Click here for Microsoft Word Version

This document was converted from
WordPerfect or Word to ASCII Text format.

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
WordPerfect version or Adobe Acrobat version, if available.


                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
INFINITY BROADCASTING            )    File No. EB-00-IH-0009
Licensee of Station WJFK-FM      )
Manassas, Virginia               )


   Adopted:  March 6, 2000              Released: March 8, 2000    

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

     1.   In this Notice of Apparent Liability for Forfeiture, we 
find that Infinity Broadcasting  Corporation of Washington,  D.C. 
(``Infinity'') has  apparently violated  Section 73.1206  of  the 
Commission's rules,  47  C.F.R.    73.1206,  by  broadcasting  a 
telephone conversation live without first informing the party  to 
the conversation of  its intention  to do so.   We conclude  that 
Infinity is apparently liable for  a forfeiture in the amount  of 
four thousand dollars ($4,000).

                         II.  BACKGROUND

     2.   On  December  14,  1999,  the  Commission  received   a 
complaint from  Ms.  Flora  Barton,  the  National  Latino  Media 
Council, and Mr. Jose Armas.1   The complainants alleged that  on 
August  17,  1999,  during  the  ``Don  and  Mike''  radio  show, 
broadcast over WJFK-FM and other radio stations, the hosts called 
city  hall  at  El   Cinezo,  Texas,  where   Ms.  Barton  is   a 
Commissioner.  According  to the  transcript and  tape  submitted 
with the complaint,  Ms. Barton answered  the telephone, and  the 
following exchange took place:

     Ms. Barton:  El Cinezo, how may I help you?

     Don:  Uh, ola.

     Clerk:  Hello?

     Don:  Ola?  Ola, Senorita Ola?

     Clerk: Yes.

     Don:  Hello,  this  is the  Don  and Mike  Radio  Show.  
     We're doing a live, national radio show right now.2

Don and Mike then engaged Ms. Barton in an extended discussion of 
El Cinezo's decision to conduct official business in Spanish that 
even Infinity describes as exceeding  ``the bounds of good  taste 
in their treatment of  Ms. Barton.''  See  Id., pp. 4-17;  Letter 
Dated January 7, 2000 from Stephen A. Hildebrandt, Vice President 
of Infinity (``Infinity Response''), p. 5.

     3.   On December 23, 1999,  the Investigations and  Hearings 
Division, Enforcement Bureau, sent  Infinity a letter of  inquiry 
regarding the  complaint.   In  its January  7,  2000,  response, 
Infinity admits that it broadcast a conversation with Ms. Barton.  
While Infinity does not  have its own recording  of the show,  it 
denies knowledge that  the transcript and  tape are  ``materially 
different from what was actually broadcast'' on Station  WJFK-FM.  
Infinity Response, p. 1 n.2.

                      III.      DISCUSSION

     4.   Section 73.1206 of the Commission's rules states:

     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.  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 conversations.

     5.   Infinity denies that it violated Section 73.1206 of the 
Commission's rules.  It claims that  it uses digital audio  delay 
devices to  ``ensure  that  persons called  by  the  station  are 
informed prior to any broadcast  of their conversation that  they 
will be on the air, a  process that gives them an opportunity  to 
object  before  any  such  call  is  broadcast.''   According  to 
Infinity, these devices  ``automatically and consecutively  delay 
matter to be  broadcast by  eight seconds each.  .  .  .''  If  a 
called party expresses  a wish not  to be broadcast,  any one  of 
five employees have the capability  to prevent the material  from 
being broadcast by hitting a yellow button marked ``DUMP.''  When 
the ``DUMP'' button is  hit, four seconds  of material is  erased 
and not broadcast.  Infinity states that up to four ``dumps'' may 
be activated,  resulting  in the  elimination  of 16  seconds  of 
material.   When  the  ``DUMP''  button  is  hit,  the  broadcast 
immediately becomes  live, and  whatever is  being said  at  that 
moment is broadcast.   The delay is  automatically and  gradually 
restored by slowing down the rate at which words or gaps  between 
words are broadcast.  See Infinity Response, p. 2.  By using  the 
delay devices, Infinity  claims that  it does  not broadcast  any 
conversation ``simultaneously'' with its occurrence.  Id., p.  3.  
Infinity acknowledges the rule also prohibits the recording of  a 
telephone conversation for  broadcast without  prior notice  that 
the  material  will   be  broadcast,  but   it  denies  that   it 
``recorded''  the  conversation  with  Ms.  Barton.   It  claims, 
relying on  a  dictionary  definition  of  ``record,''  that  the 
digital delay  devices  do not  ``record''  because they  do  not 
permanently preserve the material.  Id., p. 3.

