Federal Communications Commission                        DA 07-959
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
WMGO Broadcasting Corp., Inc.
Licensee of Station
WMGO(AM), Canton, Mississippi
)
)
)
)
)
)
File No. EB-05-IH-0120
NAL Account No. 200732080019
FRN No.  0008130353
Facility ID No. 73259
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted:  March 2, 2007 Released:  March 2, 2007
By the Chief, Investigations and Hearings Division:
I. 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 Commissions rules,2 we find that WMGO Broadcasting Corp., Inc. (the Licensee), 
Licensee of Station WMGO(AM), Canton, Mississippi (the Station), apparently willfully 
violated Section 73.1206 of the Commissions rules,3 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.4  Based on our review of the facts and circumstances, we 
find WMGO apparently liable for a forfeiture in the amount of $8,000.
II. BACKGROUND
2. The complainant, Luke Gordon (the Complainant), alleges that, on January 6, 
2005, the Station recorded a telephone conversation between him and Jerry Lousteau, an on-air
radio personality and news director of the Station, without notifying the Complainant of Mr. 
Lousteaus intention to do so.5  The Complaint further alleges that the Station later broadcast 
excerpts of the recorded telephone conversation on January 7, 10, and 11, 2005.6  Specifically, the 
Complainant claims that, on January 6, 2005, he received a voice mail message from Mr. 
  
1 See 47 U.S.C.  503.
2 See 47 C.F.R.  1.80.
3 See 47 C.F.R.  73.1206.
4 See id.
5 See Electronic mail correspondence from Luke Gordon to Tom Hutton, Assistant Chief, Investigations 
and Hearings Division, Enforcement Bureau, Federal Communications Commission, dated January 7, and 
12, 2005, (the Complaint).
6 See id.
Federal Communications Commission                        DA 07-959
2
Lousteau asking him to return his phone call.7  When the Complainant phoned the Station 
moments after receiving the voice mail message, Mr. Lousteau identified himself, and asked the 
Complainant to tell him about a news matter the Station was investigating.8  According to the 
Complainant, Mr. Lousteau never informed him that their conversation was being recorded, and 
never obtained the Complainants consent to broadcast the conversation.  On January 7, 2005, the 
Complainant discovered that the Station had recorded his conversation with Mr. Lousteau and had
broadcast portions of the taped conversation that morning.  On January 12, 2005, the Complainant 
contacted us again to let us know that the Station also aired portions of the taped conversation on 
January 10, and 11, 2005.9  
3. After reviewing the Complaint, we issued a letter of inquiry (the LOI) to the 
Licensee, asking whether the Station recorded a January 6, 2005, conversation between the 
Complainant and Mr. Lousteau and whether the Station broadcast all or portions of the taped 
conversation on January 7, 10 and 11, 2005.10  We inquired whether the Stations personnel gave 
the Complainant prior notice that the Station intended to record and broadcast the conversation, 
and directed the Licensee to provide tapes and transcripts of any such recorded conversations and 
broadcasts.11  Finally, we instructed the Licensee to serve a copy of its response to the LOI (LOI 
Response) on the Complainant.12  
4. In its June 15, 2005, LOI Response, the Licensee responds that Mr. Lousteau 
initiated a phone call to the Complainant on or about January 6, 2005, to interview him.13  The 
Licensee, however, states that Mr. Lousteau was unsuccessful in contacting the Complainant, so 
there was no need and no opportunity to inform him, in person, of [the Stations] intentions to 
record and/or broadcast the conversation.14 The Licensee asserts that, consequently, there were
no transcripts or recordings to provide to the Commission.15
5. Shortly after the Commission received the LOI Response, the Complainant sent 
us an audiotape recording, which contained a portion of the telephone conversation that was aired 
by the Station.16 In light of this development, we issued a follow-up LOI (Second LOI), which
directed the Licensee to confirm the authenticity of the content of the audiotape recording, and to 
  
7 See id.
8 See id.
9 See id.
10 See Letter from William D. Freedman, Deputy Chief, Investigations and Hearings Division, Enforcement 
Bureau, Federal Communications Commission to WMGO Broadcasting Corp., Inc., dated June 29, 2005 at 
4 (the LOI).
