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Federal Communications Commission DA 03-2591
Federal Communications Commission
Washington, D.C. 20554
In the matter of
File No. EB-02-[H-0624-GC
NAL/Acct. No. 200332080020
FRN 0004036711
Facility ID #71215
Infinity Radio Operations, Inc.
Licensee of Station WBLK(FM),
Buffalo, New York
ÅÅ a a a a a a S a
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 1, 2003 Released: August 5, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
l. In this Notice of Apparent Liability for Forfeiture (“NAL”), we find that Infinity Radio
Operations, Inc. (“Infinity”) has apparently violated Section 73.1206 of the Commission’s rules! by
broadcasting a 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 in this case, we conclude that Infinity is
apparently liable for a forfeiture in the amount of four thousand dollars ($4,000).
I. BACKGROUND
2, Brenda L. Tanner, of Buffalo, New York, filed a complaint alleging that on June 26,
2002, at approximately 9:30 p.m., on air personality Shae Moore of WBLK(FM), Buffalo, New York,
broadcast a telephone conversation between Ms. Moore and Ms. Tanner without the latter’s knowledge.
At the time, Ms. Tanner was at work as a telephone customer service representative for Adelphia
Communications, Inc., a cable television company in the process of Chapter 11 reorganization.
According to Ms. Tanner, Ms. Moore asked several questions about the future of the firm, the job security
of its employees, and the possibility of non-payment of bills or cable theft.
3. In response to a Commission letter of inquiry,” Infinity, the licensee of WBLK(FM),
admits that it did broadcast the conversation a single time at approximately 9:00 p.m. as alleged in the
complaint, and that it did not inform Ms. Tanner of its intention to do so.’ Infinity further states that the
incident is inconsistent with its written policy in this respect. Infinity also states that it took disciplinary
' 47 C.F.R. § 73.1206.
? Letter from Charles W. Kelley, Chief, Investigations and Hearings Division, Enforcement Bureau, to Infinity
Radio Operations, Inc., July 29, 2002.
> Licensee states that the call occurred at “approximately 9:00 p.m.,” whereas Ms. Tanner states that it was “about
9:30 p.m.”
Federal Communications Commission DA 03-2591
action against Ms. Moore and distributed a memo to all WBLK on air employees reiterating its policy
with respect to Section 73.1206. Infinity then claims that, because this was an isolated incident and that it
has taken steps to remedy the situation, no further action is warranted.
HI. DISCUSSION
4. Section 73.1206 of the Commission’s rules provides that, before 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 its 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.* The Commission has stated, “we believe that there is a legitimate
expectation of privacy that telephone calls will not be broadcast without the consent of the parties
involved.” In this case, we find that Infinity apparently violated Section 73.1206 of the Commission’ s
rules by recording and broadcasting Ms. Tanner’s conversation without giving her prior notice of its
intent to broadcast such conversation.
5. Section 503(b) of the Communications Act of 1934, as amended (“Act”), and Section
1.80(a) of the Commission’s rules,’ each provide that any person who willfully or repeatedly fails to
comply with the provisions of the 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 it was taking
the action in question, irrespective of any intent to violate the Commission’s rules.®
6. Based on the evidence before us, we find that Infinity broadcast a conversation on June
26, 2002, at approximately 9:30 p.m., in apparent willful violation of Section 73.1206 of the
Commission’s rules. The Commission’s Forfeiture Policy Statement sets a base forfeiture of $4,000 for
the unauthorized broadcast of a telephone conversation.’ In assessing a monetary forfeiture, we take into
account the statutory factors set forth in Section 503(b)(2)(D) of the Act. Those factors include the
nature, circumstances, extent and gravity of the violation, and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.
Infinity’s claim that the matter here is an isolated incident ignores another case in which the Commission
found that Infinity had violated Section 73.1206.'° Moreover, Infinity’s subsequent remedial efforts do
not alter the fact that the violation took place or justify further mitigation or cancellation of the proposed
forfeiture penalty.'' Based upon these facts and considering all of the circumstances present here, we find
that no reduction or increase in the base forfeiture amount is warranted and that $4,000 is the appropriate
forfeiture amount.
“47 C.F.R. § 73.1206.
° In the Matter of Amendment of Section 1206: Broadcast of Telephone Conversations, 3 FCC Red 5461, 5463
(1988).
