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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-05-IH-0120
WMGO Broadcasting Corp., Inc. ) NAL Account No. 200732080019
Licensee of Station ) FRN No. 0008130353
WMGO(AM), Canton, Mississippi ) Facility ID No. 73259
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 2, 2007 Released: March 2, 2007
By the Chief, Investigations and Hearings Division:
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 WMGO
Broadcasting Corp., Inc. (the "Licensee"), Licensee of Station WMGO(AM),
Canton, Mississippi (the "Station"), apparently willfully violated Section
73.1206 of the Commission's rules, by recording a telephone conversation
for broadcast, and later broadcasting that telephone conversation, without
first informing the party to the conversation of its intention to do so.
Based on our review of the facts and circumstances, we find WMGO
apparently liable for a forfeiture in the amount of $8,000.
II. background
2. The complainant, Luke Gordon (the "Complainant"), alleges that, on
January 6, 2005, the Station recorded a telephone conversation between
him and Jerry Lousteau, an on-air radio personality and news director
of the Station, without notifying the Complainant of Mr. Lousteaus'
intention to do so. The Complaint further alleges that the Station
later broadcast excerpts of the recorded telephone conversation on
January 7, 10, and 11, 2005. Specifically, the Complainant claims
that, on January 6, 2005, he received a voice mail message from Mr.
Lousteau asking him to return his phone call. When the Complainant
phoned the Station moments after receiving the voice mail message, Mr.
Lousteau identified himself, and asked the Complainant to tell him
about a news matter the Station was investigating. According to the
Complainant, Mr. Lousteau never informed him that their conversation
was being recorded, and never obtained the Complainant's consent to
broadcast the conversation. On January 7, 2005, the Complainant
discovered that the Station had recorded his conversation with Mr.
Lousteau and had broadcast portions of the taped conversation that
morning. On January 12, 2005, the Complainant contacted us again to
let us know that the Station also aired portions of the taped
conversation on January 10, and 11, 2005.
3. After reviewing the Complaint, we issued a letter of inquiry (the
"LOI") to the Licensee, asking whether the Station recorded a January
6, 2005, conversation between the Complainant and Mr. Lousteau and
whether the Station broadcast all or portions of the taped
conversation on January 7, 10 and 11, 2005. We inquired whether the
Station's personnel gave the Complainant prior notice that the Station
intended to record and broadcast the conversation, and directed the
Licensee to provide tapes and transcripts of any such recorded
conversations and broadcasts. Finally, we instructed the Licensee to
serve a copy of its response to the LOI ("LOI Response") on the
Complainant.
4. In its June 15, 2005, LOI Response, the Licensee responds that Mr.
Lousteau initiated a phone call to the Complainant on or about January
6, 2005, to interview him. The Licensee, however, states that Mr.
Lousteau was unsuccessful in contacting the Complainant, "so there was
no need and no opportunity to inform him, in person, of [the
Station's] intentions to record and/or broadcast" the conversation.
The Licensee asserts that, consequently, there were "no transcripts or
recordings to provide" to the Commission.
5. Shortly after the Commission received the LOI Response, the
Complainant sent us an audiotape recording, which contained a portion
of the telephone conversation that was aired by the Station. In light
of this development, we issued a follow-up LOI ("Second LOI"), which
directed the Licensee to confirm the authenticity of the content of
the audiotape recording, and to identify the persons whose voices are
heard on the tape. We also instructed the Licensee to review its
initial LOI Response and make any revisions that it believed were
necessary. In its Second LOI Response, the Licensee confirmed the
authenticity of the audio recording as a telephone conversation aired
by the Station, and identified the two speakers as Mr. Lousteau and
the Complainant. The Licensee did not, however, affirmatively respond
to the Commission's question as to whether the Station had informed
the Complainant of its intention to record and/or broadcast the
telephone conversation. Instead, the Licensee stated that because the
Complainant had participated in previous telephone interviews that
were recorded and subsequently broadcast by the Station, the Licensee
"can only surmise that [the Complainant] has always been aware of the
taping for broadcast."
III. DISCUSSION
6. 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 we set forth in greater detail below, we
conclude under this standard that the Station is apparently liable for
a forfeiture for its apparent willful violation of Section 73.1206 of
the Commission's rules.
