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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
NOE CORP. LLC ) File Number EB-03-IH-
) 0508
Licensee of Station KNOE-TV, ) NAL/Acct. No.
Monroe, Louisiana ) 200532080026
) Facility ID No. 48975
FRN No. 0001716588
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 11, 2005 Released: January
13, 2005
By the Chief, Investigations and Hearings Division,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), issued pursuant to section 503(b) of
the Communications Act of 1934, as amended (the ``Act'') and
section 1.80 of the Commission's rules,1 we find that NOE
Corp. LLC (``NOE''), licensee of Station KNOE-TV, Monroe,
Louisiana, twice recorded telephone conversations for
broadcast without informing parties to the calls of its
intention to broadcast the conversations, in apparent
willful and repeated violation of section 73.1206 of the
Commission's rules.2 Based on our review of the facts, we
conclude that NOE is apparently liable for a monetary
forfeiture in the amount of $10,000.
II. BACKGROUND
2. By letter dated September 23, 2003, Mack Calhoun,
who serves on the Police Jury for Ouachita Parish in
Louisiana,3 filed the first of three complaints with the
Commission.4 Calhoun asserted that, on or about September
12, 2003, Station KNOE-TV news reporter Ken Booth
(``Booth'') telephoned Calhoun's residence and, without
providing prior notice to Calhoun, recorded his outgoing
voice mail message with the intent to broadcast the
recording.5 According to Calhoun, who provided a video tape
with his complaint, Station KNOE-TV broadcast the recorded
voice mail message during its evening news on September 12,
2003.6 Thereafter, by letters dated September 26, 2003, and
April 20, 2004,7 Calhoun filed two more complaints with the
Commission, each accompanied by video tapes. Calhoun states
in the latter correspondence that Booth telephoned his
residence again on September 25, 2003.8 According to Mr.
Calhoun's complaints, when he answered the telephone and
Booth identified himself as the caller, Calhoun immediately
hung up.9 Calhoun alleges that Booth did not notify him at
the time that he was recording the exchange with the intent
of broadcasting it over Station KNOE-TV.10 Calhoun states
that Station KNOE-TV broadcast a recording of the brief
dialogue during its newscast that evening.11 Calhoun also
alleges in the latter complaint that Station KNOE-TV
rebroadcast the initial recording of his outgoing voice mail
message during yet another evening newscast on April 20,
2004.12
3. By letter of inquiry dated May 17, 2004, the
Enforcement Bureau directed NOE to provide information about
its broadcast of conversations involving Calhoun.13 In its
initial response as well as a subsequent filing14 NOE admits
that, on September 12, 2003, Booth telephoned Calhoun's
residence for the purpose of conducting and recording for
later broadcast an interview with Calhoun about a news story
on which Booth was then working.15 NOE argues that it had
no intent at the time to record Calhoun's outgoing voice
mail message from his answering machine.16 Nevertheless,
when no one answered the telephone, NOE concedes that Booth
recorded Calhoun's outgoing voice mail message and Station
KNOE-TV broadcast it that evening and again in April 2004.17
Although NOE concedes that Booth did not notify Calhoun at
the time of the telephone call that he was recording it for
broadcast,18 it argues that such notification is
unnecessary because a voice mail message does not constitute
a ``conversation'' for purposes of triggering the
notification requirement of section 73.1206.19
4. NOE also concedes that Booth telephoned Calhoun on
September 25, 2003, and, without notifying Calhoun, recorded
their exchange in which Calhoun hung up upon learning that
Booth was the caller. Although NOE states that Station KNOE
broadcast the exchange that evening, it denies that the
broadcast included Calhoun's voice.20
5. NOE argues, in any event, that section 73.1206 is
inapplicable because this matter presents unique
circumstances involving an individual who, because of his
status as a public official, has waived any right to privacy
that section 73.1206 is designed to protect. NOE further
states in this regard that Calhoun should be presumed to be
aware that any conversation with him is likely to be
broadcast, and Station KNOE-TV is entitled to use the
telephone as a legitimate tool with which to conduct its
investigative reporting.21
III. DISCUSSION
6. 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 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.