11 See id. at 4-5.
12 See id. at 6.
13 See Letter from Jerry Lousteau to David Brown, Assistant Chief, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, dated July 18, 2005 at 1 (Response).
14 See id.
15 See id.
16 See Letter from Luke Gordon to David Brown, Assistant Chief, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, dated July 20, 2005.
Federal Communications Commission                        DA 07-959
3
identify the persons whose voices are heard on the tape.17 We also instructed the Licensee to 
review its initial LOI Response and make any revisions that it believed were necessary.18 In its 
Second LOI Response, the Licensee confirmed the authenticity of the audio recording as a
telephone conversation aired by the Station, and identified the two speakers as Mr. Lousteau and 
the Complainant.19 The Licensee did not, however, affirmatively respond to the Commissions 
question as to whether the Station had informed the Complainant of its intention to record and/or 
broadcast the telephone conversation.20 Instead, the Licensee stated that because the Complainant 
had participated in previous telephone interviews that were recorded and subsequently broadcast 
by the Station, the Licensee can only surmise that [the Complainant] has always been aware of 
the taping for broadcast.21
III. DISCUSSION
6. Under Section 503(b)(1) of the Communications Act of 1934, as amended (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 monetary forfeiture penalty.  In order to impose such a 
forfeiture 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 forfeiture penalty should be imposed.  The Commission will then 
issue a forfeiture if it finds by a preponderance of the evidence that the person has violated the 
Act or a Commission rule.  As we set forth in greater detail below, we conclude under this 
standard that the Station is apparently liable for a forfeiture for its apparent willful violation of 
Section 73.1206 of the Commission's rules.
7. Section 73.1206 of the Commissions rules requires that, before broadcasting or 
recording a telephone conversation for later broadcast, a licensee must inform any party to the call 
of its intention to broadcast and/or record 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.22 The Commission will presume such awareness only where 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.23  
  
17 See Letter from William D. Freedman, Deputy Chief, Investigations and Hearings Division, Enforcement 
Bureau, Federal Communications Commission to WMGO Broadcasting Corp., Inc., dated January 17, 2006 
(the Second LOI).
18 See id at 1.
19 See Letter from Jerry Lousteau to Tom Hutton, Assistant Chief, Investigations and Hearings Division, 
Enforcement Bureau, Federal Communications Commission, dated February 3, 2006 (the Second LOI 
Response).
20 The Commissions LOI, which is incorporated by reference in the Second LOI, requires the Licensee to 
[s]tate whether the Licensee informed Mr. Gordon of its intention to broadcast such telephone 
conversation live over Station WMGO(AM) and/or to record such conversation for later broadcast prior to 
its doing so.  If not, explain why. See LOI at 4.   
21 Second LOI Response at 1.
22 See 47 C.F.R.  73.1206.
23 Id.
Federal Communications Commission                        DA 07-959
4
8. The purpose of Section 73.1206 is to protect the legitimate expectation of 
privacy in connection with the broadcast use of telephone conversations.24 Here, the Station
admits that it initiated the phone call to the Complainant on January 6, 2005, with the intent of 
recording and/or broadcast[ing] the conversation.25  The Licensee argues that, since no one 
spoke to the Complainant during the initial call, which resulted in the voice mail message, there 
was no need and no opportunity to inform him, in person, of our intentions to record and/or 
broadcast the conversation.26 When the Complainant returned the phone call that same day, 
however, the Station failed to inform him of its intention to record and broadcast the telephone 
conversation.  The record establishes that the Complainant was neither aware nor informed that 
the conversation would be recorded and aired, and the Station has submitted nothing to the 
contrary in either of its two responses.  
