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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-IH-1706
ProActive Communications, Inc. ) NAL Account No. 200832080089
Licensee of Station KQQB-FM ) Facility ID No. 29911
Newport, Washington ) FRN No. 0011343191
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 9, 2008 Released: June 9, 2008
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
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"), and Section 1.80 of the Commission's rules, 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. Based upon our
review of the facts, we find the Licensee apparently liable for a
forfeiture in the amount of $4,000.
II. 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. 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. DJ Dick also asked the listeners to call the
Hotel. 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.
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. At the time, the Complainant
was not aware that DJ Dick was the Station's disc jockey. 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. At approximately 10:00 p.m., after the
call ended, the Complainant heard his telephone conversation with DJ
Dick aired over the Station. 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. 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. 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."
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. In its LOI Response, the Licensee
states that DJ Dick no longer works at the Station. 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. 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. 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. 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.
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. The Complainant acknowledged receiving the LOI
Response, but indicated that he had nothing further to add.
III. 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. 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. 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, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. "Repeated" means that the act was
committed or omitted more than once, or lasts more than one day. 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. 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. 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.
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.
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.
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,
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. In addition, the Complainant who
participated in the call at issue affirmatively stated that notice was
not given. 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. 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. 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. We therefore deny that portion
of the Complaint.
9. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Commission's rules, 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." 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.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's rules, 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.
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 12th 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.
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
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80.
See id. S: 73.1206.
See Complaint filed by Matt S. Jensen on FCC Form 475B, received March 27,
2006 ("Complaint").
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
Id.
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").
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").
See id. at 3 and Exhibit A - Declaration of Christa McDonald.
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.
See id. at 4, Exhibit A - Declaration of Christa McDonald.
See id. at 3-4, Exhibit A - Declaration of Christa McDonald.
See id. at 6.
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).
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991).
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 P: 4 (2002) (forfeiture paid).
47 C.F.R. S: 73.1206.
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).
1988 Order, 3 FCC Rcd at 5463, P: 19.
See LOI Response at 3, 4, Exhibit A - Declaration of Christa McDonald.
See Infinity Broadcasting Corporation of Los Angeles (KROQ-FM), Memorandum
Opinion and Order, 17 FCC Rcd 9892, 9896, P: 18 (2002), citing Community
Broadcasters, Inc. (WGHN(AM)/WGHN-FM), Memorandum Opinion and Order, 55
FCC Rcd 28, 35 (1975).
See Complaint, supra note 4.
See 1970 Order, 23 FCC 2d at 2, P: 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. S: 73.1206's presumption of
awareness).
See, e.g., Clear Channel Broadcasting Licenses, Inc., Notice of Apparent
Liability for Forfeiture, 15 FCC Rcd 23839, 23840-841, P: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)).
See, e.g., 47 U.S.C. S: 326 (prohibition against Commission interfering
with licensee's selection or presentation of programming that might be
regarded as program censorship); 47 C.F.R. S: 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.").
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").
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E); 47 C.F.R. S: 1.80(b)(4).
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).
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 503(b); 47 C.F.R. S:S: 1.80, 73.1206.
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.
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Federal Communications Commission DA 08-1346
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Federal Communications Commission DA 08-1346