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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-07-IH-4902
Capstar TX Limited Partnership ) NAL/Acct. No. 200832080090
Former Licensee of Station KFGO(AM) ) Facility ID No. 34421
Fargo, North Dakota ) FRN No. 0010028835
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 7, 2008 Released: July 7, 2008
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 Capstar TX Limited Partnership ("Capstar" or "Licensee"),
former licensee of Station KFGO(AM), Fargo, North Dakota (the
"Station"), broadcast a telephone conversation without first informing
a party to the conversation of its intention to do so, in apparent
willful and repeated violation of Section 73.1206 of the Commission's
rules. Based upon our review of the facts, we find that the Licensee
is apparently liable for a forfeiture in the amount of $12,000.
II. BACKGROUND
2. On January 4, 2007, the Commission received a complaint (the
"Complaint") from Mr. Sandy Blunt alleging that KFGO(AM) broadcast a
telephone call from Mr. Blunt without his permission. According to the
Complaint, sometime between January and March 2006, Mr. Blunt left a
voicemail message on the private cell phone of one of the Station's
on-air personalities, Joel Heitkamp, who hosts a radio program called
"News and Views." Mr. Blunt alleges that on several occasions in
December 2006, the Station broadcast the voicemail message without his
permission. Along with his Complaint, Mr. Blunt provided an audio
recording of one of the broadcasts that took place on December 15,
2006.
3. By Letter of Inquiry ("LOI"), the Enforcement Bureau directed Capstar
to provide information concerning the broadcast of Mr. Blunt's
voicemail message. In its response as the ultimate parent company of
Capstar, Clear Channel Communications, Inc. ("Clear Channel") neither
denies that Station KFGO(AM) aired the voicemail message left for its
employee by Mr. Blunt, nor claims that it provided the required notice
to Mr. Blunt prior to any broadcasts. In addition, Clear Channel
admits that the "News and Views" program was regularly scheduled and
broadcast live by several affiliates. Clear Channel states, however,
that none of its employees or managers have any knowledge concerning
the allegations in the Complaint, and that it "is not in the
possession of any information that is responsive to the LOI."
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 Capstar is apparently liable for a
forfeiture for its apparent willful and repeated violation of Section
73.1206 of the Commission's rules.
5. Section 73.1206 of the Commission's rules requires broadcast licensees
to notify parties to a telephone conversation of the licensee's
intention to broadcast the conversation prior to either broadcasting
the conversation live or recording the conversation for subsequent
broadcast. An exception to this obligation is provided where the party
to the conversation is aware or may be presumed to be aware that the
exchange is likely to be aired by the licensee. The rule is meant to
prevent nonconsensual broadcasts of telephone conversations and
reflects the Commission's concern with protecting the legitimate
expectations of privacy and dignity of individuals. The Enforcement
Bureau has previously held that an outgoing personal answering machine
message is a "conversation" for purposes of this rule. It has also
held that the nonconsensual broadcast of a conversation taken from an
answering machine recording violates Section 73.1206.
6. We believe that this case warrants similar treatment. In particular,
we find that a voice mail message left for a station employee is a
protected "conversation" that may not be broadcast without prior
consent of the caller. This is in line with precedent regarding the
protection of answering machine conversations as well as the
Commission's longstanding concern with avoiding invasions of privacy.
For example, in Citicasters, the Enforcement Bureau found the Licensee
apparently liable for broadcasting a conversation as it played back
from a person's answering machine. In that case, the Bureau
acknowledged that the facts were not like a typical telephone
broadcast case, where a station calls a person directly and broadcasts
the resulting conversation without giving prior notice. It nonetheless
found that, whether the call is live or taken from an answering
machine, Section 73.1206 "requires prior notice before a conversation
is broadcast." Further, the Commission has made it clear that
"conversation," as used in the rule, includes "any word or words
spoken during the telephone call."
