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                            Before the
                Federal Communications Commission
                      Washington, DC 20554



In the Matter of                 )
                                )
KOFI, INC.                       )    File No. EB-03-IH-0742
                                )    NAL Account No. 
Licensee of Station KZMN(FM),    )    200532080129
Kalispell, Montana               )    Facility ID No. 35369
                                )    FRN No. 0005072467
                                )
                                )

                        FORFEITURE ORDER

Adopted: November 14, 2005              Released: November 15,  
2005  

By the Chief, Investigations and Hearings Division, Enforcement 
Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order, we impose a monetary 
forfeiture of $4,000 against KOFI, Inc. (``KOFI''), licensee of 
Station KZMN(FM), Kalispell, Montana for violating section 
73.1206 of the Commission's rules1 by broadcasting and recording 
for rebroadcast a telephone conversation without first informing 
the other party to the conversation of its intention to do so.

II.  BACKGROUND 

     2.   On March 17, 2005, we issued a Notice of Apparent 
Liability (``NAL'')2 for $6,000 based on a complaint from Lisa 
Simmer.  Ms. Simmer alleged, and KOFI acknowledged, that Station 
KZMN(FM) broadcast live and recorded for rebroadcast a telephone 
conversation between herself and the on-air personality Paul 
Gray, without providing her prior notice of such recording and 
broadcast.3   Specifically, Ms. Simmer stated that on November 
14, 2003, Station KZMN(FM) broadcast, and recorded for later 
rebroadcast, a telephone conversation between her and Mr. Gray, 
without notifying Ms. Simmer of its intention to do so.4  The 
complainant states that she witnessed a turkey being suspended 
from a second floor window of the station's building and 
expressed to a coworker her concern that this action was 
inhumane. When her coworker called the station to complain, the 
person who answered the phone transferred her call to Mr. Gray, 
who was taking phoned-in donations for a local food bank drive 
called ``Save the Turkey'' live and over the air.  After the 
coworker advised Mr. Gray of her unhappiness with the situation, 
Mr. Gray asked to speak with Ms. Simmer.  He explained to Ms. 
Simmer that the hanging turkey was intended to promote the 
station's food bank drive, told her to quit complaining and 
directed her to listen to the station.  The complainant later 
learned that the station had broadcast the conversation live and 
then broadcast of a recording of it at a subsequent time.  Ms. 
Simmer states that she was neither aware of nor informed that she 
was on the air live or that portions of her conversation with Mr. 
Gray were being recorded for later broadcast.5  

     3.   On April 15, 2005, KOFI responded to the NAL.  In its 
response to the NAL, KOFI states that Mr. Gray did not advise Ms. 
Simmer that her ``call was being broadcast live or that the 
station would subsequently rebroadcast portions of the recorded 
conversation since Mr. Gray believed the call was from a listener 
who wanted to make a donation and that all callers who 
participated in the live donations had been advised over the air 
that such calls would be broadcast.''6  It does, however, concede 
that ``once Mr. Gray realized Ms. Simmer was not calling to make 
a donation he never should have rebroadcast a recording of the 
conversation.''7  KOFI further states that, in any case, it 
terminated Mr. Gray's employment with Station KZMN(FM) due to 
``his inappropriate actions discussing Ms. Simmer's complaint on 
the air and rebroadcasting a portion of her call,''8 and adopted 
a written policy to ensure future compliance with the 
Commission's telephone broadcast rules.9

     4.   KOFI argues the forfeiture should be cancelled or 
reduced because its conduct in this matter ``was not willful'' 
and that it ``has a history of overall compliance with the 
Commission's rules.''10 Specifically, KOFI contends that its 
``inability to predict that its employee would broadcast the 
conversation'' indicates that the violation was not ``conscious 
and deliberate.''11  It also states that it has ``rectified the 
problem and took steps to prevent a reoccurrence.''12  

III.     DISCUSSION

     5.   Section 73.1206 of the Commission's rules requires 
that, before broadcasting or recording a telephone conversation 
for later broadcast, a licensee must inform any party to the call 
of its intention to broadcast and/or record 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.  The Commission will presume such 
awareness only where the ``other party to the call is associated 
with the station (such as an 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.''13  The purpose 
of section 73.1206 is to protect ``the legitimate expectation of 
privacy in connection with the broadcast use of telephone 
conversations.''14      

     6.   KOFI admits that it broadcast and recorded the 
telephone conversation between Mr. Gray and the complainant on 
November 14, 2003, and that it did not inform her of its intent 
to do so.  We reject KOFI's contention that the forfeiture should 
be rescinded under these circumstances.   As discussed in more 
detail in the NAL, the facts simply do not indicate that Mr. Gray 
believed he had acquired or did not need to acquire consent to 
broadcast the live conversation. 15  First, the call was 
transferred from a receptionist, and was not directed to the 
studio.  During the conversation, Mr. Gray directed Ms. Simmer to 
listen to the station.  Second, KOFI acknowledges that  ``once 
Mr. Gray realized Ms. Simmer was not calling to make a donation 
he never should have rebroadcast a recording of the 
conversation.''16 

