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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-02-IH-0624-GC
Infinity Radio Operations, Inc. ) NAL/Acct. No. 200332080020
Licensee of Station WBLK(FM), ) FRN 0004036711
Buffalo, New York ) Facility ID # 71215
)
ORDER ON REVIEW
Adopted: May 17, 2007 Released: May 24, 2007
By the Commission:
I. INTRODUCTION
1. In this Order on Review, we grant in part and deny in part an
Application for Review filed by Infinity Radio Operations, Inc.
("Infinity"). On August 12, 2004, the Enforcement Bureau ("Bureau")
imposed a $4,000 forfeiture on Infinity for violating section 73.1206
of the Commission's rules by broadcasting a telephone conversation
without first informing the other party to the conversation of its
intent to do so. The Bureau denied Infinity's Petition for
Reconsideration, and the present Application challenges that
Reconsideration Order. We reject Infinity's contention that the
forfeiture should be cancelled or reduced because the Bureau referred
to an unpaid, non-final forfeiture order against another Infinity
affiliate in a prior proceeding to rebut Infinity's claim that this
was an isolated incident. We grant in part, however, Infinity's
request to cancel or reduce the forfeiture because of its
pre-investigation corrective measures and reduce the forfeiture to
$3,000.
II. BACKGROUND
2. Infinity, licensee of Station WBLK(FM), Buffalo, New York, admits that
on June 26, 2002, WBLK(FM) broadcast a telephone conversation between
one of its on-air personalities, Shae Moore, and Brenda Tanner, while
the latter was working as a telephone customer service representative
of Adelphia Communications, Inc., without informing her of the intent
to broadcast the conversation. In imposing the base forfeiture amount
for this admitted violation, the Bureau cited another forfeiture
order, issued for Infinity's violation of section 73.1206 in a
previous proceeding concerning a different Infinity station, to rebut
Infinity's claim in the present proceeding that this was an isolated
incident. The previous forfeiture order has not been paid or finally
adjudicated in district court, and Infinity now argues that the
Bureau's use here of the underlying facts from that prior proceeding
violates section 504(c) of the Communications Act of 1934, as amended
("the Act"). In particular, Infinity notes that the applicable
five-year statute of limitations on enforcement of that prior
forfeiture order pursuant to section 504(a) of the Act has now expired
and that the Bureau's subsequent use of those underlying facts in the
present proceeding, without Infinity's having had a fair hearing to
litigate them, undermines the effect of the limitations provision.
3. Infinity also disputes the Bureau's rejection of its claim that the
forfeiture amount should be reduced or cancelled because the Bureau
failed to take into account Infinity's good faith efforts to comply
both before and after the broadcast call. Infinity cites several other
cases in which it claims that the Bureau has granted such relief under
similar circumstances and argues that the Bureau must explain this
disparate treatment.
III. DISCUSSION
A. Infinity Violated the Telephone Broadcast Rule
4. The facts of this case are undisputed. By Infinity's own admission,
Shae Moore, a WBLK(FM) personality, broadcast a telephone conversation
with Brenda Tanner, an Adelphia customer service representative,
without first notifying Ms. Tanner of her intention to broadcast the
conversation. According to Ms. Tanner's complaint, which Infinity does
not dispute, Ms. Moore posed as an Adelphia customer and did not
reveal that the conversation would be on the air. She began the
conversation by asking if Adelphia, which had recently declared
bankruptcy, really was bankrupt. When Ms. Tanner confirmed the
bankruptcy, Ms. Moore then asked several times if she still had to pay
her cable bill. Ms. Tanner repeatedly told Ms. Moore that she had to
do so, and referred her to Adelphia's web site and another phone
number. Ms. Moore then asked if she could "bootleg" cable, to which
Ms. Tanner reminded Ms. Moore that such behavior was illegal. Ms.
Moore then asked Ms. Tanner if she was going to lose her job, and
laughed when Ms. Tanner said she hoped not. At that point, Ms. Tanner
told Ms. Moore that unless she had any real cable questions, she would
end the call. After Ms. Moore continued in this vein, Ms. Tanner hung
up the call. A few minutes later, Ms. Tanner received a call from an
off-duty co-worker, who told her that her conversation with Ms. Moore
was on the air.
