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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
SAGA COMMUNICATIONS OF NEW ) File No. EB-01-IH-0230
ENGLAND, INC. ) NAL/Acct. No.
) 20043208000014
Licensee of Station WLZX(FM), )
Northampton, Massachusetts ) Facility ID No. 46963
FRN No. 0002749406
FORFEITURE ORDER
Adopted: October 13, 2004 Released: October 15,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we impose a forfeiture of
$4,000 against Saga Communications of New England, Inc.
(``Saga''), licensee of Station WLZX(FM), Northampton,
Massachusetts, for violating section 73.1206 of the Commission's
rules1 by broadcasting a telephone conversation without first
informing the other party to the conversation of its intention to
do so.
II. BACKGROUND
2. On February 19, 2004, we issued a Notice of Apparent
Liability (``NAL'') 2 for $4,000, based on a complaint by Western
Mass Radio Company (``Western''), licensee of Station WRNX(FM),
Amherst, Massachusetts. The complaint alleged that Saga
broadcast a telephone conversation between Station WLZX(FM) radio
personality Christopher Laursen and Station WRNX(FM) radio
personality Dave Sears without prior notice to Mr. Sears.
According to the complaint, Mr. Laursen called Mr. Sears and
pretended to be a WRNX listener.3
3. On March 22, 2004, Saga responded to the NAL,4 stating
that the Commission should cancel the NAL because Saga's conduct
was not willful. Additionally, Saga stated that the Enforcement
Bureau should, at a minimum, have reduced the amount of the
forfeiture based upon Saga's ``good faith and history of overall
compliance.''5
III. DISCUSSION
4. Saga argues that the forfeiture should be cancelled
because Saga's conduct in this matter ``was not willful.''6 Saga
concedes that its employee, Mr. Laursen, deliberately called Mr.
Sears and broadcast their conversation on January 25, 2001,
without notice to Mr. Sears.7 Saga, however, ``does not believe
that the one-time isolated broadcast by an employee, against the
directive of his employer, of an unauthorized telephone
conversation is a `willful' violation,'' and that it ``should not
be held liable for a forfeiture for willful violation when it has
taken all reasonable precautions to avoid a violation, but an
employee went `haywire' and violated the rule.''8 Saga argues
that even if Mr. Laursen acted ``willfully'' in violating the
Commission's rule, Saga's precautions and policy prohibiting such
violations should forestall such a finding with respect to the
company. 9
5. We reject Saga's argument. As Saga acknowledges, a
``willful'' violation under section 503(b) means ``the conscious
and deliberate commission or omission of [any] act, irrespective
of any intent to violate'' the law.10 As Saga also
acknowledges,11 the ``Commission has long held that licensees and
other Commission regulatees are responsible for the acts and
omissions of their employees and independent contractors,''12 and
when the actions of independent contractors or employees have
resulted in violations, the Commission has ``consistently refused
to excuse licensees from forfeiture penalties.''13 Nothing in
the record here suggests that this precedent is inapposite.
6. The NAL proposed a $4,000 forfeiture against Saga,
which is the base forfeiture amount established under the
Forfeiture Policy Statement for the unauthorized broadcast of a
telephone conversation.14 Saga argues that the Bureau should
reduce the forfeiture amount because of the company's ``good
faith.'' Nothing in the record supports a finding of good faith
warranting reduction of the forfeiture amount.15
7. Finally, Saga contends that the Bureau should reduce
the forfeiture because of Saga's history of overall compliance.16
We reject this claim because, in fact, the Enforcement Bureau has
found various Saga affiliates in violation of the Commission's
rules in numerous cases in the past four years.17 We therefore
decline to reduce the forfeiture amount on these grounds.
IV. ORDERING CLAUSES
8. 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 Saga Communications of New
England, LLC, shall FORFEIT to the United States the sum of
$4,000 for willfully violating section 73.1206 of the
Commission's rules.
9. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.19
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. Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Group, 445 12th Street, S.W.,
Washington, D.C. 20554.20
10. 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.
IT IS FURTHER ORDERED THAT a copy of this Forfeiture Order shall
be sent by Certified Mail - Return Receipt Requested to Lawrence
D. Goldberg, Vice President, Saga Communications of New England,
Inc, 15 Hampton Avenue, Northampton, Massachusetts 01060; its
counsel, Gary S. Smithwick, Esquire, Smithwick & Belendiuk, P.C.,
5028 Wisconsin Avenue, N.W., Suite 301, Washington, D.C. 20016;
and Erwin G. Krasnow, Esquire, Garvey Schubert Barer, Fifth
Floor, 1000 Potomac Street, N.W., Washington, D.C. 20007-3501.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
147 C.F.R. § 73.1206.
2See Saga Communications of New England, Inc., Notice of Apparent
Liability, 19 FCC Rcd 2741 (Enf. Bur. 2004).
