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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of )
)
AMFM Radio Licenses, LLC ) File No. EB-04-IH-0172
) NAL Account No.
Licensee of Station WKQI(FM), ) 200532080023
Detroit, Michigan ) Facility ID No. 6592
) FRN No. 0011675014
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 21, 2004 Released: December 21,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that AMFM Radio Licenses, LLC
(``AMFM''), licensee of Station WKQI(FM), Detroit, Michigan,
apparently violated 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. Based
upon our review of the facts and circumstances of this case, we
find that AMFM is apparently liable for a forfeiture of Eight
Thousand Dollars ($8,000) for its willful violation of section
73.1206.
II. BACKGROUND
2. We received a complaint that, on January 21, 2004, at
approximately 7:51 p.m., AMFM broadcast a telephone conversation
over Station WKQI(FM) between an AMFM radio personality and a
volunteer answering telephone calls to the prayer hotline for the
Word of Faith International Christian Center (``Word of Faith''),
without the volunteer's knowledge.2 The AMFM radio personality
allegedly called the prayer hotline, and a volunteer answered the
telephone. The AMFM radio personality, allegedly pretending to
be a female caller, asked the volunteer for a prayer.3 The
volunteer was suspicious that this was a prank call, based upon
the nature of request, but nevertheless offered a prayer.4 This
telephone call was simultaneously monitored by a Word of Faith
supervisor.5 After the call had concluded, Word of Faith was
notified by one of its members who was listening to the station
that the AMFM radio personality had broadcast his expressed
intention to call the prayer hotline, and subsequently aired over
the station his conversation with the volunteer.6
3. On August 25, 2004, we sent a letter of inquiry to
AMFM, enclosing a copy of the complaint.7 AMFM was directed to
state whether it initiated and/or participated in the telephone
call to Word of Faith referenced in the complaint. If so, AMFM
was directed to state, among other things, if it had informed all
parties to the conversation that it was going to be broadcast,
the identity of the individuals who had, on its behalf, placed or
participated in the call, whether the telephone conversation with
the Word of Faith volunteer had been recorded, and if so, whether
there had been other broadcasts of the telephone conversation
over Station WKQI(FM).8 The letter of inquiry also directed AMFM
to state whether it had broadcast all or any part of the
telephone conversation over any stations licensed to it other
than Station WKQI(FM).9
4. In its response to the letter of inquiry, Clear Channel
Communications, Inc. (``Clear Channel''), the ultimate parent
company of AMFM, states that the radio personality who was on the
air on the date and at the time identified in the complaint no
longer works at Station WKQI(FM), and that no current employee
had any recollection of the alleged incident.10 Clear Channel
also states that it has no records, such as tapes or transcripts,
and thus cannot confirm or deny whether the complained-of matter
occurred.11 Finally, Clear Channel argues that, even if such a
telephone call had been in fact broadcast, the complaint was
filed by a third party with no direct knowledge as to whether the
volunteer who received the call on the prayer hotline had
provided consent to the broadcast.12
5. On December 7, 2004, Word of Faith filed an additional
statement of its volunteer who received from the station the call
that was broadcast, supplementing information initially provided
in the Complaint. The volunteer affirmatively states that the
AMFM radio personality never identified that the call was from a
radio station or that the conversation was being broadcast or
recorded for a future broadcast.13 Furthermore, the volunteer
states that he did not consent to the broadcast of the
conversation.14 On December 15, 2004, Clear Channel filed a
response to Word of Faith's December 7, 2004, filing. Clear
Channel reiterates that the radio personality is no longer
employed at the station, no current employee has any recollection
of the alleged incident, and it has no records, such as tapes or
transcripts, relating to this matter that would enable it to
explicitly confirm or deny whether the matter occurred as
alleged.15
III. DISCUSSION
6. Under section 503(b)(1) of the Act, 16 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.17 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.18 As we set forth in
greater detail below, we conclude under this standard that AMFM
is apparently liable for a forfeiture in the amount of $8,000.
