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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-05-IH-0067
)
CITICASTERS LICENSES, L.P. NAL Account No. 200732080013
)
Licensee of Station WFLZ-FM, Tampa, Facility ID No. 29732
Florida )
FRN No. 0004311619
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 30, 2007 Released: January 30, 2007
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Citicasters Licenses, L.P. ("Citicasters"), licensee of Station
WFLZ-FM, Tampa, Florida, apparently willfully violated Section 73.1206
of the Commission's rules by broadcasting a live telephone
conversation and recording it for later broadcast without giving
proper notice to the individual being called of the licensee's
intention to do so. Specifically, on or about November 17, 2004,
Citicasters engaged in a telephone conversation with actress
Nicollette Sheridan and placed her live on the air without informing
her of its intention to broadcast the dialogue and record it for later
use. We conclude, pursuant to Section 503(b) of the Communications Act
of 1934, as amended ("Act"), that Citicasters is apparently liable for
forfeiture in the amount of $10,000.
II. BACKGROUND
2. On December 7, 2004, the Commission received a complaint from a
listener alleging that on or about November 18, 2004, MJ Kelli
("Kelli"), the host of Station WFLZ-FM's morning show, telephoned
actress Nicollette Sheridan about the controversy then surrounding her
appearance in a promotional spot preceding ABC Sports' telecast of its
Monday Night Football game on November 15, 2004. According to the
complainant, Kelli failed to notify Ms. Sheridan that the telephone
conversation was being broadcast live over Station WFLZ-FM.
3. On February 7, 2005, the Enforcement Bureau directed a letter of
inquiry to Citicasters regarding the alleged telephone broadcast. In
response, Clear Channel Communications, Inc. ("Clear Channel"), the
parent company of Citicasters, admits that, on or about November 17,
2004, at approximately 7:30 am, Kelli initiated a telephone
conversation with Ms. Sheridan and placed her on the air live over
Station WFLZ-FM. According to Clear Channel, Kelli also recorded the
conversation and rebroadcast it over Station WFLZ-FM the following
day. Clear Channel states that "[i]t does not appear that Mr. Kelli
informed Ms. Sheridan of his intention to broadcast the conversation
live, or to record it for later broadcast, prior to broadcast or
recording of the conversation," although "Ms. Sheridan was advised
that the call was from a radio show very early on, before any
substantive discussion occurred." Moreover, Clear Channel states that
the taped telephone conversation was also aired over Stations
WFKS(FM), Neptune Beach, Florida, and KSLZ(FM), St. Louis, Missouri,
both of which are licensed to companies of which Clear Channel is the
ultimate parent.
III. DISCUSSION
4. Section 73.1206 of the Commission's rules requires that:
Before recording a telephone conversation for broadcast, or broadcasting
such conversation simultaneously with its occurrence, 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.
Thus, under Section 73.1206, a licensee must generally notify a party to a
telephone call of its intention to record the conversation for broadcast
before it commences such recording. 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 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.
5. In the instant case, Clear Channel concedes that Kelli initiated a
telephone conversation with Ms. Sheridan on or about November 17,
2004, at approximately 7:30 am, and placed her live on the air over
Station WFLZ-FM. Moreover, Clear Channel admits that Kelli recorded
the conversation for later broadcast and, in fact, broadcast the taped
conversation over Station WFLZ-FM the following day. Clear Channel
states that the taped conversation was rebroadcast again over Stations
WFKS(FM), Neptune, Florida, and KSLZ(FM), St. Louis, Missouri.
According to Clear Channel, it does not appear that Kelli informed Ms.
Sheridan of his intention to broadcast the conversation live or to
record the conversation for future broadcast.
6. We reject Clear Channel's suggestion that Ms. Sheridan may be presumed
to have known that her conversation would be broadcast live or
recorded for future broadcast because Kelli informed her that he was
associated with a radio show. Section 73.1206 articulates the limited
circumstances under which no explicit notice is required. Under
Section 73.1206, a party is presumed to be aware that a telephone
conversation is or will be broadcast only when the party to the call
is associated with the station or originates the call and it is
obvious that the call is in connection with a program during which the
station customarily broadcasts telephone conversations. Clear Channel
does not claim that these factors existed here. Indeed, in the instant
case, Ms. Sheridan was neither associated with Station WFLZ-FM, nor
did she originate the telephone call in question.
7. We also find no merit to Clear Channel's claim that, because the
complaint was filed by someone other than Ms. Sheridan, the Commission
should refrain from taking action in this instance. We have previously
considered third party complaints in other such Section 73.1206 cases,
and find no reason to depart from that practice. Given the important
privacy interests served by Section 73.1206, Clear Channel's conduct
in this case is no less violative of Section 73.1206 simply because
someone other than Ms. Sheridan brought the matter to our attention.
8. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines willful as "the
conscious and deliberate commission or omission or [any] act,
irrespective of any intent to violate" the law. 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, and the
Commission has so interpreted the term in the Section 503(b) context.
Based on the evidence before us, we find that Citicasters apparently
willfully violated Section 73.1206 of the Commission's Rules by
failing to notify a party to a telephone conversation of its intent to
record and broadcast their conversation.
