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                           Before the 
                Federal Communications Commission
                     Washington, D.C. 20554

In the matter of                 )
                                )
Infinity Radio Operations, Inc.  )    File No. EB-02-IH-0624-GC
                                )    NAL/Acct. No. 200332080020
Licensee of Station WBLK(FM),    )    FRN 0004036711
Buffalo, New York                )    Facility ID # 71215


                        FORFEITURE ORDER

Adopted:  August 11, 2004                  Released:  August 12, 
2004                                    

By the Chief, Enforcement Bureau:

I. INTRODUCTION

     1.   In this Forfeiture Order, we impose a forfeiture of 
$4,000 on Infinity Radio Operations, Inc. (``Infinity'') for 
violating section 73.1206 of the Commission's rules1 by 
broadcasting a telephone conversation without first informing the 
party to the conversation of its intention to do so.  

II. BACKGROUND

     2.   On August 5, 2003, we issued a Notice of Apparent 
Liability in which we proposed a $4,000 forfeiture based on a 
finding that Infinity apparently violated section 73.1206 of the 
Commission's rules.2  Specifically, we found that Infinity, 
licensee of Station WBLK(FM), Buffalo, New York, had broadcast a 
telephone conversation on June 26, 2002, between Shae Moore, a 
disc jockey (DJ) employed by Infinity, and Brenda Tanner, a 
customer service representative employed by Adelphia 
Communications, Inc., without informing Ms. Tanner of its intent 
to broadcast the conversation.3  Based on the facts and 
circumstances surrounding the apparent violation, we proposed a 
forfeiture in the amount of $4,000.00, the base forfeiture amount 
for such a violation.4

     3.   On September 4, 2003, Infinity filed a response to the 
NAL urging the Enforcement Bureau (``Bureau'') to rescind the 
forfeiture. 5  Infinity contends that no forfeiture is warranted 
because: (1) the Bureau's reference to a prior offense by 
Infinity violates section 504(c) of the Communications Act of 
1934, as amended (``the Act'');6 and (2) the Commission recently 
cancelled a notice of apparent 
liability issued to an unrelated broadcaster in another 
proceeding that allegedly contained more aggravating 
circumstances than the present one.7    

III. DISCUSSION

     4.   Section 73.1206 of the Commission's rules provides 
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.8  Infinity admits that it broadcast the telephone 
conversation between its DJ and Ms. Tanner on June 26, 2002, and 
that it did not inform Ms. Tanner of its intent to broadcast her 
conversation.9  Thus, it is undisputed that Infinity violated 
section 73.1206.  

     5.   Nevertheless, Infinity claims that the proposed 
forfeiture should be cancelled because the NAL, in its discussion 
of the statutory factors to be considered in determining a 
forfeiture amount,  rebutted Infinity's claim that the broadcast 
was an isolated incident by citing another proceeding in which 
the Commission assessed a forfeiture against another Infinity 
affiliate for similar conduct.10  Infinity contends that section 
504(c) of the Act bars the Commission from considering a prior 
unpaid, unadjudicated forfeiture proceeding in the instant case. 
11  Section 504(c) states:   

     In any case where the Commission issues a notice of 
     apparent liability looking toward the imposition of a 
     forfeiture under this Act, that fact shall not be used, 
     in any other proceeding before the Commission, to the 
     prejudice of the person to whom such notice was issued, 
     unless (i) the forfeiture has been paid, or (ii) a 
     court of competent jurisdiction has ordered payment of 
     such forfeiture, and such order has become final.12 

Infinity thus argues that the Bureau's reference to the 
earlier proceeding impermissibly relied on a prior, unpaid 
forfeiture to Infinity's detriment.13

     6.   Infinity's reliance on section 504(c) as justification 
for canceling the instant NAL is misplaced.  Contrary to 
Infinity's claim, we referenced the earlier Infinity decision¾EZ 
Sacramento¾merely to rebut Infinity's inaccurate claim that its 
June 26, 2002, unauthorized telephone broadcast was an ``isolated 
incident'' that did not warrant further action.14  As the 
Commission has previously held in a rulemaking order addressing 
this very issue that Infinity does not even mention, reliance on 
the underlying facts of similar conduct in other unadjudicated 
proceedings, as opposed to the existence of a notice of apparent 
liability as such, is permissible under section 504(c).15  

     7.   Furthermore, we are not persuaded by Infinity's 
argument that the Bureau should cancel the proposed forfeiture 
because we recently canceled part of another proposed forfeiture 
for $9,000 in the American Family case that allegedly involved 
more aggravating circumstances.16  In that proceeding, the Bureau 
canceled the portion of a $9,000 proposed forfeiture attributable 
to three admitted, willful violations of the local public 
inspection file rule and admonished the licensee instead because 
the required items were at the station (albeit not in the public 
file) at the time of the inspection.  Infinity argues that, if 
the Bureau cancelled a portion of the American Family forfeiture 
because of the licensee's  good faith efforts to comply, then the 
Bureau should likewise cancel the instant forfeiture based on 
Infinity's ``one-time'' violation and similar good faith 
efforts.17 

     8.   We find no merit in Infinity's reliance on a single 
order in an unrelated area to justify rescinding the forfeiture.  
And, as noted above, this is not the first Infinity violation of 
our telephone broadcast rule.  We therefore reject Infinity's 
arguments that imposing a forfeiture in this instance would 
constitute impermissible disparate treatment.  

