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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                                 )                           
                                                                             
     In the Matter of                            )   File Number:            
                                                     EB-11-IH-1561           
     Nassau Broadcasting III, LLC,               )                           
                                                     Facility ID No.: 39806  
     Debtor-in-Possession                        )                           
                                                     NAL/Acct. No.:          
     Licensee of Station WWEG(FM), Myersville,   )   201232080023            
     Maryland                                                                
                                                 )   FRN #: 0011378676       
                                                                             
                                                 )                           


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: May 17, 2012 Released: May 17, 2012

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

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture, we assess a
       monetary forfeiture in the amount of $2,000 against Nassau
       Broadcasting III, LLC, Debtor-in-Possession (hereinafter referred to
       as "Nassau"), licensee of Station WWEG(FM), Myersville, Maryland (WWEG
       or the Station), for its apparent willful violation of Section 73.1206
       of the Commission's rules (Section 73.1206 of the Rules). As discussed
       below, we find that Nassau apparently violated the telephone broadcast
       rule by recording a telephone conversation for broadcast without
       giving prior notice to the individual being recorded.

   II. BACKGROUND

    2. The Enforcement Bureau (Bureau) received a complaint alleging that, on
       May 27, 2011, employees of the Station made two telephone calls to the
       complainant on or around 6 a.m. and recorded the telephone
       conversations without the complainant's knowledge or consent. The
       complainant alleges that the calls were "attempts to bait
       [complainant] into a conversation regarding a previous dispute with a
       neighboring business which conducts considerable business with
       [Nassau]."

    3. The Bureau issued a letter of inquiry to Nassau on November 10, 2011,
       regarding the issues raised in the complaint. In its response, Nassau
       states that it initiated two telephone calls to the complainant, but
       that one of the two calls was immediately disconnected without any
       conversation. In its LOI Response, it included the following
       transcript of the recorded telephone conversation:

   Complainant: "Hello"

   Arrianna: "Hi, is this [Complainant]?"

   Complainant: "Yah"

   Arrianna: "Hi [Complainant], good morning, this is Phil and Arrianna with
   106.9 The Eagle."

   Complainant: "okay"

   Arrianna: "Good morning, how are you doing [Complainant]?"

   Complainant: "Am I on the air?"

   Arrianna: "Technically you're being recorded right now."

   Complainant: "But we are not live on the air?"

   Phil: "But we are not live on the air."

   Complainant: "Okay well you don't have any permission to use any of my
   voice on the radio."

   Arrianna: "Oh bummer."

   Phil: "Okay but can we at least discuss with you about tonight and"
   [recording stopped]

    4. Nassau explains that during the phone conversation, the Station
       employees "immediately identified themselves," and then stopped
       recording mid-sentence after the complainant stated that the Station
       did not have consent to use his voice. It asserts that the Station
       employees apologized for calling the complainant so early in the
       morning, and that the phone call was ended shortly thereafter. Nassau
       confirmed that the recording was made with the intention to broadcast
       the recording over the Station, but that the recording was never
       broadcast.

   III. DISCUSSION

    5. Under Section 503(b)(1) of the Communications Act of 1934, as amended
       (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 Nassau is apparently liable for a monetary forfeiture for its
       apparent willful violation of Section 73.1206.

    6. Section 73.1206 of the 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 of the Rules 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 the broadcast or recording of their conversations without
       adequate prior notice. 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. The Commission
       further 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 recorded 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.

    8. We find that Nassau apparently violated Section 73.1206 of the Rules
       by recording a telephone conversation for broadcast without first
       providing the complainant the requisite notice. In this case, Nassau
       does not dispute that Station employees began recording the telephone
       conversation with the complainant prior to giving the complainant the
       required notice. Nassau further acknowledges that Station employees
       made the recording with the intention of broadcasting the
       conversation. Although the Station employees identified themselves and
       the Station, they did not notify the complainant that he was being
       recorded before actually recording the telephone conversation. The
       record shows that the Station employees only disclosed to the
       complainant that he was being recorded after the complainant asked if
       he was on the air, and only stopped recording after the complainant
       affirmatively denied his permission to use his voice on air. Nassau
       made no arguments nor cited any Commission precedent suggesting that
       its actions in this case were excusable, and we find none. Based on
       the evidence before us, we find that Nassau apparently willfully
       violated Section 73.1206 of the Rules by recording the conversation
       described in the foregoing without first providing the required notice
       to the complainant.

    9. Pursuant to the Forfeiture Policy Statement and Section 1.80(a)(4) of
       the Commission's rules, the base forfeiture for the unauthorized
       broadcast or recording of a telephone conversation is $4,000. 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 determining the appropriate forfeiture amount, we may
       adjust the base amount upward or downward by considering the factors
       enumerated in Section 503(b)(2)(E). In this case, the Licensee failed
       to give the complainant the required notice that the telephone
       conversation was being recorded with the intent of subsequent
       broadcast. However, the Licensee took the remedial measure of not
       broadcasting the recorded conversation. While this corrective action
       does not exculpate Nassau from violating Section 73.1206, we
       acknowledge that Nassau took corrective measures sua sponte, and prior
       to the Bureau's involvement, which warrants a downward adjustment in
       the forfeiture amount.  Accordingly, having considered the record in
       this case, we find that Nassau is apparently liable for a forfeiture
       in the amount of $2,000.

