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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number:
Nassau Broadcasting III, LLC, )
Facility ID No.: 39806
Licensee of Station WWEG(FM), Myersville, ) 201232080023
) 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:
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.
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
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:
Arrianna: "Hi, is this [Complainant]?"
Arrianna: "Hi [Complainant], good morning, this is Phil and Arrianna with
106.9 The Eagle."
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"
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
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
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
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
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
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).
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
Id. at 5.
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.
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.
See id. at 5463, para. 18.
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
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, Nassau
Broadcasting III, LLC, Debtor in Possession, shall be the only party to
Federal Communications Commission DA 12-778
Federal Communications Commission DA 12-778