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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of )
)
SAGA COMMUNICATIONS ) File No. EB-01-IH-0230
OF NEW ENGLAND, INC. ) NAL Account No.
) 20043208000014
Licensee of Station WLZX(FM), ) Facility ID No. 46963
Northampton, Massachusetts ) FRN No. 0002749406
)
and )
)
WESTERN MASS RADIO COMPANY )
) Facility ID No. 25906
Licensee of Station WRNX(FM), ) FRN No. 0003763935
Amherst, Massachusetts )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 17, 2004 Released: February 19,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that, on January 25, 2001, Saga Communications
of New England, Inc. (``Saga''), licensee of Station WLZX(FM),
Northampton, Massachusetts, apparently willfully violated section
73.1206 of the Commission's rules by recording and broadcasting a
telephone conversation without first notifying a party to the
call of its intention to do so.1 Based upon our review of the
facts and circumstances in this case, and for the reasons
discussed below, we conclude that Saga is apparently liable for a
monetary forfeiture in the amount of Four Thousand Dollars
($4,000.00). Further, we deny a complaint filed by Saga against
Western Mass Radio Company (``Western''), licensee of Station
WRNX(FM), Amherst, Massachusetts, for abuse of Commission
processes and attempted unauthorized transfer of control, and
dismiss Saga's request for a revocation proceeding against
Western.
II. BACKGROUND
II.A.1. The Commission received a complaint from
Western alleging that, on January 25, 2001, Saga
broadcast a telephone conversation between Station
WLZX(FM) radio personality Christopher Laursen and
Station WRNX(FM) radio personality Dave Sears.2
According to the complaint, Mr. Laursen called Mr.
Sears and pretended to be a WRNX listener. Mr.
Laursen asked Mr. Sears whether WRNX(FM) radio
personality and News Director Kelsey Flynn was
``hot'' and if she was a ``lesbo.''3 This
conversation was broadcast on Station WLZX(FM).
The complaint alleged that, while Station WLZX(FM)
General Manager and Saga Vice-President Lawrence
Goldberg later contacted Western President Thomas
G. Davis to apologize for the incident, Western
felt that a private apology was inadequate.4 In a
January 29, 2001, electronic message from ``Tom
Davis, Western Mass Radio'' to ``Sean Davey and
Larry Goldberg, Saga Communications,'' Western
offered to settle the matter if Saga agreed to the
following: (1) Mr. Laursen would record a
message, written by Mr. Davis, apologizing for Mr.
Laursen's actions, which would be aired on Station
WLZX(FM) five times in one day at times selected
by Mr. Davis; (2) Mr. Laursen would not discuss
the incident on the air at any time, other than
during the recorded message of apology; (3) the
apology would be signed and published in the Daily
Hampshire Gazette and Union News three times in
clear view; (4) Saga would donate $1,000.00 to a
charity of Kelsey Flynn's choice, and the donation
would be announced in the apology.5 Western
informed Saga that ``[y]ou certainly have the
right to decline, in which case we will place the
issue in the hands of the FCC and allow them to
take it to its ultimate resolution, whatever that
may be.''6
II.A.2. After reviewing the complaint, we issued a
letter of inquiry to Saga. We asked the licensee
whether Station WLZX(FM) had recorded and later
replayed such a conversation between a Station
WLZX(FM) radio personality and a Station WRNX(FM)
radio personality. We also asked whether Station
WLZX(FM) personnel had provided the Station
WRNX(FM) radio personality prior notification that
Station WLZX(FM) intended to record and broadcast
the conversation. Additionally, we asked Saga to
provide any other pertinent details that would
explain or clarify the matter.7
II.A.3. Before Saga responded to the LOI, on March
13, 2001, it filed a complaint against Western
alleging extortion, blackmail and abuse of
process, as well as an attempted unauthorized
transfer of control.8 Saga claimed that Western
had attempted to blackmail Saga by demanding money
and free airtime under a threat of informing the
Commission of Saga's violation of the Commission's
rules.9 Saga also claimed that accommodating
Western's requests that it read a written apology
over the air as well as not discuss the incident
on-air amounted to an attempted unauthorized
transfer of control, which would have required
Saga to abdicate control of ``basic operating
policies'' in violation of section 310(d) of the
Communications Act of 1934 as amended (the
``Act'').10 Saga requests that the Commission
initiate an enforcement proceeding and issue an
order to show cause under Section 312 of the
Act,11 and that Saga be made a party to the
revocation proceeding.12
II.A.4. In its March 15, 2001, LOI Response, Saga
admitted that Station WLZX(FM) aired a recorded
conversation between Mr. Laursen and Mr. Sears on
January 25, 2001, without obtaining Mr. Sears'
permission,13 but that it subsequently made Mr.
