Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | File No. 98110101            |
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| **CITICASTERS CO.**              | ) | NAL/Acct. No. X32080021      |
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| Licensee of Station WXTB(FM)     | * | Facility #11274              |
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| Clearwater, Florida              | * | JJS                          |
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[NOTICE OF APPARENT LIABILITY FOR FORFEITURE]{.underline}

**Adopted: July 21, 2000 Released: July 26, 2000**

By the Chief, Enforcement Bureau:

# Introduction

1.  In this Notice of Apparent Liability for Forfeiture, we find that
    Citicasters Co. ("Citicasters") has apparently violated Section
    73.1206 of the Commission's rules, 47 C.F.R. § 73.1206, by
    broadcasting a telephone conversation recorded on an answering
    machine without first informing the parties to the conversation of
    its intention to do so. We conclude that Citicasters is apparently
    liable for a forfeiture in the amount of six thousand dollars
    (\$6,000).

# Background

2.  On October 28, 1998, the Mass Media Bureau received a complaint from
    Ms. Paula J. Sage. Ms. Sage alleged that two disc jockeys employed
    by WFLZ-FM, Tampa, Florida, had played messages from her home
    answering machine over the air without her prior knowledge. She
    alleged that the station's disc jockeys broke her answering machine
    code before playing the messages and bragged about doing so on the
    air.

3.  In responses to letters of inquiry,[^1] Citicasters and Clear
    Channel, the current ultimate parent of Citicasters,[^2] stated that
    on October 1, 1998, two disc jockeys employed by WXTB(FM), not
    WFLZ-FM, called Ms. Sage concerning a news article about her that
    was published in *USA Today*. One of the employees dialed the
    numbers that "happened to be" the access code for Ms. Sage's
    answering machine and accessed Ms. Sage's messages. The disc jockeys
    accessed a message consisting of an interview between Ms. Sage and
    an Oklahoma newspaper reporter. The station aired the conversation
    once on the WXTB(FM) morning show.

# Discussion

4.  Section 73.1206 of the Commission's rules states:

    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 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.

5.  It appears that Citicasters violated Section 73.1206 of the
    Commission's rules by broadcasting the conversation that was
    recorded on Ms. Sage's answering machine. The Commission has warned
    licensees:

    We remind all licensees that Section 73.1206 of our rules requires
    that before a telephone conversation is recorded for later broadcast
    or is begun for simultaneous broadcast, the licensee must inform the
    other party that the conversation will be recorded for broadcast
    purposes or will be broadcast live, as the case may be. The
    recording of such conversation with the intention of informing the
    other party later \-- whether during the conversation or after it is
    completed but before it is broadcast \-- does not comply with the
    Rule if the conversation is recorded for possible broadcast.
    Likewise, the initiation of a live broadcast of conversation with
    the intention of seeking the other party\'s permission for its
    broadcast sometime during the conversation, does not constitute
    compliance.

    *Station-Initiated Telephone Calls Which Fail to Comply with Section
    73.1206 of the Rules*, 24 RR 2d 1814 (1972). This rule is intended
    to protect the called party. *See* *Amendment of Section 73.1206:
    Broadcast of Telephone Conversations (Report and Order)*, 3 FCC Rcd
    5461, 5463 (1988). Citicasters apparently accessed Ms. Sage's
    answering machine without her knowledge or permission. It then
    broadcast a telephone conversation between Ms. Sage and a reporter
    as it was being played on Ms. Sage's answering machine without
    giving prior notification to Ms. Sage. While Citicasters' conduct is
    different from the typical Section 73.1206 case, where a station
    calls a person directly and broadcasts the resulting conversation
    without giving prior notice, Citicasters' actions appear to be
    directly contrary to the language of the rule, which requires prior
    notice before a conversation is broadcast. We also find that
    Citicasters' conduct is inconsistent with the rule's purpose of
    protecting parties to telephone conversations.

6.  Section 503(b) of the Communications Act, 47 U.S.C. § 503(b), and
    Section 1.80(a) of the Commission's rules, 47 C.F.R. § 1.80(a), each
    state 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 Communications 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. *See
    Southern California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

7.  Based on the evidence before us, we find that Citicasters broadcast
    a conversation on October 1, 1998, in apparent willful violation of
    Section 73.1206 of the Commission's rules, 47 C.F.R. § 73.1206. The
    Commission's Forfeiture Policy Statement sets a base forfeiture
    amount of \$4,000 for the unauthorized broadcast of a telephone
    conversation. *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). Because
    Citicasters' action here appears to be more egregious than the
    typical case in that Citicasters' disc jockeys apparently broke Ms.
    Sage's answering machine code in order to access the recorded
    conversation, we are adjusting the proposed forfeiture up to
    \$6,000.

# Ordering clauses

8.  ACCORDINGLY, IT IS ORDERED pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 503(b), and
    Sections 0.111, 0.311 and 1.80 of the Commission's rules, 47 C.F.R.
    §§ 0.111, 0.311 and 1.80, that Citicasters Co. is hereby NOTIFIED of
    its APPARENT LIABILITY FOR FORFEITURE in the amount of six thousand
    dollars (\$6,000) for willfully violating Section 73.1206 of the
    Commission's rules, 47 C.F.R. § 73.1206.

9.  IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    rules, that within thirty days of the release of this Notice,
    Citicasters SHALL PAY to the United States the full amount of the
    proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

10. Payment of the forfeiture may be made by credit card through the
    Commission\'s Credit and Debt Management Center at (202) 418-1995 or
    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.

11. The response, if any, must be mailed to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W, Room 3-B443,
    Washington DC 20554 and MUST INCLUDE the file number listed above.

12. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Citicasters' counsel,
    John M. Burgett, Esq., Wiley, Rein & Fielding, 1776 K Street, N.W.,
    Washington, DC 20006.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: Clear Channel originally requested confidential treatment of the
    responses. By *Order*, DA 00-1530 (released July 10, 2000), the
    Chief, Investigations and Hearings Division denied Clear Channel's
    request for confidentiality. Clear Channel did not appeal that
    ruling. Accordingly, we will discuss Clear Channel's response in
    this notice.

[^2]: Clear Channel did not acquire control of Citicasters until May 4,
    1999. *See* File No. BTCH-19981016HO, granted April 29, 1999.