**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+----------------------------------+
| In the Matter of                | ) | File No. EB-06-IH-1706           |
|                                 |   |                                  |
| **ProActive Communications,     | ) | NAL Account No. 200832080089     |
| Inc.**                          |   |                                  |
|                                 | ) | Facility ID No. 29911            |
| Licensee of Station KQQB-FM     |   |                                  |
|                                 | ) | FRN No. 0011343191               |
| Newport, Washington             |   |                                  |
|                                 | ) |                                  |
|                                 |   |                                  |
|                                 | ) |                                  |
+---------------------------------+---+----------------------------------+

##  {#section .unnumbered}

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

**Adopted: June 9, 2008 Released: June 9, 2008**

By the Chief, Investigations and Hearings Division, Enforcement Bureau:

# 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"),[^1] and Section 1.80 of the Commission's
    rules,[^2] we find that ProActive Communications, Inc. (the
    "Licensee"), licensee of Station KQQB-FM, Newport, Washington (the
    "Station"), apparently willfully violated Section 73.1206 of the
    Commission's rules by recording a telephone conversation for
    broadcast and later broadcasting that telephone conversation without
    first informing the party to the conversation of its intention to do
    so.[^3] Based upon our review of the facts, we find the Licensee
    apparently liable for a forfeiture in the amount of \$4,000.

# BACKGROUND

2.  On March 27, 2006, the Commission received a complaint from Matt S.
    Jensen (the "Complainant"), Director of Marketing of The Davenport
    Hotel and Tower (the "Hotel"), alleging that on March 22, 2006, at
    approximately 9:30 p.m., DJ Dick, a disc jockey at the Station,
    broadcast over the Station a fictitious Hotel room number claiming
    that the rap star 50 Cent was staying there.[^4] DJ Dick then asked
    his listeners to go to the Hotel and try to get 50 Cent to call him
    at the Station for an interview.[^5] DJ Dick also asked the
    listeners to call the Hotel.[^6] The Complainant alleges that within
    approximately one hour's time the Hotel logged over 40 phone calls
    from people insisting that they be connected to 50 Cent's room. In
    addition, Hotel staff escorted over 20 people trying to access 50
    Cent's room out of the Hotel.[^7]

3.  At approximately 9:45 p.m. that evening, the Complainant allegedly
    called the Station, asked to speak with the Station's manager, and
    was told he could only speak with DJ Dick.[^8] At the time, the
    Complainant was not aware that DJ Dick was the Station's disc
    jockey.[^9] The Complainant asked DJ Dick to stop asking people to
    call and harass the Hotel staff. The Complainant also informed DJ
    Dick that 50 Cent was not staying at the Hotel and that his Station
    was causing severe disruption to the Hotel staff.[^10] At
    approximately 10:00 p.m., after the call ended, the Complainant
    heard his telephone conversation with DJ Dick aired over the
    Station.[^11] DJ Dick did not ask the Complainant if he could record
    the conversation, and the Complainant did not give DJ Dick
    permission to record or broadcast the conversation over the
    Station.[^12] For the remainder of the night and throughout the next
    day, DJ Dick broadcast messages over the Station insisting that his
    listeners have 50 Cent call him.[^13] According to the Complainant,
    DJ Dick's on-air messages produced "a tremendous amount of intended
    disruption on the hotel and to \[its\] staff as well as community
    disruption."[^14]

4.  By a Letter of Inquiry, the Enforcement Bureau directed the Licensee
    to provide information concerning the broadcast of the March 22,
    2006 telephone conversation between the Complainant and/or any Hotel
    employee and any employee of the Licensee, and to serve a copy of
    its response upon the Complainant.[^15] In its *LOI Response*, the
    Licensee states that DJ Dick no longer works at the Station.[^16]
    The Licensee also states that the Station's then General Sales
    Manager and the Licensee were unaware of the alleged telephone
    conversation between the Complainant and DJ Dick.[^17] The Licensee
    also states that it has no information or records, such as tapes, of
    any phone call on the date in question and thus cannot confirm or
    deny whether the complained-of telephone conversation with the
    Complainant occurred, whether it was recorded, or whether it was
    broadcast over the Station.[^18] The Licensee notes that based on
    information specified in the *Complaint*, the Complainant allegedly
    called the Station's request line and recordings of those calls are
    maintained for 30 days, as such, it does not have a recording of the
    purported call.[^19] In its *LOI Response*, the Licensee
    acknowledges that DJ Dick urged his listeners to contact or go to
    the Hotel, but claims station management was not aware of his
    comments until after they occurred and, once aware, instructed the
    then program director to immediately stop discussing 50 Cent and the
    Hotel on-air.[^20] Finally, the Licensee states that its company
    policy is to abide by Commission rules. It does not condone, and has
    never requested, ordered, ratified, or approved of any recording or
    broadcast of a telephone conversation in violation of Section
    73.1206 of the Commission's rules.[^21] The Complainant acknowledged
    receiving the *LOI Response*, but indicated that he had nothing
    further to add.[^22]

