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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
NOBLE BROADCAST LICENSEES, INC. ) File No. EB-00-IH-0046
) NAL/Acct. No. X32080006
Licensee of Station WVKS(FM) )
Toledo, Ohio )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 7, 2000 Released: March 9, 2000
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture, we
find that Noble Broadcast Licensees, Inc. (``Noble'') has
apparently violated Section 73.1206 of the Commission's rules, 47
C.F.R. § 73.1206, by broadcasting a live telephone conversation
without first informing the party to the conversation of its
intention to do so. We conclude that Noble is apparently liable
for a forfeiture in the amount of four thousand dollars ($4,000).
2. On January 17, 2000, Ms. WilliAnn Moore, the President
of the Toledo Branch of the NAACP, sent a complaint to the
Commission directed against WVKS(FM) and co-owned station
WSPD(AM). Ms. Moore stated that in July 1999, Denny Schaffer, a
morning host on WVKS(FM), called her at home. According to the
tape submitted with her complaint, Ms. Moore said ``Hello,'' Mr.
Schaffer identified himself, and she then hung up. Mr. Schaffer
then called back. He played Ms. Moore's voice mail message over
the air, and, when Ms. Moore did not answer the phone, he made a
series of comments addressed to Ms. Moore. Ms. Moore stated in
her complaint that Mr. Schaffer played a recording of this
exchange on the air on or about November 30, 1999 without
notifying her of his intention to broadcast the exchange.
3. On February 9, 2000, the Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, sent
Noble a letter of inquiry regarding Ms. Moore's complaint. In
its February 25, 2000 response, Noble admits that the
conversation between Ms. Moore and Mr. Schaffer, and Ms. Moore's
voice mail message, were broadcast live on WVKS(FM) on July 30,
1999, and were rebroadcast on November 29, 1999. According to
Noble, Ms. Moore was first informed that she was on the air when
Mr. Schaffer greeted her on the air. Noble admits that ``[t]here
are no underlying circumstances that would have led Ms. Moore to
presume that the conversation or the voice mail message would be
broadcast prior to the broadcast.'' Noble also states that the
initiation of telephone calls without ``prior, off-air
notification of and consent to an on-air broadcast or recording
is contrary to the licensee's policy.'' Noble admits ``that it
is responsible for the conduct of its employees.''
4. Section 73.1206 of the Commission's rules, 47 C.F.R. §
73.1206, provides, in pertinent part, that 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 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.
5. In this case, Noble clearly violated Section 73.1206 of
the Commission's rules, 47 C.F.R. § 73.1206, by calling Ms. Moore
on the air and broadcasting the conversation without giving her
prior notice of its intent to broadcast the conversation. The
Commission has specifically stated that ``it is reasonable and
desirable to retain for individuals the right to answer the
telephone without having their voices or statements transmitted
to the public'' in the absence of prior notice. Amendment of
Section 73.1206: Broadcast of Telephone Conversations (Report and
Order), 3 FCC Rcd 5461, 5463 (1988). Thus, to ensure such
privacy rights, the Commission has determined that it is not
sufficient for a station to give notice that a conversation is
being recorded or broadcast at the beginning of a telephone call,
if the conversation is already being taped or broadcast. Rather,
``notice of intent to broadcast a conversation [must] actually
precede the recording or transmission of the telephone call.''
Id., see also KIDS-TV 6, 14 FCC Rcd 13351 (MMB 1999).
6. 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 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,
4387-4388 (1991). Furthermore, a violation is ``repeated'' if it
occurs more than once. Id., 6 FCC Rcd at 4388.
7. Based on the evidence before us, we find that Noble
broadcast an exchange between Ms. Moore and Mr. Schaffer on July
30, 1999, and rebroadcast the same exchange on November 29, 1999,
in apparent willful and repeated violation of Section 73.1206 of
the Commission's rules. 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 Noble's response to our letter of inquiry, and we do not
find any basis for either increasing or decreasing the forfeiture
from the base forfeiture amount. We believe that the clear
nature of the violations and Noble's decision to replay the
conversation in November 1999 without giving prior notification
to Ms. Moore make a forfeiture the appropriate enforcement action
in this case.
IV. ORDERING CLAUSES
8. 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 Noble Broadcast
Licenses, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of four thousand dollars ($4,000) for
willfully and repeatedly violating Section 73.1206 of the
Commission's rules, 47 C.F.R. § 73.1206.
9. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, Noble 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 forfeiture.
10. 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
11. 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
12. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to David E.
Crowl, Senior Vice President, Noble Broadcast Licenses, Inc., 50
East RiverCenter Boulevard, Suite 1200, Covington, Kentucky
41011, and to Noble's counsel, Marissa G. Repp, Esq., Hogan &
Hartson, L.L.P., 555 13th Street, N.W., Washington, DC 20004-
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau