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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

                                         File Nos. EB-06-IH-1772 and    
     In the Matter of                )                                  
                                         EB 06-IH-1748                  
     REJOYNETWORK, LLC               )                                  
                                         FRN: 0008498685                
     Licensee of Station WAAW(FM),   )                                  
                                         NAL Account No.: 200932080012  
     Williston, South Carolina       )                                  
                                         Facility ID No. 4094           

                          MEMORANDUM OPINION AND ORDER

   Adopted: February 1, 2011 Released: February 2, 2011

   By the Chief, Enforcement Bureau:


    1. In this Memorandum Opinion and Order, we deny the petition for
       reconsideration ("Petition") filed by Rejoynetwork, LLC (the
       "Licensee"), licensee of Station WAAW(FM), Williston, South Carolina
       (the "Station"), of a Forfeiture Order issued February 4, 2010. The
       Forfeiture Order imposed a monetary forfeiture of $4,000 against the
       Licensee for violating Section 73.1206 of the Commission's rules by
       broadcasting multiple telephone conversations without giving prior
       notice to the individuals being called of its intention to do so. As
       discussed below, we deny the Petition and affirm the $4,000

   I. background

    2. The Forfeiture Order held that the Licensee violated Section 73.1206
       on March 23, 2006, when the Station broadcast telephone conversations
       between a Station radio personality, Ryan B., and airport officials
       Willis M. ("Buster") Boshears, Jr. and Cedric Jerome Johnson without
       first informing the officials that the conversations would be so
       broadcast. The Forfeiture Order rejected the Licensee's argument that
       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"). The Licensee seeks
       reconsideration of these findings and cancellation of the forfeiture.
       We again reject the Licensee's argument for the reasons stated below.


    3. Reconsideration is appropriate only where the petitioner shows a
       material error or omission in the original order or raises additional
       facts not known or existing until after the petitioner's last
       opportunity to present such matters. A petition that simply repeats
       arguments previously considered and rejected will be denied. The
       Licensee has failed to either demonstrate error or to present new
       facts or changed circumstances, as required. In fact, the Licensee
       again raises the very same argument already considered and rejected in
       the Forfeiture Order: that Section 73.1206 is an invalid and
       unenforceable restraint on free speech violating the First Amendment
       and Section 326 of the Act. To the extent that the Petition repeats
       arguments previously considered and rejected, we deny the Petition.
       The Licensee contends, however, that the Forfeiture Order failed to
       fully consider its argument with respect to the validity of Section
       73.1206 in general and as applied to the specific facts of this case.
       We disagree. Nevertheless, we provide further discussion below.

    4. We disagree with the Licensee's contention that Section 73.1206
       violates the First Amendment and Section 326 of the Act. As described
       in the Forfeiture Order, in enacting the rule, the Commission fully
       addressed the rule's constitutionality and found that constitutional
       requirements were met. The rule does not restrict the free speech
       rights of broadcasters in any way. Rather, "the rule requires only
       that broadcasters provide prior notice to any party to a call and does
       not restrict a broadcaster's right to free speech." As previously
       stated, "broadcasters are not precluded by the notice requirement from
       recording or broadcasting telephone conversations nor are they
       prevented from telephonically gathering information or testimony
       important to their broadcast functions." Still, the Licensee asserts
       that the Commission has not clearly and convincingly demonstrated that
       restricting speech under Section 73.1206 will further "a legitimate
       and compelling governmental interest." On this point, the Licensee
       argues that the Commission never adequately addressed the
       constitutionality of the rule because it referred in the Telephone
       Broadcast R&O to its "belief," as opposed to its conclusion. We
       disagree with that argument. Contrary to the Licensee's claim, and as
       explained previously and below, the Commission has already
       demonstrated that restricting speech under Section 73.1206 furthers a
       legitimate and substantial governmental interest, in that it
       safeguards personal privacy and protects against harassment.
       Therefore, the rule is consistent with both the First Amendment and
       Section 326 of the Act, and we reject as irrelevant the Licensee's
       semantic debate concerning the Commission's use of the word "belief"
       in supporting its conclusion.

    5. In its Petition, the Licensee demands that the Commission "explain how
       the harm to the public good from the broadcast of telephone
       conversations is greater than harms to the public good that
       governmental bodies were prohibited from preventing through
       restrictions on speech" in cases the Licensee cites in its Petition.
       The Commission's rulemaking decision clearly and decisively evaluated
       any harm to the public good that might result from restrictions on the
       recorded or live broadcast of telephone conversations without proper
       advance notice, however, and determined that the constitutional
       requirements on this point were met. After examining comments from a
       variety of parties, the Commission determined that the burdens imposed
       by the rule were not excessive in comparison to the important benefits
       to be gained in the preservation of the public's right of privacy in
       communications. None of the cases the Licensee cites causes us to
       reevaluate that conclusion.

