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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of )
)
TEMPE RADIO, INC. ) File No. EB-02-IH-0812
) NAL Account No.
Licensee of Station KUPD(FM), ) 200432080006
Tempe, Arizona ) Facility No. 65166
) FRN No. 0007589328
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 6, 2003 Released: October 7,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that, on October 3, 2002, Tempe Radio, Inc.
(``Tempe''), licensee of Station KUPD(FM), Tempe, Arizona,
apparently willfully violated Section 73.1206 of the Commission's
rules.1 Based upon our review of the facts and circumstances in
this case, and for the reasons discussed below, we conclude that
Tempe is apparently liable for a monetary forfeiture in the
amount of Four Thousand Dollars ($4,000.00).
II. BACKGROUND
2. The Commission received a complaint that, on October 3,
2002, Station KUPD(FM) broadcast a telephone conversation
between radio personality Beau Duran and Flynn Kile, the then-
recently widowed wife of St. Louis Cardinals' baseball pitcher
Darryl Kile.2 According to the complaint, Mr. Duran called Ms.
Kile, who was visiting Phoenix, Arizona, to attend the St. Louis
Cardinals-Arizona Diamondbacks playoff game. Mr. Duran told Ms.
Kile that she was ``hot,'' asked her whether ``she had a date for
Thursday's game,'' and broadcast the conversation without
informing Ms. Kile that the conversation was being aired.
3. After reviewing the complaint, we issued a letter of
inquiry to Tempe.3 We asked the licensee whether Station KUPD(FM)
had broadcast a telephone conversation or had recorded and later
replayed such a conversation between Mr. Duran and Ms. Kile, and
whether station personnel had provided Ms. Kile prior
notification that they intended to air the conversation.
Additionally, we asked the licensee to provide any other
pertinent details that would explain or clarify the matter.
4. In its response to our letter of inquiry,4 Tempe
admitted that Station KUPD(FM) broadcast live the conversation
between Mr. Duran and Ms. Kile, on October 3, 2002. Tempe
stated that ``the entire broadcast of the telephone call,
including a brief exchange with the hotel operator, lasted less
than 45 seconds,'' that ``Mr. Duran's conversation with Ms. Kile
lasted less than 25 seconds,'' that the conversation was not
rebroadcast, that Mr. Duran had initiated the call and that he
was the only station employee to speak with Ms. Kile. Tempe
further admitted that Mr. Duran never gave notice that the
telephone conversation would be or was being aired. As a result
of the October 3 broadcast, Tempe stated that on October 4, 2002,
it suspended Mr. Duran, that on October 7, 2002, it terminated
his employment and also circulated a memorandum reminding its
employees of the requirement to inform parties that their
conversation will be simultaneously broadcast or recorded for
later broadcast and warning them that violation of this
requirement would result in ``immediate termination.''5 In
reply, the complainant claimed that Tempe had terminated Mr.
Duran only because of the ``public outcry'' and ensuing notoriety
the broadcast engendered, and that its ``efforts to adhere to FCC
Rules seems to have begun seriously only after [his] complaint to
the FCC and [our] subsequent letter'' to Station KUPD(FM).6
III. DISCUSSION
5. Under section 503(b)(1) of the Communications Act of
1934, as amended (the ``Act''), 7 any person who is determined
by the Commission to have willfully or repeatedly failed to
comply with any provision of the Act or any rule, regulation, or
order issued by the Commission shall be liable to the United
States for a monetary forfeiture penalty. In order to impose
such a forfeiture penalty, the Commission must issue a notice of
apparent liability, the notice must be received, and the person
against whom the notice has been issued must have an opportunity
to show, in writing, why no such forfeiture penalty should be
imposed.8 The Commission will then issue a forfeiture if it
finds by a preponderance of the evidence that the person has
violated the Act or a Commission rule.9 As we set forth in
greater detail below, we conclude under this standard that Tempe
is apparently liable for a forfeiture for its apparent willful
violation of section 73.1206 of the Commission's rules.
6. Section 73.1206 of the Commission's rules provides, in
pertinent part:
Before recording a telephone conversation for broadcast
. . . 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 as [sic] 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.
Thus, Section 73.1206 requires licensees to so notify parties to
a telephone call before it initiates recordings for simultaneous
or later broadcasts. The Commission has stated that ``[t]he
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 . . . .''10 The rule reflects the Commission's
longstanding belief that prior notification is essential to
protect individuals' legitimate expectation of privacy, as well
as to preserve their dignity by avoidance of nonconsensual
broadcasts of their conversations.11 Thus, the Commission has
held that the prior notification requirement ensures the
protection of an individual's ``right to answer the telephone
without having [his or her] voice or statements transmitted to
the public by a broadcast station'' live or by recording for
delayed airing.12 Applying this reasoning, the Commission has
defined ``conversations'' broadly ``to include any word or words
spoken during the telephone call,'' and specifically has rejected
arguments that ``utterances made by parties called in answering
the phone'' are not subject to the rule's prior notification
requirement.13
7. Based upon the information before us, it appears that,
on October 3, 2002, Tempe broadcast the conversation between Mr.
