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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File Number EB-00-IH-0287
)
) NAL/Acct. No. x200132080007
CLEAR CHANNEL BROADCASTING
) LICENSES, INC.
)
)
Licensee of Station WINZ(AM)
)
)
Miami, Florida
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 29, 2000 Released: November
30, 2000
By the Chief, Investigations and Hearings Division, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Clear Channel Broadcasting Licenses, Inc.
(``Clear Channel'') has apparently violated Section 73.1206 of
the Commission's rules,1 by broadcasting a live telephone
conversation without first informing the party to the
conversation of its intention to do so. We conclude that Clear
Channel is apparently liable for a forfeiture in the amount of
four thousand dollars ($4,000).
II. BACKGROUND
2. On August 24, 2000, Lee Schwartz sent a complaint to
the Commission directed against Station WINZ(AM), Miami, Florida.
Mr. Schwartz alleged that on or about July 21, 2000,2 station
announcer Liz Wilde called his home seeking his permission to
broadcast a conversation concerning a personal matter. However,
the station apparently broadcast the conversation simultaneously
with the placement of the call, which was prior to notifying Mr.
Schwartz. In response to a letter of inquiry from Bureau staff
dated September 15, 2000, Clear Channel admits that the call took
place, and that no advance notice was given before its broadcast.
Furthermore, Clear Channel does not claim that there were any
underlying circumstances that would have led Mr. Schwartz to
believe that his conversation was being or would be broadcast.
The licensee submits that the station has strict policies in
place concerning broadcast telephone conversations, and that the
incident in question was an isolated lapse on the part of a
member of its staff, Liz Wilde, who has since been terminated.
Clear Channel contends that this action should prevent the
recurrence of similar incidents.
III. DISCUSSION
3. Section 73.1206 of the Commission's rules,3 provides,
in pertinent part, that before recording a telephone conversation
for broadcasting or broadcasting such a conversation
simultaneously with its occurrence, a licensee shall inform any
party to the call of its intention to broadcast the conversation.
4. In this case, Clear Channel clearly violated Section
73.1206 of the Commission's rules by calling Mr. Schwartz and
broadcasting the conversation without giving him prior notice of
its intent to broadcast such conversation. Section 503(b) of the
Communications Act of 1934, as amended (``the Act''),4 and
Section 1.80(a) of the Commission's rules,5 each provide that any
person who willfully or repeatedly fails to comply with the
provisions of the Communications Act or the Commission's rules
shall be liable for a forfeiture penalty. For purposes of
Section 503(b) of the Act, the term ``willful'' means that the
violator knew that it was taking the action in question, without
regard to whether it had the specific intent to violate the
Commission's rules. See Southern California Broadcasting Co., 6
FCC Rcd 4387, 4387-88 (1991).
5. Based on the evidence before us, we find that Clear
Channel's broadcast of an exchange between its then-employee, Liz
Wilde, and Mr. Schwartz on or about July 5, 2000, is a willful
violation of Section 73.1206 of the Commission's rules.6 The
Commission's Forfeiture Policy Statement7 sets a base forfeiture
amount of $4,000 for the unauthorized broadcast of a telephone
conversation. We have reviewed Clear Channel's response to our
letter of inquiry, and we find no basis for decreasing the
instant penalty from the base forfeiture amount. In this
connection, although Clear Channel asserts that it has acted to
prevent the recurrence of similar incidents by terminating the
employee in question, it has not specifically argued that its
efforts in this regard warrant consideration as a mitigating
factor. Even considering that factor, we have consistently held
that licensees are responsible for the selection and presentation
of program material over their stations, as well as for the acts
and omissions of their employees. Gaffney Broadcasting, Inc., 23
FCC 2d 912, 913 (1970), citing Eleven Ten Broadcasting Corp., 33
FCC 706 (1962). In sum, we believe that the nature of the
apparent violation requires the imposition of the base monetary
forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,8 and
Sections 0.111, 0.311 and 1.80 of the Commission's rules,9 Clear
Channel Broadcasting Licenses, Inc. is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($4,000.00) for violating Section 73.1206 of the
Commission's rules,10 which prohibits broadcasters from airing
telephone conversations without first informing the parties to
such conversations of their intention to do so.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80
of the Commission's rules,11 within thirty days of the RELEASE
DATE of this NOTICE OF APPARENT LIABILITY, Clear Channel
Broadcasting Licenses, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. referenced above.
9. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 Twelfth Street,
S.W., Room 3 B-443, Washington, D.C., and MUST INCLUDE the file
number listed above.
10. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail -- Return
Receipt Requested to the licensee's counsel of record, Eve
Klindera, Esq., Wiley Rein & Fielding, 1776 K Street, N.W.,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Charles W. Kelley
Chief, Investigations and Hearings
Division
Enforcement Bureau
_________________________
1 47 C.F.R § 73.1206.
2 The licensee indicates that the incident actually occurred
on July 5, 2000, and that Mr. Schwartz is mistaken. We accept
the licensee's explanation because the earlier date appears to be
more consistent with documented evidence concerning a later-
ocurring event, e.g., the July 21, 2000, news account of the
firing of Liz Wilde.
3 47 C.F.R. § 73.1206.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80(a).
6 We note that the statute requires only that the conduct in
question, in order to be sanctionable, be either ``willful'' or
``repeated,'' not both. See 47 U.S.C. §503(b)(1)(B).
7 See Report and Order, In re the Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the
Commission's Rules, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 73.1206.
11 47 C.F.R. § 1.80.