   IV. ORDERING CLAUSES

   10. 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 Nassau Broadcasting
       III, LLC, Debtor-in-Possession, is hereby NOTIFIED of its APPARENT
       LIABILITY FOR FORFEITURE in the amount of $2,000 for apparently
       willfully violating Section 73.1206 of the Commission's rules.

   11. 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,
       Nassau Broadcasting III, LLC, Debtor-in-Possession, SHALL PAY the full
       amount of the proposed forfeiture or SHALL FILE a written statement
       seeking reduction or cancellation of the proposed forfeiture.

   12. 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. An FCC Form 159
       (Remittance Advice) must be submitted with all payments.  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. Nassau Broadcasting III, LLC will also
       send electronic notification on the date said payment is made to
       Terry.Cavanaugh@fcc.gov, Jeffrey.Gee@fcc.gov,
       Kenneth.Scheibel@fcc.gov, and Jennifer.Lewis@fcc.gov.

   13. 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 Terry Cavanaugh, 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
       Terry.Cavanaugh@fcc.gov, Jeffrey.Gee@fcc.gov,
       Kenneth.Scheibel@fcc.gov, and Jennifer.Lewis@fcc.gov.

   14. 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.

   15. 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.

   16. IT IS FURTHER ORDERED, that a copy of this NAL  shall be sent, by
       Certified Mail/Return Receipt Requested, to Nassau Broadcasting III,
       LLC, Debtor-in-Possession, at its address of record and to its
       counsel, Janet Fitzpatrick Moran, Patton Boggs, LLP, 2550 M Street,
       N.W., Washington, D.C. 20037.

   FEDERAL COMMUNICATIONS COMMISSION

   Theresa Z. Cavanaugh

   Chief, Investigations and Hearings Division

   Enforcement Bureau

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

   See Complaint to the Federal Communications Commission, IC No.
   11-C00339374-1, submitted on October 16, 2011 (Complaint).

   Id.

   See Letter from Kenneth M. Scheibel, Jr., Assistant Chief, Investigations
   and Hearings Division, Enforcement Bureau, Federal Communications
   Commission to Nassau Broadcasting III, LLC (Nov. 10, 2011) (on file in
   EB-11-IH-1561) (Scheibel Letter). Nassau requested a two-week extension to
   respond to the LOI on November 17, 2011, which the Bureau granted. Nassau
   submitted a timely LOI Response on December 9, 2011. See infra note 5.

   See Letter from Janet Fitzpatrick Moran, counsel for Nassau Broadcasting
   III, LLC to Marlene H. Dortch, Secretary, Federal Communications
   Commission at 3 (Dec. 9, 2011) (on file in EB-11-IH-1561) (Nassau December
   9 Letter).

   Id. at 5.

   Id.

   See id.

   See id.

   See id. at 4, 6.

   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, para.
   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, para. 5; Callais
   Cablevision, 16 FCC Rcd at 1362, para. 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, para. 4 (2002) (forfeiture paid).

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

   Id.

   See Amendment of Section 1206: Broadcast of Telephone Conversations,
   Report and Order, 3 FCC Rcd 5461, 5463-64, paras. 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, para. 21.

   Id.

   See id. at 5463, para. 18.

   Id.

   See Cumulus Licensing, LLC, Notice of Apparent Liability for Forfeiture,
   24 FCC Rcd 1667, 1670 (Enf. Bur. 2009), citing 1988 Report and Order, 3
   FCC Rcd 5461, 5463-64 (1988).

   See Nassau December 9 Letter at 4.

   See id at  5.

   See Complaint, supra note 2; Nassau December 9 Letter 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 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01; see also In Re
   Application of Texas Educational Broadcasting Co-operative, Inc., for
   Renewal of License for Station KOOP(FM), 22 FCC Rcd 13038, 13042 (Media
   Bur. 2007) (Texas Educational Broadcasting) (reducing forfeiture because
   licensee noted its error and took corrective action sua sponte).

   See Texas Educational Broadcasting, 22 FCC Rcd at 12042. See, e.g., In the
   Matter of Southern Adventist University, 26 FCC Rcd 11254, 11256 (Med.
   Bur. 2007) ("Reductions of proposed forfeitures based on good faith
   efforts to comply generally involve situations where violators demonstrate
   that they initiated measures to correct or remedy violations prior to the
   Commission's involvement.").

   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,
   73.1206.

   For purposes of this forfeiture proceeding initiated by this NAL, Nassau
   Broadcasting III, LLC, Debtor in Possession, shall be the only party to
   this proceeding.



   (Footnote Continued...)

   Federal Communications Commission DA 12-778

   1

   2

   Federal Communications Commission DA 12-778