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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Numbers EB-06-IH-1772 and
In the Matter of )
EB-06-IH-1748
Rejoynetwork, LLC )
NAL Account No. 200932080012
Licensee of Station WAAW(FM) )
Facility ID No. 4094
Williston, South Carolina )
FRN No. 0008498685
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 16, 2008 Released: October 16, 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 Rejoynetwork, LLC ("Rejoynetwork" or the "Licensee"),
licensee of Station WAAW(FM), Williston, South Carolina (the
"Station") apparently willfully and repeatedly violated Section
73.1206 of the Commission's Rules by broadcasting multiple telephone
conversations without giving prior notice to the individuals being
called of the Licensee's intention to do so. Based on a review of the
facts and circumstances, we find the Licensee apparently liable for a
forfeiture in the amount of $4,000. We also admonish Rejoynetwork for
the late filings in this matter.
II. BACKGROUND
2. The Commission received multiple complaints alleging that on March 23,
2006, between approximately 10:45 a.m. and 11:15 a.m., a Station radio
personality, Ryan B., called Raquel Oliver, Willis M. (Buster)
Boshears, Jr., and Cedric Jerome Johnson and broadcast each
conversation on-air over the Station without first informing the
individuals being called that the conversations would be so broadcast
(the "Complaints"). Recordings of the alleged broadcasts were supplied
by two of the complainants.
3. The Enforcement Bureau (the "Bureau") issued a letter of inquiry
("LOI") to the then-licensee of the Station, Frank Neely, on June 12,
2006. The LOI was re-sent to Frank Neely on November 2, 2006 via
certified mail, return receipt requested and also faxed to Frank Neely
on November 2 and 3, 2006. Frank Neely filed a response to the LOI on
December 8, 2006 ("LOI Response"), four days after it was due and
apparently without permission for the late filing. In its LOI
Response, Frank Neely provides a declaration under penalty of perjury
from Ryan B. In his declaration, Ryan B. admits interviewing Messrs.
Boshears and Johnson on-air on or about March 23, 2006, but denies
interviewing Ms. Oliver. Ryan B. also declares that Messrs. Boshears
and Johnson were informed, prior to their being recorded for broadcast
and prior to their being placed on the air, that it was his intention
to interview them on the air. Ryan B. further declares that each
agreed to the on-air interviews prior to broadcast. Ryan B. claims the
Station no longer has a recording of the broadcasts at issue. Ryan B.
also asserts that Messrs. Boshears and Johnson are public officials
and "subject to fair comment."
4. The Bureau's Investigations and Hearings Division received recordings
of the broadcasts in question in late 2006 from Messrs. Johnson and
Crawford. The recordings are apparently identical. In the recording,
Ryan B. initially takes a phone call from an owner of a cab company.
During the call, the owner discusses how his company is unable to pick
up customers at the airport because of the airport's exclusive cab
contract. After the call, Ryan B. says he is going to try to get
airport authorities on the phone. Ryan B. calls Mr. Boshears. When an
unidentified woman answers the phone, Ryan B. asks for Mr. Boshears,
explaining that he is calling to ask for information regarding the
airport noting that his previous messages had not been returned. Ryan
B. is temporarily put on hold and then put through to Mr. Boshears.
When Mr. Boshears answers, he says "hello" and then Ryan B. identifies
himself as from the Station and states that he previously left a
message and faxed a freedom of information request. At no time does
Ryan B. inform the woman answering the phone or Mr. Boshears that the
call is being recorded or broadcast on-air. Ryan B. continues by
questioning Mr. Boshears about a cab contract at the airport and Mr.
Boshears responds. After ending the call with Mr. Boshears, Ryan B.
calls Mr. Johnson. A woman answers the call. Ryan B. asks for Mr.
Johnson, is placed on hold, and is put through to Mr. Johnson. When
Mr. Johnson answers, he states his name, then Ryan B. identifies
himself as from the Station. Ryan B. does not tell the woman answering
the call or Mr. Johnson that the call is being recorded or broadcast.