7. 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."
8. The purpose of Section 73.1206 is to protect "the legitimate
expectation of privacy in connection with the broadcast use of
telephone conversations." Here, the Station admits that it "initiated"
the phone call to the Complainant on January 6, 2005, "with the intent
of recording and/or broadcast[ing]" the conversation. The Licensee
argues that, since no one spoke to the Complainant during the initial
call, which resulted in the voice mail message, "there was no need and
no opportunity to inform him, in person, of our intentions to record
and/or broadcast" the conversation. When the Complainant returned the
phone call that same day, however, the Station failed to inform him of
its intention to record and broadcast the telephone conversation. The
record establishes that the Complainant was neither aware nor informed
that the conversation would be recorded and aired, and the Station has
submitted nothing to the contrary in either of its two responses.
9. The Licensee acknowledges that it had an obligation to inform the
Complainant of its intention to record and broadcast the conversation
upon initiating the telephone call, however, it argues that such
responsibility is abrogated when the caller returns a call initiated
by the licensee. We disagree. We do not presume, nor may the Licensee
presume, that the caller in this case had knowledge of the Licensee's
intent to record the call for broadcast merely because he returned a
phone call that Mr. Lousteau initiated. In returning the phone call,
the Complainant was contacting Mr. Lousteau, and not a live call-in or
"open mike" show, where he could expect to have his discussion
broadcast and/or simultaneously recorded. Moreover, the Complainant
had no association with the Station. Thus, the limited exception to
the general notice requirement of Section 73.1206 is not applicable.
To the extent that Mr. Lousteau may have conducted similar phone
interviews with the Complainant in the past and recorded or broadcast
such interviews, such interviews were presumably accompanied by
notification of the Station's intention to record and/or broadcast the
conversations. Even if such notifications were given in prior
telephone conversations with the Complainant, however, that would not
excuse the failure to give notice in this instance. We find,
therefore, that the Licensee apparently violated Section 73.1206 by
failing to inform the Complainant that the conversation was to be
broadcast or recorded for later broadcast.
IV. PROPOSED FORFEITURE
10. Based on the material before us, it appears that the Licensee
willfully and repeatedly violated Section 73.1206 of the Commission's
rules, by airing the subject telephone conversation on January 7, 10
and 11, 2005. The Commission's forfeiture guidelines establish a base
forfeiture amount of $4,000 for the unauthorized broadcast of a
telephone conversation, and 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." The record reflects that the Licensee aired the conversation
on at least three separate occasions, January 7, 10 and 11, 2005.
Therefore, we believe that an upward adjustment of the base forfeiture
amount is appropriate, and propose a forfeiture of $8,000.
I. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, and
1.80 of the Commission's rules that WMGO Broadcasting Corp., Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount
of $15,000 for willfully and repeatedly violating Section 73.1206 of
the Commission's rules.
12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules that within thirty (30) days of the release of this Notice, WMGO
Broadcasting Corp., Inc. 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 mailing 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 the 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 number9116229.
14. 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/Account Number
referenced above.
15. 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.
16. Requests for payment of the full amount of this NAL under an
installment plan should be sent to the Deputy Chief Financial Officer,
Room 1-A637, 445 12^th Street, S.W., Washington, D.C. 20554.
17. IT IS FURTHER ORDERED that the complaint filed by Luke Gordon IS
GRANTED to the extent indicated herein and IS OTHERWISE DENIED, and
the complaint proceeding IS HEREBY TERMINATED.
18. IT IS FURTHER ORDERED THAT copies of this NOTICE OF APPARENT LIABILITY
shall be sent by Certified Mail - Return Receipt Requested to WMGO
Broadcasting Corp., Inc., 360 North Liberty Street, Canton,
Mississippi 39046, and to Mr. Luke Gordon, 257 Glenfield, Canton,
Mississippi 39046.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro,
Chief, Investigations and Hearings Division
Enforcement Bureau
See 47 U.S.C. S 503.
See 47 C.F.R. S 1.80.
See 47 C.F.R. S 73.1206.
See id.
See Electronic mail correspondence from Luke Gordon to Tom Hutton,
Assistant Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, dated January 7, and 12, 2005, (the
"Complaint").
