Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | File No. EB-00-IH-0009       |
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| **INFINITY BROADCASTING          | ) | NAL/Acct. No. X32080005      |
| CORPORATION OF WASHINGTON,       | * |                              |
| D.C.**                           | * |                              |
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| Licensee of Station WJFK-FM      | * |                              |
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| Manassas, Virginia               | ) |                              |
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[NOTICE OF APPARENT LIABILITY FOR FORFEITURE]{.underline}

**Adopted: March 6, 2000 Released: March 8, 2000**

By the Chief, Enforcement Bureau:

# Introduction

1.  In this Notice of Apparent Liability for Forfeiture, we find that
    Infinity Broadcasting Corporation of Washington, D.C. ("Infinity")
    has apparently violated Section 73.1206 of the Commission's rules,
    47 C.F.R. § 73.1206, by broadcasting a telephone conversation live
    without first informing the party to the conversation of its
    intention to do so. We conclude that Infinity is apparently liable
    for a forfeiture in the amount of four thousand dollars (\$4,000).

# Background

2.  On December 14, 1999, the Commission received a complaint from Ms.
    Flora Barton, the National Latino Media Council, and Mr. Jose
    Armas.[^1] The complainants alleged that on August 17, 1999, during
    the "Don and Mike" radio show, broadcast over WJFK-FM and other
    radio stations, the hosts called city hall at El Cinezo, Texas,
    where Ms. Barton is a Commissioner. According to the transcript and
    tape submitted with the complaint, Ms. Barton answered the
    telephone, and the following exchange took place:

    Ms. Barton: El Cinezo, how may I help you?

    Don: Uh, ola.

    Clerk: Hello?

    Don: Ola? Ola, Senorita Ola?

    Clerk: Yes.

    Don: Hello, this is the Don and Mike Radio Show. We're doing a live,
    national radio show right now.[^2]

    Don and Mike then engaged Ms. Barton in an extended discussion of El
    Cinezo's decision to conduct official business in Spanish that even
    Infinity describes as exceeding "the bounds of good taste in their
    treatment of Ms. Barton." *See Id*., pp. 4-17; Letter Dated January
    7, 2000 from Stephen A. Hildebrandt, Vice President of Infinity
    ("Infinity Response"), p. 5.

3.  On December 23, 1999, the Investigations and Hearings Division,
    Enforcement Bureau, sent Infinity a letter of inquiry regarding the
    complaint. In its January 7, 2000, response, Infinity admits that it
    broadcast a conversation with Ms. Barton. While Infinity does not
    have its own recording of the show, it denies knowledge that the
    transcript and tape are "materially different from what was actually
    broadcast" on Station WJFK-FM. Infinity Response, p. 1 n.2.

# 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.  Infinity denies that it violated Section 73.1206 of the Commission's
    rules. It claims that it uses digital audio delay devices to "ensure
    that persons called by the station are informed prior to any
    broadcast of their conversation that they will be on the air, a
    process that gives them an opportunity to object before any such
    call is broadcast." According to Infinity, these devices
    "automatically and consecutively delay matter to be broadcast by
    eight seconds each. . . ." If a called party expresses a wish not to
    be broadcast, any one of five employees have the capability to
    prevent the material from being broadcast by hitting a yellow button
    marked "DUMP." When the "DUMP" button is hit, four seconds of
    material is erased and not broadcast. Infinity states that up to
    four "dumps" may be activated, resulting in the elimination of 16
    seconds of material. When the "DUMP" button is hit, the broadcast
    immediately becomes live, and whatever is being said at that moment
    is broadcast. The delay is automatically and gradually restored by
    slowing down the rate at which words or gaps between words are
    broadcast. *See* Infinity Response, p. 2. By using the delay
    devices, Infinity claims that it does not broadcast any conversation
    "simultaneously" with its occurrence. *Id.*, p. 3. Infinity
    acknowledges the rule also prohibits the recording of a telephone
    conversation for broadcast without prior notice that the material
    will be broadcast, but it denies that it "recorded" the conversation
    with Ms. Barton. It claims, relying on a dictionary definition of
    "record," that the digital delay devices do not "record" because
    they do not permanently preserve the material. *Id.*, p. 3.