Ryan B. mentions his prior call to Mr. Boshears to Mr. Johnson and
complains about the cab contract at the airport. Approximately one
minute into the call, Mr. Johnson asks if he is on the air. Ryan B.
responds affirmatively. In response, Mr. Johnson asks, "Don't you
think it would have been fair of you to let me know that you were
putting me on the air?" Ryan B. informs Mr. Johnson that he calls
everybody on the air and apologizes to him.
5. On May 15, 2007, the Bureau issued a follow-up LOI to the Licensee
which included a copy of the recording it received. Frank Neely's
response to the follow-up LOI was due June 4, 2007. The Licensee did
not respond by the deadline. Instead, two days after the deadline had
passed on June 6, 2007, the Licensee requested an extension of time
for filing a response. Despite its untimeliness, the Bureau granted
that request without prejudice to enforcement, in the interest of
considering a full record. Frank Neely filed a response to the
follow-up LOI on June 29, 2007 ("Follow-up Response"). The Follow-up
Response included an affidavit from Ryan B. who, after listening to
the recording, stands by the Licensee's initial LOI Response stating
"those answers are to the best of my recollection and belief true and
correct." Ryan B. admits, however, that the prior responses appear to
be inconsistent with the recording, but contends that the audio clips
were edited and do not accurately reflect the broadcast because the
recording does not contain statements that he clearly recalls being
made during the broadcast. Ryan B. alleges that the recording was
prepared by a radio personality at another station whose "demonstrated
animosity towards [the Station and Ryan B.] gives him motive for
creating a doctored CD that would place [the Station] in a bad light."
He further alleges that this radio personality "has at his disposal
the means and capabilities of making [a] doctored CD." Frank Neely
argues that the recording cannot properly be considered as evidence of
what was actually broadcast over the Station.
6. On November 27, 2007, the Bureau provided copies of the Licensee's LOI
Response and Follow-up Response to the complainants. In reply, Mr.
Boshears declares under penalty of perjury that he was not informed
that he was being interviewed for later broadcast nor was he informed
that the conversation taking place was broadcast live. Also under
penalty of perjury, Mr. Johnson responds to the Licensee's submissions
by stating that he was not notified that he was being put on the air.
Specifically, Mr. Johnson states that Ryan B., while disclosing his
station affiliation, never mentioned that he was live on the air. Mr.
Johnson states that while talking to Ryan B., staff members told him
he was on the radio. At that time, Mr. Johnson asked Ryan B. if he was
on the air, and said "Don't you think it would have been fair to let
me know that . . . ." According to Mr. Johnson, Ryan B. then
apologized for not notifying him that he was on the air. Mr. Crawford
responded to the Licensee's submissions by verifying, under oath, that
the recordings he submitted are "true and accurate duplicate files of
the broadcast." Ms. Riddle who allegedly listened to the broadcast at
issue responded to the Licensee's submissions stating that Mr.
Boshears was unaware of his being live on the air and that until Mr.
Johnson asked Ryan B. if the call was being taped, Ryan B. did not
inform Mr. Johnson of the live broadcast of the call.
III. DISCUSSION
7. Under Section 503(b)(1) of 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 forfeiture
penalty. Section 312(f)(1) of the Act defines "willful" as "the
conscious and deliberate commission or omission of [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
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. The
Commission may also assess a forfeiture for violations that are
repeated, and not willful. "Repeated" means that the act was
committed or omitted more than once or lasts more than one day. In
order to impose 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 penalty should be
imposed. The Commission will issue a forfeiture if it finds, by a
preponderance of the evidence, that the person has willfully or
repeatedly violated the Act or a Commission rule. As described in
greater detail below, we conclude that Rejoynetwork is apparently
liable for a forfeiture in the amount of $4,000 for its apparent
willful and repeated failure to inform the called parties that their
telephone conversations would be broadcast or would be recorded for
later broadcast before so broadcasting or recording them.