7. Under section 73.1206, a licensee must notify a
party to a telephone call before it commences recording the
conversation of its intention to record the conversation for
broadcast. In this regard, 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 . . . ."22 The
rule reflects the Commission's longstanding policy 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.23 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.24
8. In the instant case, we find that NOE twice
recorded a telephone conversation for broadcast without
informing the other party thereto of its intent to do so.
In the first instance, a Station KNOE-TV news reporter
recorded Calhoun's outgoing voice mail message on September
23, 2003, without notifying Calhoun of his intent to use the
recording for later broadcast. Station KNOE-TV subsequently
broadcast the recording on two separate occasions: September
23, 2003, and April 20, 2004. In the second instance, the
same Station KNOE-TV news reporter recorded a telephone
conversation with Calhoun on September 25, 2003, again
without notifying Calhoun of his intent to use the recording
for later broadcast. Station KNOE-TV subsequently broadcast
the brief dialogue that evening. Calhoun's voice as he
answered the telephone just prior to hanging up is clearly
audible.
9. We find no merit to NOE's claim that it was
unnecessary to provide the notification required by section
73.1260 because a voice mail message does not constitute a
``conversation'' within the meaning of the rule. We have
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.''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 Thus,
in order to ensure the protection of an individual's
``privacy rights, a broadcast station must give notice of
its intent to broadcast the conversation before transmitting
or recording for later transmission of the telephone
call.''27 Additionally, we also stated that the term
```[c]onversation]' as used in the rule includes any word or
words spoken during the call.''28 In the instant case,
Calhoun's outgoing voice mail message satisfies the
requirements of a ``conversation,'' thus requiring NOE to
have provided appropriate notice.
10. We also find no merit to NOE's claim that Calhoun
``is a party presumed to be aware that his voice mail
message would likely be broadcast.''29 Section 73.1206 sets
forth the limited circumstances under which one may be
assumed to be aware that a telephone conversation in which
he is a party is being recorded for broadcast, none of which
is applicable here. Under section 73.1206, such awareness
is presumed only when the party to the call is associated
with the station or where the party originates the call and
it is obvious that it is in connection with a program in
which the station customarily broadcasts telephone
conversations. In the instant case, Calhoun was not
associated with Station KNOE-TV and he did not originate the
telephone calls in question.
11. We also reject NOE's argument that Calhoun somehow
waived his right to privacy because of his status as a
public official. Such status does not establish a legal
basis for assuming that any telephone conversation with
Calhoun could be recorded and subsequently broadcast without
prior notice.30 Similarly, the fact that Booth previously
called Calhoun and left messages requesting an interview
does not exempt NOE from providing the required prior
notification incident to the September 12, 2003, telephone
call.
12. Finally, NOE's claim that Station KNOE-TV's
broadcast of Calhoun's ``was fully protected by the First
Amendment'' is also without merit. While the Commission
recognizes broadcasters' First Amendment concerns regarding
section 73.1206 notice requirements, 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.'' 31
13. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
section 1.80(a) of the Commission's rules, 47 C.F.R § 1.80,
both state that any person who willfully or repeatedly fails
to comply with the provisions of the Act or the rules shall
be liable for a forfeiture penalty. For purposes of section
503(b) of the Act, the term ``willful'' means that the
violator knew it was taking the action in question,
irrespective of any intent to violate the Commission's
rules.32 Based on the material before us, it appears that
on September 12, 2003 and September 25, 2003, NOE apparently
willfully and repeatedly violated section 73.1206 of the
Commission's rules by recording a telephone conversation for
broadcast without providing the requisite notification.
14. The Commission's Forfeiture Policy Statement sets
a base forfeiture amount of $4,000 for the unauthorized
broadcast of a telephone conversation33 and provides that
base forfeitures may be adjusted based upon consideration of
the factors enumerated in section 503(b)(2)(D)34 and
1.80(a)(4),35 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."36 In light
of NOE's rebroadcast of the first recording, we find that an
upward adjustment to the base forfeiture amount is
appropriate for the September 12, 2003 violation.
Therefore, based upon the facts and circumstances presented
here, we find that NOE is 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.
