Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of )

) File No. EB-03-IH-0508

Noe Corp., L.L.C. ) NAL/Acct. No. 200532080026

) Facility ID No. 48975

Licensee of Station KNOE-TV, Monroe, ) FRN No. 0001716588

Louisiana )

)

## FORFEITURE ORDER

**Adopted: July 14, 2005 Released: July 18, 2005**

By the Chief, Investigations and Hearings Division, Enforcement Bureau

**I. INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture against Noe Corp., L.L.C. ("Noe"), licensee of Station
    KNOE-TV, Monroe, Louisiana, for willfully and repeatedly violating
    section 73.1206 of the Commission's rules[^1] by twice recording
    telephone conversations for broadcast without informing the other
    party to the calls of its intention to record for broadcast the
    conversations. We find that a Noe news reporter twice recorded for
    broadcast the complainant's voice, including the complainant's
    answering machine, without informing the complainant beforehand. We
    reject Noe's claims that the answering machine message did not
    constitute a "conversation" under our rules and that the purpose and
    the factual background for the recordings exempted Noe from any
    notice requirement. Although we affirm our earlier finding[^2] that
    Noe twice violated section 73.1206, in light of Noe's history of
    compliance with our rules, we reduce the forfeiture amount from
    \$10,000 to \$8,000.

**II. BACKGROUND**

2.  The Bureau received a series of three complaints from Mack Calhoun,
    who serves on a Police Jury for Ouachita Parish in Louisiana. In the
    first complaint, a letter dated September 23, 2003,[^3] Mr. Calhoun
    asserted that, on or about September 12, 2003, Station KNOE-TV news
    reporter Ken Booth telephoned Mr. Calhoun's residence and, without
    providing prior notice to Mr. Calhoun, recorded his outgoing voice
    mail message with the intent to broadcast the recording.[^4]
    According to Mr. Calhoun, Station KNOE-TV broadcast the recorded
    voice mail message later that day, during the evening news.[^5] Mr.
    Calhoun filed additional complaints with the Commission on September
    26, 2003, and April 20, 2004,[^6] stating that Mr. Booth telephoned
    Mr. Calhoun's residence again on September 25, 2003.[^7] According
    to the complaints, when Mr. Calhoun answered the telephone and Mr.
    Booth identified himself as the caller, Mr. Calhoun immediately hung
    up.[^8] Mr. Calhoun alleges that Mr. Booth again did not notify him
    at the time that he was recording the exchange with the intent of
    broadcasting it over Station KNOE-TV.[^9] Mr. Calhoun states that
    Station KNOE-TV broadcast a recording of that brief dialogue during
    its newscast that evening.[^10] He also alleges in the April 20
    Complaint that Station KNOE-TV rebroadcast the September 12
    recording of his outgoing voice mail message during another evening
    newscast, on April 20, 2004.[^11]

3.  After reviewing the complaints, the Bureau issued a letter of
    inquiry ("LOI") to Noe, directing Noe to provide information about
    its broadcast of telephone conversations involving Mr. Calhoun.[^12]
    In its initial response and subsequent filing,[^13] Noe admitted
    that, on September 12, 2003, Mr. Booth telephoned Mr. Calhoun's
    residence for the purpose of conducting and recording for later
    broadcast an interview with Mr. Calhoun about an upcoming news
    story.[^14] Noe maintained that it had no intention at the time to
    record Mr. Calhoun's outgoing voice mail message, but, admitted
    that, when no one answered, Mr. Booth recorded the message and that
    Station KNOE-TV broadcast the recording that evening and again in
    April 2004.[^15] Noe conceded that Mr. Booth did not notify Mr.
    Calhoun at the time of the telephone call that he was recording it
    for broadcast.[^16] Noe also conceded that Mr. Booth telephoned Mr.
    Calhoun on September 25, 2003, and recorded their exchange without
    notifying Mr. Calhoun, but maintained that the broadcast did not
    include Mr. Calhoun's voice.[^17]