7. 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.19
Thus, section 73.1206 requires a licensee to so notify parties to
a telephone call before it initiates recordings for simultaneous
or later 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 . . . .''20 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.21 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.22 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.23
8. Based upon the information before us, it appears that,
on January 21, 2004, AMFM broadcast a telephone conversation
between an AMFM radio personality and a Word of Faith volunteer,
without informing the volunteer that AMFM intended to broadcast
the conversation, which constitutes an apparent willful
violation of section 73.1206 of the Commission's rules. Although
AMFM contends that it cannot ``explicitly confirm or deny''
whether the broadcast of the telephone conversation occurred
without the prior notice required by section 73.1206,24 the
Commission previously has ruled that a licensee may not avoid
liability for a rule violation by claiming ignorance as to what
was broadcast over its station.25 Moreover, we reject AMFM's
assertion that there is an insufficient basis upon which to find
an apparent rule violation because ``the complaint was filed by a
third party with no direct knowledge of whether the person who
received the call provided consent to the broadcast.''26 The
record contains statements of the Word of Faith volunteer who
received the telephone call from the station. The volunteer
indicates that he believed the call to be a prank, but that he
proceeded to fulfill the prayer request. In addition, the
volunteer has affirmatively stated that required notice was not
given.27 The Commission has emphasized that it expects strict
adherence to section 73.1206 notice requirements, particularly in
situations in which broadcast stations engage in pranks or
``practical jokes'' to provide entertainment programming in order
to protect legitimate privacy expectations and the dignity of
parties whose conversations may be recorded for simultaneous or
later broadcast.28 These considerations are particularly germane
to the facts at issue here.29 Under these circumstances, we find
that an apparent violation of section 73.1206 and that it is
appropriate to propose that AMFM be assessed a monetary
forfeiture.
9. Section 503(b) of the Act and
section 1.80(a) of the Commission's rules both state that any
person who willfully or repeatedly fails to comply with the
provisions of the Act, the rules or Commission orders shall be
liable for a forfeiture penalty.30 The Commission's Forfeiture
Policy Statement sets a base forfeiture amount of $4,000 for the
unauthorized broadcast of a telephone conversation.31 The
Forfeiture Policy Statement also specifies that the Commission
shall adjust a forfeiture based upon consideration of the factors
enumerated in section 503(b)(2)(D) of the Act, such as ``the
nature, circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other matters
as justice may require.''32 Based upon the entire record,
including the prior history of multiple violations of section
73.1206 by AMFM, its corporate parent, Clear Channel, and other
licensees controlled by Clear Channel,33 we believe that an
upward adjustment of the forfeiture amount for the unauthorized
telephone conversation, to $8,000, is warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,34 and
sections 0.111, 0.311 and 1.80 of the Commission's rules,35 AMFM
Radio Licenses, LLC, licensee of Station WKQI (FM), Detroit,
Michigan, is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of Eight Thousand Dollars ($8,000) for
apparently willfully violating section 73.1206 of the
Commission's rules on January 21, 2004.36
11. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of
the rules,37 within thirty (30) days of this NOTICE OF APPARENT
LIABILITY, AMFM Radio Licenses, LLC, SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. 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, Illinois 60661. Payment by wire transfer may be made
to ABA Number 071000013, receiving bank Bank One, and account
number 1165259. The payment MUST INCLUDE the FCC Registration
Number (FRN) referenced above and also should note the NAL/Acct.
No. referenced above.
13. The response, if any, must be mailed to William H.
Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Room 4-C330, Washington, D.C. 20554 and MUST
INCLUDE THE NAL/Acct. No. referenced above.
14. 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. 20554.38
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail - Return
Receipt Requested to Andrew W. Levin, Chief Legal Officer, Clear
Channel Communications, Inc., 200 East Basse Road, San Antonio,
Texas, 78209-8328, with a copy to Clear Channel Communications,
Inc.'s counsel, John M. Burgett, Esquire, Wiley Rein & Fielding
LLP, 1776 K Street, NW, Washington, D.C. 20006 and to Word of
Faith International Christian Center.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 73.1206.
2 See Letter from Word of Faith International Christian Center to
the Federal Communications Commission, dated February 19, 2004
(``Complaint'').
3 Id. at 6
4 Id.
5 Id. at 5.
6 Id. at 6.
7 Letter from William H. Davenport, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission to AMFM Radio Licenses, L.L.C., dated August 25, 2004.
