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Federal Communications Commission
Washington, DC 20554
In the Matter of )
WXDJ LICENSING, INC. ) File No. EB-03-IH-0275
) NAL Account No.
Licensee of Station WXDJ(FM), ) 200432080026
North Miami, Florida ) Facility No. 48368
) FRN No. 0004976874
Adopted: November 23, 2004 Released: November 24,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order, we issue a monetary
forfeiture in the amount of $3,500 to WXDJ Licensing, Inc.,
licensee of Station WXDJ(FM), North Miami, Florida for the
willful broadcast of an unauthorized telephone conversation in
violation of section 73.12061 of the Commission's rules.
2. The Enforcement Bureau received an informal complaint
alleging that on June 17, 2003, Station WXDJ(FM) broadcast a
telephone conversation between radio personalities Joe Ferrero
and Enrique Santos of WXDJ and President Fidel Castro of the
Republic of Cuba and four officials of the Cuban government.2
According to the complaint, and a recording of the broadcast
available on WXDJ(FM)'s website, Mr. Santos and Mr. Ferrero
pretended to be President Hugo Chavez of Venezuela and a high-
ranking Venezuelan government official. They telephoned the
Cuban Ministry of Foreign Relations, requesting to speak to Mr.
Castro. After the DJs convinced several Cuban officials that
President Chavez was on the line waiting to speak to Mr. Castro
on an urgent matter, Mr. Castro answered the phone. When Mr.
Castro did so, Mr. Ferrero informed him that President Chavez was
on the line and wished to speak to him concerning the loss of
some sensitive material. Moments later, Mr. Ferrero revealed the
ruse to Mr. Castro and identified himself and Mr. Santos as
employees of Station WXDJ(FM).3
3. After reviewing the complaint, the Bureau issued a
letter of inquiry (``LOI'') to WXDJ, in which we ordered the
licensee to confirm whether Station WXDJ(FM) had broadcast either
a live or recorded telephone conversation between WXDJ's radio
personnel and Cuban government officials.4 In its response, WXDJ
admitted it recorded a telephone conversation between Joe Ferrero
and Enrique Santos and President Fidel Castro of the Republic of
Cuba and four officials of the Cuban government prior to its
broadcast, that the Cuban officials were not provided with notice
that their conversations were to be broadcast prior to recording,
and that Mr. Castro was only provided with notice of the
station's intent to record and broadcast the conversation after
the conversation had commenced.5
4. Based on the Bureau's review of the facts and
circumstances of this case and after considering WXDJ's response
to our LOI, we concluded that WXDJ broadcast a conversation
between employees of WXDJ and officials of the Cuban government
without providing prior notice that the licensee intended to air
their conversation, in apparent willful violation of section
73.1206 of the Commission's rules. The Bureau therefore proposed
a forfeiture at the base amount of $4,000 for the unauthorized
broadcast of a telephone conversation.6
5. In its response to the NAL, WXDJ does not dispute that
it broadcast a conversation between employees of WXDJ and
officials of the Cuban government without providing prior notice
that it intended to air their conversation.7 Instead, WXDJ seeks
cancellation or reduction of the proposed forfeiture based on its
claim that Mr. Castro received notice of the station's intent to
record and air the conversation prior to its broadcast but after
its recording.8 Section 73.1206 of the Commission's rules,
however, clearly requires a licensee to notify parties to a
telephone call before it initiates recording 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 . . . .''9 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.10 Further, the absence of a
complaint or objection lodged with the Commission by Mr. Castro
or the other Cuban officials does not indicate, as WXDJ argues,
that the recipients of the phone call consented to having their
conversation broadcast, and we reject that claim. Finally, we
reject the claim that the licensee is not liable for the
broadcast because an unidentified third party, not one of the
recipients of the phone call, complained to the Commission.11
Given the important privacy interest that the rule serves, and
the fact that WXDJ's conduct was exactly the type of conduct that
the rule was meant to prohibit, we conclude that the forfeiture
proposed in the NAL is appropriate.
6. WXDJ also requests that we provide it with the name
of the complainant who filed the informal complaint revealing
WXDJ's unauthorized telephone broadcast, maintaining that it is
entitled to know the identity of the individual. WXDJ cites no
authority in support of its request. By contrast, Commission
rules prohibit the release of investigatory records compiled for
law enforcement purposes where production of such records would
``constitute an unwarranted invasion of personal privacy.''12 We
believe that is the case here, in which the complainant
specifically requested anonymity. To disclose the complainant's
identity in such cases might have a chilling effect on the
willingness of the listening public to assist the Commission in
monitoring compliance with our rules and undermine our ability to
obtain such information from the public. Thus, we will not
divulge the requested information.
7. Finally, WXDJ asserts that it has a history of overall
compliance and no record of any prior offenses.13 Based on
WXDJ's history of overall compliance, we will lower the
forfeiture to $3,500.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED, pursuant to section 503(b)
of the Communications Act of 1934, as amended,14 that WXDJ
Licensing, Inc., licensee of Station WXDJ(FM), North Miami,
Florida, FORFEIT to the United States the sum of $3500.00 for
willfully broadcasting an unauthorized telephone conversation in
violation of section 73.1206 of the Commission's rules, 47 C.F.R.
9. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
10. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent, by Certified Mail Return Receipt Requested,
to WXDJ Licensing, Inc., care of its attorney, Allan G.
Moskowitz, Esq., Kaye Scholer, LLP, 901 Fifteen Street, N.W.,
Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 73.1206.
2 Ferrero and Santos are morning talk show hosts of ``El Vacilón
de la Mañana'' (``The Morning High Jinks'').
3 This conversation was pre-recorded on June 17, 2003 at 11:08 AM
and broadcast three times later that day from 5:30 PM to
midnight, and two additional times on the following day.
4 See Letter from Maureen F. Del Duca, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, to WXDJ Licensing, Inc., dated November 18, 2003.
5 Letter from Allan G. Moskowitz, Esq., attorney for WXDJ
Licensing, Inc., to the Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, dated
January 7, 2004 (``LOI Response'').
6 WXDJ Licensing, Inc., Notice of Apparent Liability, DA 04-1047,
2004 WL 868562 (Enf. Bur. rel. April 23, 2004 (``NAL'').
7 See Request for Cancellation or Reduction of Forfeiture, dated
May 18, 2004 at 1-2. (``NAL Response'').
8 Id. at 2.
9 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'').
10 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., Memorandum Opinion
and Order, 16 FCC Rcd 4958, 4958 (2002) (finding that prior
notifications ``effectively cease'' when callers are put on hold,
and thus explicit notice must be given if stations plan to
continue such broadcasts or record such conversations for later
broadcasts); Heftel Broadcasting-Contemporary, Inc., Memorandum
Opinion and Order, 52 FCC 2d 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).
11 Contrary to WXDJ's unsupported contention that the complaint
lacks standing to object to the broadcast in question, section
73.1206 does not impose a standing requirement. See Tempe Radio,
Inc., Notice of Apparent Liability and Forfeiture, 18 FCC Rcd
20102 (Enf. Bur. 2003) (forfeiture paid). In Tempe, the
Enforcement Bureau issued an NAL based on a complaint from a
member of the listening public rather than the recipient of the
phone call unlawfully broadcast by the licensee. In that case, a
radio personality phoned the recently widowed wife of a baseball
pitcher, told her on the air that she was ``hot,'' and asked
whether ``she had a date for Thursday's game.'' The radio
personality then broadcast the conversation without informing the
widow. Despite the complaint being initiated by someone other
then the recipient of the call, the Bureau found the station
liable for forfeiture.
12 47 C.F.R. § 0.457(g)(3); see also William McConnell,
Broadcasting and Cable, Memorandum Opinion and Order, 18 FCC Rcd
26371, ¶4 (2003) (Enforcement Bureau properly granted
respondent's request for confidential treatment of names supplied
in response to an investigation, finding that release of the
information ``could reasonably be expected to `constitute an
unwarranted invasion of personal privacy.''' Lenona E. Shook,
Memorandum Opinion and Order, FCC 86-46, 1986 FCC Lexis 3437
(rel. May 15, 1986) (Field Operations Bureau properly denied
request by Citizens' Band operator to obtain identities of
individuals who filed complaints with the Commission and
expressly requested confidentiality); Brian L. Snyder, Memorandum
Opinion and Order, FCC 85-138, 1985 FCC Lexis 3664, ¶ 3 (rel.
March 22, 1985) (Field Operations Bureau properly denied
respondent the name of complainants who had written letter to
assist Commission in ``effecting its duty to maintain and assure
the proper use of the electromagnetic spectrum,'' despite
respondent's desire to pursue civil remedies for alleged
defamatory qualities of letter).
13 See NAL Response at 3- 4 (citing 47 C.F.R. § 1.80(b)(4)).
14 See 47 U.S.C. § 503(b).