° 47 U.S.C. § 503(b).
747 C.F.R. § 1.80(a).
8 See Southern California Broadcasting Co., 6 FCC Red 4387, 4387-88 (1991).
? The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Red 17087, 17100-01 (1997), recon. denied, 15 FCC Red 303 (1999).
10 See EZ Sacramento, Inc. and Infinity Broadcasting Corporation of Washington, D.C., 16 FCC Red 4958 (2001);
recon. denied, 16 FCC Red 15,605 (2001) (broadcast of a conversation while the parties had been told they were on
hold).
1l See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
Federal Communications Commission DA 03-2591
IV. ORDERING CLAUSES
7. 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,” Infinity Radio
Operations, Inc., is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violating Section 73.1206 of the Commission’s rules, which
prohibits broadcasters from airing telephone conversations without first informing the parties to such
conversations of their intention to do so.
8. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Commission's
rules,” within thirty days of this NOTICE OF APPARENT LIABILITY, Infinity Radio Operations, Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. Payment of the forfeiture may be made by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission, to Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment MUST INCLUDE the FCC Registration number (FRN) referenced above and also must note the
NAL/Acct. No. referenced above.
10. The response, if any, must be mailed to Maureen F. Del Duca, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission, 445 12" Street, S.W,
Room 3-B443, Washington, D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. referenced above.
11. 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.
12. Under the Small Business Paperwork Relief Act of 2002, Pub L. No. 107-198, 116 Stat.
729 (June 28, 2002), the FCC is engaged in a two-year tracking process regarding the size of entities
involved in forfeitures. If you qualify as a small entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30) days of this NAL, either in your response to
the NAL or in a separate filing to be sent to the Investigations and Hearings Division, 445 12", S.W.,
Room 3-B443, Washington, D.C. 20554. Your certification should indicate whether you, including your
parent entity and its subsidiaries, meet one of the definitions set forth in the list provided by the FCC’s
Office of Communications Business Opportunities (OCBO) set forth in Attachment A of this Notice of
Apparent Liability. This information will be used for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights and responsibilities pursuant to Section 503(b)
of the Communications Act. If you have questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990.
13. Requests for payment of the full amount of this Notice of Apparent Liability under an
installment plan should be sent to: Chief, Revenue and Receivables Operations Group, 445 12th Street,
12 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
13 47 C.F.R. § 1.80.
Federal Communications Commission DA 03-2591
S.W., Washington, D.C. 20554."4
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY 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: John D. Poutasse, Leventhal, Senter & Lerman, P.L.L.C., 2000 K Street
N.W., Washington, D.C. 20006-1890.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
14 See 47 C.F.R. § 1.1914.
Federal Communications Commission DA 03-2591
ATTACHMENT A
FCC List of Small Entities
As described below, a “small entity” may be a small organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages, school districts, or
special districts, with a population of less than fifty thousand.
(3) Small Business
Any business concern that is independently owned and operated and
is not dominant in its field, and meets the pertinent size criterion described below.