8 Id. at 4-5.
9 Id. at 5.
10 Letter from Andrew W. Levin, Chief Legal Officer, Clear
Channel Communications, Inc. to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated September 23, 2004, at 1
(``AMFM Response'').
11 Id.
12 Id.
13 Letter from Word of Faith International Christian Center to
the Federal Communications Commission, dated November 19, 2004.
14 Id.
15 Letter from John M. Burgett, Esquire, Counsel for Clear
Channel Communications, Inc., to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated December 15, 2004.
16 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1). 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.
17 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
18 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC
Rcd 7589, 7591, ¶ 4 (2002) (forfeiture paid).
19 47 C.F.R. § 73.1206.
20 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'').
21 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, 23 FCC
2d 1, 2, ¶ 5 (1970); see also EZ Sacramento, Inc.(KHTK(AM)) and
Infinity Broadcasting Corp. of Washington, D.C. (WJFK-FM),
Memorandum Opinion and Order, 16 FCC Rcd 4958, ¶ 2 (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.(WKTQ(AM)), Memorandum Opinion and Order, 52
FCC 2d 1005, 1006 ¶ 7 (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).
22 1988 Order, 3 FCC Rcd at 5463, ¶ 19.
23 Heftel Broadcasting-Contemporary, Inc., 52 FCC 2d at 1006, ¶ 5
(emphasis added).
24 AMFM Response at 1.
25 See Infinity Broadcasting Corporation of Los Angeles (KROQ-
FM), Memorandum Opinion and Order, 17 FCC Rcd 9892, 9896, ¶ 18
(2002), citing Community Broadcasters, Inc.(WGHN(AM)/WGHN-FM),
Memorandum Opinion and Order, 55 FCC Rcd 28, 35 (1975).
26 AMFM Response at 1.
27 In any event, we have rejected the argument that a licensee
cannot be held liable for an unauthorized broadcast of a
telephone conversation if a third party, and not the recipient of
the telephone call, complains to the Commission. See WXJD
Licensing, Inc. (WXJD(FM)), Forfeiture Order, DA 04-2543 (Enf.
Bur. Nov. 24, 2004).
28 See 1972 Public Notice, 35 FCC 2d at 940-41.
29 See, e.g., WXJD Licensing, supra; Mid-Missouri Broadcasting,
Inc. (KOQL(FM)), Notice of Apparent Liability for Forfeiture, DA
04-3683 (Enf. Bur. Nov. 24, 2004).
30 See 47 U.S.C. § 503(b); 47 C.F.R § 1.80.
31 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, Memorandum Opinion and Order, 12 FCC Rcd 17087, 17113
(1997), recon. denied, Memorandum Opinion and Order, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement''); 47 C.F.R. §
1.80(b). The Commission recently amended its rules to increase
the maximum penalties to account for inflation since the last
adjustment of the penalty rates, in Amendment of Section 1.80(b)
of the Commission's Rules and Adjustment of Forfeiture Maxima to
Reflect Inflation, Order, 15 FCC Rcd 18221 (2000). However, the
new rates apply to violations that occur or continue after
September 7, 2004. See Amendment of Section 1.80(b) of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 19 FCC Rcd 10945 (2004).
32 47 U.S.C. § 503(b)(2)(D). See also Forfeiture Policy
Statement, 12 FCC Rcd at 17100 ¶ 27.
33 See Clear Channel Broadcasting Licenses, Inc, (WGBF(FM)),
Notice of Apparent Liability for Forfeiture, 17 FCC Rcd 5893
(Enf. Bur. 2002) (forfeiture paid); AMFM Radio Licenses, LLC
(WWDC-FM), Notice of Apparent Liability for Forfeiture, 17 FCC
Rcd 5032 (2002) (forfeiture paid); Clear Channel Broadcasting
Licenses, Inc. (WINZ(AM)), Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 23839 (Enf. Bur. 2000) (forfeiture paid);
Citicasters Co.(WXTB(FM)), Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 13805 (Enf. Bur. 2000) (forfeiture paid).
34 47 U.S.C. § 503(b).
35 47 C.F.R. §§ 0.111, 0.311 and 1.80.
36 47 C.F.R. § 73.1206.
37 47 C.F.R. § 1.80.
38 47 C.F.R. § 1.1914.