8. Section 73.1206 of the Commission's Rules requires that unless the
party is aware, or may be presumed to be aware from the circumstances
of the conversation, that the conversation is being or likely will be
broadcast, before broadcasting or recording a telephone conversation
for later broadcast, a licensee must inform any party to the call of
its intention to record and/or broadcast the conversation. 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."
9. Section 73.1206 reflects the Commission's longstanding policy that
prior notification is essential to protect individuals' legitimate
expectation of privacy and to preserve their dignity by avoiding
nonconsensual broadcasts of their conversations. The Commission
specifically favors an individual's privacy interest when balancing it
against a broadcaster's interest in enhancing program appeal with
increased spontaneity and entertainment value using telephone
conversations. The Commission has found that such purported
enhancement is not sufficiently critical to justify intruding on
individual privacy. 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. Consistent with this reasoning, the
Commission has defined "conversations" broadly "to include any word or
words spoken during the telephone call," and has specifically rejected
the argument that "utterances made by the parties called in answering
the phone" are not subject to the rule's prior notification
requirement. Thus, aside from the narrowly-tailored exceptions noted
above, neither of which is applicable here, before any portion of a
telephone conversation is recorded for later broadcast or before any
portion of a telephone conversation is initiated for simultaneous
broadcast, the licensee must inform the other party to the call that
the conversation will be recorded for broadcast purposes or will be
broadcast live.
10. Based on the record, we find the Licensee apparently violated Section
73.1206 of the Commission's Rules by broadcasting telephone
conversations between Ryan B. and Messrs. Boshears and Johnson,
respectively, without giving either prior notice of its intention to
do so. We recognize that there are conflicting statements in the
record, but note that the Commission has broad discretion as to how
much weight to accord disputed facts. As described above, both Messrs.
Boshears and Johnson submitted sworn statements that they were not
given prior notice that their respective calls were being recorded or
broadcast live. Indeed, the complainants' sworn submissions including,
but not limited to, recordings of the calls, corroborate the
complainants' version of the facts. Specifically, the recording
substantiates Mr. Boshears' and Mr. Johnson's, as well as the other
complainants', version of events. In the recording, there is no
indication that Ryan B. gave the recipients of the calls notice of the
intended broadcast use of the particular conversations before
broadcasting them, as the Licensee contends. The Station apparently
broadcast the entirety of each call beginning with Ryan B. placing the
calls. At no time during the conversation as recorded does Mr.
Boshears indicate his awareness of the call's recording or live
broadcast. Mr. Johnson, on the other hand, becomes suspicious and,
approximately one minute into the call, pointedly asks if the call is
being broadcast. When he learns that he is on the air, Mr. Johnson
asks Ryan B. "Don't you think it would have been fair of you to let me
know that you were putting me on the air?" In response, Ryan B. seems
to admit that the required advance notice was not provided and
apologizes to Mr. Johnson. Tellingly, Ryan B. explains to Mr. Johnson:
"I call everybody on air. . . . I don't normally talk to politicians
or people in office that hold public office that work for the
taxpayers; I don't normally talk to them on the side. . . . I don't
talk to folk who hold public office off the airway. . . . " The lack
of notice to Messrs. Boshears and Johnson apparently violates Section
73.1206 of the Commission's Rules.
11. We are not persuaded by the Licensee's contention that the recording
is edited. First, we note that the Licensee failed to provide any
evidence to substantiate its contention. Further, one of the
complainants states under oath that the recordings he submitted to the
Commission are "true and accurate duplicate files of the broadcast."
In addition, the recording is fully corroborated by Messrs. Boshears'
and Johnson's sworn statements, each parties to the respective calls,
as well as the third party complainants. Moreover, the recordings
submitted to the Commission from two of the complainants are
apparently identical. Finally, in the recording itself Mr. Johnson
states that he had not been informed the call was being broadcast and
Ryan B. admits that fact. In light of the foregoing, we believe the
recordings support our findings.
