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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
) File No. EB-03-IH-0508
Noe Corp., L.L.C. ) NAL/Acct. No.
200532080026
) Facility ID No. 48975
Licensee of Station KNOE-TV, Monroe, ) FRN No. 0001716588
Louisiana )
)
FORFEITURE ORDER
Adopted: July 14, 2005 Released: July 18, 2005
By the Chief, Investigations and Hearings Division, Enforcement
Bureau
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a monetary
forfeiture against Noe Corp., L.L.C. (``Noe''), licensee of
Station KNOE-TV, Monroe, Louisiana, for willfully and
repeatedly violating section 73.1206 of the Commission's
rules1 by twice recording telephone conversations for
broadcast without informing the other party to the calls of
its intention to record for broadcast the conversations. We
find that a Noe news reporter twice recorded for broadcast
the complainant's voice, including the complainant's
answering machine, without informing the complainant
beforehand. We reject Noe's claims that the answering
machine message did not constitute a ``conversation'' under
our rules and that the purpose and the factual background
for the recordings exempted Noe from any notice requirement.
Although we affirm our earlier finding2 that Noe twice
violated section 73.1206, in light of Noe's history of
compliance with our rules, we reduce the forfeiture amount
from $10,000 to $8,000.
II. BACKGROUND
2. The Bureau received a series of three complaints from
Mack Calhoun, who serves on a Police Jury for Ouachita
Parish in Louisiana. In the first complaint, a letter dated
September 23, 2003,3 Mr. Calhoun asserted that, on or about
September 12, 2003, Station KNOE-TV news reporter Ken Booth
telephoned Mr. Calhoun's residence and, without providing
prior notice to Mr. Calhoun, recorded his outgoing voice
mail message with the intent to broadcast the recording.4
According to Mr. Calhoun, Station KNOE-TV broadcast the
recorded voice mail message later that day, during the
evening news.5 Mr. Calhoun filed additional complaints with
the Commission on September 26, 2003, and April 20, 2004,6
stating that Mr. Booth telephoned Mr. Calhoun's residence
again on September 25, 2003.7 According to the complaints,
when Mr. Calhoun answered the telephone and Mr. Booth
identified himself as the caller, Mr. Calhoun immediately
hung up.8 Mr. Calhoun alleges that Mr. Booth again did not
notify him at the time that he was recording the exchange
with the intent of broadcasting it over Station KNOE-TV.9
Mr. Calhoun states that Station KNOE-TV broadcast a
recording of that brief dialogue during its newscast that
evening.10 He also alleges in the April 20 Complaint that
Station KNOE-TV rebroadcast the September 12 recording of
his outgoing voice mail message during another evening
newscast, on April 20, 2004.11
3. After reviewing the complaints, the Bureau issued a
letter of inquiry (``LOI'') to Noe, directing Noe to provide
information about its broadcast of telephone conversations
involving Mr. Calhoun.12 In its initial response and
subsequent filing,13 Noe admitted that, on September 12,
2003, Mr. Booth telephoned Mr. Calhoun's residence for the
purpose of conducting and recording for later broadcast an
interview with Mr. Calhoun about an upcoming news story.14
Noe maintained that it had no intention at the time to
record Mr. Calhoun's outgoing voice mail message, but,
admitted that, when no one answered, Mr. Booth recorded
the message and that Station KNOE-TV broadcast the recording
that evening and again in April 2004.15 Noe conceded that
Mr. Booth did not notify Mr. Calhoun at the time of the
telephone call that he was recording it for broadcast.16
Noe also conceded that Mr. Booth telephoned Mr. Calhoun on
September 25, 2003, and recorded their exchange without
notifying Mr. Calhoun, but maintained that the broadcast did
not include Mr. Calhoun's voice.17
4. On January 13, 2005, the Bureau issued the NAL against
Noe, proposing a forfeiture in the amount of $10,000. In
the NAL, the Bureau tentatively concluded that Noe had
broadcast conversations between Mr. Booth and Mr. Calhoun
without providing prior notice to Mr. Calhoun that the
licensee intended to air the conversations, in apparent
willful and repeated violation of section 73.1206 of the
Commission's rules.18 Particularly in light of Noe's
rebroadcast of the first recording, the Bureau found that an
upward adjustment to the base forfeiture amount was
appropriate for the September 12, 2003 violation.19
Therefore, based upon the facts and circumstances presented,
Noe was found to be apparently liable in the amount of
$10,000 for violating the telephone broadcast rule on two
occasions, $6,000 for the September 12 recording and $4,000
for the September 25 recording.