Laursen aware of the requirements of section
73.1206 of the Commission's rules. Saga further
stated that Mr. Laursen knew it was wrong to
record his telephone conversation with Mr. Sears
and broadcast it without Mr. Sears' permission,
and that Mr. Laursen's actions were ``conceived on
the spur of the moment, without approval of any
Saga management personnel.''14 Saga maintained
that it suspended Mr. Laursen and his co-host for
a week without pay after Saga had learned of the
incident, and further provided its employees with
a list of Commission rules, with which it required
all employees to familiarize themselves.
According to Saga, Western refused to accept its
private apology for the incident, instead sending
Saga the electronic mail message with what Saga
refers to as ``a list of non-negotiable
demands.''15
II.A.5. In its March 20, 2001, reply to the Saga
Complaint and LOI Response,16 Western stated that
Saga admits, first, that Station WLZX(FM) recorded
and broadcast the conversation between Mr. Laursen
and Mr. Sears without notifying Mr. Sears that the
conversation was being recorded and going to be
broadcast and, second, that Saga and its employee,
Mr. Laursen, knew the Commission's rules
prohibited such conduct.17 According to Western,
Saga's Complaint was ``so groundless, unwarranted
in law or fact, and so flagrantly contrived ... as
to warrant sanctions against [Saga] for frivolous
pleading.''18 The electronic mail message, Western
contended, ``merely recite[d] the terms for a
proposed settlement of Western Mass' grievance
against Saga for what Saga [ ] admit[ed] was an
indefensible violation of the Commission's
rules.''19 Western maintained that to assert that
its proposed settlement constituted an ``attempted
unauthorized transfer of control'' was
``hyperbolic and silly,'' and the settlement
clearly stated that Saga had a right to decline
Western's offer. Western stated that it was not
an abuse of process, blackmail or extortion for a
victim of wrongdoing to approach the perpetrator
seeking restitution, and if refused, to pursue his
remedies at law.20 The broadcast licensee,
according to Western, was ultimately responsible
for exercising control and oversight over its
employees and, therefore, was liable for its
employee's violation of section 73.1206 of the
Commission rules.21
III. DISCUSSION
A. Saga's Apparent Violation of Section 73.1206 of the
Commission's Rules
7. Under section 503(b)(1) of the Act, 22 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.23 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.24 As we set forth in
greater detail below, we conclude under this standard that Saga
is apparently liable for a forfeiture for its apparent willful
violation of section 73.1206 of the Commission's rules.
III.A.1. 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 [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 broadcast.
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 . . .
.''25 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.26 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.27
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.28
9.Based upon the information before us, it appears that, on
January 25, 2001, Saga broadcast the conversation between Mr.
Laursen and Mr. Sears, without providing Mr. Sears prior notice
that Saga intended to record and later air the 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 Saga 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
conversation29 and provides that base forfeitures may be adjusted
based upon consideration of the factors enumerated in section
503(b)(2)(D) of the Act30 and 1.80(a)(4) of the Commission's
rules,31 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.''32 Based upon the facts and
circumstances presented here, in particular because this appears
to be an isolated violation, we find the base forfeiture amount
of Four Thousand Dollars ($4,000.00) to be appropriate.