IV. ORDERING CLAUSES

     9.   Accordingly, IT IS ORDERED THAT, pursuant to section 
503(b) of the Communications Act of 1934, as amended, and section 
1.80 of the Commission's rules,18 Infinity Radio  Operations, 
Inc., shall FORFEIT to the United States the sum of Four Thousand 
Dollars ($4,000.00) for willfully violating section 73.1206 of 
the Commission's rules.

     10.  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.

     11.  The Commission will not consider reducing or canceling 
a forfeiture in response to a claim of inability to pay unless 
the respondent submits: (1) federal tax returns for the most 
recent three-year period; (2) financial statements prepared 
according to generally accepted accounting practices (``GAAP''); 
or (3) some other reliable and objective documentation that 
accurately reflects the respondent's current financial status.  
Any claim of inability to pay must specifically identify the 
basis for the claim by reference to the financial documentation 
submitted.  

     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 Forfeiture Order, either in your response to this 
Forfeiture Order or in a separate filing to be sent to the 
Investigations and Hearings Division, 445 12th, S.W., Room 3-
B443, Washington, D.C. 20554.  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 Forfeiture Order.  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.  Requests for payment of the full amount of this 
Forfeiture under an installment plan should be sent to: Chief, 
Revenue and Receivables Operations Group, 445 12th Street, S.W., 
Washington, D.C. 20554.19  

     14.  IT IS FURTHER ORDERED THAT a copy of this Forfeiture 
Order shall be sent by Certified Mail Return Receipt Requested to 
Stephen A. Hildebrandt, Vice President, Infinity Radio 
Operations, Inc., 14 Lafayette Square, Suite 1300, Buffalo, New 
York 142203, with a copy to its counsel, attn: John D. Poutasse, 
Leventhal, Senter & Lerman PLLC, 2000 K Street N.W., Washington, 
D.C. 20006-1890.                   

     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau

_________________________

147 C.F.R. § 73.1206.
2See Infinity Radio Operations, Inc. (WBLK(FM)), Notice of 
Apparent Liability for Forfeiture, 18 FCC Rcd 16,191 (EB 2003) 
(``NAL'').
3Id.
4Id.
5Infinity Radio Operations, Inc., Response to Notice of Apparent 
Liability for Forfeiture, filed September 4, 2003 (``Infinity 
Response'').  
6Id. at 2-3. 
7Id. at 3-4. 
847 C.F.R. § 73.1206.
9NAL, 18 FCC Rcd at 16,191-92, ¶¶ 3-4.
10Id. at 16,192, ¶ 6, n. 10 (citing EZ Sacramento, Inc., and 
Infinity Broadcasting Corporation of Washington, D.C., 16 FCC Rcd 
4958 (2001) (``EZ Sacramento''), recon. denied, 16 FCC Rcd 15605 
(2001)).
11Infinity Response at 2-3 (citing Pleasant Broadcasting Co. v. 
FCC, 564 F.2d 496, 500 (D.C. Cir. 1977) (``Pleasant 
Broadcasting''); WIYN Radio, Inc., 59 FCC 2d 424 (1976) (``WIYN 
Radio'')).
1247 U.S.C. § 504(c).
13See Infinity Response at 2-3. 
14See NAL, 18 FCC Rcd at 16,192, ¶ 6.
15The Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Rules to Incorporate the Forfeiture 
Guidelines, Memorandum Opinion and Order, 15 FCC Rcd 303, 304, ¶¶ 
3-6 (1999).  Pleasant Broadcasting and WIYN Radio, cited by 
Infinity, are inapposite because those cases simply restate the 
statutory provision without any reference to the kind of 
situation at issue here.  See Pleasant Broadcasting, 564 F.2d at 
502; WIYN Radio, 59 FCC 2d. at 425, ¶ 7.  (WIYN Radio was one of 
the underlying orders upheld in Pleasant Broadcasting.)
16Infinity Response at 3-4 (citing American Family Association, 
Inc., Memorandum Opinion and Order, 18 FCC Rcd 16,530 (Enf. Bur. 
2003)) (``American Family'').
17Id. 
1847 U.S.C. § 503(b); 47 C.F.R. § 1.80.
19See 47 C.F.R. § 1.1914.