9. The Licensee acknowledges that it had an obligation to inform the Complainant 
of its intention to record and broadcast the conversation upon initiating the telephone call, 
however, it argues that such responsibility is abrogated when the caller returns a call initiated by 
the licensee.27 We disagree.  We do not presume, nor may the Licensee presume, that the caller 
in this case had knowledge of the Licensees intent to record the call for broadcast merely 
because he returned a phone call that Mr. Lousteau initiated. 28 In returning the phone call, the 
Complainant was contacting Mr. Lousteau, and not a live call-in or open mike show, where he 
could expect to have his discussion broadcast and/or simultaneously recorded.29  Moreover, the 
Complainant had no association with the Station.  Thus, the limited exception to the general 
notice requirement of Section 73.1206 is not applicable. To the extent that Mr. Lousteau may 
have conducted similar phone interviews with the Complainant in the past and recorded or 
broadcast such interviews, such interviews were presumably accompanied by notification of the 
Stations intention to record and/or broadcast the conversations.30  Even if such notifications were 
given in prior telephone conversations with the Complainant, however, that would not excuse the 
failure to give notice in this instance.31 We find, therefore, that the Licensee apparently violated 
  
24 Amendment of Section 73.1206: Broadcast of Telephone Conversations, Report and Order, 3 FCC Rcd 
5461, 5463 (1988).
25 See LOI Response at 1.
26 See LOI Response at 1.
27 See Second LOI Response.
28 See KOFI, Inc., Notice of Apparent Liability for Forfeiture, 20 FCC Rcd 5995,  Forfeiture Order, 2005 
WL 3057504 (finding that a licensee violated the telephone broadcast rules when it aired a phone 
conversation initiated by a caller, who called to complain about activities occurring outside of the studio, 
and did not call for the purpose of talking to on-air personnel and having conversation broadcast); see also 
Entercom New Orleans License, LLC, 17 FCC Rcd 2160  6, Erratum, 17 FCC Rcd 6624 (2002) (finding 
that a licensees on-air personality could not reasonably have presumed that a caller who dialed the wrong 
number and erroneously spoke to an on-air personality was aware that the call was being broadcast or 
recorded for broadcast). 
29 See In the Matter of Amendment of Part 73 of the Commissions Rules and Regulations with Respect to 
the Broadcast of Telephone Conversations, 23 F.C.C. 2d 1, at 2,  5, Report and Order, (1970) (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).     
30 See LOI Response at 1; see also Second LOI Response.
31 See Amendment of Section 1206: Broadcast of Telephone Conversations, Report and Order, 3 FCC Rcd 
5461, 5463-64 (1988) (1988 Order); 1972 Public Notice, 35 FCC 2d at 941; Amendment of Part 73 of 
Federal Communications Commission                        DA 07-959
5
Section 73.1206 by failing to inform the Complainant that the conversation was to be broadcast or 
recorded for later broadcast.
IV. PROPOSED FORFEITURE
10. Based on the material before us, it appears that the Licensee willfully and 
repeatedly violated Section 73.1206 of the Commissions rules, by airing the subject telephone 
conversation on January 7, 10 and 11, 2005.32  The Commissions forfeiture guidelines establish a 
base forfeiture amount of $4,000 for the unauthorized broadcast of a telephone conversation,33
and provide that base forfeitures may be adjusted based upon consideration of the factors 
enumerated in Section 503(b)(2)(D) of the Act,34 and Section 1.80(a)(4) of the Commissions 
rules,35 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.36  The record reflects that the Licensee aired the conversation on at least 
three separate occasions, January 7, 10 and 11, 2005. Therefore, we believe that an upward 
adjustment of the base forfeiture amount is appropriate,37 and propose a forfeiture of $8,000.   
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the 
Communications Act of 1934, as amended,38 and Sections 0.111, 0.311, and 1.80 of the 
Commissions rules that WMGO Broadcasting Corp., Inc. is hereby NOTIFIED of its 
APPARENT LIABILITY FOR FORFEITURE in the amount of $15,000 for willfully and 
repeatedly violating Section 73.1206 of the Commissions rules.39  
12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commissions 
rules that within thirty (30) days of the release of this Notice, WMGO Broadcasting Corp., Inc. 