Industry Type Description of Small Business Size Standards
Cable Services or Systems
Special Size Standard —
Cable Systems Small Cable Company has 400,000 Subscribers Nationwide
or Fewer
Cable and Other Program Distribution
Open Video Systems $12.5 Million in Annual Receipts or Less
Common Carrier Services and Related Entities
Wireline Carriers and Service providers
Local Exchange Carriers, Competitive
Access Providers, Interexchange Carriers, 1,500 Employees or Fewer
Operator Service Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size standards are expressed in either millions of
dollars or number of employees and are generally the average annual receipts or the average
employment of a firm. Directions for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
5
Federal Communications Commission
International Broadcast Stations
International Public Fixed Radio (Public and
Control Stations)
Fixed Satellite Transmit/Receive Earth
Stations
Fixed Satellite Very Small Aperture
Terminal Systems
Mobile Satellite Earth Stations
Radio Determination Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space Stations
Direct Broadcast Satellites
Home Satellite Dish Service
$12.5 Million in Annual Receipts or Less
Mass Media Services
Television Services
Low Power Television Services and
Television Translator Stations
TV Auxiliary, Special Broadcast and Other
Program Distribution Services
$12 Million in Annual Receipts or Less
Radio Services
Radio Auxiliary, Special Broadcast and
Other Program Distribution Services
$6 Million in Annual Receipts or Less
Multipoint Distribution Service
Auction Special Size Standard —
Small Business is less than $40M in annual gross revenues
for three preceding years
Wireless and Com
mercial Mobile Services
Cellular Licensees
220 MHz Radio Service — Phase I Licensees
1,500 Employees or Fewer
220 MHz Radio Service — Phase II
Licensees
700 MHZ Guard Band Licensees
Private and Common Carrier Paging
Auction special size standard -
Small Business is average gross revenues of $15M or less for
the preceding three years (includes affiliates and controlling
principals)
Very Small Business is average gross revenues of $3M or
less for the preceding three years (includes affiliates and
controlling principals)
Broadband Personal Communications
Services (Blocks A, B, D, and E)
1,500 Employees or Fewer
Broadband Personal Communications
Services (Block C)
Broadband Personal Communications
Services (Block F)
Narrowband Personal Communications
Services
Auction special size standard -
Small Business is $40M or less in annual gross revenues for
three previous calendar years
Very Small Business is average gross revenues of $15M or
less for the preceding three calendar years (includes affiliates
and persons or entities that hold interest in such entity and
their affiliates)
Rural Radiotelephone Service
Air-Ground Radiotelephone Service
1,500 Employees or Fewer
800 MHz Specialized Mobile Radio
900 MHz Specialized Mobile Radio
Auction special size standard -
Small Business is $15M or less average annual gross
revenues for three preceding calendar years
Private Land Mobile Radio
1,500 Employees or Fewer
Amateur Radio Service
N/A
Aviation and Marine Radio Service
DA 03-2591
Federal Communications Commission DA 03-2591
Fixed Microwave Services 1,500 Employees or Fewer
Small Business is 1,500 employees or less
Small Government Entities has population of less than
Public Safety Radio Services
50,000 persons
Wireless Telephony and Paging and
Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone Service 1,500 Employees or Fewer
Wireless Communications Services Small Business is $40M or less average annual gross
revenues for three preceding years
Very Small Business is average gross revenues of $15M or
less for the preceding three years
39 GHz Service
Auction special size standard (1996) —
Small Business is $40M or less average annual gross
revenues for three preceding calendar years
Prior to Auction —
Small Business has annual revenue of $12.5M or less
Multipoint Distribution Service
Multichannel Multipoint Distribution
Service $12.5 Million in Annual Receipts or Less
Instructional Television Fixed Service
Auction special size standard (1998) —
Small Business is $40M or less average annual gross
revenues for three preceding years
Very Small Business is average gross revenues of $15M or
less for the preceding three years
Local Multipoint Distribution Service
First Auction special size standard (1994) —
Small Business is an entity that, together with its affiliates,
has no more than a $6M net worth and, after federal income
taxes (excluding carryover losses) has no more than $2M in
annual profits each year for the previous two years
; New Standard —
218-219 MHZ Service Small Business is average gross revenues of $15M or less for
the preceding three years (includes affiliates and persons or
entities that hold interest in such entity and their affiliates)
Very Small Business is average gross revenues of $3M or
less for the preceding three years (includes affiliates and
persons or entities that hold interest in such entity and their
affiliates)
Satellite Master Antenna Television
Systems $12.5 Million in Annual Receipts or Less
24 GHz — Incumbent Licensees 1,500 Employees or Fewer
24 GHz — Future Licensees Small Business is average gross revenues of $15M or less for
the preceding three years (includes affiliates and persons or
entities that hold interest in such entity and their affiliates)
Very Small Business is average gross revenues of $3M or
less for the preceding three years (includes affiliates and
persons or entities that hold interest in such entity and their
affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts or Less
Radio and Television Broadcasting and
Wireless Communications Equipment
Manufacturers 750 Employees or Fewer
Audio and Video Equipment Manufacturers
Telephone Apparatus Manufacturers
(Except Cellular) 1,000 Employees or Fewer
Federal Communications Commission
DA 03-2591
Medical Implant Device Manufacturers
500 Employees or Fewer
Hospitals
$29 Million in Annual Receipts or Less
Nursing Homes
$11.5 Million in Annual Receipts or Less
Hotels and Motels
$6 Million in Annual Receipts or Less
Tower Owners
(See Lessee’s Type of Business)