    6. The Licensee also asserts that the Commission's justification for
       Section 73.1206 - protecting the public's privacy in connection with
       telephone calls - cannot be reconciled with its failure to adopt
       similar rules concerning live impromptu interviews. We disagree. In
       regulating the broadcast of telephonic interviews, the Commission has
       held that some types of interviews require less notice to the
       prospective interviewee than others. For example, the Commission does
       not require prior notice for telephonic interviews where the
       prospective interviewee is associated with the station, or where that
       party originates the call and it is obvious that the call is in
       connection with a program in which the station customarily broadcasts
       its telephone conversations. These distinctions recognize that persons
       participating in such interviews should reasonably expect that their
       comments might be broadcast.

    7. In any event, contrary to the Licensee's argument, the Commission need
       not demonstrate that conducting a live telephone interview (or
       recording it for later broadcast) without first informing the
       recipient of the call is more intrusive than a live in-person
       interview. As described above, the Commission has already found that
       the prior notice requirements of Section 73.1206 "pursue a legitimate
       and 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 lack of Commission rules regarding
       impromptu live in-person interviews is irrelevant.

    8. We also reject the Licensee's contention that the application of
       Section 73.1206 to this case violates the First Amendment and Section
       326 of the Act because the broadcast is a talk program addressing a
       controversial local issue (rather than entertainment) and, thus, is
       the sort of programming that is most deserving of First Amendment
       protection. The Station remained free to engage in investigative
       reporting and to conduct interviews, subject to the stipulation that
       the broadcast or recording for broadcast of any telephone conversation
       first be disclosed to the other party to the conversation, pursuant to
       Section 73.1206. The rule does not apply based on the content of the
       topic discussed, as the privacy interest is the same regardless of the
       topic discussed, and accordingly, includes no exception for programs
       addressing a controversial local issue.

    9. Finally, we also reject the Licensee's position that the call
       recipients could have terminated the call, thereby protecting their
       own privacy, proving there is no compelling governmental interest to
       justify Section 73.1206. Commission precedent has held that even a
       very brief pre-Section 73.1206 notice conversation qualifies as a
       violation. Nothing in the facts of this case distinguishes it from
       Commission precedent.

   10. For the foregoing reasons, after reviewing the Licensee's Petition and
       the underlying record, we find no basis for reconsideration and
       therefore affirm the Forfeiture Order.


   10. Accordingly, IT IS ORDERED, pursuant to Section 1.106 of the
   Commission's rules, that the Petition for Reconsideration filed on
   February 25, 2010, by Rejoynetwork, LLC, IS DENIED, and the Forfeiture

   11. IT IS FURTHER ORDERED that Rejoynetwork, LLC is liable for a monetary
   forfeiture in the amount of $4,000 for willful and repeated violations of
   Section 73.1206 of the Commission's rules.

   12. 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
   Memorandum Opinion and 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 No. and FRN No. 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 24A (payment type code). The Licensee will also send
   electronic notification on the date said payment is made to,, and
   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.

   13. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order
   shall be sent, by Certified Mail/Return Receipt Requested, to
   Rejoynetwork, LLC, c/o Frank Neely, P.O. Box 861, Rock Hill, South
   Carolina 29731, and to its counsel, David Tillotson, Esquire, Law Office
   of David Tillotson, 4606 Charleston Terrace, N.W., Washington, D.C.


   P. Michele Ellison

   Chief, Enforcement Bureau

   See Rejoynetwork, LLC, Petition for Reconsideration (filed Feb. 25, 2010)

   See Rejoynetwork, LLC, Forfeiture Order, 25 FCC Rcd 830 (Enf. Bur.,
   Investigations & Hearings Div. 2010) ("Forfeiture Order"), aff'g,
   Rejoynetwork, LLC, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
   14917 (Enf. Bur., Investigations & Hearings Div. 2008) ("NAL").

   See 47 C.F.R. S: 73.1206. That rule states, in relevant part:

   Before recording a telephone conversation for broadcast, or broadcasting
   such a conversation simultaneously with its occurrence, a licensee shall
   inform any party to the call of the licensee's 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.

   See Forfeiture Order, 25 FCC Rcd at 830 P: 1.

   See id. at 832-33 P:P: 7-8. The salient facts of this case are not in
   dispute. A comprehensive recitation of the facts and history of this case
   can be found in the NAL and the Forfeiture Order, which are incorporated
   here by reference. See id. at 830-31 P:P: 2-3; NAL, 23 FCC Rcd at 14917-20
   P:P: 2-6.

   See Petition at 1-6.