5. Noe has submitted a response to the NAL challenging the
Bureau's conclusion that it violated section 73.1206 or, in
the event a violation is found, seeking reduction or
cancellation of the proposed forfeiture.20 Although we
conclude that Noe willfully and repeatedly violated section
73.1206, we hereby grant Noe's request for a reduction of
the forfeiture amount.
III. DISCUSSION
6. In its response to the NAL, Noe challenges the Bureau's
conclusion that it apparently willfully and repeatedly
violated section 73.1206 of the Commission's rules for the
following reasons: 1) the voice mail message and ``hello''
should not be considered to constitute conversations; 2)
that no notice was required under the circumstances in this
case as Mr. Calhoun's status as a public official, his
status as suspect in a public corruption scandal, the call
was made during an investigative report, and/or Mr.
Calhoun's invitation that members of the public contact him
to discuss the situation, resulted in a waiver of his rights
to privacy; and 3) Noe's broadcast of Mr. Calhoun's voice
mail message was ``fully protected by the First Amendment to
the Constitution of the United States.''21
7. We reject Noe's argument that no notice was necessary
because the material broadcast did not constitute a
conversation. The Commission has previously stated that the
term ```[c]onversation]' as used in section 73.1206 includes
any word or words spoken during the call.''22 As we have
held previously, an outgoing voice mail message satisfies
the requirements of a conversation.23 In the instant case,
Mr. Calhoun's outgoing voice mail message warrants the same
treatment. Moreover, the Commission has previously held
that ``it is reasonable and desirable to retain for
individuals the right to answer the telephone without having
their voices or statements transmitted to the public by a
broadcast station in the absence of prior notice.''24 As we
noted in the NAL in rejecting a similar argument by Noe,25
the ``right to answer without having one's voice transmitted
to the public exists irrespective of whether the voice
broadcast or recorded for later broadcast is live or is
lifted from an answering machine.''26 This 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.''27 Thus, in order to ensure the protection
of an individual's ``privacy rights, the Commission has
determined that a broadcast station must give notice of its
intent to broadcast the conversation before transmitting or
recording for later transmission of the telephone call.''28
8. We also reject Noe's contention that no notice was
necessary because there were no privacy rights to protect.
Noe asserts that Mr. Calhoun waived his right to privacy
because 1) at the time of the report, he was a public
official, 2) he was a suspect in a public corruption
scandal, 3) he was the subject of an investigative report,
and/or 4) he invited members of the public to call him to
discuss the matter.29 As we noted in the NAL in rejecting
this contention by Noe,30 Mr. Calhoun's status as a public
official involved in a matter of public interest does not
establish a legal basis for assuming that any telephone
conversation with Mr. Calhoun could be recorded and
subsequently broadcast without prior notice.31 In El Mundo
Broadcasting Corporation,32 we explicitly refused to
recognize an exception to section 73.1206's notice
requirements where a licensee failed to inform a government
official of the licensee's intention to record and broadcast
the conversation between the official and an on-air
personality.33 In section 73.1206, the Commission
specifically enumerated the instances in which a licensee is
not required to inform a party of the licensee's intention
to broadcast a conversation: ``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.''34 Specifically section 73.1206 provides that
the licensee may make such a presumption only when the party
to the call is ``associated with the station,'' such as an
employee or part-time reporter, or when the other party
originates the call and it is obvious that the call is ``in
connection with a program in which the station customarily
broadcasts telephone conversations.'' Noe does not claim
that either of these exceptions applies to this case.
Accordingly, because the requirements for the exception are
not met in this case, Noe was not exempted from the
requirement to provide Mr. Calhoun with notice of its
intention to record the conversations for broadcast.