# DISCUSSION

5.  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.[^23] 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.[^24] The legislative
    history to Section 312(f)(1) of the Act clarifies that this
    definition of willful applies to both Sections 312 and 503(b) of the
    Act,[^25] and the Commission has so interpreted the term in the
    Section 503(b) context.[^26] The Commission may also assess a
    forfeiture for violations that are merely repeated, and not
    willful.[^27] "Repeated" means that the act was committed or omitted
    more than once, or lasts more than one day.[^28] In order to impose
    such a 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.[^29] The Commission
    will then 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.[^30] As described in greater detail below,
    we conclude under this procedure that the Licensee is apparently
    liable for a forfeiture in the amount of \$4,000 for its apparent
    willful failure to notify a party to a telephone conversation of its
    intent to record and broadcast the conversation.

6.  Section 73.1206 of the Commission's rules requires that:

> Before recording a telephone conversation for broadcast, or
> broadcasting such 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.[^31]

Thus, under Section 73.1206, a licensee must generally notify a party to
a telephone call of its intention to record the conversation for
broadcast before it commences such recording. The rule reflects the
Commission's longstanding policy that prior notification is essential to
protect individuals' legitimate expectation of privacy, as well as to
preserve their dignity by avoiding nonconsensual broadcasts of their
conversations.[^32] 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.[^33]

7.  In the instant case, it appears that, on March 22, 2006, the
    Licensee broadcast a telephone conversation between DJ Dick and the
    Complainant without providing the Complainant prior notice that the
    Licensee intended to record and later air the conversation, in
    apparent willful violation of Section 73.1206 of the Commission's
    rules. Although the Licensee contends that it cannot confirm or deny
    the allegations concerning the broadcast of the complained-of
    telephone conversation,[^34] the Commission has previously ruled
    that a licensee may not avoid liability for a rule violation by
    claiming ignorance as to what was broadcast over its station.[^35]
    In addition, the Complainant who participated in the call at issue
    affirmatively stated that notice was not given.[^36] Moreover, we
    have no information before us indicating that the Complainant had
    knowledge of the Licensee's intent to record the call for broadcast.
    The Complainant was not contacting a live call-in or "open mike"
    show or other line where he could expect to have his discussion
    broadcast and/or simultaneously recorded.[^37] Furthermore, the
    Complainant had no apparent association with the Station. Thus, the
    limited exception to the general notice requirement of Section
    73.1206 is not applicable here. Also, although the Licensee
    indicates that when he recorded the telephone conversation for
    broadcast without notifying the Complainant of his intention to do
    so, its employee, DJ Dick, acted without station management's
    knowledge and in violation of station policy, the Commission has
    consistently ruled that licensees are responsible for the selection
    and presentation of program material aired over their stations as
    well as for the acts and omissions of their employees.[^38] Under
    these circumstances, we find that the Licensee apparently willfully
    violated Section 73.1206 by failing to inform the Complainant that
    the conversation at issue was to be broadcast or recorded for later
    broadcast.

8.  We also examined whether the Station's broadcast of DJ Dick's pleas
    for listeners to go to and call the Hotel violated any statutory
    provision within the Commission's jurisdiction or other Commission
    rule, since the Complainant makes general allegations to that
    effect. We conclude that it does not. While we recognize that the
    broadcast of such material may have caused some inconvenience, it
    does not meet the standards for which we may take action.[^39] We
    therefore deny that portion of the *Complaint*.

9.  Pursuant to the Commission's *Forfeiture Policy Statement*[^40] and
    Section 1.80 of the Commission's rules,[^41] the base forfeiture
    amount for the unauthorized broadcast of a telephone conversation is
    \$4,000. The *Forfeiture Policy Statement* and Section 1.80 provide
    that a base forfeiture 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, which 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."[^42]
    Based upon the facts and circumstances presented here, after
    applying the *Forfeiture Policy Statement,* Section 1.80, and the
    statutory factors to this case, we believe that a proposed
    forfeiture of \$4,000, the base amount, is appropriate for the
    Licensee's apparent violation of Section 73.1206.[^43]

# ORDERING CLAUSES

10. **ACCORDINGLY**, **IT IS ORDERED**, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended,[^44] and Section 1.80 of
    the Commission's rules,[^45] that ProActive Communications, Inc. is
    hereby **NOTIFIED** of its **APPARENT LIABILITY FOR FORFEITURE** in
    the amount of \$4,000 for apparently willfully violating Section
    73.1206 of the Commission's rules.[^46]

11. **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*, ProActive Communications, Inc. **SHALL PAY** the full
    amount of the proposed forfeiture or **SHALL FILE** a written
    statement seeking reduction or cancellation of the proposed
    forfeiture.