4.  On January 13, 2005, the Bureau issued the *NAL* against Noe,
    proposing a forfeiture in the amount of \$10,000. In the *NAL,* the
    Bureau tentatively concluded that Noe had broadcast conversations
    between Mr. Booth and Mr. Calhoun without providing prior notice to
    Mr. Calhoun that the licensee intended to air the conversations, in
    apparent willful and repeated violation of section 73.1206 of the
    Commission's rules.[^18] Particularly in light of Noe's rebroadcast
    of the first recording, the Bureau found that an upward adjustment
    to the base forfeiture amount was appropriate for the September 12,
    2003 violation.[^19] Therefore, based upon the facts and
    circumstances presented, Noe was found to be apparently liable in
    the amount of \$10,000 for violating the telephone broadcast rule on
    two occasions, \$6,000 for the September 12 recording and \$4,000
    for the September 25 recording.

5.  Noe has submitted a response to the *NAL* challenging the Bureau's
    conclusion that it violated section 73.1206 or, in the event a
    violation is found, seeking reduction or cancellation of the
    proposed forfeiture.[^20] Although we conclude that Noe willfully
    and repeatedly violated section 73.1206, we hereby grant Noe's
    request for a reduction of the forfeiture amount.

**III. DISCUSSION**

6.  In its response to the *NAL*, Noe challenges the Bureau's conclusion
    that it apparently willfully and repeatedly violated section 73.1206
    of the Commission's rules for the following reasons: 1) the voice
    mail message and "hello" should not be considered to constitute
    conversations; 2) that no notice was required under the
    circumstances in this case as Mr. Calhoun's status as a public
    official, his status as suspect in a public corruption scandal, the
    call was made during an investigative report, and/or Mr. Calhoun's
    invitation that members of the public contact him to discuss the
    situation, resulted in a waiver of his rights to privacy; and 3)
    Noe's broadcast of Mr. Calhoun's voice mail message was "fully
    protected by the First Amendment to the Constitution of the United
    States."[^21]

7.  We reject Noe's argument that no notice was necessary because the
    material broadcast did not constitute a conversation. The Commission
    has previously stated that the term "'\[c\]onversation\]' as used in
    section 73.1206 includes any word or words spoken during the
    call."[^22] As we have held previously, an outgoing voice mail
    message satisfies the requirements of a conversation.[^23] In the
    instant case, Mr. Calhoun's outgoing voice mail message warrants the
    same treatment. Moreover, the Commission has previously held that
    "it is reasonable and desirable to retain for individuals the right
    to answer the telephone without having their voices or statements
    transmitted to the public by a broadcast station in the absence of
    prior notice."[^24] As we noted in the *NAL* in rejecting a similar
    argument by Noe,[^25] the "right to answer without having one's
    voice transmitted to the public exists irrespective of whether the
    voice broadcast or recorded for later broadcast is live or is lifted
    from an answering machine."[^26] This rule reflects "the
    Commission's longstanding belief that prior notification is
    essential to protect individuals' legitimate expectation of privacy,
    as well as to preserve their dignity by avoidance of nonconsensual
    broadcasts of their conversations."[^27] Thus, in order to ensure
    the protection of an individual's "privacy rights, the Commission
    has determined that a broadcast station must give notice of its
    intent to broadcast the conversation before transmitting or
    recording for later transmission of the telephone call."[^28]

