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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-07-IH-8189
WXDJ Licensing, Inc. ) FRN: 0005374145
Licensee of Station WXDJ(FM), ) NAL/Acct. No. 200732080005
North Miami Beach, Florida ) Facility ID No. 70266
Adopted: April 23, 2010 Released: April 23, 2010
By the Chief, Investigations and Hearings Division:
1. In this Forfeiture Order, we assess a monetary forfeiture in the
amount of $16,000 against WXDJ Licensing, Inc. ("WXDJ" or the
"Licensee"), licensee of Station WXDJ(FM), North Miami Beach, Florida
(the "Station") and subsidiary of Spanish Broadcasting Systems, Inc.
("SBS"), for willfully and repeatedly violating Section 73.1206 of the
Commission's rules by recording a telephone conversation for broadcast
without providing prior notification to the called party.
2. As discussed in detail in the Notice of Apparent Liability for
Forfeiture ("NAL") issued in this case, the Enforcement Bureau
("Bureau") received a complaint (the "Complaint") alleging that on
July 19, 2007, Station personnel made a call to a woman (the "call
recipient") falsely claiming to be employees of a local hospital.
According to the Complaint, the caller then told the woman that the
dead bodies of her husband and daughter were at the hospital. The
Complaint also alleged that Station personnel did not inform the call
recipient that they were recording the telephone conversation, and
that the call recipient became hysterical until Station personnel
finally admitted that the call was a prank.
3. The Bureau, on October 19, 2007, issued a letter to WXDJ inquiring
into these allegations ("LOI"). In its response, WXDJ stated that SBS
had contracted with a vendor, "Rubin Ithier," who made the call and
recorded the conversation for a show featuring prank calls to the
friends and family members of WXDJ listeners. The Licensee admitted
that the conversation was broadcast during its morning show and that
the call was made at the request of the call recipient's sister. WXDJ
also admitted that Mr. Ithier did not inform the call recipient that
the call was being recorded for later broadcast until after the prank
was completed and the call had been recorded. According to the
Licensee, the call recipient then gave permission to air the
conversation. The record indicates that the call was broadcast by WXDJ
4. In view of the record evidence, including WXDJ's admissions, the NAL
proposed a forfeiture of $16,000 against the Licensee. In its response
to the NAL, WXDJ does not dispute that it committed a violation of our
telephone broadcast rule, but asserts that the forfeiture amount is
excessive and should be "reduced pursuant to established adjustment
factors." In support, WXDJ claims that although the Station failed to
give the call recipient prior notice that the call was being recorded,
the underlying purpose of the telephone broadcast rule-the legitimate
expectation of privacy in connection with the broadcast use of
telephone conversations-is not diminished in this case because the
call recipient's consent was obtained prior to the actual broadcast.
WXDJ also claims that, in previous cases, the Commission has assessed
lower forfeitures for similar violations. Next, WXDJ claims that
because a portion of the transcript of the call was reproduced in the
text of the NAL, and that such content constitutes "protected speech,"
the Bureau improperly relied on "the substance of the conversation to
adjust the forfeiture upward." Finally, WXDJ argues that the "national
economy and the decrease in broadcaster revenues in general" warrant a
reduction in the forfeiture amount. We reject these arguments as
explained in detail below.
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended (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 discussed further below, we have
examined WXDJ'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.
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. Although it concedes that "the rule was violated" in this case, WXDJ
contends that mitigating facts exist to warrant a downward adjustment
of the forfeiture. In support of this contention, WXDJ points to three
cases-Capstar, WMGO, and Citicasters-that it asserts reflect "more
aggravating circumstances" that resulted in lower forfeitures than
proposed here. WXDJ claims that the Bureau is therefore treating
similarly situated licensees differently and that such action "is
arbitrary and capricious in the absence of an adequate explanation for
doing so." But underlying WXDJ's argument that the circumstances of
those cases were more egregious, is its mistaken view that giving
notice and obtaining consent, even if too late for compliance with the
rule, somehow mitigates its conduct or should be comparatively
significant in our assessment of the forfeiture amount. On this point,
WXDJ states: "The Bureau apparently believes that notice and the
consent actually obtained is of no consequence. This is particularly
unfair, because forfeitures of a lesser quantum have been assessed in
more aggravated enforcement cases." Yet, in none of the three cases
cited by the Licensee, or elsewhere, has the Commission considered
such post-violation conduct to warrant mitigation of the forfeiture
amount for any telephone broadcast case. Rather, the Bureau has
consistently rejected such an argument. The notion that somehow
compliance after-the-fact means that "there was at least some
mitigation of a privacy invasion," contradicts the Commission's
established requirement about notice.
