$// MO&O, Group W Radio, WMAQ(AM) (Chicago, IL), FCC 95-10 //$ $/ 073.1216 Licensee-conducted contests /$ $/ 001.115 Application for Review Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Group W Radio, Inc., ) Licensee of Radio Station WMAQ(AM), ) Chicago, Illinois ) ) Complaint of Phillip Goldberg ) MEMORANDUM OPINION AND ORDER Adopted: January 6, 1995; Released: February 3, 1995 By the Commission: 1. The Commission has before it for consideration an application for review filed on June 18, 1992, by Phillip Goldberg. The applicant appeals from the January 7, 1992, action of the Mass Media Bureau closing its investigation into allegations that WMAQ(AM), Chicago, IL, had violated Section 73.1216 of the Commission's Rules by conducting its 1991 "Grand Slam Sweepstakes" in a misleading and deceptive manner. 2. In May 1991, Mr. Goldberg filed a complaint alleging that the material terms of WMAQ's Grand Slam Sweepstakes were misleading or not fully disclosed. Among other things, Mr. Goldberg asserted that the odds of winning had been overstated and that the announced contest prize of "$1 million cash" gave the false impression that a single cash payment, not installment payments, would be made. In response to a letter of inquiry from the Mass Media Bureau, Enforcement Division, Group W submitted a letter dated October 14, 1991, addressing the issues raised in the complaint. Mr. Goldberg filed a rebuttal to Group W's answer. After review of all this correspondence, the Division advised the parties, by letter to Group W dated January 7, 1992, with a copy to Mr. Goldberg, that there was "insufficient evidence supporting an allegation that information aired regarding the nature of the [Grand Slam Sweepstakes] prize to be awarded included false or misleading facts." 3. Since that time, Mr. Goldberg has written to the Commission several times protesting the decision to close this case and demanding a detailed explanation of how such a conclusion was reached. On June 18, 1992, he filed a formal application for review of "the referenced complaint, written argument and conclusions reached by delegated authority." The Mass Media Bureau supplemented its dismissal letter with a January 3, 1994, letter of explanation addressed to Mr. Goldberg. By letter dated January 5, 1994, Mr. Goldberg has expressed his dissatisfaction with the reasoning provided and his continued interest in Commission review of this matter. 4. Section 1.115(b)(2) of our Rules requires that an application for review "shall specify with particularity, from among the following, the factor(s) which warrant Commission consideration of the questions presented." The rule then lists five grounds that may be used for seeking review: (i) The action taken pursuant to delegated authority is in conflict with statute, regulation, case precedent, or established Commission policy. (ii) The action involves a question of law or policy which has not previously been resolved by the Commission. (iii) The action involves application of a precedent or policy which should be overturned or revised. (iv) An erroneous finding as to an important or material question of fact. (v) Prejudicial procedural error. 47 C.F.R.  1.115(b)(2). 5. The instant application for review is procedurally deficient, because it fails to rely upon any of the above factors as a basis for Commission consideration of the questions presented. Instead, the applicant states that he seeks review "to bring this matter to closure." 6. Mr. Goldberg's dissatisfaction with the outcome alone does not provide an adequate basis to support an application for review. In addition, we see no reason to disturb the Mass Media Bureau's proper exercise of prosecutorial discretion in concluding that no further agency action was warranted. Such a dismissal is a fully acceptable way of bringing a matter "to closure." 7. Nevertheless, addressing the substance of Mr. Goldberg's application for review and his January 5, 1994, letter, we agree with the Mass Media Bureau's decision that the evidence it had accumulated did not support a finding that Group W had violated 47 C.F.R.  73.1216 in its conduct of the Grand Slam Sweepstakes contest. In this regard, we have specifically reviewed the Bureau's reasoning as detailed in its January 3, 1994, supplemental letter to Mr. Goldberg, and we incorporate that letter herein by reference. Its pertinent conclusions can be summarized as follows: (a) the prize description of "$1 million cash" was not misleading or deceptive so as to constitute a violation of our rule, since all the game cards and many of the contest announcements were clear about installment payments; (b) the possible ambiguity concerning the number of installments did not amount to a violation of our rule because in context it