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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-05-IH-2006
)
RCK 1 Group, LLC NAL Account No. 200732080020
)
Licensee of Station WKKX(AM) Facility ID No. 72172
)
Wheeling, West Virginia FRN No. 0011339769
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 6, 2007 Released: March 6, 2007
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, we
find that RCK 1 Group, LLC (the "Licensee"), Licensee of Station
WKKX(AM) Wheeling, West Virginia, (the "Station") apparently willfully
violated Section 73.1206 of the Commission's rules, by broadcasting a
live telephone conversation without giving prior notice to the
individual being called of the Licensee's intention to do so. Based on
review of the facts and circumstances, we find the Licensee apparently
liable for a forfeiture in the amount of $4,000.
II. BACKGROUND
2. On September 8, 2005, the Commission received a complaint (the
"Complaint") from David Delk (the "Complainant") alleging that on
August 31, 2005, at approximately 7:05 a.m., David Blomquist, a radio
personality from the Station, called the Complainant's home and asked
Complainant's wife to speak with Complainant. The Complaint states
that Mr. Blomquist did not identify himself or inform the
Complainant's wife that the conversation was being broadcast live on a
morning radio program. Moreover, when the Complainant picked up the
phone, Mr. Blomquist identified himself as having a radio show, but
did not state that the caller's voice and his wife's voice were on the
air. The Complaint indicates that the Complainant then hung up the
phone.
3. After reviewing the Complaint, we issued a letter of inquiry ("LOI")
to the Licensee, asking whether the Licensee initiated the August 31,
2005, telephone call. Furthermore, we inquired whether the Licensee
informed the Complainant and his wife of its intention to broadcast
the telephone call over the Station, and whether the Licensee
broadcast live all or any portion of the telephone call over the
Station. In its February 17, 2006, response ("the "LOI Response"), the
Licensee responds that Mr. Blomquist initiated a phone call to the
Complainant on August 31, 2005, as part of a talk show segment titled
"Wake Your Lazy Carcass Up," whereby the Station randomly selects
individuals from a telephone directory, and calls them with the
opportunity to answer trivia questions to win prizes. The LOI Response
includes an affidavit from Mr. Blomquist, and Mr. Blomquist states
that he first spoke to Complainant's wife and told her that she was
"live on the radio" and asked "could I speak with [Complainant]?" Mr.
Blomquist further asserts that the Complainant then picked up the
phone, and that Mr. Blomquist said "Good morning. You're live on the
radio with the BloomDaddy Experience," to which the Complainant
promptly hung up the phone. The LOI Response further states that Mr.
Blomquist advised both the Complainant and his wife that they were
live on the radio and, at most, each said "hello" and Complainant's
wife also said "hold on."
III. DISCUSSION
4. Under section 503(b)(1) of the Communications Act of 1934, as amended
(the "Act"), 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. 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. As set forth in greater detail below, we
conclude under this standard that the Licensee is apparently liable
for a forfeiture for its apparent willful violation of section 73.1206
of the Commission's rules.
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 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."
6. Section 73.1206 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
avoiding nonconsensual broadcasts of their conversations. 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. Thus, aside from the narrowly-tailored exceptions noted above,
neither of which is applicable here, a licensee must notify a party to
a telephone call of its intention to broadcast a conversation before
it commences such broadcast.
7. In the instant case, the Licensee admits that its customary practice
on the morning show is to select a telephone number at random and
notify the person after answering the telephone that they are "live on
the radio with the BloomDaddy Experience." We find that this admission
concedes conduct that constitutes a rule violation. Although the
Complainant and Licensee present different versions of the facts, it
is appears there can be no dispute that the Complainant's voice and
his wife's voice, each stating the word "hello," were broadcast on the
air before they received notice from Mr. Blomquist that their voices
would be broadcast.
8. In the 1988 Order re the Broadcast of Telephone Conversations, the
Commission specifically considered and rejected a proposal by the
National Association of Broadcasters that would allow the broadcast of
calls where no substantive conversation occurs before the notice
required by Section 73.1206 is given. Moreover, the Commission
clarified that the notice required by Section 73.1206 must be given
prior to the call being placed on the air. The precedent with respect
to this issue is clear in that it is not sufficient to give the notice
required by Section 73.1206 after the broadcast or recording for
broadcast has commenced. In this case, the notice that the Licensee
allegedly gave the Complainant -- "you are live on the air..." -- is
by its very nature insufficient especially when it is given after a
person's voice has already been broadcast live, as in this case.
IV. PROPOSED FORFEITURE
9. Based upon the evidence before us, we find that the Licensee
apparently willfully violated Section 73.1206 of the Commission's
rules. The Commission's forfeiture guidelines establish a base
forfeiture amount of $4,000 for the unauthorized broadcast of a
telephone conversation. In addition, the Commission's rules provide
that base forfeitures may be adjusted based upon consideration of the
factors enumerated in Section 503(b)(2)(D) of the Act and Section
1.80(a)(4) of the Commission's rules, 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." Having considered the
record in this case and the statutory factors, we find that the
Licensee is apparently liable for a forfeiture in the amount of
$4,000.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's rules, that RCK 1 GROUP, LLC is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of $4,000 for violating Section 73.1206 of the Commission's
rules.
11. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules that within thirty (30) days of the release date of this Notice,
RCK 1 GROUP, 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 FCC Registration Number ("FRN") and the
NAL/Account Number specified in the caption of this NAL. 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 9116229.
13. The response, if any, shall be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12^th Street, S.W, Room 4-C330,
Washington D.C. 20554, and MUST INCLUDE the NAL/Account Number
referenced above.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the respondent submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the respondent's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
15. Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Deputy Chief Financial Officer,
Room 1-A637, Federal Communications Commission, 445 12th Street, S.W.,
Washington, DC 20554.
16. IT IS FURTHER ORDERED, that the Complaint filed by David Delk IS
GRANTED to the extent indicated herein and IS OTHERWISE DENIED, and
the Complaint proceeding IS HEREBY TERMINATED.
17. IT IS FURTHER ORDERED, that a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail, Return Receipt Requested,
and regular mail, to the Licensee at its address of record: Robert P.
Fitzsimmons, Esq., Fitzsimmons Law Offices, 1609 Warwood Ave.,
Wheeling, WV 26003-7110.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
See 47 U.S.C. S 503(b).
See 47 C.F.R. S 1.80.
See 47 C.F.R. S 73.1206.
See Complaint filed by David Delk to the Consumer and Governmental Affairs
Bureau, Federal Communications Commission ("FCC"), received September 8,
2005.
See id.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, to RCK 1 Group, LLC, licensee
of Station WKKX(AM), Wheeling, West Virginia, dated January 20, 2006 (the
"LOI").
See id.
See Letter and Response to Complaint from Robert P. Fitzsimmons to William
D. Freedman, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, dated February 12,
2006.
See id.
See id. at 5.
[1]47 U.S.C. S 503(b)(1)(B); [2]47 C.F.R. S 1.80(a)(1); see also [3]47
U.S.C. S 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. S 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. [4]47 U.S.C. S 312(f)(1). The legislative history to
[5]section 312(f)(1) of the Act clarifies that this definition of willful
applies to both [6]sections 312 and [7]503(b) of the Act, H.R. Rep. No.
97-765, 97^th Cong. 2d Sess. 51 (1982), and the Commission has so
interpreted the term in the [8]section 503(b) context. See, e.g., Southern
California Broadcasting Co., Memorandum Opinion and Order, [9]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., Notice of Apparent
Liability for Monetary Forfeiture, [10]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, P 5: Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P9.
[11]47 U.S.C. S 503(b); [12]47 C.F.R. S 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591, P 4 (2002) (forfeiture paid).
See 47 C.F.R. S 73.1206.
Id.
See Amendment of Section 1206: Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5463-64 (1988) ("1988 Order re the
Broadcast of Telephone Conversations"); Station-Initiated Telephone Calls
Which Fail to Comply With Section 73.1206 of the Rules, Public Notice, 35
FCC 2d 940, 941 (1972); 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) (forfeiture paid).
See 1988 Order re the Broadcast of Telephone Conversations, 3 FCC Rcd at
5463, P 19.
See Affidavit of David Blomquist, attached to the LOI Response, supra n. 8
at 1-3.
See 1988 Order re the Broadcast of Telephone Conversations, 3 FCC Rcd at
5462-63, PP 13-19.
See id. at 5463, P19 ("[W]e believe that it is reasonable and desirable to
retain for individuals the right to answer the telephone without having
their voice or statements transmitted to the public by a broadcast station
in the absence of prior notice.").
See CXR Holdings Inc., Notice of Apparent Liability for Forfeiture, 15 FCC
Rcd 1467, 1468 P 6 (Enf. Bur. 2000) (NAL paid) (imposing liability where
notice given shortly after a live broadcast call was initiated stating,
"the Commission has determined that it is not sufficient for a station to
give notice that a conversation is being recorded or broadcast at the
beginning of a telephone call, if the conversation is already being taped
or broadcast"); see also Noble Broadcast Licenses, Inc., Notice of
Apparent Liability for Forfeiture, 15 FCC Rcd 8530 (Enf. Bur. 2000) (NAL
paid) (imposing liability for the rebroadcast of a very short
conversation, consisting of the word "hello" and an answering machine
message, that was rebroadcast without having given prior notice).
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087, 17115 (1997), recon. denied 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement"); 47 C.F.R. S1.80 (2005).
See 47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 1.80(a)(4).
See KOFI, Inc., Forfeiture Order, 20 FCC Rcd 17886 (Enf. Bur. 2005)
(forfeiture paid--imposing a $4,000 forfeiture for failing to give the
prior notice required by the telephone broadcast rule).
See 47 U.S.C. S 503(b).
See 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.1206.
See 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.1206.
See 47 C.F.R. S 1.1914.
For purposes of this forfeiture proceeding initiated by this NAL, RCK 1
Group, LLC, shall be the only party to this proceeding.
(...continued from previous page)
(continued....)
Federal Communications Commission DA-07-1058
5
Federal Communications Commission DA-07-1058
References
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