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Before the
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
) Facility #28625
Licensee of Station WJFK-FM )
Manassas, Virginia )
MEMORANDUM OPINION AND ORDER
Adopted: November 8, 2001 Released: November 13,
2001
By the Chief, Enforcement Bureau:
I. Introduction
1. In this order, pursuant to section 1.106(a)(1) of the
Commission's rules, 47 C.F.R. § 1.106(a)(1), we grant a petition
for reconsideration filed June 16, 2000, by Infinity Broadcasting
Corporation of Washington, D.C. (``Infinity''), licensee of
station WJFK-FM, Manassas, Virginia. Infinity seeks
reconsideration of Infinity Broadcasting Corporation of
Washington, D.C., 15 FCC Rcd 10387 (Enforcement Bureau 2000)
(``Forfeiture Order''), which imposed a $4,000 forfeiture for a
willful violation of section 73.1206 of the Commission's rules,
47 C.F.R. § 73.1206, regarding the broadcast of telephone
conversations. For the reasons that follow, we cancel the
forfeiture.
II. Discussion
2. 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 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.
3. For more than five years, Infinity has used digital
delay devices in the context of airing telephone
conversations on the ``Don and Mike Show.'' The digital
delay devices used by Infinity allow Infinity to capture the
speakers' words temporarily and either broadcast those words
shortly thereafter or not at all. It appears that the
length of delay between the speakers' utterances and their
broadcast is under Infinity's control and depends on the
number and type of devices employed.
4. In the matter now before us, Infinity used digital
delay devices to capture a conversation with the
complainant, Ms. Flora Barton. Consistent with its past
practice, Infinity did not notify Ms. Barton of its
intention to broadcast the conversation before the
conversation to be broadcast began. Rather, as the
Forfeiture Order reflects, Infinity gave notice of its
intention to Ms. Barton after the conversation to be
broadcast began.
5. Infinity argues that it used the procedures described
above in good faith reliance on three prior Commission staff
decisions that led it to believe that its use of digital delay
devices ensured compliance with the rule. Letter from Norman
Goldstein to Bernard A. Solnik, Esq., Case No. 02120518 (Mass
Media Bureau, March 25, 1996), Letter from Norman Goldstein to
Kenneth C. Stevens, Esq., Case Nos. 96010161 and 96040220 (Mass
Media Bureau, June 4, 1996), and Infinity Broadcasting Corp. of
Washington, D.C., 14 FCC Rcd 5539 (Mass Media Bureau 1999)
(``IBC''). In each instance, a complaint occurred as a result of
a broadcast of a telephone conversation on the ``Don and Mike''
show. In the first two cases, the staff took no action against
Infinity after receiving conflicting stories about the
broadcasts. In the IBC case, the staff imposed a forfeiture.
However, that forfeiture was premised on the broadcast of a
portion of the conversation that occurred after Don and Mike told
the complainant she was being put on hold, not on the broadcast
of any portion of the conversation that occurred before that
point.1 Although none of the rulings explicitly discusses or
endorses the delay devices used by Infinity, the factual
circumstances surrounding those broadcasts are indistinguishable
from the instant case. Specifically, in each case, Infinity gave
essentially the same notice at the same time to each complainant
as was given to Ms. Barton. Also, in each case, Infinity
broadcast the entire conversation, including that portion that
occurred before notice, but contended it could have avoided doing
so because delay devices allowed it to dump a conversation if the
person called had objected to the conversation or terminated it
after receipt of Infinity's notice.
6. This background persuades us that Infinity could have
reasonably believed that, at the least, the Commission's staff
had tacitly approved its procedures for broadcasting telephone
conversations. Thus, as applied to Infinity, we believe the rule
was not sufficiently clear to justify a forfeiture. We note that
Infinity has indicated that it intends to file a request for
declaratory ruling on the issue of whether a radio station's use
of a digital delay device, coupled with delivery of a specified
notice to the called party during the period of the digital
delay, is compliant with 47 C.F.R. § 73.1206. Furthermore,
consistent with the Forfeiture Order's determination that
Infinity's procedures were not in accord with the rule's
requirements, Infinity informs us that the ``Don and Mike Show''
will implement steps in the production process designed to ensure
that the show will not contain the called party's voice until the
called party is provided notice of intent to broadcast.2 In view
of all the above, we conclude that cancellation of the forfeiture
is appropriate.
III. Ordering Clauses
7. Accordingly, IT IS ORDERED, pursuant to authority
granted by section 405 of the Communications Act of 1934, as
amended, 47 U.S.C. § 405, and section 1.106(a) of the
Commission's rules, 47 C.F.R. § 1.106(a), that the petition for
reconsideration filed June 16, 2000, by Infinity Broadcasting
Corporation of Washington, D.C. IS GRANTED.
8. IT IS FURTHER ORDERED that the forfeiture imposed in
Infinity Broadcasting Corporation of Washington, D.C., 15 FCC Rcd
10387 (Enforcement Bureau 2000) IS CANCELLED.
9. IT IS FURTHER ORDERED that a copy of this Memorandum
Opinion and Order shall be sent, by Certified Mail/Return Receipt
Requested, to Infinity's counsel, Dennis P. Corbett, Esq.,
Leventhal, Senter & Lerman P.L.L.C., 2000 K Street, N.W., Suite
600, Washington, DC 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 See IBC, 14 FCC Rcd 13541 (Mass Media Bureau 1999); EZ
Sacramento, Inc., 14 FCC Rcd 13539 (Mass Media Bureau 1999),
recon. of both denied sub nom. EZ Sacramento, Inc., 15 FCC Rcd
18257 (Enforcement Bureau 2000), review denied, 16 FCC Rcd 4958
(2001), recon. dismissed, FCC 01-230, released August 14, 2001.
2
Letter from Dennis P. Corbett, counsel for Infinity, to David
H. Solomon, Chief, Enforcement Bureau, dated October 22, 2001.