3See Letter from Thomas G. Davis, President, Western Mass Radio
Company, to Magalie Roman Salas, Secretary, Federal
Communications Commission, dated February 1, 2001 (``Western
Complaint'').
4See Saga Communications of New England, LLC, Response to Notice
of Apparent Liability for Forfeiture, March 22, 2004 (``Saga NAL
Response'').
5See id. at 7.
6Saga cites section 503(b)(1)(B) of the Communications Act of
1934, as amended (the ``Act''), 47 U.S.C. §503(b)(1)(B), which
authorizes the Commission to assess forfeitures against those who
have ``willfully or repeatedly failed to comply with any of the
provisions of this Act or of any rule, regulation, or order
issued by the Commission.'' See id. at 2-3.
7Id. at 2.
8Id. at 4.
9Id. at 3-5.
10Id. at 2-3 (citing Application for Review of Southern
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387,
4388 (1991)).
11Id. at 4-5 (stating ``[L]icensees are responsible for the acts
of their employees'').
12Eure Family Limited Partnership, Memorandum Opinion and Order,
17 FCC Rcd 21861, 21863-64 ¶ 7 (2002); MTD, Inc., Memorandum
Opinion and Order, 6 FCC Rcd 34 (1991) (holding that a company's
reliance on an independent contractor to construct a tower in
compliance of FCC rules does not excuse that company from a
forfeiture); Wagenvoord Broadcasting Co., Memorandum Opinion and
Order, 35 FCC 2d 361 (1972) (holding a licensee responsible for
violations of FCC rules despite its reliance on a consulting
engineer); Wings Communications, Inc., Forfeiture Order, DA 04-
1383, 2004 WL 1103709 (Enf. Bur. May 19, 2004) (holding a company
responsible for its employee's failure to notify the FAA of a
lighting malfunction on its antenna tower); and Petracom of
Joplin, L.L.C., Forfeiture Order, 19 FCC Rcd 6248 (Enf. Bur.
2004) (holding a licensee liable for its employee's failure to
conduct weekly EAS tests and to maintain the ``issues/programs''
list).
13
American Paging, Inc. of Virginia, Notice of Apparent Liability
for Forfeiture, 12 FCC Rcd 10417, 10420 ¶ 11 (Enf. & Cons. Inf.
Div., Wireless Tel. Bur. 1997) (quoting Triad Broadcasting
Company, Inc., Memorandum Opinion and Order, 96 FCC 2d 1235, 1244
(1984)).
14See Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, Report and Order, 12 FCC Rcd 17087, 17115 (1997)
(``Forfeiture Policy Statement''), recon. denied, 15 FCC Rcd 303
(1999).
15Saga cites Infinity Broadcasting Corporation, Memorandum
Opinion and Order, 16 FCC Rcd 20156 (Enf. Bur. 2001) and Long
Nine, Inc., Forfeiture Order, 15 FCC Rcd 15747 (Enf. Bur. 2000)
in support of its claim that the Bureau should reduce or
eliminate the forfeiture. According to Saga, these cases
establish that the Bureau has cancelled forfeitures for
violations of 47 C.F.R. § 73.1206 ``where circumstances indicated
the licensee was operating under a misimpression or there was
some confusion as to whether the broadcast was authorized.'' See
Saga Response at 5. Both of these cases are distinguishable,
however. In Infinity, the Bureau concluded that the licensee
could have reasonably believed that the FCC staff approved of its
procedures for broadcast telephone conversations. The facts
supporting a good faith finding in Long Nine involved a mistaken
belief that the station had previously given the required notice.
Unlike in these cases, the facts here involve no such mistaken
belief.
16Saga NAL Response at 7.
17See, e.g., Saga Communications of Illinois, Inc., Notice of
Violation, EB-02-CG-239 (Enf. Bur. Chicago Office, June 11, 2002)
(violation of section 17.23 of the Commission's rules, 47 C.F.R.
§ 17.23 (antenna structure lighting)); Saga Communications of New
England, Inc., Notice of Violation, EB-00-BS-337 (Enf. Bur.
Boston Office, July 24, 2000) (violation of section 17.4 of the
Commission's rules, 47 C.F.R. § 17.4 (antenna structure
registration)).
1847 U.S.C. § 503(b); 47 C.F.R. § 1.80.
1947 U.S.C. § 504(a).
20See 47 C.F.R. § 1.1914.