5. According to Infinity, the station suspended Ms. Moore without pay. It
also reiterated its written policy to all station employees against
airing or recording telephone conversations without permission.
B. The Forfeiture Order Did Not Violate Section 504(c) or the Statute of
Limitations
6. Rather than disputing whether it violated the telephone broadcast
rule, Infinity focuses on the propriety of the forfeiture in this
case. In issuing the forfeiture, the Bureau noted that this incident
was not the first Infinity violation of the telephone broadcast rule.
In imposing the base forfeiture amount of $4,000 for violation of
section 73.1206, the Bureau rejected Infinity's prior claim that the
broadcast was an "isolated incident" by citing another proceeding, EZ
Sacramento, in which the Commission assessed a forfeiture against
another Infinity affiliate for similar conduct in violation of section
73.1206. Infinity now argues, as it did in the Petition for
Reconsideration, that the Forfeiture Order should be reversed and the
forfeiture cancelled or reduced because the Bureau's reference in the
Forfeiture Order to EZ Sacramento, which forfeiture has neither been
paid nor finally adjudicated by a court, violates section 504(c) of
the Act. Section 504(c) provides:
In any case where the Commission issues a notice of apparent liability
looking toward the imposition of a forfeiture under this Act, that fact
shall not be used, in any other proceeding before the Commission, to the
prejudice of the person to whom such notice was issued, unless (i) the
forfeiture has been paid, or (ii) a court of competent jurisdiction has
ordered payment of such forfeiture, and such order has become final.
7. In the Reconsideration Order, the Bureau rejected Infinity's similar
section 504(c) argument because the reference to EZ Sacramento was
only to the underlying facts of similar conduct to assess Infinity's
claim of no prior offenses, rather than for the existence of the
contested notice of apparent liability as such. The Bureau noted that
this practice was specifically held permissible in a rulemaking
proceeding on that very issue and was consistent with Congressional
intent as reflected in the legislative history of section 504(c).
Referring to the rulemaking, the Bureau observed that the main policy
reason for section 504(c) was to ensure that no party would be
penalized for challenging an NAL rather than paying it. Accordingly,
the Bureau stated, the facts underlying the prior order remain
available for other appropriate purposes, such as to resolve whether
the licensee is engaging in a pattern of non-compliant behavior.
8. In the Application, Infinity now contends that the Bureau's
interpretation in the Reconsideration Order is inconsistent with the
plain language of section 504(c) because the statute makes no
distinction between use of the facts underlying an NAL and use of the
existence of the NAL per se. Infinity claims that in the face of this
explicit language, arguments concerning legislative intent cannot
trump the plain language of the statute.
9. We reject Infinity's argument that the plain language of section
504(c) unambiguously excludes use of the facts underlying a previous
unpaid, unadjudicated forfeiture order. The statute states that where
the Commission has issued an NAL, "that fact shall not be used in any
other [Commission] proceeding. . ." to the party's prejudice unless it
has been paid or become final. The provision's specific reference to
"that fact," i.e., the NAL's issuance, indicates that it is the
existence of the NAL per se that may not be used. There is nothing in
the statutory language indicating that the facts underlying the NAL
cannot be used in another Commission proceeding. Moreover, this
reading of the statute is confirmed by explicit language in the Senate
Report:
[Section 504(c)] is not intended to mean that the facts upon which a
notice of forfeiture liability against a licensee is based cannot be
considered by the Commission in connection with an application for renewal
of a license, for example, or with respect to the imposition of other
sanctions authorized by the Communications Act of 1934 . . . .
Accordingly, we find that the language and intent of section 504(c)
permits use of the underlying facts from a previous, non-final NAL--that
has not been paid or finally adjudicated in district court--in a
subsequent Commission proceeding.
10. Infinity asserts a second argument that, notwithstanding its clear
violation of the telephone broadcast rule, it should not be subject to
forfeiture. It argues in its Application that the Reconsideration
Order undermines the five-year statute of limitations that would be
applicable to any section 504(a) final enforcement action for the EZ
Sacramento forfeiture because that period has already expired. It
argues that allowing the Government an opportunity to litigate those
facts would render the statute of limitations for enforcement of the
EZ Sacramento forfeiture meaningless.