8. As reflected in the NAL in this proceeding, we specifically noted that
the forfeiture was adjusted, in part, because of the number of times
the material was aired, WXDJ's ability to pay, and the fact that it
had violated the same rule in the past. WXDJ attempts to simplify the
circumstances of this case by arguing that the combination of those
factors, in addition to obtaining a post-violation consent to
broadcast (which we rejected, above, as a mitigating factor), do not
justify a higher forfeiture than what was imposed in Capstar, WMGO,
and Citicasters because the number of times it aired the conversation
was the same or less than these three cases. WXDJ fails to recognize,
however, the significant and egregious nature of differences in
circumstances between this case and other cases it cites, particularly
with respect to this licensee's history of violations. WXDJ does not
deny that, like Capstar and Citicasters, it has violated the same rule
in the past and that it has the ability to pay a $16,000 forfeiture.
We also note that WSKQ(FM), another subsidiary of Spanish Broadcasting
Systems, received, and has since paid, a $16,000 forfeiture based on
the same set of circumstances as here. While we acknowledge that the
number of times that the conversation was aired in the instant case
was the same or less than the cases referenced by WXDJ, we determined
in the NAL that the overall circumstances of this case outweighed any
single factor in our calculus of the appropriate forfeiture and
justified a significant upward adjustment. In this regard, we cannot
ignore that even though the Licensee has previously been sanctioned
for a violation of the telephone broadcast rule, it hired a contractor
to serve as an impostor and thereby deceive members of the listening
public, and that this conduct was approved and supported by the
Licensee. These circumstances are in stark contrast to the cases
relied upon by the Licensee, where the violations were isolated lapses
made by an on-air personality whose identity and station affiliation
were known to each of the call recipients. We, therefore, reject the
Licensee's claim that the forfeiture assessment in this case is
arbitrary and capricious and find that the higher forfeiture imposed
9. WXDJ also argues that because "the conversation was recorded at a
location other than at the station," the violation is mitigated to
some degree. WXDJ previously made the same argument, which was
properly rejected in the NAL. As stated in the NAL, licensees are
responsible for the acts and omissions of their employees and
independent contractors. The fact that the call was recorded off of
the Station's premises does not change our conclusion, and WXDJ fails
to identify any precedent supporting the assertion that the place
where the recording occurred is relevant or mitigating. Accordingly,
we continue to reject these arguments here for the same reasons
discussed in the NAL.
10. WXDJ next asserts that, because we included a transcript of the call
in the background section of the NAL, the Bureau presumably relied on
the substance of the telephone conversation, which it argues is
protected speech, in assessing the forfeiture amount. Further, the
Licensee states that it "has found only one other reported enforcement
case . . . where the substance of the conversation was placed in the
body of the Notice of Apparent Liability." WXDJ's supposition is
mistaken. First, we have commonly incorporated portions of such calls
through transcripts to demonstrate our evaluation of the licensee's
conduct and to provide context, and we have not treated WXDJ
differently than any other licensee that has been alleged to violate
Section 73.1206 of the Commission's rules. Second, we pointed out in
the NAL that the context of the call made it clear that the Licensee's
conduct was precisely the type Section 73.1206 was enacted to
sanction-entertainment at the expense of an individual's right to
privacy. Thus, contrary to WXDJ's assertion, the NAL did not "use the
substance of the conversation to adjust the forfeiture upward."