8.  We also reject Noe's contention that no notice was necessary because
    there were no privacy rights to protect. Noe asserts that Mr.
    Calhoun waived his right to privacy because 1) at the time of the
    report, he was a public official, 2) he was a suspect in a public
    corruption scandal, 3) he was the subject of an investigative
    report, and/or 4) he invited members of the public to call him to
    discuss the matter.[^29] As we noted in the *NAL* in rejecting this
    contention by Noe,[^30] Mr. Calhoun's status as a public official
    involved in a matter of public interest does not establish a legal
    basis for assuming that any telephone conversation with Mr. Calhoun
    could be recorded and subsequently broadcast without prior
    notice.[^31] In *El Mundo Broadcasting Corporation*,[^32] we
    explicitly refused to recognize an exception to section 73.1206's
    notice requirements where a licensee failed to inform a government
    official of the licensee's intention to record and broadcast the
    conversation between the official and an on-air personality.[^33] In
    section 73.1206, the Commission specifically enumerated the
    instances in which a licensee is not required to inform a party of
    the licensee's intention to broadcast a conversation: "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."[^34] Specifically section 73.1206 provides that the
    licensee may make such a presumption only when the party to the call
    is "associated with the station," such as an employee or part-time
    reporter, or when the other party originates the call and it is
    obvious that the call is "in connection with a program in which the
    station customarily broadcasts telephone conversations." Noe does
    not claim that either of these exceptions applies to this case.
    Accordingly, because the requirements for the exception are not met
    in this case, Noe was not exempted from the requirement to provide
    Mr. Calhoun with notice of its intention to record the conversations
    for broadcast.

9.  We also note that Mr. Calhoun did not forego his right to the notice
    required by section 73.1206 by inviting the public to call and
    discuss the matter with him. Noe would have us take from the alleged
    invitation that Mr. Calhoun invited them to broadcast their calls to
    him. The facts as presented by Noe make it clear that Mr. Calhoun
    objected to being the subject of any broadcast \-- Noe admits that
    he repeatedly rejected its invitation to be interviewed in this
    matter.[^35]

10. Finally, we again reject Noe's claim that Station KNOE-TV's
    broadcast of the telephone conversations "was fully protected by the
    First Amendment."[^36] Although the Commission recognizes
    broadcasters' First Amendment concerns regarding section 73.1206
    notice requirements,[^37] the rule requires only that broadcasters
    provide prior notice to any party to a call and does not restrict a
    broadcaster's right to free speech. The Commission has held that
    "these limitations are both reasonable and necessary to protect the
    legitimate interests of the public in privacy in communications" and
    do not infringe upon broadcasters' right to gather information
    "important to their broadcast function."[^38] For the foregoing
    reasons, we hereby conclude that Noe willfully and repeatedly
    violated section 73.1206 of the Commission's rules.

11. In support of its request for cancellation or reduction of the
    proposed forfeiture, Noe asks the Bureau to consider the following
    mitigating factors: 1) Station KNOE-TV has never previously received
    a notice of apparent liability, a forfeiture order or other monetary
    sanction, 2) other than minor technical violations approximately 15
    to 20 years ago, Station KNOE-TV has been in compliance with the
    Commission's rules and regulations during the station's 51-year
    history, 3) the telephone call was not intended to pry into personal
    matters, was not a prank, and was not part of a contest or
    promotion, but rather was made in connection with an ongoing station
    investigation that had the objective of protecting the public
    interest, and 4) the station's efforts to contact Mr. Calhoun prior
    to the September 12 telephone call provided him with sufficient
    notice of the station's efforts to contact him, as well as notice
    that the telephone call might be broadcast as part of the ongoing
    news story.[^39]

12. We reject Noe's claim that Station KNOE-TV's previous attempts to
    contact Mr. Calhoun provided him with sufficient notice to make him
    aware of the station's intent to broadcast the conversations.
    Section 73.1206 explicitly requires broadcasters to "inform any
    party to the call of its intention to broadcast and/or record the
    conversation."[^40] Noe's claimed multiple attempts to contact Mr.
    Calhoun do not satisfy this requirement. We also reject Noe's claim
    that its purpose in making the recordings should cause us to reduce
    the proposed forfeiture. In prior telephone broadcast cases, we have
    not considered the fact that the violation occurred in a news
    gathering context as a mitigating factor.[^41] Nevertheless, based
    on Noe's overall history of compliance with the Commission's rules,
    we find that a reduction in the forfeiture amount to the base amount
    of \$4,000 per violation is warranted, for a total forfeiture of
    \$8,000.[^42]

**IV. ORDERING CLAUSES**

13. ACCORDINGLY, IT IS ORDERED that, pursuant to section 503(b) of the
    Communications Act of 1934, as amended (the "Act"), and section 1.80
    of the Commission's rules,[^43] Noe Corp., L.L.C., IS LIABLE FOR A
    MONETARY FORFEITURE in the amount of \$8,000 for willfully and
    repeatedly violating section 73.1206 of the Commission's rules.