9. We also note that Mr. Calhoun did not forego his right to
the notice required by section 73.1206 by inviting the
public to call and discuss the matter with him. Noe would
have us take from the alleged invitation that Mr. Calhoun
invited them to broadcast their calls to him. The facts as
presented by Noe make it clear that Mr. Calhoun objected to
being the subject of any broadcast -- Noe admits that he
repeatedly rejected its invitation to be interviewed in this
matter.35
10. Finally, we again reject Noe's claim that Station KNOE-
TV's broadcast of the telephone conversations ``was fully
protected by the First Amendment.''36 Although the
Commission recognizes broadcasters' First Amendment concerns
regarding section 73.1206 notice requirements,37 the rule
requires only that broadcasters provide prior notice to any
party to a call and does not restrict a broadcaster's right
to free speech. The Commission has held that ``these
limitations are both reasonable and necessary to protect the
legitimate interests of the public in privacy in
communications'' and do not infringe upon broadcasters'
right to gather information ``important to their broadcast
function.''38 For the foregoing reasons, we hereby conclude
that Noe willfully and repeatedly violated section 73.1206
of the Commission's rules.
11. In support of its request for cancellation or reduction
of the proposed forfeiture, Noe asks the Bureau to consider
the following mitigating factors: 1) Station KNOE-TV has
never previously received a notice of apparent liability, a
forfeiture order or other monetary sanction, 2) other than
minor technical violations approximately 15 to 20 years ago,
Station KNOE-TV has been in compliance with the Commission's
rules and regulations during the station's 51-year history,
3) the telephone call was not intended to pry into personal
matters, was not a prank, and was not part of a contest or
promotion, but rather was made in connection with an ongoing
station investigation that had the objective of protecting
the public interest, and 4) the station's efforts to contact
Mr. Calhoun prior to the September 12 telephone call
provided him with sufficient notice of the station's efforts
to contact him, as well as notice that the telephone call
might be broadcast as part of the ongoing news story.39
12. We reject Noe's claim that Station KNOE-TV's previous
attempts to contact Mr. Calhoun provided him with sufficient
notice to make him aware of the station's intent to
broadcast the conversations. Section 73.1206 explicitly
requires broadcasters to ``inform any party to the call of
its intention to broadcast and/or record the
conversation.''40 Noe's claimed multiple attempts to
contact Mr. Calhoun do not satisfy this requirement. We
also reject Noe's claim that its purpose in making the
recordings should cause us to reduce the proposed
forfeiture. In prior telephone broadcast cases, we have not
considered the fact that the violation occurred in a news
gathering context as a mitigating factor.41 Nevertheless,
based on Noe's overall history of compliance with the
Commission's rules, we find that a reduction in the
forfeiture amount to the base amount of $4,000 per violation
is warranted, for a total forfeiture of $8,000.42
IV.ORDERING CLAUSES
13. ACCORDINGLY, IT IS ORDERED that, pursuant to section
503(b) of the Communications Act of 1934, as amended (the
``Act''), and section 1.80 of the Commission's rules,43 Noe
Corp., L.L.C., IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $8,000 for willfully and repeatedly violating
section 73.1206 of the Commission's rules.
14. IT IS FURTHER ORDERED THAT, payment of the forfeiture
shall be made in the manner provided for in section 1.80 of
the Rules44 within thirty (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.45
15. IT IS FURTHER ORDERED that 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106.
16. IT IS FURTHER ORDERED THAT 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. 20554.46
17. IT IS FURTHER ORDERED that a copy of this Order shall be
sent by First Class Mail and Certified Mail - Return Receipt
Requested to Noe Corp., L.L.C., 1400 Oliver Road, Monroe,
Louisiana 71201 and to its counsel, Robert B. Jacobi,
Esquire, Cohn and Marks, LLP, Suite 300, 1920 N. Street,
N.W., Washington, D.C. 20036; and by regular mail to R.
Steven Calhoun, Esquire, The Law Office of R. Steven
Calhoun, APLC, 3711 Cypress Street, Suite 4, West Monroe,
Louisiana 71291.
FEDERAL COMMUNICATIONS COMMISSION
William H. Davenport
Chief, Investigations and Hearings
Division
Enforcement Bureau
_________________________
147 U.S.C. §503(b), 47 C.F.R. §1.80, 47 U.S.C. § 73.1206.
2Noe Corp., LLC, Notice of Apparent Liability for Forfeiture, 20
FCC Rcd 595 (Enf. Bur 2005).