9. Pursuant to the Forfeiture Policy Statement and Section 1.80 of the
Commission's Rules, the base forfeiture amount for violations of this
type is $4,000. In addition, the Commission 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."
10. As we have stated elsewhere, we regard the repeated broadcast of an
improperly recorded telephone conversation as an aggravating
circumstance requiring an upward adjustment of the forfeiture amount.
The licensee here rebroadcast the conversation at least three times --
not only on the station that originally aired the material, but on two
other stations as well. We also note Clear Channel has a history of
violations relating to the rule, having received three other
forfeitures for similar violations since 2000. Finally, we also must
consider Clear Channel's exceptional size and ability to pay a
forfeiture. Therefore, based upon the facts and circumstances
presented here, we find that Citicasters is apparently liable in the
amount of $10,000 for violating the telephone broadcast rule.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, 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, Citicasters Licenses, L.P.
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of Section
73.1206 of the Commission's Rules.
12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Citicasters
Licenses, L.P. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
13. 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 in the
caption. 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.
14. IT IS FURTHER ORDERED, that 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/Acct. No. referenced above.
15. IT IS FURTHER ORDERED, that the Commission shall 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.
16. Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Associate Managing Director --
Financial Operations, Federal Communications Commission, 445 12th
Street, S.W., Room 1-A625, Washington, DC 20554.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Citicasters Licenses, L.P. at its
address of record; and to John Fiorini, Esq. Wiley Rein & Fielding,
LLP, 1776 K Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
See 47 C.F.R. S 73.1206.
See 47 U.S.C. S 503(b).
See Letter to William Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission
("Complaint").
On November 15, 2004, as the introductory segment to the broadcast of the
National Football League game between the Philadelphia Eagles and Dallas
Cowboys, ABC aired a scene featuring Eagles wide receiver Terrell Owens
and Ms. Sheridan, appearing as her character on the ABC program "Desperate
Housewives." Following the broadcast, the Commission received complaints
alleging that the "Monday Night Football" scene contained indecent
material. The Commission found the broadcast not to be indecent. See
Complaints Against Various Television Station Licensees Regarding the ABC
Television Network's November 15, 2004, Broadcast of "Monday Night
Football," Memorandum Opinion and Order, 20 FCC Rcd 5481 (2005).
See Complaint at 1.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Citicasters Licenses, L.P., dated February 7, 2005.
See Letter from Andrew W. Levin, Executive Vice President and Chief Legal
Officer, Clear Channel Communications, Inc., to Marlene H. Dortch,
Secretary, Federal Communications Commission, dated March 4, 2005
("Response"), at 1.
Id. at 1-2.
See id. at 1.
See 47 C.F.R. S 73.1206.
See Amendment of Section 1206: Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5463-64 (1988) ("1988 Order");
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).
1988 Order, 3 FCC Rcd at 5463, P 19.
See Response at 1.
See id.
See id.
See id. at 2.
See 47 C.F.R. S 73.1206.
See, e.g., WXDJ Licensing, Inc., 19 FCC Rcd at 22447; Tempe Radio, Inc.,
Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 20102 (Enf. Bur.
2003) (forfeiture paid).
47 U.S.C. S 503(b).
47 U.S.C. S 312(f)(1).
See H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982).
Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC
Rcd 4387, 4388 (1991).
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).
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 1.80(a)(4).
See, e.g., KOFI, Inc., Notice of Apparent Liability, 20 FCC Rcd 5995,
5997, P6 (Enf. Bur. 2005), forfeiture reduced on other grounds, 20 FCC Rcd
17886 (Enf. Bur. 2005) (forfeiture paid).
See, e.g., AMFM Radio Licenses, LLC, Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 245418 (Enf. Bur. 2004) (forfeiture paid; finding
AMFM Radio Licenses, LLC, a Clear Channel subsidiary, apparently liable
for a violation of section 73.1206 of the Commission's rules); Clear
Channel Broadcasting Licenses, Inc., Notice of Apparent Liability for
Forfeiture, 17 FCC Rcd 5893 (Enf. Bur. 2002) (forfeiture paid; finding
Clear Channel Broadcasting Licenses, Inc. apparently liable for recording
and later broadcasting a telephone call placed by a Clear Channel employee
to a radio personality at another station without giving the notice
required by Section 73.1206 of the Commission's rules); Citicasters, Co.,
Notice of Apparent Liability for Forfeiture, 15 FCC Rcd 13805 (Enf. Bur.
2000) (forfeiture paid; finding Citicasters, a Clear Channel subsidiary,
apparently liable for the broadcast of a conversation between the
complainant and another person, which was taken from that complainant's
answering machine).
In 2005, Clear Channel Communications, Inc. had more than $6.6 billion in
annual revenue. See Clear Channel Communications, Inc., 2005 Annual Report
on Form 10-K, Securities and Exchange Commission at 29 (filed March 10,
2006). The Commission directed, in the Forfeiture Policy Statement, that
forfeitures should not be simply an affordable cost of doing business.
Forfeiture Policy Statement, 12 FCC Rcd at 17100-01.
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.
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Federal Communications Commission DA-07-374
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Federal Communications Commission DA-07-374