Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of File No. EB-06-IH-2074
)
3 Point Media - Salt Lake City, LLC NAL/Acct. No. 200832080011
)
Licensee of Station KHTB(FM) Facility ID No. 6545
)
Provo, Utah FRN No. 0010028835
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 14, 2007 Released: December 17, 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 3 Point Media - Salt Lake City, LLC ("3 Point Media"),
licensee of Station KHTB(FM), Provo, Utah, broadcast a telephone
conversation without first informing a party to the conversation of
its intention to do so, in apparent willful violation of Section
73.1206 of the Commission's rules. Based upon our review of the facts,
we find, pursuant to Section 503(b) of the Act, that 3 Point Media is
apparently liable for a forfeiture in the amount of $4,000.
II. BACKGROUND
2. The Commission received a complaint alleging that on April 5, 2006, a
radio personality at Station KHTB(FM) announced that he would play a
prank by calling the Utah Poison Control Center to ask what would
happen if pepper spray were to be swallowed. The complainant further
alleges that the radio personality called the Utah Poison Control
Center, spoke to a specialist without identifying himself or asking
permission to air the telephone conversation, and that Station
KHTB(FM) broadcast the telephone conversation.
3. By Letters of Inquiry, the Enforcement Bureau directed 3 Point Media
to provide information concerning the broadcast of this telephone
conversation. In its Responses, 3 Point Media admits that on April 6,
2006, Station KHTB(FM) aired a conversation between its employee, the
radio personality named in the Complaint, and a Utah Poison Control
Center operator without informing the operator that the telephone
conversation would be recorded and broadcast. Specifically, 3 Point
Media states that the radio personality made the call in anticipation
of a station promotion in which one of the items to be given away was
a can of pepper spray. 3 Point Media further states that the radio
personality called the Utah Poison Control Center's hotline, selected
the non-emergency option, and spoke with the operator about the
potential dangers of using pepper spray as a practical joke. 3 Point
Media also states that phone conversation was recorded, edited and
aired only one time on April 6, 2006, but concedes that the actions of
its employee in failing to inform the Utah Poison Control Center of
his intention to record the call and/or broadcast such recording over
the Station was "an error." Finally, 3 Point Media states that "no one
in upper management at 3 Point [Media] authorized the telephone call"
and that the call was "specifically violative of long-standing station
policy."
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. Furthermore,
the Commission has emphasized that it expects strict adherence to Section
73.1206 notice requirements, particularly in situations in which broadcast
stations engage in pranks or "practical jokes." 3 Point Media admits that
it recorded and broadcast the telephone conversation between its employee
and an operator for the Utah Poison Control Center on April 6, 2006, and
that it did not inform the operator of its intent to do so.
5. 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. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. Although 3 Point states that its employee acted in
violation of station policy and without the knowledge of station
management when he recorded the telephone conversation for broadcast
without notifying the Utah Poison Control Center operator of his
intention to do so, the Commission has consistently ruled that
licensees are responsible for the selection and presentation of
program material aired over their stations, as well as for the acts
and omissions of their employees. Based on the evidence before us, we
find that 3 Point Media 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.
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the rules, the base forfeiture amount for the unauthorized
broadcast of a telephone conversation is $4,000. The Forfeiture Policy
Statement and Section 1.80 provide that a base forfeiture 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."
7. Based upon our review of all the pertinent factors as required by
Section 503(b)(2)(D) of the Act, we believe that a proposed forfeiture
in the $4,000 base amount is appropriate. This forfeiture amount has
been proposed in other cases for similar violations of Section
73.1206. Thus, based upon the facts and circumstances presented here,
and applying the Forfeiture Policy Statement, Section 1.80 and the
statutory factors to this case, we conclude that 3 Point Media is
apparently liable for a forfeiture in the amount of $4,000 for
violating Section 73.1206 of the Commission's rules.
IV. ORDERING CLAUSES
8. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's rules, that 3 Point Media - Salt Lake City, LLC is hereby
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
$4,000 for apparently willfully violating Section 73.1206 of the
Commission's rules.
9. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty (30) days of the release of this NAL, 3
Point Media - Salt Lake City, LLC SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10. 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 appropriate 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,
Pennsylvania 15251-8340. Payment by overnight mail may be sent to
Mellon Bank/LB 35840, 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 911-6229.
11. The response, if any, must be mailed to Hillary S. DeNigro, 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.
12. 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 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 specified.
13. Requests for full payment of the full amount of this NAL under an
installment plan should be sent to: Chief Financial Officer -
Financial Operations, Federal Communications Commission, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. For answers to
questions, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov.
14. Accordingly, IT IS ORDERED, that the Complaint in this proceeding IS
GRANTED, and the Complaint proceeding IS HEREBY TERMINATED.
15. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First
Class Mail and Certified Mail to Mr. Bruce Buzil, Manager, 3 Point
Media - Salt Lake City, LLC, 980 North Michigan Avenue, Suite 1880,
Chicago, Illinois, 60611 and to its counsel, Aaron P. Shainis,
Esquire, Shainis & Peltzman, Chartered, 1850 M Street, N.W., Suite
240, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
See 47 U.S.C. S: 503(b), 47 C.F.R. S: 1.80.
See 47 C.F.R. S: 73.1206.
See Complaint filed on FCC Form 475B, received April 7, 2006
("Complaint").
Id.
See Letter from William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, to 3
Point Media - Salt Lake City, LLC, dated June 21, 2006 ("LOI"); Letter
from Benigno E. Bartolome, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, to 3
Point Media - Salt Lake City, LLC, dated August 24, 2006 ("Supplemental
LOI").
See Letters from Bruce Buzil, Manager, 3 Point Media - Salt Lake City,
LLC, to Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated August 16, 2006 ("Response") and
September 5, 2006 ("Supplemental Response").
See Response at 1.
Id.
Response at 2; Supplemental Response at 1.
Response at 2.
47 C.F.R. S: 73.1206.
See Amendment of Section 1206: Broadcast of Telephone Conversations, MM
Dkt. No. 85-37, 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)
("1972 Public Notice"); Amendment of Part 73 of the Commission's Rules and
Regulations with Respect to the Broadcast of Telephone Conversations,
Dkt. No. 18601, Report and Order, 23 FCC 2d 1, 2 (1970); see also WXJD
Licensing, Inc., Forfeiture Order, 19 FCC Rcd 22445 (Enf. Bur. 2004).
1988 Order, 3 FCC Rcd at 5463, P: 19.
See 1972 Public Notice, 35 FCC 2d at 940-41.
See Response at 2.
See 47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act . . . ." See Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991).
See, e.g., Clear Channel Broadcasting Licenses, Inc., Notice of Apparent
Liability for Forfeiture, 15 FCC Rcd 23839, 23840-41, P:5 (Inv. & Hearings
Div., Enf. Bur. 2000), (citing Gaffney Broadcasting, Inc., Memorandum
Opinion and Order, 23 FCC 2d 912, 913 (1970); Eleven Ten Broadcasting
Corp., Decision, 32 FCC 706 (1962)).
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 17987, 17113 (1997), recons. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(D); 47 C.F.R. S: 1.80(b)(4).
See Mid-Missouri Broadcasting, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 22900 (Enf. Bur. 2004) (Forfeiture Paid) (prank
call to a gambling hotline counselor which was recorded and aired without
required notice warranted a forfeiture of $4,000); Cumulus Licensing
Corp., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 2753 (Enf.
Bur. 2004) (Forfeiture Paid) (prank call to receptionist at competitor's
station, which was recorded and aired without required notice warranted
forfeiture of $4,000).
47 C.F.R. S: 1.80.
See 47 C.F.R. S: 1.1914.
Consistent with Section 503(b) of the Act and consistent with Commission
practice, for the purposes of the forfeiture proceeding initiated by this
NAL, 3 Point Media - Salt Lake City, LLC shall be the only party to this
proceeding.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 07-5004
2
Federal Communications Commission DA 07-5004