11. Contrary to Infinity's argument, the reference to EZ Sacramento in
this case does not render the statute of limitations for enforcement
of the EZ Sacramento forfeiture meaningless. As the Commission
explained in Eastern Broadcasting Corp, citing the Supreme Court's
decision in Machinists Local v. NLRB, we may consider facts that occur
outside the statute of limitations to determine the "degree of
culpability" of a violator for violations that occurred within the
statute of limitations because such facts "shed light on the true
character of matters occurring within the [statute of] limitations
period." In Machinists Local, the Court made clear, in a similar
context, that a statute of limitations period barred only the use of
facts occurring outside the statute of limitation period when such
facts were necessary to show that a violation occurred within the
limitations period. That is clearly not the case here. In this case,
reference to the prior violation was not necessary to establish that
Infinity violated Section 73.1206 of our rules on June 26, 2002,
because that violation was willful. Thus, a forfeiture is appropriate
even if this was an isolated rather than repeated incident. Moreover,
the $4,000 forfeiture imposed here was the base forfeiture amount, and
was not increased as a result of the prior incident. The
Reconsideration Order noted that the Forfeiture Order had referenced
EZ Sacramento only to rebut Infinity's assertion that the forfeiture
should be reduced because of its history of compliance.
12. In sum, we conclude that Section 504(c) of the Act permits reference
to the facts underlying a prior unpaid, unadjudicated NAL in a
subsequent Commission proceeding. Moreover, we conclude that the
reference to those facts in the present case does not undermine the
statute of limitations applicable to a section 504(a) enforcement
action in the first proceeding or create unfairness in this
proceeding.
C. Reduction of the Forfeiture for Infinity's Pre-Investigative Remedial
Measures
13. Finally, Infinity claims that we should reduce or eliminate the
forfeiture based on its good faith efforts to comply with the
telephone broadcast rule. Throughout this proceeding, Infinity has
represented that: (1) the actions of its disc jockey, Ms. Moore, were
inconsistent with its written policy; and (2) after the incident, it
took disciplinary action against her and distributed a memo to all of
its WBLK(FM) on-air personalities reiterating that policy.
Accordingly, Infinity has maintained that the Bureau should have
cancelled or reduced the forfeiture because it has done so for good
faith efforts to comply in several other comparable cases. Moreover,
in reliance on Melody Music v. FCC, Infinity has argued that the
Commission must explain this disparate treatment of similarly situated
parties.
14. In the Reconsideration Order, the Bureau rejected this argument,
stating that, unlike Infinity, the cited licensees had undertaken
substantial steps to comply with various technical broadcasting
requirements before actually being notified of a possible violation.
Moreover, the Bureau noted that the Commission has consistently
refused to consider post-investigation remedial measures. Finally, the
Bureau stated that Melody Music involved disparate treatment between
parties that were far more similarly situated with each other than
Infinity is with these cited licensees.
15. Infinity now argues in its Application that the fact that the other
comparable decisions involved technical regulations is irrelevant and
that regulations with public safety implications are, if anything,
more serious. Moreover, Infinity notes that two of these cases
concerned good faith measures taken after the inspections that
uncovered the violations and two others concerned such measures before
an inspection. Infinity emphasizes that, contrary to the Bureau's
statement, it took disciplinary action and distributed the memo the
day immediately after the broadcast, which was well before the first
actual notice of an investigation by receipt of the Bureau's Letter of
Inquiry over a month later. Furthermore, Infinity states for the first
time that in addition to having a written policy, it made the
requirements of section 73.1206 very clear to its on-air personnel
long before the incident. Infinity argues that the Bureau has not
explained what more substantial steps it could have taken.
16. We find that Infinity is correct that its disciplinary action and memo
occurred before notice of an investigation. Although corrective
measures before the licensee is notified of an investigation are not
necessarily sufficient to avoid enforcement action, we find that,
under the circumstances presented here, such measures present a
mitigating factor. On the other hand, Infinity's pre-investigative
remedial measures cannot undo the damage to Ms. Tanner's legitimate
expectation of privacy that section 73.1206 was meant to protect.