B. Saga's Complaint Against Western
10. The Commission has stated that ``[a]buse of
process is a broad concept that includes use of Commission
processes to achieve a result that the process was not intended
to achieve, or use of that process to subvert the purpose the
process was intended to achieve.''33 In Character
Qualifications, the Commission further defined ``abuse of
process'' as ``serious willful misconduct which directly
threatens the integrity of the Commission's licensing
processes.''34 Western's proposed settlement did not involve the
Commission's licensing processes. To this extent, Saga's
reliance on Home Service Broadcasting Corp. is misplaced.35 More
importantly, the purpose of this NAL is ``to inform a licensee
that [it] has failed to abide by the provisions of the
Commission's rules.''36 By filing its complaint, Western
contributed to the Commission's enforcement scheme.37
11. Western's actions further do not constitute
blackmail.38 Even were we to have jurisdiction to adjudicate
this allegation, the facts indicate that Western simply sought a
private resolution of its grievance. The record does not
indicate that Western threatened to file a complaint for its own
benefit, monetary or otherwise. With respect to Western's
request that Saga contribute to a charity of Kelsey Flynn's
choice, Western appears only to have sought redress for the
damage done by statements potentially impugning its employee's
sexual orientation.
12. Saga's claim that Western attempted to acquire control
of Station WLZX(FM) is likewise without merit. In assessing
whether an unauthorized transfer of control has occurred, the
Commission looks at whether a licensee continues to have ultimate
control over a station's programming, personnel, and finances.39
Proposing that Saga broadcast a public apology five times on one
day, and that Saga take steps to prevent its employee from
further insulting Western's radio personality does not constitute
an attempt to control the ``basic operating policies of the
station,'' as Saga maintains.40
13. The Commission does not recognize a formal right to
seek revocation of a license,41 but rather treats such requests
as informal requests for action pursuant to section 1.41 of the
Commission's rules.42 Saga claims that Western's actions
``evidence[] a lack of fitness to be a Commission licensee'' and
therefore the Commission should initiate a proceeding requiring
Western to show cause why its license for WRNX(FM) should not be
revoked.43 Because we reject Saga's claims, Saga's request to
initiate a revocation proceeding is dismissed as moot.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED THAT, pursuant to section
503(b) of the Act,44 and sections 0.111, 0.311 and 1.80 of the
Commission's rules,45 Saga Communications of New England, Inc.,
licensee of Station WLZX(FM), Northampton, Massachusetts, is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of Four Thousand Dollars ($4,000) for apparently willfully
violating section 73.1206 of the Commission's rules on January
25, 2001.46
15. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the rules,47 within thirty (30) days of this NOTICE OF APPARENT
LIABILITY, Saga Communications of New England, 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.
16. 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. 20554.48
17. Accordingly, IT IS ORDERED THAT the complaint of
Western Mass Radio Company filed against Saga Communications of
New England, Inc., licensee of Station WLZX(FM), Northampton,
Massachusetts, is GRANTED.
III.A.2. IT IS FURTHER ORDERED THAT the complaint of
Saga Communications of New England, Inc., alleging
abuse of process, blackmail, and attempted
acquisition of control of WLZX(FM) by Western Mass
Radio Company, licensee of Station WRNX(FM), is
DENIED for the reasons set forth herein, and the
request for revocation of Station WRNX(FM)'s
license is DISMISSED.
III.A.3. 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.
20. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY 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; Thomas G. Davis,
President, Western Mass Radio Company, 98 Lower Westfield Road,
Holyoke, Massachusetts, 01040; and its counsel, 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
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 Thomas G. Davis, President, Western Mass Radio
Company, to Magalie Roman Salas, Secretary, Federal
Communications Commission, dated February 1, 2001 (``Western
Complaint'').
