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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
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
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
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.
IV. ORDERING CLAUSES
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
Order IS AFFIRMED.
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
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, and Anjali.Singh@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.
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.
FEDERAL COMMUNICATIONS COMMISSION
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
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,
http://www.rcfp.org/taping/ (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 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:
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).
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Federal Communications Commission DA 11-182
Federal Communications Commission DA 11-182