12. The Licensee also apparently asserts that as a result of their status
as public officials, Messrs. Boshears and Johnson waived their right
to privacy. We reject this argument. Assuming that Messrs. Boshears
and Johnson are "public officials" (which status the Commission is not
deciding herein), such status does not establish a legal basis for a
licensee to disregard the notice requirement of Section 73.1206. The
Licensee also claims, without any legal or factual explanation or
support, that Messrs. Boshears and Johnson are subject to "fair
comment." We find that this unsubstantiated claim does not bear on our
decision under Section 73.1206.
13. Based upon the evidence before us, we find that the Licensee
apparently willfully and repeatedly violated Section 73.1206 of the
Commission's rules. The Commission's forfeiture guidelines establish a
base forfeiture amount of $4,000 for the unauthorized broadcast of a
telephone conversation. In addition, the Commission's rules provide
that base forfeitures 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. The factors which may be
considered 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." While there are two separate apparent violations here, they
were related to the same sequence of events and occurred on the same
day in close proximity to each other (apparently one call immediately
followed the other). Having considered the record in this case and the
statutory factors identified above, we find that Rejoynetwork is
apparently liable for a forfeiture in the amount of $4,000 for the
two apparent violations in this case.
14. Additionally, we admonish Rejoynetwork for the late filings in
response to our LOI and to our Follow-up LOI. As described above,
Frank Neely's (now Rejoynetwork) response to the initial LOI was
submitted several days late. Likewise, Frank Neely's response to the
Follow-up LOI was filed pursuant to an extension requested two days
after the response deadline passed. Misconduct of this type exhibits a
disregard for the Commission's authority and hinders our investigative
processes. We warn the Licensee that similar conduct in the future may
result in sanctions.
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED, 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, that Rejoynetwork, LLC is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of $4,000 for violating Section 73.1206 of the Commission's
rules.
16. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty (30) days of the release date of this NAL,
Rejoynetwork, LLC, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
17. 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. Rejoynetwork, LLC will also send
electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov and Ben.Bartolome@fcc.gov.
18. 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, Rejoynetwork, LLC shall
also, to the extent practicable, transmit a copy of the response via
email to Hillary.DeNigro@fcc.gov and Ben.Bartolome@fcc.gov.
19. 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.
20. IT IS FURTHER ORDERED that the Complaints filed ARE GRANTED to the
extent indicated herein, and the complaint proceeding to the extent
indicated herein IS HEREBY TERMINATED.
21. IT IS FURTHER ORDERED that a copy of this NAL shall be sent, by
Certified Mail/Return Receipt Requested, to Rejoynetwork, LLC at its
address of record and to its counsel, David Tillotson, Esquire, Law
Office of David Tillotson, 4606 Charleston Terrace, N.W., Washington,
D.C. 20007-1911.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80.
See 47 C.F.R. S: 73.1206. Station WAAW(FM) was licensed to Frank Neely at
the time of the apparent violations. The licensee of the Station was later
assigned pro forma from Mr. Neely to Rejoynetwork. See FCC File No.
BAL-20080314ABZ, granted March 20, 2008 and consummated April 4, 2008.
According to that application, Mr. Neely is the sole manager and sole
member of Rejoynetwork.
See Complaint of Iain Crawford, submitted to the FCC on March 27, 2006 (IC
Number 06-WB11627850) (alleging that Ryan B. called the city administrator
and airport director on-air over the Station on March 23, 2006, and did
not inform either that they were on-air); Complaint of Willis M. Boshears,
Jr., dated March 27, 2006 (including statements from Ms. Oliver and other
persons allegedly with first-hand knowledge of Mr. Boshears' telephone
conversation with Ryan B.); Complaint of Tonya Riddle, submitted to the
FCC on March 27, 2006 (IC Number 06-WB11628201) (alleging that Ryan B.
failed to inform Mr. Boshears that the telephone conversation was being
aired live); Complaint of Cedric Jerome Johnson, dated April 20, 2006
(alleging Ryan B. failed to properly notify him and Mr. Boshears that his
telephone conversations with each of them were broadcast live); E-mails
from Iain Crawford to FCCINFO, dated October 6, 2006.