Weighing all these circumstances under the standards of section
503(b)(2)(D) of the Act, we reduce the $4,000 base forfeiture to
$3,000 for Infinity's remedial measures taken prior to learning of
this investigation.
IV. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED THAT the Application for Review filed on
March 28, 2005 by Infinity Radio Operations, Inc. IS GRANTED to the
extent discussed above and is otherwise DENIED.
18. IT IS FURTHER ORDERED THAT a copy of this Order on Review shall be
sent by Certified Mail Return Receipt Requested to Stephen A.
Hildebrandt, Vice President, Infinity Radio
Operations, Inc., 14 Lafayette Square, Suite 1300, Buffalo, New York
142203, with a copy to its counsel, attn: Robert-Paul Sagner, Leventhal,
Senter & Lerman PLLC, 2000 K Street N.W., Washington, D.C. 20006-1890.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Infinity Radio Operations, Inc., Application for Review, filed on March
28, 2005 ("Application").
47 C.F.R. S 73.1206.
See Infinity Radio Operations, Inc. (WBLK(FM)), Forfeiture Order, 19 FCC
Rcd 15460 (Enf. Bur. 2004) ("Forfeiture Order"); see also Infinity Radio
Operations, Inc. (WBLK(FM)), Notice of Apparent Liability for Forfeiture,
18 FCC Rcd 16191 (Enf. Bur. 2003) ("NAL").
Infinity Radio Operations, Inc. (WBLK(FM)), Order on Reconsideration, 20
FCC Rcd 4028 (Enf. Bur. 2005) ("Reconsideration Order").
Application at 2. See also NAL, 18 FCC Rcd at 16191, P 2.
47 U.S.C S 504(c). Section 504(c) generally prohibits use of the fact that
the Commission has issued a notice of apparent liability for forfeiture
(NAL) in another Commission proceeding to the detriment of the person to
whom the notice was issued, unless that NAL has either been paid or
finally adjudicated in a district court trial de novo.
47 U.S.C S 504(a). Section 504(a) provides that recovery of a forfeiture
under the Act shall be by trial de novo in a civil suit in United States
district court.
EZ Sacramento, Inc., Memorandum Opinion and Order, 16 FCC Rcd 4958 (2001)
(denying application for review of denial of petitions for reconsideration
of forfeiture orders) ("EZ Sacramento"); recon. dismissed, 16 FCC Rcd
15605 (2001).
Forfeiture Order, 18 FCC Rcd at 15461, PP 5-6.
Infinity Radio Operations, Inc., Petition for Reconsideration, filed on
September 13, 2004 ("Reconsideration Petition"), at 3-6.
Application at 4-7 (citing 47 U.S.C. S 504(c)).
Reconsideration Order, 20 FCC Rcd at 4030-31, PP 7-8. In its
Reconsideration Petition, Infinity had argued that the distinction between
use of the NAL per se and use of the NAL's underlying facts was
meaningless because they both have "the same punitive effect." See
Reconsideration Order, 20 FCC Rcd at 4030, PP 6-7.
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, 17102-04, PP 32-36 (1997); on recon., 15 FCC Rcd
303, 303-05, PP 3-5 (1999) ("Forfeiture Policy Statement Reconsideration
Order").
Reconsideration Order, 20 FCC Rcd at 4030-31, P 8 (citing 106 Cong. Rec.
17623 (Aug. 25, 1960); S. Rep. No. 1857, 86^th Cong., 2d Sess. at 10-11
(1960)). We note that Infinity had adequate opportunity to address this
issue and did so. Forfeiture Policy Statement Report and Order, 12 FCC Rcd
at 17102, P 32 (1997).
Id., 20 FCC Rcd at 4030, P 7 (citing Forfeiture Policy Statement
Reconsideration Order, 15 FCC Rcd at 304, P 3).
Application at 5-6.
Id. at 5 (citing Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (in
determining whether the term "employee" in a Title VII action includes
former employees, the inquiry must cease if the statutory language is
unambiguous and the statutory scheme is coherent and consistent)).