14. IT IS FURTHER ORDERED THAT, payment of the forfeiture shall be made
    in the manner provided for in section 1.80 of the Rules[^44] within
    thirty (30) days of the release of this *Order*. If the forfeiture
    is not paid within the period specified, the case may be referred to
    the Department of Justice for collection pursuant to section 504(a)
    of the Act.[^45]

15. IT IS FURTHER ORDERED that 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/Acct.
    No. and FRN No. referenced above.  Payment by check or money order
    may be mailed to Federal Communications Commission, P.O. Box 358340,
    Pittsburgh, PA 15251-8340.  Payment by overnight mail may be sent
    to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
    Pittsburgh, PA 15251.  Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911-6106.

16. IT IS FURTHER ORDERED THAT requests for full payment under an
    installment plan should be sent to Chief, Revenue and Receivables
    Group, 445 12^th^ Street, S.W., Washington, D.C. 20554.[^46]

17. IT IS FURTHER ORDERED that a copy of this *Order* shall be sent by
    First Class Mail and Certified Mail - Return Receipt Requested to
    Noe Corp., L.L.C., 1400 Oliver Road, Monroe, Louisiana 71201 and to
    its counsel, Robert B. Jacobi, Esquire, Cohn and Marks, LLP, Suite
    300, 1920 N. Street, N.W., Washington, D.C. 20036; and by regular
    mail to R. Steven Calhoun, Esquire, The Law Office of R. Steven
    Calhoun, APLC, 3711 Cypress Street, Suite 4, West Monroe, Louisiana
    71291.

FEDERAL COMMUNICATIONS COMMISSION

William H. Davenport

Chief, Investigations and Hearings Division

Enforcement Bureau

[^1]: 47 U.S.C. §503(b), 47 C.F.R. §1.80, 47 U.S.C. § 73.1206.

[^2]: *Noe Corp., LLC*, Notice of Apparent Liability for Forfeiture, 20
    FCC Rcd 595 (Enf. Bur 2005).

[^3]: *See* Letter from R. Steven Calhoun, Esq., counsel for Mack
    Calhoun, to Enforcement Bureau, Federal Communications Commission,
    dated September 23, 2003 ("September 23 Complaint").

[^4]: *Id.* at 1.

[^5]: *Id*.

[^6]: *See* Letter from R. Steven Calhoun, Esq., counsel for Mack
    Calhoun, to Enforcement Bureau, Federal Communications Commission,
    dated September 26, 2003 ("September 26 Complaint"); Letter from R.
    Steven Calhoun, Esq., counsel for Mack Calhoun, to Enforcement
    Bureau, Federal Communications Commission, dated April 20, 2004,
    ("April 20 Complaint").

[^7]: September 26 Complaint at 1; April 20 Complaint at 1-2.

[^8]: April 20 Complaint at 1-2.

[^9]: *Id.* at 3.

[^10]: *Id.*

[^11]: *Id.*

[^12]: *See* Letter from William D. Freedman, Deputy Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, to Noe Corp. LLC, dated May 17, 2004.

[^13]: *See* Letter from Robert B. Jacobi, counsel for Noe Corp.,
    L.L.C., to William Knowles-Kellett, Esq., Investigations and
    Hearings Division, Enforcement Bureau, Federal Communications
    Commission, dated June 16, 2004 ("Noe June 16, 2004, letter").
    Letter from Robert B. Jacobi, counsel for Noe Corp.,L.L.C., to
    William Knowles-Kellett, Esq., Investigations and Hearings Division,
    Enforcement Bureau, Federal Communications Commission, dated August
    13, 2004 ("Noe August 13, 2004, letter").

