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 Federal  Communications  Commission  DA  02-  622 
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 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of  )  File  Nos.  EB-  01-  IH-  0682  ) 
 AMFM  Radio  Licenses,  LLC  )  NAL/  Acct.  No.  200232080007  )  Facility  ID  #  8682 
 Licensee  of  Station  WWDC-  FM,  )  FRN:  0001-  6565-  86  Washington,  D.  C.  ) 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  March  15,  2002  Released:  March  19,  2002 
 By  the  Chief,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  (  NAL),  we  find  that  AMFM  Radio  Licenses,  LLC  (  AMFM  or  licensee),  licensee  of  Station  WWDC-  FM,  Washington,  D.  C.,  has 
 apparently  violated  47  C.  F.  R.    73.1206,  by  broadcasting  a  telephone  conversation  without  first  informing  the  non-  licensee  party  of  its  intention  to  do  so.  Based  on  our  review  of  the  facts  and 
 circumstances  in  this  case,  we  conclude  that  AMFM  is  apparently  liable  for  a  forfeiture  of  six  thousand  dollars  ($  6,000). 


 II.  BACKGROUND 
 2.  The  Commission  received  a  letter  dated  December  7,  2001,  complaining  that  on  November  30,  2001,  WWDC-  FM  air  personality  Elliot  Siegel  called  the  complainants  home  and 
 broadcast  the  voice  mail  message  from  the  complainants  telephone.  1  In  its  January  7,  2002,  response  to  the  staffs  December  19,  2001,  letter  of  inquiry,  the  licensee  acknowledges  that  the 
 message  was  broadcast.  However,  the  licensee  contends  that  the  message  was  generic  in  content  and  that  the  matter  is  thus  distinguishable  from  Citicasters  Co.,  15  FCC  Rcd  13805  (Enf. 
 Bur.  2000)  (forfeiture  paid)  (  Citicasters),  where  we  found  apparent  liability  for  the  broadcast  of  a  conversation  between  the  complainant  in  that  case  and  another  person,  which  was  taken  from 
 that  complainants  answering  machine. 
 III.  DISCUSSION 
 4.  Section  73.  1206  of  the  Commissions  rules  provides,  in  pertinent  part,  that: 
 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. 
 1  The  complainant  raised  additional  matters  in  his  complaint  and  in  a  supplement  dated  December  13, 
 2001.  We  intend  to  address  those  matters  separately. 
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 5.  In  Citicasters,  we  found  apparent  liability  when  the  licensee  accessed  a  complainants  answering  machine  without  her  knowledge  or  permission  and  then  broadcast  a  telephone 
 conversation  between  her  and  another  person  as  it  was  recorded  on  her  answering  machine  without  giving  her  prior  notification.  In  so  finding,  we  acknowledged  that  Citicasters  conduct 
 was  different  from  the  typical  Section  73.1206  case,  where  a  station  calls  a  person  directly  and  broadcasts  the  resulting  conversation  without  giving  prior  notice.  Nevertheless,  citing 
 Amendment  of  Section  73.1206:  Broadcast  of  Telephone  Conversations  (Report  and  Order),  3  FCC  Rcd  5461,  5463  (1988)  (  Report  and  Order),  we  concluded  that  the  licensees  actions 
 appeared  to  be  directly  contrary  to  the  language  of  the  rule,  which  requires  prior  notice  before  a  conversation  is  broadcast,  and  that  the  licensees  conduct  was  inconsistent  with  the  rule's  purpose 
 of  protecting  parties  to  telephone  conversations.  Citicasters,  at  13806. 
 6.  We  believe  the  instant  case  warrants  the  same  result.  The  Commission  has  stated  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.  Report  and  Order  at  5463.  As  Citicasters  makes  clear,  that  right  to  answer  without 
 having  ones  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.  To  ensure  such 
 privacy  rights,  the  Commission  has  determined  that  a  broadcast  station  must  give  notice  of  its  intent  to  broadcast  the  conversation  before  the  transmitting  or  recording  for  later  transmission  of 
 the  telephone  call.  Report  and  Order  at  5463.  See  also  KIDS-  TV  6,  14  FCC  Rcd  13351  (Mass  Media  Bur.  1999).  Conversation  as  used  in  the  rule  includes  any  word  or  words  spoken  during 
 the  call.  Heftel  Broadcasting-  Contemporary,  Inc.,  52  FCC  2d  1005,  1006  (1975).  The  licensee  does  not  dispute  that  it  did  not  give  any  notice  to  the  complainant  before  WWDC-  FM  broadcast 
 the  complainants  voice  mail  greeting.  Hence,  we  find  apparent  liability. 
 7.  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).  Based  on  the  evidence  before  us,  it  appears  that  AMFM  willfully  broadcast  a  conversation  on  November  30,  2001,  in  apparent  violation  of 
 Section  73.1206  of  the  Commission's  rules,  47  C.  F.  R.    73.  1206.  There  is  no  question  that  AMFM,  through  its  employees,  knew  that  it  broadcast  the  complainants  voice  mail  message 
 without  having  previously  informed  complainant  of  its  intention  to  do  so. 
 8.  In  assessing  a  monetary  forfeiture,  we  take  into  account  the  statutory  factors  set  forth  in  Section  503(  b)(  2)(  D)  of  the  Act,  47  U.  S.  C.    503(  b)(  2)(  D).  Those  factors  include  the  nature, 
 circumstances,  extent  and  gravity  of  the  violation,  and,  with  respect  to  the  violator,  the  degree  of  culpability,  any  history  of  prior  offenses,  ability  to  pay,  and  such  other  matters  as  justice  may 
 require.  2  The  Commission's  Forfeiture  Guidelines  set  a  base  forfeiture  amount  of  $4,000  for  broadcasting  a  telephone  conversation  without  informing  the  other  party  of  its  intention  to  do  so. 
 After  considering  all  the  facts  and  circumstances,  we  find  that  an  upward  adjustment  is  appropriate.  In  Citicasters,  we  specifically  put  AMFMs  corporate  parent,  Clear  Channel 