     6.   We reject Infinity's arguments.  Assuming, for the sake 
of argument, that digital  audio delay devices  could be used  to 
facilitate compliance  with the  rule,  Infinity never  told  Ms. 
Barton that it was using digital  audio delay devices or that  it 
had the capability  to prevent her  voice from being  transmitted 
over the air.  Instead, Ms. Barton  was simply told that she  was 
on the air ``live.''  She therefore had no reason to believe that 
she could tell the station that she did not want to be  broadcast 
on the air. The Commission has warned licensees:

     We remind  all licensees  that Section  73.1206 of  our 
     rules requires that before a telephone conversation  is 
     recorded  for   later  broadcast   or  is   begun   for 
     simultaneous broadcast,  the licensee  must inform  the 
     other party that the conversation will be recorded  for 
     broadcast purposes or  will be broadcast  live, as  the 
     case may be.  The recording of  such conversation  with 
     the intention  of informing  the other  party later  -- 
     whether  during  the  conversation   or  after  it   is 
     completed but before it is broadcast -- does not comply 
     with the  Rule  if  the conversation  is  recorded  for 
     possible broadcast. Likewise, the initiation of a  live 
     broadcast of conversation with the intention of seeking 
     the other party's permission for its broadcast sometime 
     during   the   conversation,   does   not    constitute 

Station-Initiated Telephone  Calls  Which  Fail  to  Comply  with 
Section 73.1206 of the Rules, 24 RR 2d 1814 (1972).   As Infinity 
admits, the rule  requires that persons  called by stations  have 
``an opportunity to object before  any such call is  broadcast.''  
Infinity Response, p. 3.  Commission precedent in this area makes 
clear that this  rule is  intended to protect  the called  party.  
See  Amendment  of  Section   73.1206:  Broadcast  of   Telephone 
Conversations (Report and  Order), 3 FCC  Rcd 5461, 5463  (1988).  
Yet, if we were to accept Infinity's argument that merely  having 
a delay without any obligation to affirmatively advise the called 
party that they were being broadcast on the air or being recorded 
for future  broadcast  is  sufficient,  it  would  diminish  this 
protection.  Indeed, by telling  Ms. Barton that  she was on  the 
air ``live,'' Infinity deprived Ms. Barton of the opportunity  to 
object to  being broadcast.   Under all  these circumstances,  we 
conclude that Infinity apparently violated Section 73.1206.

     7.   Moreover, we reject Infinity's contention that the  use 
of digital delay  devices places the  station wholly outside  the 
rule because the conversations  are neither ``simultaneous''  nor 
``recorded.''  When it called Ms. Barton, Infinity considered the 
conversation to be ``live.''  In describing and interpreting  the 
rule, the Commission  has used the  words ``simultaneously''  and 
``live'' as synonyms.  See,  e.g., Amendment of Section  73.1206: 
Broadcast of Telephone Conversations (Report and Order); Station-
Initiated Telephone  Calls  Which  Fail to  Comply  with  Section 
73.1206 of  the  Rules.   Infinity  offers  no  support  for  the 
proposition that a broadcast that it described as ``live'' cannot 
be  considered   a  ``simultaneous''   broadcast.    Accordingly, 
Infinity apparently violated  the rule beginning  at the time  it 
began its simultaneous, ``live'' conversation with Ms. Barton.3

     8.   Infinity cites three cases for the proposition that the 
Commission has approved the  use of the  digital delay system  to 
ensure compliance with  Section 73.1206 of  the rules.   Infinity 
Response,  p.  3  n.4,  citing  Infinity  Broadcasting  Corp.  of 
Washington, D.C. (WJFK-FM),  14 FCC Rcd  5539 (MMB 1999),  Letter 
from Norman Goldstein  to Kenneth C.  Stevens, Case Nos.  9610161 
and 96040220 (MMB June 4, 1996), and Letter from Norman Goldstein 
to Bernard  A. Solnik,  Esq., Case  No. 02120518  (MMB March  25, 
1996).  None of these rulings contain any analysis or  discussion 
of the digital delay system.   Moreover, none of the language  in 
those rulings  is inconsistent  with the  plain language  of  the 
rule, which clearly requires prior notification.