[^14]: Noe June 16, 2004, letter at 2.

[^15]: *Id.* at 3; Noe August 13, 2004, letter at 4.

[^16]: Noe June 16, 2004, letter at 4.

[^17]: Noe August 13, 2004, letter at 4.

[^18]: *Id.* at 1.

[^19]: *Id.* at 5-6.

[^20]: *See* Letter from Robert B. Jacobi, Esquire, counsel for Noe
    Corp., L.L.C., to William H. Davenport, Chief, Investigations and
    Hearings Division, Enforcement Bureau, Federal Communications
    Commission, dated February 14, 2005 ("Response to NAL")

[^21]: *Id.* at 1-4 and supporting Memorandum of Law at 11 *et seq*.

[^22]: *Heftel Broadcasting*, Memorandum Opinion and Order, 52 FCC 2d
    1005, 1006 ¶4 (1975). *See also AMFM Radio Licenses*, Notice of
    Apparent Liability, 17 FCC Rcd 5032, 5033 ¶ 6 (Enf. Bur. 2002)
    (forfeiture paid).

[^23]: *AMFM Radio Licenses*, 17 FCC Rcd at 5033 ¶ 6; *Citicasters,
    Co.,* Notice of Apparent Liability, 15 FCC Rcd 13805, 13806-07 ¶¶
    5-6 (Enf, Bur. 2000) (forfeiture paid).

[^24]: *Amendment of Section 73.1206: Broadcast of Telephone
    Conversations,* Report and Order, 3 FCC Rcd 5461, 5463 (1988).

[^25]: *NAL ,*20 FCC Rcd 595 at 598, ¶ 9 (quoting *AMFM Radio Licenses*,
    17 FCC Rcd at 5033, ¶ 6).

[^26]: *Id.*

[^27]: *Id.*

[^28]: *Id.*

[^29]: *Id.* at 2.

[^30]: *NAL*, 20 FCC Rcd 595 at 599, ¶ 11.

[^31]: *El Mundo Broadcasting Corporation*, Memorandum Opinion and
    Order, 15 FCC Rcd 20377, 20379 (Enf. Bur. 2000).

[^32]: *Id.*

[^33]: *Id.*

[^34]: 47 C.F.R. § 73.1206.

[^35]: Response to *NAL* at 3.

[^36]: *Id.*. *See NAL*, 20 FCC Rcd 599, ¶12.

[^37]: *Amendment of Section 73.1206: B**roadcast* *of Telephone*
    *Conversations*, Report and Order, 3 FCC Rcd 5461, 5464, ¶ 21
    (1988).

[^38]: *Id.*

[^39]: Response to *NAL* at 3-6.

[^40]: 47 C.F.R. § 73.1206.

[^41]: *See Scripps Howard Broadcasting Company,* Notice of Apparent
    Liability for Forfeiture, 20 FCC Rcd 602 (Inv. & Hearings Div., Enf.
    Bur. 2005) (NAL paid) (imposing forfeiture for recording
    complainant's conversation with station news reporter for broadcast
    without notice; increasing proposed forfeiture beyond base amount
    because station broadcast recording twice).

[^42]: *WXDJ Licensing, Inc*., Forfeiture Order, 19 FCC Rcd. 22445 (Enf.
    Bur. 2004). (forfeiture amount reduced based on WXDJ's history of
    overall compliance with the Commission's regulations).

[^43]: 47 U.S.C.. § 503(b), 47 C.F.R. § 1.80.

[^44]: 47 C.F.R. § 1.80.

[^45]: 47 U.S.C. § 504(a).

[^46]: *See* 47 C.F.R. § 1.1914.