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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
INFINITY BROADCASTING ) File No. EB-00-IH-0009
CORPORATION OF WASHINGTON, D.C. ) NAL/Acct. No. X32080005
Licensee of Station WJFK-FM )
Manassas, Virginia )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 6, 2000 Released: March 8, 2000
By the Chief, Enforcement Bureau:
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).
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.
Don: Ola? Ola, Senorita Ola?
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.
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
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
FEDERAL COMMUNICATIONS COMMISSION
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.