (imposing a
   $16,000 forfeiture against the Licensee for violation of the telephone
   broadcast rule) (forfeiture paid). See also WXDJ Licensing, Inc., Notice
   of Apparent Liability, 19 FCC Rcd at 22447 (imposing a $3,500 forfeiture
   against the Licensee for violating telephone broadcast rule) (forfeiture
   paid); WCMQ Licensing, Inc., Notice of Apparent Liability, 15 FCC Rcd 8111
   (Enf. Bur. 2000) (forfeiture paid).

   The conduct at issue in the WSKQ NAL occurred 35 days before the conduct
   at issue here. See Complaint to Federal Communications Commission, dated
   July 19, 2007 (EB-07-IH-8469); WSKQ Licensing, Inc., Notice of Apparent
   Liability for Forfeiture, 23 FCC Rcd 14933 (Investigations and Hearings
   Div. 2008) (EB-07-IH-8469); Complaint to Federal Communications
   Commission, dated August 23, 2007 (EB-07-IH-8320).

   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, WSKQ
   Licensing, Inc. shall be the only party to this proceeding.

   (Continued from previous page)

   (Footnote Continued...)

   Federal Communications Commission DA 10-234



   Federal Communications Commission DA 10-234