   See WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal Co.
   v. FCC, 351 F.2d 824 (D.C. 1965), cert. denied, 383 U.S. 967 (1966); 47
   C.F.R. S: 1.106(c).

   See Infinity Broadcasting Operations, Inc., Memorandum Opinion and Order,
   19 FCC Rcd 4216 (2004); Bennett Gilbert Gaines, 8 FCC Rcd 3986 (Rev. Bd.

   See Petition at 1-5.

   See Forfeiture Order, 25 FCC Rcd at 832-33 P:P: 7-8 (rejecting the
   Licensee's First Amendment and Section 326 challenges to Section 73.1206).

   See Petition at 1-6.

   See Forfeiture Order, 25 FCC Rcd at 832-33 P: 8 (citing Amendment of
   Section 73.1206: Broadcast of Telephone Conversations, Report and Order, 3
   FCC Rcd 5461, 5464 P: 21 (1988) ("Telephone Broadcast R&O")). Section
   73.1206 is also in keeping with a larger pattern of state and federal
   regulation relating to restrictions on telephone call recordings. See,
   e.g., Vazquez-Santos v. El Mundo Broad. Corp., 283 F. Supp. 2d 561, 564
   (D.P.R. 2003) (noting that journalists are not exempted from the workings
   of the Federal Wiretap Statute by virtue of the First Amendment); "Can We
   Tape?" Reporters' Committee for Freedom of the Press, (last visited March 11, 2010) (stating that
   twelve states require, under most circumstances, the consent of all
   parties for a conversation to be recorded).

   Noe Corp., LLC, Forfeiture Order, 20 FCC Rcd 12339, 12343 P: 10 (Enf.
   Bur., Investigations & Hearings Div. 2005).

   Telephone Broadcast R&O, 3 FCC Rcd at 5464 P: 21.

   Petition at 2-4. As noted above, in its Petition, the Licensee uses the
   term "compelling governmental interest." Petition at 2. This term
   generally corresponds to the standard applicable to strict scrutiny
   review. See, e.g., United States v. Playboy Entm't Group, Inc., 529 U.S.
   803, 813 (2000) (content-based speech restriction must be narrowly
   tailored to promote compelling government interest). As described herein,
   the Commission previously has determined that the rule at issue is not
   subject to that heightened level of review. The Licensee has provided no
   authority to justify such heightened scrutiny here.

   See Petition at 2.

   See Forfeiture Order, 25 FCC Rcd at 832-33 P: 8 (citing Telephone
   Broadcast R&O, 3 FCC Rcd at 5464 P: 21).

   See Petition at 3-4 (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 (1939); Erznoznick v. City of Jacksonville, 422 U.S. 205 (1975); NAACP
   v. Button, 371 U.S. 415 (1963)).

   See Telephone Broadcast R&O, 3 FCC Rcd at 5464 P: 21.

   See id. at 5463-64 P:P: 18-24.

   See Petition at 4-5.

   See 47 C.F.R. S: 73.1206 (stating such awareness is presumed to exist only
   when the other party to the call is associated with the station 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).

   Telephone Broadcast R&O, 3 FCC Rcd at 5464 P: 21. The current telephone
   broadcast rule evolved from a preexisting rule that prohibited the
   recording of telephone conversations for broadcast. See Report of the
   Commission in Docket No. 6787 (Use of Recording Devices in Connection with
   Telephone Service), 11 FCC 1033 (1947). When the live broadcast of
   telephone conversations became technically and legally possible, the
   Commission recognized the potential for harassment and abuse and adopted
   the current rule. See Telephone Broadcast R&O, 3 FCC Rcd at 5463-64 P:P:
   20, 24.

   See Petition at 5-6.

   See 47 C.F.R. S: 73.1206.

   See Petition at 6.

   See Heftel Broadcasting-Contemporary, Inc., Memorandum Opinion and Order,
   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);
   Noble Broadcast Licenses, Inc., Notice of Apparent Liability for
   Forfeiture, 15 FCC Rcd 8530 (Enf. Bur. 2000) (NAL paid) (imposing
   liability for the rebroadcast of a very short conversation, consisting of
   the word "hello," and a subsequent answering machine message that were
   rebroadcast without having given prior notice).

   See, e.g., El Mundo Broadcasting Corp., Notice of Apparent Liability for
   Forfeiture, 15 FCC Rcd 20377, 20379 (Enf. Bur. 2000) (Bureau refused to
   recognize an exception to Section 73.1206 notice requirements where the
   conversation recorded and subsequently broadcast involved a well known
   on-air personality and a government official).

   See 47 C.F.R. S: 1.106.

   See 47 C.F.R. S: 1.80.

   See 47 U.S.C. S: 504(a).

   (...continued from previous page)


   Federal Communications Commission DA 11-182


   Federal Communications Commission DA 11-182