47 U.S.C S 504(c) (emphasis supplied).
See note 14, supra. In the Reconsideration Order, the Bureau found that
Infinity's Reconsideration Petition had misleadingly quoted another, more
general excerpt from the Senate Report that merely tracked the language of
the statute, while ignoring this relatively specific excerpt. See
Reconsideration Order, 20 FCC Rcd at 4030-31, PP 7-8.
Application at 5-7 (citing Action for Children's Television v. FCC, 59
F.3d 1249, 1254 (D.C. Cir. 1995) (the general five-year period of
limitations on forfeiture proceedings in 28 U.S.C. S 2462 governs section
504(a) enforcement actions)).
Application at 5-6.
Eastern Broadcasting Corp., 10 FCC 2d 37, 38 at P 3 (1967), citing
Machinists Local v. NLRB, 362 U.S. 411 (1960).
Machinists Local, 362 U.S. at 416 (finding that the NLRB could not find an
unfair labor practice when "conduct occurring with the limitations period
can be charged to be an unfair labor practice only through reliance on an
earlier unfair labor practice" occurring outside the limitations period.).
See 47 U.S.C. S 503(b)(1)(B) (forfeiture penalty may be imposed for rule
violations that are willful or repeated).
See Reconsideration Order, 20 FCC Rcd at 4028-29, P 2. Section 1.80 of the
Commission's rules states that, in assessing forfeitures, the Commission
may consider prior violations of FCC rules and the licensee's history of
overall compliance as upward and downward adjustment criteria,
respectively. 47 C.F.R. S 1.80.
See, e.g., Reconsideration Petition at 2, 6-7.
Id. at 6-7 (citing American Family Association, Inc., Memorandum Opinion
and Order, 18 FCC Rcd 16530 (Enf. Bur. 2003) (forfeiture for failure to
maintain local public inspection file cancelled for good faith efforts to
comply because the documents were unfiled but at least present at the site
before inspection and notification of a possible violation) ("American
Family"); Capstar Radio Operating Company, Forfeiture Order, 19 FCC Rcd
15374 (Enf. Bur. 2004) (forfeiture for failure to display antenna
registration reduced for good faith efforts to comply after inspection,
but before notification of a possible violation) ("Capstar"); Forrester,
et al., Forfeiture Order, 19 FCC Rcd 11030 (Enf. Bur. 2004) (forfeiture
for failure to enclose antenna tower with fence reduced for good faith
efforts to comply because fence was completed soon after inspection, but
before notification of a possible violation) ("Forrester"); Aracelis
Ortiz, Executrix for the Estate of Carlos Ortiz, Forfeiture Order, 19 FCC
Rcd 2632 (Enf. Bur. 2004) (forfeitures for failure to maintain EAS system
and studio in locale reduced for good faith efforts to comply because
steps had been undertaken before inspection and notification of a possible
violation) ("Ortiz")).
Id. at 7 (citing Melody Music, Inc. v. Federal Communications Commission,
345 F.2d 730, 732 (D.C. Cir. 1965) ("Melody Music")).
Reconsideration Order, 20 FCC Rcd at 4032, P 12 and notes 24 & 26 (citing,
inter alia, the cases in note 27, supra).
Id. (citing, e.g., Mid-Missouri Broadcasting, Inc., Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 22900 (Enf. Bur. 2004) (regarding
prank call by on air-radio personality to crisis hotline without prior
notification of intent to broadcast, Bureau proposed base forfeiture
amount for section 73.1206 violation notwithstanding licensee's claim that
this was an "isolated incident" and that it had taken remedial measures
approximately two weeks after the incident, but before the Bureau notified
it of a possible violation well over a year after the incident)
("Mid-Missouri")).
Id. at P 13.
Application at 7-10 (citing Capstar; Forrester; Ortiz; American Family).
Id. at 8-9.
Id. at 9.
See Infinity Radio Operations, Inc., Response to Notice of Apparent
Liability, filed on September 4, 2003, at 2.
See Mid-Missouri, 19 FCC Rcd at 22902-03, P 8.
See Amendment of Section 1206: Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5463-64 (1988).
47 U.S.C. S 503(b)(2)(D).
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Federal Communications Commission FCC 07-93
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Federal Communications Commission FCC 07-93