was, at worst, merely confusing, without attempting to supplant the $1 million prize figure that was so prominently publicized; (c) Mr. Goldberg's allegations of improprieties in the selection of winning numbers and distribution of game pieces were speculative and were not supported by record evidence; (d) the station's arrangements with a third party to pay the grand prize were not required to be revealed as long as the station took full responsibility to ensure that the full amount was paid to a winning contestant had one been selected; and (e) the odds of winning were not, in these circumstances, a material term requiring disclosure under our rule, and thus the issue of the accuracy of such statements is not relevant. 8. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the Commission's Rules, the application for review IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary FEDERAL CO MMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 IN REPLY REFER T O: January 3, 1994 1800C1-MD 92030217 CM93-0927 Mr. Phillip Goldberg 4512 North Monitor Avenue Chicago, IL 60630-3335 Dear Mr. Goldberg: In response to your June 17, 1992, application for review of our disposition of your complaint concerning WMAQ's Grand Slam Sweepstakes contest, we are providing the following further information so that, if you elect to seek review, you will be able to specify which of the factors listed in 47 C.F.R.  1.115(b)(2) (enclosed) you believe warrant Commission consideration. Our January 7, 1992, ruling that no further action was warranted with respect to your complaint was based on a thorough review of all of your submissions as well as the one submitted by Group W on behalf of WMAQ. After evaluating all the material before us, we conducted no further investigation because we did not agree with you that the factual circumstances you described, even if verified, would constitute a violation of 47 C.F.R.  73.1216. You alleged that the prize description of "$1 million cash" was misleading or deceptive because the prize was intended to be paid, not in one lump sum, but in a number of installments. We believe that, since all the game cards necessary for entering the contest (as well as many of the contest announcements) were clear about installment payments, the use of the word "cash" was, at worst, puffery which did not rise to the level of deception that our contest rule was designed to prohibit. You also alleged that the number of installments mentioned in the contest literature was inaccurate. We agree with you that the literature could have been more clear on the point of an immediate payment preceding 39 installments, but disagree that this omission constitutes a violation of our rule. If payments to a winner had stopped prior to the distribution of $1 million, we would consider this to be a violation. You further alleged that there may have been improprieties in the way the winning numbers were selected and the way the game pieces were distributed. We considered these allegations to be merely speculative and saw no reason to pursue these issues. We do not require that station-conducted contests be verified by independent judging firms. You also alleged that game rules did not make it clear who would be responsible for payment of the grand prize. As long as the station conducting the contest, or claiming to be conducting the contest, takes full responsibility for delivery of the prize to the winner, the other parties that may be involved in making the payments are not of concern to us. You also alleged that WMAQ inaccurately described the odds of winning the grand prize. You claim that the odds were actually 1 in 400,000,000, instead of "25 in 1,000,000" (or 1 in 40,000). You believe this inaccuracy misled contestants with respect to important information that might have affected their decision to participate. We do not agree that, under the circumstances of this contest, the odds of winning was a material term that was required to be disclosed under our rules. Accordingly, we did not evaluate your claim in this regard. You also objected to the game brochure's simplified statement of a prize winner's obligation to pay federal and state taxes. Our rules do not require that any statement whatsoever regarding tax liability be included. I trust that the foregoing is informative. Please note that this letter is also responsive to your December 2, 1993, letter to Chairman Hundt. If you wish to have the Commission review this matter based on the facts presented herein, please file your application within 30 days of the date of this letter in accordance with the rules enclosed for your convenience. Sincerely, Norman Goldstein, Chief Complaints and Investigations Branch Enforcement Division Mass Media Bureau Enclosure cc: Group W