12. 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. ProActive Communications, Inc. will
    also send electronic notification on the date said payment is made
    to <Hillary.DeNigro@fcc.gov>, <Ben.Bartolome@fcc.gov>, and
    Melissa.Marshall@fcc.gov.

13. The response, if any, shall be mailed to Hillary S. DeNigro, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W., Room 4-C330,
    Washington D.C. 20554, and **MUST INCLUDE** the NAL/Account Number
    referenced above. If any response is filed, ProActive
    Communications, Inc. shall also, to the extent practicable, transmit
    a copy of the response via email to <Hillary.DeNigro@fcc.gov>,
    <Ben.Bartolome@fcc.gov>, and Melissa.Marshall@fcc.gov.

14. 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.

15. **IT IS FURTHER ORDERED**, that the *Complaint* filed by Matt S.
    Jensen in this proceeding **IS GRANTED** to the extent indicated
    herein and **IS OTHERWISE DENIED**, and the complaint proceeding
    **IS HEREBY TERMINATED**.[^47]

16. **IT IS FURTHER ORDERED**, that copies of this *NAL* shall be sent,
    by First Class Mail and Certified Mail, to Mr. Gerald D. Clifton,
    President, ProActive Communications, Inc., 505 West Riverside, Suite
    101, Spokane, Washington, 99201, and to its counsel, John Joseph
    McVeigh, Esquire, 16230 Falls Road, P.O. Box 63, Butler, Maryland,
    21023.

FEDERAL COMMUNICATIONS COMMISSION

Hillary S. DeNigro

Chief, Investigations and Hearings Division

Enforcement Bureau

![](media/image1.wmf){width="6.944444444444445e-4in"
height="6.944444444444445e-4in"}

[^1]: *See* 47 U.S.C. § 503(b).

[^2]: *See* 47 C.F.R. § 1.80.

[^3]: *See id.* § 73.1206.

[^4]: *See* Complaint filed by Matt S. Jensen on FCC Form 475B, received
    March 27, 2006 ("*Complaint*").

[^5]: *See id.*

[^6]: *See id.*

[^7]: *See id.*

[^8]: *See id*.

[^9]: *See id.*

[^10]: *See id.*

[^11]: *See id.*

[^12]: *See id.*

[^13]: *See id.*

[^14]: *Id.*

[^15]: *See* Letter from Benigno E. Bartolome, Deputy Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, to ProActive Communications, Inc., dated
    October 3, 2007 ("*LOI*").

[^16]: *See* Letter from John Joseph McVeigh, counsel to ProActive
    Communications, Inc., to Marlene H. Dortch, Secretary, Federal
    Communications Commission, dated November 1, 2007, at 4 and Exhibit
    A -- Declaration of Christa McDonald ("*LOI Response*").

[^17]: *See id*. at 3 and Exhibit A -- Declaration of Christa McDonald.

[^18]: *See id.* at 3, 4, Exhibit A -- Declaration of Christa McDonald.
    The Licensee notes that a Licensee employee, Christa McDonald, did
    speak on the phone to another employee of the Hotel, Lynnelle
    Caudill, around the date in question, but states that to the
    Licensee's knowledge, that conversation was not recorded, nor
    broadcast live or after-the-fact over the Licensee's stations. *See
    id*. at 4-6, Exhibit A -- Declaration of Christa McDonald.

[^19]: *See id.* at 4, Exhibit A -- Declaration of Christa McDonald.

[^20]: *See id*. at 3-4, Exhibit A -- Declaration of Christa McDonald.

[^21]: *See id.* at 6.

[^22]: *See* Email from Matt Jensen to Melissa Marshall and Rebecca
    Hirselj, Investigations and Hearings Division, Enforcement Bureau,
    Federal Communications Commission, dated November 20, 2007 (on file
    with Investigations and Hearings Division).

[^23]: *See* 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1).

[^24]: 47 U.S.C. § 312(f)(1).

[^25]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^26]: *See, e.g., Southern California Broadcasting Co.*, Memorandum
    Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).

[^27]: *See, e.g.,* *Callais Cablevision, Inc., Grand Isle, Louisiana*,
    Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd
    1359, 1362, ¶ 10 (2001) ("*Callais Cablevision*") (issuing a Notice
    of Apparent Liability for, *inter alia*, a cable television
    operator's repeated signal leakage).

[^28]: *Southern California Broadcasting Co.,* 6 FCC Rcd at 4388, ¶ 5;
    *Callais Cablevision, Inc.,* 16 FCC Rcd at 1362, ¶ 9.