     9.   Section 503(b) of the  Communications Act, 47 U.S.C.   
503(b), and Section 1.80(a) of the Commission's rules, 47  C.F.R. 
 1.80(a), each state that any person who willfully or repeatedly 
fails to comply with the provisions of the Communications Act  or 
the Commission's rules shall be liable for a forfeiture  penalty.  
For purposes of  Section 503(b)  of the  Communications Act,  the 
term ``willful'' means that the  violator knew it was taking  the 
action in question,  irrespective of  any intent  to violate  the 
Commission's rules.  See Southern California Broadcasting Co.,  6 
FCC Rcd 4387 (1991).

     10.   Based on the evidence before us, we find that Infinity 
broadcast a  telephone conversation  on  September 21,  1999,  in 
apparent willful violation of Section 73.1206 of the Commission's 
rules, 47 C.F.R.   73.1206.  The Commission's Forfeiture  Policy 
Statement sets  a  base  forfeiture  amount  of  $4,000  for  the 
unauthorized  broadcast   of  a   telephone  conversation.    The 
Commission's Forfeiture Policy Statement and Amendment of Section 
1.80 of the Commission's Rules,  12 FCC Rcd 17087 (1997),  recon. 
denied   FCC  99-407  (released  December  28,  1999).   We  have 
reviewed Infinity's response to our letter of inquiry,  including 
its  description  of  its  policies  and  procedures   concerning 
compliance with Section 73.1206, and we do not find any basis for 
either increasing  or decreasing  the  forfeiture from  the  base 
forfeiture amount.

                      IV.  ORDERING CLAUSES

     11.  ACCORDINGLY, IT IS ORDERED  pursuant to Section  503(b) 
of the  Communications  Act of  1934,  as amended,  47  U.S.C.   
503(b), and Sections  0.111, 0.311 and  1.80 of the  Commission's 
rules,  47  C.F.R.    0.111,  0.311  and  1.80,  that  Infinity 
Broadcasting Corp. of Washington, D.C. is hereby NOTIFIED of  its 
APPARENT LIABILITY FOR FORFEITURE in the amount of four  thousand 
dollars ($4,000) for willfully  violating Section 73.1206 of  the 
Commission's rules, 47 C.F.R.  73.1206.

     12.   IT IS FURTHER ORDERED, pursuant to Section 1.80 of the 
Commission's rules, that  within thirty  days of  the release  of 
this Notice, Infinity  SHALL PAY  to the United  States the  full 
amount of  the  proposed  forfeiture  or  SHALL  FILE  a  written 
statement seeking  reduction  or  cancellation  of  the  proposed 

     13.  Payment of the  forfeiture may be  made by credit  card 
through the  Commission's Credit  and Debt  Management Center  at 
(202) 418-1995  or  by mailing  a  check or  similar  instrument, 
payable to the order of the Federal Communications Commission, to 
the  Forfeiture  Collection  Section,  Finance  Branch,   Federal 
Communications Commission,  P.O.  Box  73482,  Chicago,  Illinois 
60673-7482.  The payment should note the NAL/Acct. No. referenced 

     14.  The response,  if any,  must be  mailed to  Charles  W. 
Kelley, Chief, Investigations and Hearings Division,  Enforcement 
Bureau, Federal Communications Commission, 445 12th Street,  S.W, 
Room 3-B443, Washington DC 20554 and MUST INCLUDE the file number 
listed above.     15.   IT IS FURTHER ORDERED that a copy of this Notice shall 
be  sent,  by   Certified  Mail/Return   Receipt  Requested,   to 
Infinity's counsel, H. Anthony  Lehv, Esq., Leventhal, Senter,  & 
Lerman PLLC,  2000  K Street,  N.W.,  Suite 600,  Washington,  DC 


          David H. Solomon
          Chief, Enforcement Bureau

1  The complaint also alleges that Infinity violated Section 
73.3999 of the Commission's rules, 47 C.F.R.  73.3999, 
concerning indecent programming.  That portion of the complaint 
will be addressed separately.

2  See ``Transcript of Don and Mike Radio Show'' (Complaint, 
Exhibit B), p. 3.

3   We need not consider Infinity's argument that the digital 
delay devices did not ``record'' the conversation because, under 
the circumstances of this case, we find its broadcast to be 
``simultaneous'' within the meaning of the rule.