Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of File Number: EB-06-IH-2171
Spanish Broadcasting System Holding Facility ID No.: 74552
Company, Inc. )
NAL/Acct. No.: 201132080022
Licensee of Station WZNT(FM), San )
Juan, Puerto Rico FRN #: 0019998392
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 16, 2011 Released: February 16, 2011
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we assess
a monetary forfeiture in the amount of $25,000 against Spanish
Broadcasting System Holding Company, Inc. ("SBSHCI" or "Licensee"),
licensee of Station WZNT(FM), San Juan, Puerto Rico ("WZNT" or "the
Station"), for its apparent willful and repeated violation of Section
73.1206 of the Commission's Rules. As discussed below, we find that
SBSHCI apparently violated the telephone broadcast rule by
broadcasting telephone conversations without giving prior notice to
the individuals being called that the conversations would be aired.
2. The Enforcement Bureau ("Bureau") received a complaint ("Complaint")
alleging that on April 13, 2006, Station WZNT employees made two
"prank" calls during a comedy segment called "You Fell For It," which
is hosted by a radio personality called Moonshadow. According to the
Complaint, in the first call, the caller pretended to be an intruder
hiding under the bed, and the call recipient, upon learning that the
call was meant to be a joke, became upset. In the second call,
Moonshadow pretended to be a loan shark, attempting to collect on a
3. The Bureau issued a letter of inquiry ("LOI") to the Licensee on
October 28, 2010 regarding the issues raised in the Complaint. In
response, SBSHCI stated that it does not retain recordings or
transcripts of its programming and that it "cannot confirm or deny"
that the segments aired on the Station. The Licensee did acknowledge,
however, that in 2006 it regularly aired a program called "El
Vacilon de la Manana," which contained the segment, "You Fell for It,"
where listeners called in and requested telephone calls be made to
family members or friends. The Licensee noted that the show was hosted
by Luis Jimenez and Raymond Broussard - the latter known as
"Moonshadow," and that the programming was simulcast on its co-owned
Stations WZMT(FM) and WZET(FM).
4. 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 the
Licensee is apparently liable for a forfeiture in the amount of
$25,000 for its apparent willful and repeated violation of Section
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. 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. In 1988, when
assessing whether the rule should be modified, the Commission
specifically favored an individual's privacy interest over the
interests that broadcasters might have in enhancing program appeal by
using telephone conversations to increase spontaneity and
entertainment value. The Commission found that the potential increase
in programming appeal was not "sufficiently critical as to justify
intruding on individual privacy" and declined to alter the prior
notice provisions of the rule.
7. In this case, we find that SBSHCI violated Section 73.1206 by airing
the two conversations described in the Complaint, without providing
the required notice to the call recipients. Although the Licensee
claims that it cannot definitively determine whether the conversations
were broadcast, it does not dispute the allegations contained in the
Complaint. In addition, SBSHCI confirms several facts identified in
the Complaint, including that the program was regularly broadcast over
the Station, that the host of the show is known as Moonshadow, and
that the premise of the "You Fell for It" segment was that listeners
requested telephone calls be made to family members or friends. We
also note that the telephone conversations and program segment at
issue here are similar to those identified in previous violations by
other stations owned by the Licensee's parent company. Further, it
appears that the intent of the "You Fell for It" segment was to trick
or deceive the called party as to the true identity of the caller, so
it was designed to conceal the caller's identity and the fact that the
conversation was being, or would be, broadcast. These facts, along
with the Complainant's reasonably detailed description of what took
place, support the allegations contained in the Complaint, which in
the absence of countervailing evidence, we consider to be credible. As
the Commission has previously held, a licensee may not avoid liability
by disavowing knowledge of what was broadcast over its station.
Finally, the rule's exception does not appear to apply because there
is no record evidence that the called parties had knowledge of the
Station's intent to record the call for broadcast. For the foregoing
reasons, we find that a preponderance of the evidence establishes that
Station WZNT broadcast the subject conversations, without providing
the required notice, in apparent violation of Section 73.1206.
8. 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." We note that Spanish
Broadcasting System, Inc., the parent company of the Licensee, has a
history of violating the Commission's rules, including the telephone
broadcast rule at issue here. We also note that the Licensee broadcast
the conversations on at least two additional stations, as Station
WZNT's programming is simulcast over Stations WZMT(FM) and WZET(FM).
Finally, we must also consider the Licensee's ability to pay so that
forfeitures against "large or highly profitable entities are not
considered merely an affordable cost of doing business." Accordingly,
having considered the record in this case and the statutory factors
identified above, we find that Spanish Broadcasting System Holding
Company, Inc. is apparently liable for a forfeiture in the amount of
$25,000. We again caution the Licensee that additional violations of
these rules may result in the imposition of higher forfeitures and
even harsher enforcement action, including license revocation
IV. ORDERING CLAUSES
9. 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 Spanish Broadcasting
System Holding Company, Inc. is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of $25,000 for apparently
willfully and repeatedly violating Section 73.1206 of the Commission's
10. 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,
Spanish Broadcasting System Holding Company, Inc., SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
11. 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. Spanish Broadcasting System Holding
Company, Inc. will also send electronic notification on the date said
payment is made to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Kenneth.Scheibel@fcc.gov, and Guy.Benson@fcc.gov.
12. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement 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
Kenneth.Scheibel@fcc.gov, and Guy.Benson@fcc.gov.
13. 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.
14. 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.
15. IT IS FURTHER ORDERED, that a copy of this NAL shall be sent, by
Certified Mail/Return Receipt Requested, to Spanish Broadcasting
System Holding Company, Inc. at its address of record and to its
counsel, Dennis P. Corbett and Nancy A. Ory, Lerman Senter PLLC, 2000
K Street, N.W., Suite 600, Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
See 47 C.F.R. S: 73.1206 (the "telephone broadcast rule").
See Complaint to the Federal Communications Commission, dated April 14,
See Letter from Kenneth M. Scheibel, Jr., Assistant Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission to WZNT, Inc., dated October 28, 2010. The license for Station
WZNT was assigned from WZNT, Inc. to Spanish Broadcasting System Holding
Company, Inc., on October 13, 2009 (FCC File No. BALH-20090923ABJ). Both
companies' ultimate common corporate parent is Spanish Broadcasting
See Letter from Dennis P. Corbett and Nancy A. Ory, counsel for Spanish
Broadcasting System Holding Company, Inc. to Guy N. Benson, Attorney
Advisor, Investigations and Hearings Division, Enforcement Bureau, dated
December 2, 2010, at 2-3 ("LOI Response").
See id. at 2.
See id. at 4. The Licensee also notes that the program originated at
Station WSKQ-FM, New York, New York, a station owned by its parent
company, Spanish Broadcasting System, Inc. See id. at 8.
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) (issuing a Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage).
Southern California Broadcasting, 6 FCC Rcd at 4388 P: 5; Callais
Cablevision, 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 P:P: 19-21 (1988) ("1988 Report
and Order"); 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 1988 Report and Order, 3 FCC Rcd at 5464 P: 21.
See id. at 5463 P: 18.
See Complaint, supra note 2; LOI Response at 2-3.
See LOI Response at 5.
Id. at 2-3.
See WXDJ Licensing, Inc. and WSKQ Licensing, Inc., Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 14933, 14938 P: 8 & n.33 (Enf. Bur.,
Investigations & Hearings Div. 2008) (prank call, made at request of call
recipient's sister, aired on station as part of a "You Fell for It"
segment) ("WXDJ/WSKQ NAL") (WSKQ forfeiture paid; forfeiture order issued
for WXDJ, WXDJ Licensing, Inc., Forfeiture Order, 25 FCC Rcd. 3911 (Enf.
Bur., Investigations & Hearings Div. 2010), recons. pending).
See Complaint, supra note 2.
See, e.g., ProActive Communications, Inc., Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd 9079, 9082 P: 7 (Enf. Bur., Investigations &
Hearings Div. 2008) (finding complainant's description of programming
content, in a case concerning the telephone broadcast rule, to be credible
when Licensee failed to offer any evidence to the contrary).
See Community Broadcasters, Inc., Memorandum Opinion and Order, 55 FCC 2d
28, 35 P:18 (1975), recon. denied, 56 FCC 2d 851 (1975). Accord ProActive
Communications, supra note 28.
See 47 C.F.R. S: 73.1206. Under the limited exception to the rule, notice
is not required only when the parties to the call are aware, or are
presumed to be aware from the circumstances of the conversation, that the
call is being or likely will be broadcast. Such awareness is presumed to
exist only when 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
See SBC Communications, Inc., 17 FCC Rcd at 7591 P: 4.
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), recon. 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, 25
FCC Rcd 1287, 1292 P: 11 (Enf. Bur., Investigations & Hearings Div. 2010)
(proposing $16,000 forfeiture against the Licensee for violation of
telephone broadcast rule), response received; WXDJ/WSKQ NAL, 23 FCC Rcd at
14938 P: 9 (proposing separate $16,000 forfeitures against two
Licensee-owned stations for violation of the telephone broadcast rule);
WXDJ Licensing, Inc., Forfeiture Order, 19 FCC Rcd 22445, 22447-48 P: 8
(Enf. Bur. 2004) (proposing $3,500 forfeiture against the Licensee for
violating telephone broadcast rule) (forfeiture paid); WCMQ Licensing,
Inc., Notice of Apparent Liability for Forfeiture, 15 FCC Rcd 8111, 8113
P: 6 (Enf. Bur. 2000) (proposing $4,000 forfeiture against the Licensee
for violating telephone broadcast rule) (forfeiture paid).
See LOI Response at 4.
Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 P: 24. Spanish
Broadcasting System Holding Company, Inc.'s parent company, Spanish
Broadcasting System, Inc., earns substantial income, reporting
$139,389,000 in net revenue for 2009. See Spanish Broadcasting System,
Inc., 2009 Annual Report on Form 10-K, Securities and Exchange Commission,
See WSKQ Licensing, Inc., 25 FCC Rcd at 1292 P: 10.
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, Spanish
Broadcasting System Holding Company, Inc. shall be the only party to this
(Continued from previous page)
Federal Communications Commission DA 11-292
Federal Communications Commission DA 11-292