 2  47  U.  S.  C.    503(  b)(  2)(  D).  See  also  The  Commission's  Forfeiture  Policy  Statement  and  Amendment  of 
 Section  1.  80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines,  12  FCC  Rcd  17087,  17100-  01  (1997),  recon.  denied,  15  FCC  Rcd  303  (1999)  ("  Forfeiture  Guidelines"). 
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 Communications,  Inc.  (  Clear  Channel),  on  notice  that  broadcasting  a  conversation  from  an  answering  machine  was  prohibited  by  47  C.  F.  R.    73.  1206.  3  We  therefore  find  that  a  $6,000 
 proposed  forfeiture  is  warranted. 
 IV.  ORDERING  CLAUSES 
 9.  Accordingly,  IT  IS  ORDERED  THAT,  pursuant  to  Section  503(  b)  of  the  Act,  4  and  Sections  0.111,  0.311  and  1.80  of  the  Commissions  rules,  5  AMFM  Radio  Licenses,  LLC  is 
 hereby  NOTIFIED  of  its  APPARENT  LIABILITY  FOR  A  FORFEITURE  in  the  amount  of  $6,000  for  willfully  violating  Section  73.  1206  of  the  Commissions  rules.  6 


 10.  IT  IS  FURTHER  ORDERED  THAT,  pursuant  to  Section  1.80  of  the  rules,  7  within  thirty  days  of  this  NOTICE  OF  APPARENT  LIABILITY,  AMFM  Radio  Licenses,  LLC  SHALL 
 PAY  the  full  amount  of  the  proposed  forfeiture  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture.  Payment  of  the  forfeiture  may  be  made  by 
 mailing  a  check  or  similar  instrument,  payable  to  the  order  of  the  Federal  Communications  Commission,  to  Forfeiture  Collection  Section,  Finance  Branch,  Federal  Communications 
 Commission,  P.  O.  Box  73482,  Chicago,  Illinois  60673-  7482.  The  payment  must  include  the  FCC  Registration  Number  (FRN)  referenced  above  and  also  must  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  12th  Street, 
 S.  W.,  Room  3-  B443,  Washington,  D.  C.  20554  and  MUST  INCLUDE  THE  NAL/  Acct.  No.  referenced  above. 


 12.  Requests  for  payment  of  the  full  amount  of  this  Notice  of  Apparent  Liability  under  an  installment  plan  should  be  sent  to:  Chief,  Revenues  and  Receivables  Operations  Group,  445 
 12th  Street,  S.  W.,  Washington,  D.  C.  20554.  8 
 13.  IT  IS  FURTHER  ORDERED  THAT  a  copy  of  this  NOTICE  OF  APPARENT  LIABILITY  shall  be  sent  by  Certified  Mail  -  Return  Receipt  Requested  to  AMFM  Radio 


 3  Clear  Channel  is  likewise  the  corporate  parent  of  Citicasters,  Co. 
 4  47  U.  S.  C.    503(  b). 
 5  47  C.  F.  R.    0.  111,  0.311  and  1.80. 
 6  47  C.  F.  R.    73.  1206. 
 7  47  C.  F.  R.    1.80. 
 8  See  47  C.  F.  R.    1.  1914. 
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 Licenses,  LLC,  200  East  Basse  Road,  San  Antonio,  Texas,  78209;  with  a  copy  to  Christopher  L.  Robbins,  Esquire,  Wiley,  Rein  &  Fielding,  LLP,  1776  K  Street,  N.  W.,  Washington,  D.  C.  20006. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 David  H.  Solomon  Chief,  Enforcement  Bureau 
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