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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
EZ SACRAMENTO, INC. ) File No. 98020370
) NAL/Acct. No.
918ed012
Licensee of Station KHTK(AM) ) Facility #
20352
Sacramento, California )
)
INFINITY BROADCASTING ) File No. 98090215
CORPORATION OF WASHINGTON, D.C. ) NAL/Acct. No.
918ed013
) Facility #28625
Licensee of Station WJFK-FM )
Manassas, Virginia )
MEMORANDUM OPINION AND ORDER
Adopted: February 12, 2001 Released:
February 20, 2001
By the Commission: Commissioner Furchtgott-Roth concurring
and issuing a statement
1. In this Order, we deny an application for review
filed jointly by EZ Sacramento, Inc. (``EZ''), licensee of
KHTK(AM), Sacramento, California, and Infinity Broadcasting
Corporation of Washington, D.C. (``Infinity''), licensee of
WJFK-FM, Manassas, Virginia (jointly, ``petitioners'').
Petitioners seek review of a EZ Sacramento, Inc., 15 FCC Rcd
18257 (Enf. Bureau 2000). In that Order, the Chief,
Enforcement Bureau, denied reconsideration of two forfeiture
orders, Infinity Broadcasting Corp. of Washington, D.C., 14
FCC Rcd 13541 (Mass Media Bureau 1999) and EZ Sacramento,
Inc., 14 FCC Rcd 13539 (Mass Media Bureau 1999). Each
forfeiture order imposed a $4,000 forfeiture upon the
licensee for a willful violation of section 73.1206 of the
Commission's rules, 47 C.F.R. § 73.1206 (Broadcast of
telephone conversations).
2. The staff properly decided the matters raised
below, and we uphold the staff decisions for the reasons
stated therein. In this regard, we concur fully with the
Bureaus that the protection afforded by 47 C.F.R. § 73.1206
is not as limited as the petitioners would desire. Thus,
when an individual is informed during a broadcast
conversation that he or she is being put on hold, the prior
notification that the call is being broadcast or recorded
for later broadcast effectively ceases. If a licensee
wishes to continue to broadcast or record for later
broadcast any conversation or utterances that occur while
the caller is on hold, the licensee must explicitly notify
the caller of its intention to do so. While we recognize
that the facts in this case are somewhat different than most
cases under 47 C.F.R. § 73.1206, we believe the Bureaus'
conclusions are in accord with the language and purpose of
the rule and should have been anticipated by the
petitioners. In this regard, the Commission has made clear
repeatedly that the purpose of the rule is to afford a level
of privacy to telephone conversations. E.g., Amendment of
Section 73.1206: Broadcast of Telephone Conversations, 3 FCC
Rcd 5461, 5463 (1988). The petitioners chose to disregard
these pronouncements, and we reject their contention that
they acted in good faith. We therefore agree with the
Bureaus that the forfeitures are warranted.
3. We also disagree with Infinity's argument that its
acquisition of control of EZ precludes imposition of a
forfeiture upon EZ for actions occurring prior to the
transfer. In addition to the reasons articulated in EZ
Sacramento, Inc., we note that section 503 of the
Communications Act of 1934, as amended, 47 U.S.C. § 503,
authorizes us to impose forfeitures upon any person who
willfully violates the Act or our rules. That section also
requires us to take into account, with respect to the
violator, its degree of culpability, history of prior
offenses, ability to pay, and such other matters as justice
may require. 47 U.S.C. § 503(b)(2)(D). The facts of this
case plainly reveal that EZ willfully violated 47 C.F.R. §
73.1206 and that a forfeiture is warranted against EZ. The
fact that the ownership of the company changed hands does
not affect the company's liability. In determining the
amount of the forfeiture, we have considered, but ultimately
find insignificant, the fact that Infinity acquired control
of EZ after the violation occurred.
4. Accordingly, IT IS ORDERED, pursuant to authority
granted by section 5(c) of the Communications Act of 1934,
as amended, 47 U.S.C. § 155(c), and section 1.115(g) of the
Commission's rules, 47 C.F.R. § 1.115(g), that the
application for review filed October 23, 2000, by EZ
Sacramento, Inc. and Infinity Broadcasting Corporation of
Washington, D.C. IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary CONCURRING SEPARATE STATEMENT OF COMMISSIONER HAROLD
FURCHTGOTT-ROTH
In the Matter of EZ Sacramento, Inc. Licensee of Station
KHTK(AM) Sacramento, California, Infinity Broadcasting
Corporation of Washington, D.C. Licensee of Station WJFK-FM
Manassas, Virginia, Memorandum Opinion and Order, FCC 01-53
(rel. February 20, 2001).
I support today's forfeiture order, nonetheless, I
write separately to question the continued utility and
effectiveness of FCC rules addressing privacy issues, such
as this one. 47 CFR § 73.1206 provides, in pertinent part,
that ``[b]efore 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.'' That section forms the basis
of today's forfeiture. Rather than promulgated pursuant to
some specific statutory directive, this provision was
promulgated in 1970 based on our general statutory
authority.1
I believe the Commission should re-examine the utility
of rules -- like this one - that are not based on a specific
statutory charge. Among the factors to be considered in
assessing the efficacy of these rules are: the availability
of remedies in other fora, the possibility of asymmetrical
regulation, and the ability of the Commission to focus
resources on its core mission. Here, it appears that
private parties have extensive remedies under state law to
cure any privacy violations. Relying on state law remedies
would also place radio broadcasters on the same footing as
other media outlets (i.e., newspapers) that are not subject
to these privacy rules. Finally, elimination of the rule
would allow the FCC to more aggressively focus its
enforcement attention on those areas squarely and solely
within the FCC's jurisdiction. Therefore I encourage my
colleagues to take a closer look at these types of rules in
upcoming biennial review proceedings. In the end, we may
better serve the American people by doing fewer things, but
doing them better.
_________________________
1 See In the Matter of Amendment of Part 73 of the
Commission's Rules and Regulations with Respect to the
Broadcast of Telephone Conversations, Report and Order,
Docket No. 18601, 23 F.C.C. 2d 1 (1970) (adopting 47 CFR §
73.1206 under its authority from sections 4(i) and (j) and
303(r) of the Communications Act of 1934). 47 CFR § 73.1206
provides,
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.
47 CFR § 73.1206.