Accordingly, we reject this argument as a basis to reduce the
11. Finally, we turn to WXDJ's contention that the "national economy and
the decrease in broadcaster revenues in general" warrant a reduction
in the forfeiture. Although under Section 1.80 of the Commission's
rules, we may reduce a forfeiture based on the licensee's ability to
pay, WXDJ specifically states that it is not attempting "to
demonstrate an inability to pay the forfeiture pursuant to Section
1.80(a)(4)." Moreover, in considering a reduction under this section,
the Commission first requires supporting documentation, like tax
returns or financial statements, which the Licensee has not provided
here. Similarly, general claims concerning the state of the economy
are insufficient to warrant a reduction. Therefore, we decline to
reduce the forfeiture based on this contention alone.
12. 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, the Forfeiture Policy Statement, and the matters raised by
the WXDJ in response to the NAL, we affirm the NAL and issue a
forfeiture in the amount of $16,000.
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, WXDJ Licensing, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of sixteen thousand dollars
($16,000) for repeated and willful violation of Section 73.1206 of the
Commission's rules, as described in the paragraphs above. Payment of
the forfeiture shall be made in the manner provided for in Section
1.80 of the Commission's rules, 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.
14. 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). WXDJ will also send electronic
notification on the date said payment is made to
Kenneth.Scheibel@fcc.gov, and Guy.Benson@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.
15. 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 to its counsel Bruce A.
Eisen, Kaye Scholer LLP, 901 15th Street, NW, Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
See 47 C.F.R. S: 73.1206.
See WXDJ Licensing, Inc., Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 14933 (Enf. Bur., Investigations and Hearings Div. 2008) ("NAL").
In the same NAL, we separately assessed a $16,000 forfeiture against
Station WSKQ(FM), New York, New York, which is licensed to WSKQ Licensing,
Inc. WSKQ Licensing-also a subsidiary of SBS-has paid that proposed
See Complaint, Federal Communications Commission, dated July 19, 2007
("Complaint"). Because the complainant has not authorized the disclosure
of identifying information to the Licensee, that information will remain
See id. at 1.
See Letter from Jennifer A. Lewis Hershman, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission to WXDJ
Licensing, Inc., dated October 19, 2007.
Mr. Ithier's birth name is Ramon Sierra. See Letter from Bruce A. Eisen,
Counsel to WKSQ Licensing, Inc. to Marlene H. Dortch, Secretary, Federal
Communications Commission, dated July 21, 2008.
See Letter from Bruce A. Eisen, Counsel to WXDJ Licensing, Inc. to Marlene
H. Dortch, Secretary, Federal Communications Commission, dated November
19, 2007 at 3 (the "LOI Response").
See id. at 3-4.
See id. at 4.
See NAL, 23 FCC Rcd at 14934 P: 2 n.9.
See id. at 14938 P: 9.
Request for Reduction of Forfeiture, filed November 12, 2008 at 2
See id at 3-4. The Licensee also notes that the conversation at issue was
"recorded at a location other than at the station." Id. at 2.
Id. at 4-5.
Id. at 6.
Id. at 7.
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.
Request at 6.
Id. at 4-7 (citing Capstar TX Limited Partnership, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 10464, 10465 (Enf. Bur.,
Investigations & Hearings Div. 2008) ("Capstar") (assessing $12,000 for
telephone broadcast rule violations involving recording and broadcasting a
call without prior notice at least twice over multiple stations, taking
into account the licensee's prior history of noncompliance and ability to
pay) (forfeiture paid); WMGO Broadcasting Corp., Inc., Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 4217 (Enf. Bur., Investigations &
Hearings Div. 2007) ("WMGO") (assessing $8,000 for licensee's broadcast of
a call three times without prior notice), forfeiture reduced, Forfeiture
Order, 23 FCC Rcd 3754, 3757 (Enf. Bur., Investigations & Hearings Div.
2008) (reducing forfeiture to $6,400 due to licensee's prior history of
compliance) (forfeiture paid); and Citicasters Licenses, L.P., Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 1633 (Enf. Bur.,
Investigations & Hearings Div. 2007) ("Citicasters") (assessing $10,000
for licensee's broadcast of a call at least three times over multiple
stations without prior notice due to the licensee's prior history of
noncompliance and licensee's ability to pay) (forfeiture paid)).
Request at 5.
See Request at 3-4.
Id. at 4.