See Letter from Tom Hutton, Assistant Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, to Frank
Neely, dated June 12, 2006.
See Letter from Frank Neely, to Mary Turner, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, dated
December 8, 2006 (including Declaration of Brian L. Doyle, whose air name
is Ryan B.) ("LOI Response").
See id.
See id. at Declaration of Brian L. Doyle.
See id.
See id.
Id.
Because the separately produced recordings are apparently identical in
content, they will be referred to hereafter as one recording (the
"Recording").
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to David Tillotson, Esq., Counsel for Frank Neely, dated May 15, 2007.
See Letter from David Tillotson to Mary Turner, via email on June 6, 2007
See E-mail from Jennifer Lewis to David Tillotson, dated June 11, 2007
(granting request for extension of time until July 1, 2007).
See Letter from David Tillotson, to Mary Turner, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
dated June 29, 2007 (including Declaration of Brian L. Doyle, whose air
name is Ryan B.) ("Follow-up Response").
Id. at Declaration of Brian L. Doyle.
According to Ryan B., these statements include, "without limitation," the
following: (a) Ryan B.'s statement that he was returning to the air from a
commercial break; (b) Ryan B.'s statement that he would be interviewing
Mr. Boshears, which on-air statement is what prompted the taxi driver to
call in and complain about the taxi contract; (c) Ryan B.'s statement on
the air that he had contacted airport authorities while off the air on
commercial break and that he was waiting for them to return his calls; (d)
Ryan B.'s statement on the air that an airport authority official had
returned his call while he was speaking with another caller; and (e) the
statement by the secretary who answered the phone at Mr. Johnson's office
that she had been listening to the show. See id.
Id.
Id.
See Follow-up Response.
See Letter from Rebecca Hirselj, Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to Cedric Jerome Johnson, Willis M. Boshears, Jr., Tonya Riddle, and Iain
Crawford, dated November 27, 2007. By letter dated January 3, 2008, the
Bureau followed-up with Ms. Riddle to confirm whether she intended to file
a reply. See Letter from Rebecca Hirselj, Assistant Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, to Tonya Riddle, dated January 3, 2008.
See Letter from Willis M. Boshears, Jr., to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated December 11, 2007.
Affadavit of Cedric Jerome Johnson, to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated December 26, 2007.
See id.
Id.
See id.
Affidavit of Iain Crawford, dated December 20, 2007, as submitted to
Rebecca Hirselj, Assistant Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission ("Crawford
Affidavit").
See Letter from Tonya Riddle to Rebecca Hirselj, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated January 10, 2008.
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991).
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
See Southern California Broadcasting Co., 6 FCC Rcd at 4388 P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362 P: 9.
See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 P: 4 (2002) (forfeiture paid).
See 47 C.F.R. S: 73.1206.
Id.
See Amendment of Section 1206: Broadcast of Telephone Conversations,
Report and Order, 3 FCC Rcd 5461, 5463-64 (1988) ("1988 Order re the
Broadcast of Telephone Conversations"); see also 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); WXDJ
Licensing, Inc., Forfeiture Order, 19 FCC Rcd 22445 (Enf. Bur. 2004)
(assessing a forfeiture for failure to inform the called party that their
telephone conversation would be broadcast or recorded for later broadcast
before so broadcasting or recording them; forfeiture paid).
See 1988 Order re the Broadcast of Telephone Conversations, 3 FCC Rcd at
5464.
Id. at 5463.
Heftel Broadcasting-Contemporary, Inc., 52 FCC 2d 1005, 1006 (1975)
(holding that "conversation" was defined to include any word or words
spoken during the telephone call and imposing $2,000 forfeiture for
failure to provide notice prior to recording a conversation).