3 See Letter from R. Steven Calhoun, Esq., counsel for Mack
Calhoun, to Enforcement Bureau, Federal Communications
Commission, dated September 23, 2003 (``September 23
Complaint'').
4Id. at 1.
5Id.
6See Letter from R. Steven Calhoun, Esq., counsel for Mack
Calhoun, to Enforcement Bureau, Federal Communications
Commission, dated September 26, 2003 (``September 26
Complaint''); Letter from R. Steven Calhoun, Esq., counsel for
Mack Calhoun, to Enforcement Bureau, Federal Communications
Commission, dated April 20, 2004, (``April 20 Complaint'').
7September 26 Complaint at 1; April 20 Complaint at 1-2.
8April 20 Complaint at 1-2.
9Id. at 3.
10Id.
11Id.
12See Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, to Noe Corp. LLC, dated May 17, 2004.
13See Letter from Robert B. Jacobi, counsel for Noe Corp.,
L.L.C., to William Knowles-Kellett, Esq., Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, dated June 16, 2004 (``Noe June 16, 2004, letter'').
Letter from Robert B. Jacobi, counsel for Noe Corp.,L.L.C., to
William Knowles-Kellett, Esq., Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission,
dated August 13, 2004 (``Noe August 13, 2004, letter'').
14Noe June 16, 2004, letter at 2.
15 Id. at 3; Noe August 13, 2004, letter at 4.
16Noe June 16, 2004, letter at 4.
17Noe August 13, 2004, letter at 4.
18Id. at 1.
19Id. at 5-6.
20See Letter from Robert B. Jacobi, Esquire, counsel for Noe
Corp., L.L.C., to William H. Davenport, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, dated February 14, 2005 (``Response to NAL'')
21Id. at 1-4 and supporting Memorandum of Law at 11 et seq.
22Heftel Broadcasting, Memorandum Opinion and Order, 52 FCC 2d
1005, 1006 ¶4 (1975). See also AMFM Radio Licenses, Notice of
Apparent Liability, 17 FCC Rcd 5032, 5033 ¶ 6 (Enf. Bur. 2002)
(forfeiture paid).
23AMFM Radio Licenses, 17 FCC Rcd at 5033 ¶ 6; Citicasters,
Co., Notice of Apparent Liability, 15 FCC Rcd 13805, 13806-07 ¶¶
5-6 (Enf, Bur. 2000) (forfeiture paid).
24Amendment of Section 73.1206: Broadcast of Telephone
Conversations, Report and Order, 3 FCC Rcd 5461, 5463 (1988).
25 NAL ,20 FCC Rcd 595 at 598, ¶ 9 (quoting AMFM Radio Licenses,
17 FCC Rcd at 5033, ¶ 6).
26Id.
27Id.
28Id.
29Id. at 2.
30 NAL, 20 FCC Rcd 595 at 599, ¶ 11.
31 El Mundo Broadcasting Corporation, Memorandum Opinion and
Order, 15 FCC Rcd 20377, 20379 (Enf. Bur. 2000).
32Id.
33Id.
3447 C.F.R. § 73.1206.
35Response to NAL at 3.
36Id.. See NAL, 20 FCC Rcd 599, ¶12.
37Amendment of Section 73.1206: Broadcast of Telephone
Conversations, Report and Order, 3 FCC Rcd 5461, 5464, ¶ 21
(1988).
38Id.
39Response to NAL at 3-6.
4047 C.F.R. § 73.1206.
41See Scripps Howard Broadcasting Company, Notice of Apparent
Liability for Forfeiture, 20 FCC Rcd 602 (Inv. & Hearings Div.,
Enf. Bur. 2005) (NAL paid) (imposing forfeiture for recording
complainant's conversation with station news reporter for
broadcast without notice; increasing proposed forfeiture beyond
base amount because station broadcast recording twice).
42WXDJ Licensing, Inc., Forfeiture Order, 19 FCC Rcd. 22445 (Enf.
Bur. 2004). (forfeiture amount reduced based on WXDJ's history of
overall compliance with the Commission's regulations).
4347 U.S.C.. § 503(b), 47 C.F.R. § 1.80.
4447 C.F.R. § 1.80.
45 47 U.S.C. § 504(a).
46See 47 C.F.R. § 1.1914.