The Federal Communications Commission Thursday upheld a $4,000 fine against Infinity Broadcasting Corp.'s WBLK(FM) Buffalo, N.Y.
Infinity had challenged the Aug. 12, 2004, levied for a telephone conversation that was broadcast without the caller's knowledge or consent, a violation of FCC rules.
Infinity argued, among other things, that it had taken remedial action and the fine should be reduced or eliminated as had those for some other stations.
The company also argued that the FCC was wrong to use an earlier forfeiture notice Infinity had never paid for a different, similar, offense to rebut Infinity's claims that it had no prior violations.
On the first point, the commission countered that Infinity's remedial actions came after it was cited, while others had taken action before.
on the second, the FCC argued that it had simply used the facts of the previous unpaid forfeiture order to suggest that the telephone broadcast was not an isolated incident, rather than using the existence of that forfeiture to prejudice the present case. The latter would be a violation of the Communications Act.
That would seem to be splitting the hair pretty fine, but the FCC cited language in the Act that said that the prohibition on counting a notice of forfeiture against a licensee unless sit has been collected "is not intended to mean that the facts upon which a notice of forfeiture of liability against a licensee is based cannot be considered by the commission...with respect to the imposition of other sanctions."