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED THAT, pursuant to
section 503(b) of the Communications Act of 1934, as
amended,37 and sections 0.111, 0.311 and 1.80 of the
Commission's rules,38 NOE, LLC, licensee of Station KNOE-TV,
Monroe, Louisiana, is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of $10,000.00 for
apparently willfully and repeatedly violating section
73.1206 of the Commission's rules.
16. IT IS FURTHER ORDERED THAT, pursuant to section
1.80 of the rules,39 within thirty (30) days of this NOTICE
OF APPARENT LIABILITY, NOE, LLC, SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
17. IT IS FURTHER ORDERED THAT payment of the
forfeiture shall be made by check or similar instrument,
payable to the order of the Federal Communications
Commission. The payment shall 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.
18. IT IS FURTHER ORDERED THAT the response, if any,
shall 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.
19. IT IS FURTHER ORDERED THAT requests for payment
of the full amount of this Notice of Apparent Liability
under an installment plan shall be directed to: Chief,
Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.40
20. IT IS FURTHER ORDERED that a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail -
Return Receipt Requested to NOE, LLC, 1400 Oliver Road,
Monroe, LA 71201 and to NOE, LLC's counsel: Robert B.
Jacobi, Esquire, Cohn and Marks, LLP, Suite 300, 1920 N.
Street, N.W., Washington, DC 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, LA
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.
247 C.F.R. § 73.1206.
3 This position is similar to the county commissioners of
other states.
4See Letter from R. Steven Calhoun, Esq., counsel for Mack
Calhoun, to Enforcement Bureau, Federal Communications
Commission, dated September 23, 2003 (``September 23
Complaint'').
5Id. at 1.
6Id.
7See 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'').
8September 26 Complaint at 1; April 20 Complaint at 1-2.
9April 20 Complaint at 1-2.
10Id. at 3.
11Id.
12Id.
13 See Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, to NOE Corp. LLC, dated
May 17, 2004.
14See Letter from Robert B. Jacobi, counsel for NOE Corp.,
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., to William Knowles-Kellett, Esq.,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, dated August 13, 2004
(``NOE August 13, 2004, letter'').
15NOE June 16, 2004 letter at 2.
16Id. at 3.
17NOE August 13, 2004, letter at 4.
18NOE June 16, 2004 letter at 4.
19 Memorandum in Support of KNOE-TV Response to Commission
Letter of Inquiry, attached to the NOE June 16, 2004 letter,
at 2.
20NOE August 13, 2004, letter at 4.
21Memorandum in Support of KNOE-TV Response to Commission
Letter of Inquiry, attached to the NOE June 16, 2004 letter,
at 5-6.
22Station-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'').
23 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, Report and Order, 23 FCC 2d 1, 2 (1970); see
also WXJD Licensing, Inc., Forfeiture Order, 19 FCC Rcd
22445 (Enf. Bur. 2004); Saga Communications of New England
Inc, Forfeiture Order, 19 FCC Rcd 19743, (Enf. Bur. 2004) .
24 1988 Order, 3 FCC Rcd at 5463.
25 AMFM Radio Licenses, Notice of Apparent Liability, 17 FCC
Rcd 5032, 5033 (Enf. Bur. 2002) (NAL paid).
26Id.
27Id.
28Id.
29
Memorandum in Support of KNOE-TV Response to Commission
Letter of Inquiry, attached to the NOE June 16, 2004 letter,
at 3.
.
30 El Mundo Broadcasting Corporation, Memorandum Opinion and
Order, 15 FCC Rcd 20377, 20379 (Enf. Bur. 2000) (Bureau
refused to recognize an exception to Section 73.1206 notice
requirements where the conversation recorded and
subsequently broadcast involved a well known on-air
personality and a government official.)
31 Amendment of Section 1206: Broadcast of Telephone
Conversations, 3 FCC Rcd 5461 (1988).
32See Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4387-88 (1991).
33 47 C.F.R. § 1.80.
34 47 U.S.C. § 503(b)(2)(D).
35 47 C.F.R. §1.80(a)(4).
36 Forfeiture Policy Statement, 12 FCC Rcd at 17100-01.
37 47 U.S.C. § 503(b).
38 47 C.F.R. §§ 0.111, 0.311 and 1.80.
39 47 C.F.R. § 1.80.
40 47 C.F.R. § 1.1914.