[^29]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^30]: *See, e.g., SBC Communications, Inc*., Forfeiture Order, 17 FCC
    Rcd 7589, 7591 ¶ 4 (2002) (forfeiture paid).

[^31]: 47 C.F.R. § 73.1206.

[^32]: *See* *Amendment of Section 1206: Broadcast of Telephone
    Conversations,* MM Dkt. No. 85-37, Report and Order, 3 FCC Rcd 5461,
    5463-64 (1988) ("*1988 Order*"); *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,* Dkt. No. 18601, Report and Order, 23 FCC
    2d 1, 2 (1970) ("*1970 Order*"); *see also* *WXJD Licensing, Inc*.,
    Forfeiture Order, 19 FCC Rcd 22445 (Enf. Bur. 2004).

[^33]: *1988 Order*, 3 FCC Rcd at 5463, ¶ 19.

[^34]: *See* *LOI Response* at 3, 4, Exhibit A -- Declaration of Christa
    McDonald.

[^35]: *See Infinity Broadcasting Corporation of Los Angeles (KROQ-FM)*,
    Memorandum Opinion and Order, 17 FCC Rcd 9892, 9896, ¶ 18 (2002),
    *citing Community Broadcasters, Inc. (WGHN(AM)/WGHN-FM)*, Memorandum
    Opinion and Order, 55 FCC Rcd 28, 35 (1975).

[^36]: *See* *Complaint*, *supra* note 4.

[^37]: *See 1970 Order,* 23 FCC 2d at 2, ¶ 5 (finding that consent will
    be presumed from surrounding circumstances where a caller initiates
    a telephone call to an "open mike" show, during which phone
    conversations are customarily broadcast); *Entercom New Orleans
    License, LLC*, Memorandum Opinion and Order, 17 FCC Rcd 22538 (Enf.
    Bur. 2002) (finding no additional notice was required under Section
    73.1206 where a caller originated a telephone call to a station's
    dedicated "call-in" telephone number during a program that regularly
    broadcast telephone calls from listeners and the program host
    identified the station upon answering the call); *cf*. *KOFI, Inc.*,
    Forfeiture Order, 20 FCC Rcd 17886 (Enf. Bur., Inv. & Hearings Div.
    2005) (concluding that a telephone call that is not made on a direct
    line to the studio, but rather transferred from a station's
    main-line, does not fall within 47 C.F.R. ­­§ 73.1206's presumption of
    awareness).

[^38]: *See, e.g., Clear Channel Broadcasting Licenses, Inc.,* Notice of
    Apparent Liability for Forfeiture, 15 FCC Rcd 23839, 23840-841, ¶5
    (Enf. Bur., Inv. & Hearings Div. 2000) (*citing Gaffney
    Broadcasting, Inc.,* Memorandum Opinion and Order, 23 FCC 2d 912,
    913 (1970); *Eleven Ten Broadcasting Corp*., Decision, 32 FCC 706
    (1962)).

[^39]: *See, e.g.,* 47 U.S.C. § 326 (prohibition against Commission
    interfering with licensee's selection or presentation of programming
    that might be regarded as program censorship); 47 C.F.R. § 73.1217
    (broadcast hoax rule); *see also* *Anti-Defamation League of B'nai
    B'rith*, Memorandum Opinion, 4 FCC 2d 190, 191 (1966) (subsequent
    history omitted) (*citing* *Terminiello v. Chicago*, 337 US 1, 4
    (1949) (finding that the public interest is best served by
    permitting the expression of any views that do not involve "a clear
    and present danger of serious substantive evil that rises far above
    public inconvenience, annoyance, or unrest.").

[^40]: *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 17987, 17113 (1997), *recons. denied,*
    15 FCC Rcd 303 (1999) ("*Forfeiture Policy Statement*").

[^41]: 47 C.F.R. § 1.80.

[^42]: 47 U.S.C. § 503(b)(2)(E); 47 C.F.R. § 1.80(b)(4).

[^43]: *See, e.g., KOFI, Inc*., *supra* note 37 (forfeiture
    paid\--imposing a \$4,000 forfeiture for failing to give the prior
    notice required by the telephone broadcast rule).

[^44]: *See* 47 U.S.C. § 503(b).

[^45]: *See* 47 C.F.R. § 1.80.

[^46]: *See* 47 U.S.C. § 503(b); 47 C.F.R. §§ 1.80, 73.1206.

[^47]: Consistent with Section 503(b) of the Act and consistent with
    Commission practice, for the purposes of the forfeiture proceeding
    initiated by this *NAL,* ProActive Communications, Inc. shall be the
    only party to this proceeding.