7. The evidence in this case demonstrates that Mr. Blunt left a voice
mail message on the private cell phone of an employee of the Station,
there was no expectation or understanding that the message would be
broadcast, the content of Mr. Blunt's voice mail message was aired on
at least two occasions by the Station, and that the Station failed to
notify and obtain Mr. Blunt's consent before airing the subject
conversation. The Enforcement Bureau's LOI detailed the allegations
made in the Complaint and offered the Licensee an opportunity to fully
respond. Clear Channel does not dispute the veracity of the
allegations, but simply submits that it no longer holds the licensee
for KFGO(AM) and that it "has no knowledge of the matters raised in
the LOI." This response is insufficient to counter the specific
allegations made by the Complainant. The Commission has long held that
each licensee is responsible for material broadcast over its station
and for compliance with the Communications Act and its rules, and a
licensee may not avoid liability for any violation merely by claiming
that it does not know what did or did not go out over the station. The
overall record evidence, therefore, supports a finding that the
Licensee violated Section 73.1206. Further, the fact that Clear
Channel is no longer the licensee of the Station does not necessarily
preclude the Commission from imposing a forfeiture for conduct that
occurred while the Station was licensed to Capstar. As a result, in
the absence of any argument or evidence to the contrary, we conclude
that Station KFGO(AM), while still licensed to Capstar in December
2006, apparently violated Section 73.1206 of the Commission's rules.
8. 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)(E) 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."
9. As we have stated elsewhere, we regard the Station's repeated
broadcast of an improperly recorded telephone conversation as an
aggravating circumstance requiring an upward adjustment of the
forfeiture amount. We have evidence demonstrating that Clear Channel
rebroadcast the subject conversation at least two times, and not only
on the Station that originally aired the material, but on other Clear
Channel stations. We also note that Clear Channel has a history of
violations relating to the telephone broadcast rule. Finally, to
ensure that the forfeiture is not simply an affordable cost of doing
business, we must also consider Clear Channel's exceptional size and
ability to pay. Therefore, based upon the facts and circumstances
presented here, we find that Clear Channel is apparently liable in the
amount of $12,000 for violating the telephone broadcast rule.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's rules, that Clear Channel Communications, Inc. is hereby
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
$12,000 for apparently willfully and repeatedly violating Section
73.1206 of the Commission's rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, that within thirty (30) days of the release of
this NAL, Clear Channel Communications, Inc. 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 NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID) and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Clear Channel Communications, Inc. will
also send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, and
Guy.Benson@fcc.gov.
13. The response, if any, shall 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. If any response is filed, Clear Channel
Communications, Inc. shall also, to the extent practicable, transmit a
copy of the response via email to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, and Guy.Benson@fcc.gov.
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. IT IS FURTHER ORDERED that the complaint filed by Sandy Blunt IS
GRANTED to the extent indicated herein and IS OTHERWISE DENIED, and
the complaint proceeding IS HEREBY TERMINATED.
16. IT IS FURTHER ORDERED that copies of this NOTICE OF APPARENT LIABILITY
SHALL BE SENT, by First Class Mail and Certified Mail to Mr. Andrew W.
Levin, Executive Vice President, Clear Channel Communications, Inc.,
200 East Basse Road, San Antonio, Texas 78209, and to Sandy Blunt,
4716 Amberglow Drive, Bismarck, ND 58503.
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.
Capstar assigned the license for KFGO(AM) to Radio Fargo-Moorhead, Inc. on
January 19, 2007 (FCC File No. BAL-20061121AIP).
See 47 C.F.R. S: 73.1206.
We note that although the license for KFGO(AM) was assigned in January
2007, the Station was licensed to Capstar at the time of the alleged
violation, and Capstar remains a Commission licensee.
See Complaint filed by Sandy Blunt, received January 4, 2007
("Complaint").
See id.
See id.
On the tape, the Station's DJ plays a message left on his voicemail by the
Complainant. He also reveals that the message was played over the air the
day before. Thus, it appears that the message was broadcast on at least
two occasions.
See Letter from Jennifer Lewis Hershman, Assistant Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission to Capstar TX Limited Partnership, dated October 10, 2007
("LOI").
See Letter from Andrew W. Levin, Clear Channel Communications, Inc. to Guy
Benson, Attorney, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, filed October 29, 2007 ("LOI
Response").
See id.
See id. at 2. According to the LOI Response, Clear Channel Stations
KFYR(AM) and KCJB(AM) also aired "News and Views" in December 2006.
Id. at 1-2. Clear Channel also states that the only employee retained from
KFGO(AM) after the Station was assigned also knows nothing about the
matters raised in the LOI.
See 47 U.S.C. S: 503(b)(1).
See 47 C.F.R. S: 73.1206. This Section provides that:
[b]efore recording a telephone conversation for broadcast, or broadcasting
such a 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.