See, e.g., WXDJ Licensing, Inc., Forfeiture Order, 19 FCC Rcd 22445, 22446
P: 5 (Enf. Bur. 2004) (forfeiture paid). WXJD previously made the same
line of argument, which the Bureau rejected and which WXDJ did not further
Request at 3-4.
See Amendment of Section 1206: Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5463 P: 19 (1988); Station-Initiated
Telephone Calls Which Fail to Comply With Section 73.1206 of the Rules,
Public Notice, 35 FCC 2d 940, 941 (1972).
See NAL, 23 FCC Rcd at 14938 P: 9.
See Request at 4-5.
See id. at 7 ("WXDJ here makes no attempt to demonstrate an inability to
pay the forfeiture . . . .").
See supra note 2; WSKQ Licensing, Inc., Notice of Apparent Liability for
Forfeiture, DA No. 10-234 (Enf. Bur., Investigations and Hearings Div.,
rel. Feb. 4, 2010) (assessing $16,000 for same conduct and violations).
See WXDJ Licensing, Inc., 19 FCC Rcd at 22447-48 P: 8.
See NAL, 23 FCC Rcd at 14938 P: 9.
In Citicasters, see supra note 25, the call recipient was told at the
outset by the station's radio personality that the call was from a radio
show, but the call recipient nevertheless engaged the radio personality in
conversation that apparently was being aired live. In Capstar, see supra
note 25, the call recipient left a voicemail message on the cell phone of
one of the station's on-air personalities that was later aired by the
station. And in WMGO, see supra note 25, a known host of a morning show
asked the call recipient, who had participated in previous interviews, to
call him back; and when the call recipient did, the conversation was
apparently being aired live.
Request at 2.
See NAL, 23 FCC Rcd at 14937 P: 8.
See Request at 6; NAL, 23 FCC Rcd at 14934-935 P: 3.
Request at 6, n.7.
Because the substance of the telephone conversation was not used as a
basis for determining the appropriate forfeiture to impose against WXJD,
we do not address its unsupported argument (see id. at 6) that the
substance of the conversation is protected speech and cannot be proscribed
by the Commission or the courts.
See e.g., Cumulus Licensing, LLC, Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 1667, 1668 P: 3 (Enf. Bur., Investigations &
Hearings Div. 2009); Rejoynetwork, LLC, Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 14917, 14918 P: 4 (Enf. Bur., Investigations &
Hearings Div. 2008) (subsequent history omitted); Saga Communications of
New England Inc., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd
2741, 2741-42 P: 2 (Enf. Bur., Investigations & Hearings Div. 2004)
(subsequent history omitted); Tempe Radio, Inc., Notice of Apparent
Liability for Forfeiture, 18 FCC Rcd 20102 P: 2 (Enf. Bur. 2003); Infinity
Broadcasting Corporation of Washington, D.C., Notice of Apparent Liability
for Forfeiture, 15 FCC Rcd 12391, 12391-92 P: 2 (Enf. Bur. 2000)
(subsequent history omitted).
See NAL, 23 FCC Rcd at 14937 P: 7.
Request at 6.
Id. at 7.
See 47 C.F.R. S: 1.80(a)(4).
Request at 7.
See Paulino Bernal Evangelism, Inc., Forfeiture Order, 19 FCC Rcd 19922,
19923-924 (Enf. Bur. 2004) (declining to reduce forfeiture assessment due
to inability to pay argument supported only by assertions of economic
hardship rather than supporting documentation); Casey Network, LLC,
Forfeiture Order, 19 FCC Rcd 14800, 14801 (Enf. Bur. 2004) (same).
See Richard Hildreth, Esq., Letter, 7 FCC Rcd 6292, 6294 (Field Operations
Bur. 1992) (declining to reduce forfeiture based on general contentions
regarding "severely depressed" economy and consequent financial suffering
See Forfeiture Policy Statement; 47 C.F.R. S:1.80.
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80(f)(4).
See 47 C.F.R. S:S: 0.111, 0.311.
See 47 C.F.R. S: 73.1206.
See 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
(Continued from previous page)
Federal Communications Commission DA 10-690
Federal Communications Commission DA 10-690