     7.   We also reject KOFI's argument that the violation was 
not ``willful.''  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.17  
KOFI argues that it did not ``consciously or deliberately'' 
broadcast Ms. Simmer's conversation.  It claims that it ``should 
not be held liable for  a forfeiture for a willful violation 
where it has taken all reasonable precautions to avoid  the 
violation and an employee simply went beyond his authority and 
violated the rule.18  But the ``Commission has long held that 
licensees and other Commission regulatees are responsible for the 
acts and omissions of their employees and independent 
contractors,'' 19 and when the actions of independent contractors 
or employees have resulted in violations, the Commission has 
``consistently refused to excuse licensees from forfeiture 
penalties where actions of employees or independent contractors 
have resulted in violations.''20  Nothing in the record here 
suggests that this precedent does not apply.  

     8.   A review of KOFI's broadcast record, however, reveals 
no other sanctions for violation of Commission rules.  In light 
of  KOFI's history of overall compliance prior to this 
broadcast,21 we will lower the $6,000 forfeiture to the statutory 
base of $4,000.22

IV.     ORDERING CLAUSES

     9.    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,23 KOFI, 
Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 
for willfully and repeatedly violating section 73.1206 of the 
Commission's rules.

     10.  IT IS FURTHER ORDERED that, payment of the forfeiture 
shall be made in the manner provided for in section 1.80 of the 
Rules24 within thirty (30) days of the release of this Forfeiture 
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.25  

     11.  Payment of the forfeiture may be made by check or 
similar instrument, payable to the order of the Federal 
Communications Commission.  The payment must include the 
NAL/Account Number and the FRN No. referenced above.  Payment by 
check or money order may be mailed to Federal Communications 
Commission, P.O. Box 358340, Pittsburgh, Pennsylvania 15251-8340.  
Payment by overnight mail may be sent to Mellon Bank/LB 358340, 
500 Ross Street, Room 1540670, Pittsburgh, Pennsylvania 15251.  
Payment by wire transfer may be made to ABA Number 043000261, 
receiving bank Mellon Bank, and account number 911-6106.  

     12.  Requests for payment  of the  full amount  of this  NAL 
under an installment plan should  be sent to: Associate  Managing 
Director -- Financial Operations, 445 12th Street, S.W., Room  1-
A625, Washington, D.C. 20554.26 

     13.  IT IS FURTHER ORDERED that a copy of this Forfeiture 
Order shall be sent, by Certified Mail - Return Receipt 
Requested, to KOFI, Inc., P.O. Box 608, Kalispell, Montana 59903, 
and to its attorney, Dennis F. Begley, Esq., Reddy, Begley & 
McCormick, 1156 15th Street, N.W., Suite 610,  Washington, DC 
20005.



                              FEDERAL COMMUNICATIONS COMMISSION



                              William H. Davenport
                                                                 
Chief, Investigations and Hearings Division
                                                                 
Enforcement Bureau 

_________________________

1 47 C.F.R. § 73.1206.
2 See KOFI, Inc., Notice of  Apparent Liability, 20 FCC Rcd  5995 
(2005) (``NAL'').
3 See Letter from complainant to the Investigations and Hearings 
Division, Enforcement Bureau, Federal Communications Commission, 
dated November 16, 2003 (``Complaint'').
4 See Letter from complainant to the Investigations and  Hearings 
Division, Enforcement Bureau, Federal Communications  Commission, 
dated November 14, 2003 (``Complaint'').
5 Id.
6 See Response to Notice of Apparent Liability for Forfeiture 
dated April 15, 2005 at 3.  (``NAL Response'').
7 Id. at 4.
8 Id. at 3.
9 Id.
10 Id.
11 Id. at 4.
12 Id.
13 47 C.F.R. §73.1206.
14  Amendment  of   Section  73.1206:   Broadcast  of   Telephone 
Conversations, Report and Order, 3 FCC Rcd 5461, 5463 (1988).
15 See NAL, 20 FCC Rcd at 5997 ¶ 5.  Compare Long Nine, Inc., 
Forfeiture Order, 15 FCC Rcd 15747, 15748 (2000) (on-air 
personality made an attempt to acquire consent before recording 
and broadcasting a telephone conversation involving two callers, 
but mistakenly interpreted the consent of one caller to apply to 
both).
16 Response at 4.
17 See 47 U.S.C. § 312(f)(1); Application for Review of Southern 
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 
4388 (1991).
18 Response at 4.
19 Eure 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); 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).
20 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.,  96 FCC 2d 1235, 1244 (1984)).
21 See KGB, Inc., Memorandum Opinion and Order and Forfeiture 
Order, 13 FCC Rcd 16396 (1998) (reducing proposed forfeiture due 
to licensee's overall history of compliance with FCC rules). 
22 47 C.F.R. § 1.80 (b)(4).
2347 U.S.C.. § 503(b), 47 C.F.R. § 1.80.
2447 C.F.R. § 1.80.
25 47 U.S.C. § 504(a).
26 See 47 C.F.R. § 1.1914.