    
the Commissions Rules and Regulations with Respect to the Broadcast of Telephone Conversations, 
Report and Order, 23 FCC 2d 1, 2 (1970); see also EZ Sacramento, Inc. and Infinity Broadcasting 
Corporation of Washington, D.C., Memorandum Opinion and Order, 16 FCC Rcd 4958, 4958 (2002) 
(finding that prior telephone notifications and consent effectively cease when callers are placed on hold 
and are unaware that their private conversations are secretly being broadcast; thus, explicit notice must be 
re-given if a station plans to continue such broadcasts or record such conversations for later broadcast); 
Heftel Broadcasting-Contemporary, Inc., Memorandum Opinion and Order, 52 FCC 2d 1005, 1006 (1975) 
(finding that cash call promotions that simultaneously broadcast and award prizes based on parties 
responses in answering the telephone are subject to the prior notification requirement of Section 73.1206).  
32 See 47 C.F.R  73.1206.
33 See 47 C.F.R. 1.80(b)(4).  See also Commissions Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Memorandum Opinion and Order, 12 
FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture Policy Statement).
34 See 47 U.S.C. 503(b)(2)(D).
35 See 47 C.F.R. 1.80(a)(4).
36 See 47 C.F.R. 1.80(b)(4) at note.  See also Forfeiture Policy Statement at 17100-01.
37 See, Scripps Howard Broadcasting Company, Notice of Apparent Liability for Forfeiture, DA 05-60 
(Inv. & Hrng. Div., rel. January 13, 2005).
38 See 47. U.S.C.  503(b).
39 See 47 C.F.R.  73.1206.
Federal Communications Commission                        DA 07-959
6
SHALL PAY 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 must be made by mailing check or similar instrument, 
payable to the order of the Federal Communications Commission. The payment MUST 
INCLUDE the FCC Registration Number (FRN) and the NAL/Account Number specified in 
the caption of this NAL. Payment by check or money order may be mailed to the Federal 
Communications Commission, P.O. Box 358340, Pittsburgh, Pennsylvania 15251-8340.  
Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500 Ross Street, Room 
1540670, Pittsburgh, Pennsylvania 15251.  Payment by wire transfer may be made to ABA 
Number 043000261, receiving bank Mellon Bank, and account number9116229.
14. The response, if any, must be mailed to Hillary S. DeNigro, Chief, Investigations 
and Hearings Division, Enforcement Bureau, Federal Communications Commission, 445 12th 
Street, S.W., Room 4-C330, Washington, D.C. 20554 and MUST INCLUDE the NAL/Account 
Number referenced above.  
15. 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 respondents current financial status.  Any claim of inability to pay must 
specifically identify the basis for the claim by reference to the financial documentation submitted.
16. Requests for payment of the full amount of this NAL under an installment plan 
should be sent to the Deputy Chief Financial Officer, Room 1-A637, 445 12th Street, S.W., 
Washington, D.C. 20554.40
17. IT IS FURTHER ORDERED that the complaint filed by Luke Gordon IS 
GRANTED to the extent indicated herein and IS OTHERWISE DENIED, and the complaint 
proceeding IS HEREBY TERMINATED.41
18. IT IS FURTHER ORDERED THAT copies of this NOTICE OF 
APPARENT LIABILITY shall be sent by Certified Mail - Return Receipt Requested to WMGO
Broadcasting Corp., Inc., 360 North Liberty Street, Canton, Mississippi 39046, and to Mr. Luke 
Gordon, 257 Glenfield, Canton, Mississippi 39046.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro, 
Chief, Investigations and Hearings Division
Enforcement Bureau
  
40 See 47 C.F.R.  1.1914.
41 For purposes of the forfeiture proceeding initiated by this NAL, WMGO Broadcasting Corp., Inc. shall 
be the only party to this proceeding.