Duran and Ms. Kile, without providing Ms. Kile prior notice that
it intended to air her conversation, in apparent willful
violation of Section 73.1206 of the Commission's rules. In light
of this apparent violation, we believe it appropriate that Tempe
be assessed a monetary forfeiture. The Commission's Forfeiture
Policy Statement sets a base forfeiture amount of $4,000.00 for
the unauthorized broadcast of a telephone conversation14 and
provides that base forfeitures may be adjusted based upon
consideration of the factors enumerated in Section 503(b)(2)(D)
and 1.80(a)(4), which include ``the nature, circumstances,
extent, and gravity of the violation . . . and the degree of
culpability, any history of prior offenses, ability to pay, and
such other matters as justice may require.''15 Based upon the
facts and circumstances presented here, we find that the base
amount of Four Thousand Dollars ($4,000.00) to be the appropriate
proposed forfeiture amount.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,16 and
Sections 0.111, 0.311 and 1.80 of the Commission's rules,17 Tempe
Radio, Inc., licensee of KUPD(FM), Tempe, Arizona, is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of Four Thousand Dollars ($4,000.00) for willfully violating
Section 73.1206 of the Commission's rules on October 3, 2002.18
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the rules,19 within thirty (30) days of this NOTICE OF APPARENT
LIABILITY, Tempe Radio, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture. Payment of
the forfeiture may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications
Commission, to Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment must include the FCC
Registration Number (FRN) referenced above and also must note the
NAL/Acct. No. referenced above.
10. The response, if any, must be mailed to Maureen F. Del
Duca, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Room 3-B443, Washington, D.C. 20554 and MUST INCLUDE THE
NAL/Acct. No. referenced above.
11. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.20
12. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Investigations and Hearings
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail - Return
Receipt Requested to Chuck Artigue, Vice President and General
Manager, KUPD(FM), 1900 W. Carmen, Tempe, Arizona 85283, and to
Kenneth C. Howard, Jr., Esquire, Baker and Hostetler, LLP, 1050
Connecticut Avenue, N.W., Suite 1100, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Attachment A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 C.F.R. § 73.1206.
2 See Letter from Matthew O'Brien to Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission
(October 15, 2002).
3 See Letter from Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, to Tempe Radio, Inc. (November 15, 2002).
4 In accordance with a staff-granted extension of time, on
December 20, 2002, Tempe filed its response. See Letter from
Chuck Artigue, Vice President and General Manager, KUPD(FM) to
Charles W. Kelley, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission (December
20, 2002).
5 Id. at 2.
6 See Letter from Matthew O'Brien to Charles W. Kelley, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission (January 9, 2003).
7 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also 47
U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. §
1464). Section 312(f)(1) of the Act defines willful as ``the
conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate'' the law. 47 U.S.C. §
312(f)(1). The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both
sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97th
Cong. 2d Sess. 51 (1982), and the Commission has so interpreted
the term in the section 503(b) context. See, e.g., Application
for Review of Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern
California Broadcasting Co.''). The Commission may also assess a
forfeiture for violations that are merely repeated, and not
willful. See, e.g., Callais Cablevision, Inc., Grand Isle,
Louisiana, Notice of Apparent Liability for Monetary Forfeiture,
16 FCC Rcd 1359 (2001) (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal
leakage). ``Repeated'' merely means that the act was committed
or omitted more than once, or lasts more than one day. Southern
California Broadcasting Co., 6 FCC Rcd at 4388, ¶ 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
8 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
9 See, e.g., SBC Communications, Inc., Apparent Liability for
Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
(forfeiture paid).
10 Station-Initiated Telephone Calls which Fail to Comply with
Section 73.1206 of the Rules, Public Notice, 35 FCC 2d 940, 941
(1972) (``1972 Public Notice'').
11 See Amendment of Section 1206: Broadcast of Telephone
Conversations, Report and Order, 3 FCC Rcd 5461, 5463-64 (1988)
(``1988 Order''); 1972 Public Notice, 35 FCC 2d at 941; Amendment
of Part 73 of the Commission's Rules and Regulations with Respect
to the Broadcast of Telephone Conversations, Report and Order, 23
FCC 2d 1, 2 (1970); see also EZ Sacramento, Inc. and Infinity
Broadcasting Corporation of Washington, D.C., 16 FCC Rcd 4958,
4958 (2002) (finding that prior notifications ``effectively
cease'' when callers are put on hold, and that thus explicit
notice must be given if stations plan to continue such broadcasts
or record such conversations for later broadcasts); Heftel
Broadcasting-Contemporary, Inc., 52 FCC 1005, 1006 (1975)
(finding that ``cash call'' promotions that simultaneously
broadcast, and award prizes based on, parties' responses in
answering the telephone are subject to section 73.1206's prior
notification requirement) (emphasis added).
12 1988 Order, 3 FCC Rcd at 5463.
13 Heftel Broadcasting-Contemporary, Inc., 52 FCC at 1006.
14 See Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC
Rcd 303 (1999).
15 Id., 12 FCC Rcd at 17100-01.
16 47 U.S.C. § 503(b).
17 47 C.F.R. §§ 0.111, 0.311 and 1.80.
18 47 C.F.R. § 73.1206.
19 47 C.F.R. § 1.80.
20 47 C.F.R. § 1.1914.