9 FCC Red No. 24 Federal Communications Commission Record DA 94-1244 Before the Federal Communications Commission Washington, D.C. 20554 LETTER November 7, 1994 Released: November 16, 1994 CERTIFIED MAIL-RETURN RECEIPT REQUESTED WNNX License Investment Company 1800C1-MGK Licensee, Station WNNX-FM 9210502 140 East Market Street York, Pennsylvania 17401 Dear Licensee: This letter constitutes a Notice of Apparent Liability for a forfeiture pursuant to Section 503(b)(l)(D) of the Com munications Act of 1934, as amended, under authority delegated to the Chief of the Mass Media Bureau by Sec tion 0.283 of the Commission's Rules. By letter of November 23, 1992, we inquired into an alleged violation by Station WNNX (formerly WAPW), Atlanta, Georgia, of Section 73.1206 of the Commission's Rules. Section 73.1206 in pertinent part requires broadcast stations to inform parties to a telephone conversation of the station's intention to broadcast that conversation. Our letter informed you of a complaint that Station WNNX had. on February 24, 1992, broadcast a telephone conversa tion with the Police Chief of Frostproof, Florida, without informing him of its intention to do so. Your reply of December 18, 1992, concedes the viola tion, urging in mitigation that it occurred in spite of your repeated instructions and expressed policies to station man agers, program directors and programming personnel. You express your regret at the incident, which you characterize as an isolated one, and note that you have discontinued the general type of programming in which it occurred. These considerations, you argue, support sanctions no greater than a reprimand or admonition. We cannot agree. The record indicates, and you do not disagree, that on or about February 24, 1992, Station WNNX broadcast a telephone conversation without inform ing a party to that conversation of its intention to do so. Nothing in your responsive pleading alters this fact. Thus, while you claim to have issued memoranda in 1969, 1989 and 1991 that were intended to remind employees of the need to comply with the requirements of Section 73.1206, it was not until after receipt of our letter of inquiry that employees were advised, by memorandum dated December 16, 1992, of the possibility of adverse consequences for violations of this and other rules. Accordingly, pursuant to Section 503(b)(l)(D) of the Communications Act, WNNX License Investment Co. is hereby advised of its apparent liability for a forfeiture of two thousand dollars ($2,000) for its apparent willful viola tion of Section 73.1206 of the Commission's Rules. The amount specified was determined after consideration of the factors set forth in Section 503(b)(2) of the Act, including "the nature, circumstances, extent, and gravity of the viola tion." In United States Telephone Ass'n v. FCC, No. 92-1321 (D.C. Cir. July 12, 1994), the Court set aside our Policy Statement on Standards for Assessing Forfeitures, 6 FCC Red 4695 (1991), recon. denied 1 FCC Red 5339 (1992). revised, 8 FCC Red 6215 (1993), in which we established guidelines for determining appropriate amounts for violations of var ious Commission rules, including the one at issue here. In assessing this forfeiture, we have undertaken to apply di rectly the statutory factors in 47 U.S.C. Section 503(b) to the particular facts of this case. In particular, we are setting the forfeiture at a low level because of the apparent sin gularity of the violation and the lack of egregiousness associated therewith. We have also reviewed actions taken prior to the Policy Statement and have found consistent assessments of $2,000 forfeitures for similar violations of the telephone broadcast provision. 1 In regard to this forfeiture proceeding, you are afforded a period of thirty (30) days from the date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be im posed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R. Section 1.80(f)(3). Other relevant provisions of Section 1.80 of the Commission's Rules are summarized in the attachment to this letter. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau 1 Examples include Jacor Communications, Inc, MMB, April 30, 1990; Gannett Texas Broadcasting, Inc., MMB, April 30, 1990, and The Hearst Corp., MMB, November 6, 1990. 6761