See id.
See id.
See id.
See id.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission
to WMGO Broadcasting Corp., Inc., dated June 29, 2005 at 4 (the "LOI").
See id. at 4-5.
See id. at 6.
See Letter from Jerry Lousteau to David Brown, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated July 18, 2005 at 1 ("Response").
See id.
See id.
See Letter from Luke Gordon to David Brown, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated July 20, 2005.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission
to WMGO Broadcasting Corp., Inc., dated January 17, 2006 (the "Second
LOI").
See id at 1.
See Letter from Jerry Lousteau to Tom Hutton, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated February 3, 2006 (the "Second LOI
Response").
The Commission's LOI, which is incorporated by reference in the Second
LOI, requires the Licensee to "[s]tate whether the Licensee informed Mr.
Gordon of its intention to broadcast such telephone conversation live over
Station WMGO(AM) and/or to record such conversation for later broadcast
prior to its doing so. If not, explain why." See LOI at 4.
Second LOI Response at 1.
See 47 C.F.R. S 73.1206.
Id.
Amendment of Section 73.1206: Broadcast of Telephone Conversations, Report
and Order, 3 FCC Rcd 5461, 5463 (1988).
See LOI Response at 1.
See LOI Response at 1.
See Second LOI Response.
See KOFI, Inc., Notice of Apparent Liability for Forfeiture, 20 FCC Rcd
5995, Forfeiture Order, 2005 WL 3057504 (finding that a licensee violated
the telephone broadcast rules when it aired a phone conversation initiated
by a caller, who called to complain about activities occurring outside of
the studio, and did not call for the purpose of talking to on-air
personnel and having conversation broadcast); see also Entercom New
Orleans License, LLC, 17 FCC Rcd 2160 P 6, Erratum, 17 FCC Rcd 6624 (2002)
(finding that a licensee's on-air personality could not reasonably have
presumed that a caller who dialed the wrong number and erroneously spoke
to an on-air personality was aware that the call was being broadcast or
recorded for broadcast).
See In the Matter of Amendment of Part 73 of the Commission's Rules and
Regulations with Respect to the Broadcast of Telephone Conversations, 23
F.C.C. 2d 1, at 2, P 5, Report and Order, (1970) (finding that consent
will be presumed from surrounding circumstances where a caller initiates a
telephone call to an "open mike" show, during which phone conversations
are customarily broadcast).
See LOI Response at 1; see also Second LOI Response.
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 EZ
Sacramento, Inc. and Infinity Broadcasting Corporation of Washington,
D.C., Memorandum Opinion and Order, 16 FCC Rcd 4958, 4958 (2002) (finding
that prior telephone notifications and consent "effectively cease" when
callers are placed on hold and are unaware that their private
conversations are secretly being broadcast; thus, explicit notice must be
re-given if a station plans to continue such broadcasts or record such
conversations for later broadcast); Heftel Broadcasting-Contemporary,
Inc., Memorandum Opinion and Order, 52 FCC 2d 1005, 1006 (1975) (finding
that "cash call" promotions that simultaneously broadcast and award prizes
based on parties' responses in answering the telephone are subject to the
prior notification requirement of Section 73.1206).
See 47 C.F.R S 73.1206.
See 47 C.F.R. S1.80(b)(4). See also Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, Memorandum Opinion and Order, 12 FCC Rcd 17087,
17113 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement").
See 47 U.S.C. S503(b)(2)(D).
See 47 C.F.R. S1.80(a)(4).
See 47 C.F.R. S1.80(b)(4) at note. See also Forfeiture Policy Statement at
17100-01.
See, Scripps Howard Broadcasting Company, Notice of Apparent Liability for
Forfeiture, DA 05-60 (Inv. & Hrng. Div., rel. January 13, 2005).
See 47. U.S.C. S 503(b).
See 47 C.F.R. S 73.1206.
See 47 C.F.R. S 1.1914.
For purposes of the forfeiture proceeding initiated by this NAL, WMGO
Broadcasting Corp., Inc. shall be the only party to this proceeding.
Federal Communications Commission DA 07-959
2
Federal Communications Commission DA 07-959