3 Id. at 1.
4 Western Complaint at 2.
5 Id. at 2, Attachment.
6 Id.
7 See Letter from Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, to Saga Communications of New England, Inc., dated
February 14, 2001 (``LOI'').
8 See Letter from Lawrence D. Goldberg, Vice President, Saga
Communications of New England, Inc., to Magalie Roman Salas,
Secretary, Federal Communications Commission, dated March 8,
2001. (``Saga Complaint'').
9 See id. at 2-3.
10 See id. at 3-4; 47 U.S.C. § 310(d).
11 47 U.S.C. § 312
12 See Saga Complaint at 4.
13 See Letter from Lawrence D. Goldberg, Vice President, Saga
Communications of New England, Inc., to Charles W. Kelley, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated March 16, 2001(``LOI
Response''); Declaration of Christopher Laursen dated March 14,
2001 provided therewith (``Laursen Declaration'').
14 Id. at 1; Laursen Declaration.
15 Id. at 2; Laursen Declaration.
16 See Letter from Erwin G. Krasnow, Verner, Liipfert, Bernhard,
McPherson and Hand, to Charles W. Kelley, Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, dated March 20, 2001 (``Western Reply'').
17 Id. at 1.
18 Id. at 2.
19 Id.
20 Id. at 2-3.
21 Id. at 3.
22 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.
23 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
24 See, e.g., SBC Communications, Inc., Apparent Liability for
Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
(forfeiture paid).
25 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'').
26 See Amendment of Section 1206: Broadcast of Telephone
Conversations, 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, 23 FCC 2d 1, 2 (1970); see also EZ
Sacramento, Inc. and Infinity Broadcasting Corp. 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 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).
27 1988 Order, 3 FCC Rcd at 5463.
28 Heftel Broadcasting-Contemporary, Inc., 52 FCC 2d at 1006
(emphasis added).
29 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) (``Forfeiture Policy Statement'').
30 47 U.S.C. § 503(b)(2)(D).
31 47 C.F.R. § 1.80(a)(4).
32 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01.
33 Ronald Brasher, 15 FCC Rcd 16326, 16331 (2000) (citing
Broadcast Renewal Applicants, 3 FCC Rcd 5179, 5199 n.2 (1988)).
34 Policy Regarding Character Qualifications in Broadcast
Licensing, 102 FCC 2d 1179, 1211 (1986) (emphasis added).
35 Saga Complaint at 3, citing Home Service Broadcasting Corp.,
24 FCC 2d 192, 193 (Rev. Bd. 1970). See, also, James Sliger, 70
FCC 2d 1565 (Rev. Bd. 1969) (abuse of process in comparative
renewal proceeding); K.O. Communications, Inc., 13 FCC Rcd 12765
(WTB 1998) (abuse of process when ``strike pleading'' filed).
36 Duhamel Broadcasting Enterprises, 61 FCC 2d 365, 366 (1976).
37 Western's settlement proposal did not undermine the
Commission's enforcement scheme because filing a complaint is
voluntary, and only one method of initiating an enforcement
proceeding.
38 Saga cites to 18 U.S.C. § 873, which makes it a criminal
offense to demand any money or other valuable thing under a
threat of informing, or as consideration for not informing,
against any violation of federal law.
39 See, e.g., Radio Moultrie, Inc., 17 FCC Rcd 24304 (2002).
40 See id. at 24306.
41 See, e.g., K.O. Communications, Inc., 13 FCC Rcd at 12775.
42 See id.; 47 C.F.R. § 1.41.
43 See Saga Complaint at 4.
44 47 U.S.C. § 503(b).
45 47 C.F.R. § 0.111, 0.311 and 1.80.
46 47 C.F.R. § 73.1206
47 47 C.F.R. § 1.80.
48 47 C.F.R. § 1.1914.