See id.
See id.
See Amendment of Section 1206: Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5463-64 P:P: 20-21(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,
22446 at P:5 (Enf. Bur. 2004).
See AM/FM Radio Licenses, LLC, Notice of Apparent Liability for
Forfeiture, 17 FCC Rcd 5032 (Enf. Bur. 2002); NOE Corp., LLC, Forfeiture
Order, 20 FCC Rcd 12339 (Enf. Bur., Investigations & Hearings Div. 2005).
See Citicasters Co., Notice of Apparent Liability for Forfeiture, 15 FCC
Rcd 13805 (Enf. Bur. 2000) ("Citicasters").
See supra notes18-19.
See, e.g., Heftel Broadcasting-Contemporary, Inc., Memorandum Opinion and
Order, 52 FCC.2d 1005, 1006 P: 5 (1975) ("Heftel").
See Citicasters, 15 FCC Rcd 13805, supra note 20. The DJ called a person's
home and cracked the access codes required to play back messages.
See id.
Id. at 13806 P: 5. See also NOE Corp., LLC, Notice of Apparent Liability
for Forfeiture, 20 FCC Rcd 595 (Enf. Bur., Investigations & Hearings Div.
2005) (finding that a person's outgoing voice mail message is protected
under Section 73.1206 and, thus, requires appropriate notice).
Heftel, Memorandum Opinion and Order, 52 FCC.2d at 1006 P: 5; see also
AMFM Radio Licenses, LLC, Notice of Apparent Liability for Forfeiture, 17
FCC Rcd 5032 (Enf. Bur. 2002).
LOI Response at 1.
See Community Broadcasters, Inc., 55 FCC.2d 28, 35 P: 18 (1975); see also
Infinity Broadcasting Corporation of Los Angeles, Memorandum Opinion and
Order, 17 FCC Rcd 9892, 9896 P: 18 (Enf. Bur. 2002) (finding licensee's
"ignorance" insufficient to counter allegations in complaint).
See, e.g., Broadcast Entertainment Corporation, 23 FCC Rcd 5431, 5432 P: 4
(Enf. Bur. 2008) (finding that sale of a station is not a basis for
cancelling a proposed forfeiture); Vista Point Communications, Inc.,
Memorandum Opinion and Order and Forfeiture Order, 14 FCC Rcd 140 P: 1 n.2
(MMB 1999) (finding licensee liable for forfeiture for violations of the
Commission's rules that took place when station was under its
stewardship); Petition for Reconsideration Concerning Liability of First
Media of Monterey, Inc., Memorandum Opinion and Order, 7 FCC Rcd 4589 P: 3
(MMB 1992) (finding that, although license was assigned to another party,
assignor is still liable for forfeiture because it owned the station
during the period the violation occurred).
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").
See 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E); 47 C.F.R. S: 1.80(b)(4).
See, e.g., KOFI, Inc., Notice of Apparent Liability, 20 FCC Rcd 5995,
5997, P: 6 (Enf. Bur., Investigations & Hearings Div. 2005) (rebroadcast
of conversation that violated telephone broadcast rule warranted adding
$2,000 to base forfeiture amount).
See LOI Response at 1-2.
See, e.g., Citicasters Licenses, L.P., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 1633 (Enf. Bur., Investigations & Hearings Div.
2007) (imposing $10,000 forfeiture) (forfeiture paid) (Citicasters); AMFM
Radio Licenses, LLC, Notice of Apparent Liability for Forfeiture, 19 FCC
Rcd 24518 (Enf. Bur. 2004) (forfeiture paid); Clear Channel Broadcasting
Licenses, Inc., Notice of Apparent Liability for Forfeiture, 17 FCC Rcd
5893 (Enf. Bur. 2002) (forfeiture paid); Citicasters, Co., Notice of
Apparent Liability for Forfeiture, 15 FCC Rcd 13805 (Enf. Bur. 2000)
(forfeiture paid).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099 P: 24. 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). See also Citicasters, 22 FCC Rcd 1633.
47 C.F.R. S: 1.80.
Consistent with Section 503(b) of the Act and with Commission practice,
for the purposes of the forfeiture proceeding initiated by this NAL,
Capstar TX Limited Partnership shall be the only party to this proceeding.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 08-1598
5
Federal Communications Commission DA 08-1598