6.  We reject Infinity's arguments. Assuming, for the sake of argument,
    that digital audio delay devices could be used to facilitate
    compliance with the rule, Infinity never told Ms. Barton that it was
    using digital audio delay devices or that it had the capability to
    prevent her voice from being transmitted over the air. Instead, Ms.
    Barton was simply told that she was on the air "live." She therefore
    had no reason to believe that she could tell the station that she
    did not want to be broadcast on the air. 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). As Infinity admits, the
    rule requires that persons called by stations have "an opportunity
    to object before any such call is broadcast." Infinity
    Response, p. 3. Commission precedent in this area makes clear that
    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). Yet, if we were to accept
    Infinity's argument that merely having a delay without any
    obligation to affirmatively advise the called party that they were
    being broadcast on the air or being recorded for future broadcast is
    sufficient, it would diminish this protection. Indeed, by telling
    Ms. Barton that she was on the air "live," Infinity deprived Ms.
    Barton of the opportunity to object to being broadcast. Under all
    these circumstances, we conclude that Infinity apparently violated
    Section 73.1206.

7.  Moreover, we reject Infinity's contention that the use of digital
    delay devices places the station wholly outside the rule because the
    conversations are neither "simultaneous" nor "recorded." When it
    called Ms. Barton, Infinity considered the conversation to be
    "live." In describing and interpreting the rule, the Commission has
    used the words "simultaneously" and "live" as synonyms. *See*,
    *e.g.*, *Amendment of Section 73.1206: Broadcast of Telephone
    Conversations (Report and Order)*; *Station-Initiated Telephone
    Calls Which Fail to Comply with Section 73.1206 of the Rules*.
    Infinity offers no support for the proposition that a broadcast that
    it described as "live" cannot be considered a "simultaneous"
    broadcast. Accordingly, Infinity apparently violated the rule
    beginning at the time it began its simultaneous, "live" conversation
    with Ms. Barton.[^3]

8.  Infinity cites three cases for the proposition that the Commission
    has approved the use of the digital delay system to ensure
    compliance with Section 73.1206 of the rules. Infinity Response, p.
    3 n.4, *citing Infinity Broadcasting Corp. of Washington, D.C.
    (WJFK-FM)*, 14 FCC Rcd 5539 (MMB 1999), *Letter from Norman
    Goldstein to Kenneth C. Stevens*, Case Nos. 9610161 and 96040220
    (MMB June 4, 1996), and *Letter from Norman Goldstein to Bernard A.
    Solnik, Esq.*, Case No. 02120518 (MMB March 25, 1996). None of these
    rulings contain any analysis or discussion of the digital delay
    system. Moreover, none of the language in those rulings is
    inconsistent with the plain language of the rule, which clearly
    requires prior notification.

9.  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).

10. Based on the evidence before us, we find that Infinity broadcast a
    telephone conversation on September 21, 1999, 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* FCC 99-407 (released
    December 28, 1999). We have reviewed Infinity's response to our
    letter of inquiry, including its description of its policies and
    procedures concerning compliance with Section 73.1206, and we do not
    find any basis for either increasing or decreasing the forfeiture
    from the base forfeiture amount.

# Ordering clauses

11. 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 Infinity Broadcasting Corp. of
    Washington, D.C. is hereby NOTIFIED of its APPARENT LIABILITY FOR
    FORFEITURE in the amount of four thousand dollars (\$4,000) for
    willfully violating Section 73.1206 of the Commission's rules, 47
    C.F.R. § 73.1206.

12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
    rules, that within thirty days of the release of this Notice,
    Infinity 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.

13. 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.

14. 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.

15. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Infinity's counsel, H.
    Anthony Lehv, Esq., Leventhal, Senter, & Lerman PLLC, 2000 K Street,
    N.W., Suite 600, Washington, DC 20006-1809.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: The complaint also alleges that Infinity violated Section 73.3999
    of the Commission's rules, 47 C.F.R. § 73.3999, concerning indecent
    programming. That portion of the complaint will be addressed
    separately.

[^2]: *See* "Transcript of Don and Mike Radio Show" (Complaint, Exhibit
    B), p. 3.

[^3]: We need not consider Infinity's argument that the digital delay
    devices did not "record" the conversation because, under the
    circumstances of this case, we find its broadcast to be
    "simultaneous" within the meaning of the rule.