Based on the record, we do not find the Licensee apparently violated
73.1206 of the Commission's Rules with respect to Ryan B.'s alleged
telephone conversation with Ms. Oliver on March 23, 2006. As described
above, through a sworn statement, Ryan B. denies having spoken with Ms.
Oliver that day and indicates she was never interviewed by the Station. In
their respective replies to the Licensee's LOI Response and Follow-up
Response, none of the complainants specifically refute that contention. We
do note, however, that based on a review of the recordings supplied by the
complainants, it appears that before broadcasting telephone conversations
between Ryan B. and a female answering the telephone before Mr. Boshears'
call and between Ryan B. and a female answering the telephone before Mr.
Johnson's call, both that day, the Licensee may have failed to inform
those females of its intention to broadcast the conversations. However,
without more evidentiary support indicating required notice was not
provided to those individuals prior to the calls, we do not find apparent
violations of 73.1206 of the Commission's Rules with respect to those
conversations.
See Quatron Communications, Inc., Memorandum Opinion and Order, 15 FCC Rcd
4749, 4754 P: 15 (2000) (citing Gencom, Inc., v. FCC, 832 F.2d 171, 181
(D.C. Cir. 1987)) ("While we recognize that there is conflicting evidence
in the record, we nonetheless note that the Commission has broad
discretion as to how much weight to accord disputed facts based on the
existing record.").
Recording.
Id.
Even if Ryan B.'s statements identifying himself and the Station could be
viewed as constituting implicit notice, such notice is inadequate. As
indicated above, under Section 73.1206, a party's awareness of a station's
intent to broadcast a telephone conversation is presumed only if the party
is associated with the station or the party originates the call. It
appears that Messrs. Boshears and Johnson had no connection to the Station
and did not originate the calls. In any event, any notice Ryan B. may have
given on-air was given too late since it occurred after Messrs. Boshears
and Johnson began speaking and after Ryan B. had started broadcasting the
conversation. Section 73.1206 of the Commission's Rules clearly requires
that such notice be provided "[b]efore recording a telephone conversation
for broadcast, or broadcasting such a conversation simultaneously with its
occurrence . . . ."
Crawford Affidavit.
See LOI Response at Declaration of Brian L. Doyle.
See El Mundo Broadcasting Corporation, Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 20377, 20379 (Enf. Bur. 2000) (Bureau refused to
recognize an exception to Section 73.1206 notice requirements where the
conversation recorded and subsequently broadcast involved a well known
on-air personality and a government official).
LOI Response at Declaration of Brian L. Doyle.
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), recons. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement"); 47 C.F.R. S:1.80.
See 47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80(a)(4).
See Nassau Broadcasting Partners, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 1367, 1369 (Enf. Bur. 1999) (proposing $4,000 base
forfeiture for two 73.1206 violations that were related to the same
sequence of events and occurred on the same day within a two hour period)
(paid).
See Globcom, Inc., Notice of Apparent Liability for Forfeiture and Order,
18 FCC Rcd 19893, 19898 n. 36 (2003) (noting delayed response to an LOI is
considered dilatory behavior which may result in future sanctions)
(subsequent history omitted). See also BigZoo.Com Corporation, Notice of
Apparent Liability for Forfeiture and Order, 19 FCC Rcd 24437 (Enf. Bur.
2004), forfeiture ordered, 20 FCC Rcd 3954 (Enf. Bur. 2005) (ordering
$20,000 forfeiture for failure to respond to an LOI).
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1206.
See 47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
73.1206.
Consistent with Section 503(b) of the Act and with Commission practice,
for the purposes of the forfeiture proceeding initiated by this NAL,
Rejoynetwork, LLC shall be the only party to this proceeding.
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Federal Communications Commission DA 08-2293
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Federal Communications Commission DA 08-2293