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Federal Communications Commission
Washington, D.C. 20554
In the Matter of FRN 0002749406
Saga Communications of New England, NAL/Acct. No. 200732080018
Facility ID No. 58551
Licensee of Station WAQY(FM), )
Springfield, Massachusetts File No. EB-06-IH-0825
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 2, 2007 Released: March 2, 2007
By the Chief, Investigations and Hearings Division:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Saga Communications of New England, L.L.C. ("Saga"), licensee of Station
WAQY(FM), Springfield, Massachusetts, apparently liable for a monetary
forfeiture in the amount of $4,000 for violation of Section 73.1216 of the
Commission's rules. That rule requires a broadcast licensee to "fully and
accurately disclose the material terms of the contest . . . and conduct
the contest substantially as announced or advertised." As discussed below,
we find that Saga failed to conduct its contest substantially as
announced, in apparent violation of the Commission's rule.
2. The Commission received a complaint from Mr. Robert Naginewicz alleging
that Saga failed to conduct its contest involving the musical group
Aerosmith, which was broadcast by the station during the June through July
2005 period, according to that contest's advertised rules. According to
Mr. Naginewicz, on July 17, 2005, he won the contest's "Grand Prize
Giveaway," the prizes for which included a free two-year lease on a 2005
Buick LaCrosse automobile, or its cash equivalent, from the co-sponsor,
Bob Pion Pontiac, and a "trunk load full" of Aerosmith memorabilia. Mr.
Naginewicz alleges that although he was assured by the station's staff
that all of his prizes would be delivered to him by July 22, 2005, he did
not receive the monetary portion until August 18, 2005, and that, despite
numerous queries made of the station's staff, he was still awaiting
delivery of the memorabilia portion as of December 31, 2005, almost a half
year after the contest had concluded.
3. Following Mr. Naginewicz's complaint, the Enforcement Bureau
("Bureau"), by letter dated January 24, 2006, inquired of Saga concerning
these allegations. Saga responded on March 2, 2006, contending that its
one-month delay in delivering the monetary portion of the prize, although
less than ideal, was "within the zone of reasonableness." It acknowledges,
however, that its failure to fulfill the memorabilia portion until after
Mr. Naginewicz had contacted the Commission, represents a station
"problem" that it claims it has since addressed and resolved. Saga
indicates that, because of its delay in fulfilling its promise to Mr.
Naginewicz, it enhanced the award made to him by contributing additional
prizes. We note that the complainant did not submit any reply or further
comment in this matter.
4. Under Section 73.1216 of the Commission's rules, a broadcast licensee
must conduct station-sponsored contests "substantially as announced or
advertised," and must disclose fully and accurately the "material terms"
of such contests. Material terms, among other things, include any
eligibility restrictions, means of selection of winners, instructions
regarding entry and participation, when prizes can be won and the extent,
nature and value of prizes.
5. It appears that Saga violated Section 73.1216 of the Commission's rules
by failing to conduct the contest substantially as announced. In this
case, there was significant delay between the time that the contest
concluded and Saga awarded the memorabilia prize - more than six months
according to Saga's own submission. Moreover, this prize was not awarded
until after the complainant had filed his complaint with the Commission
and the Commission had initiated an investigation by issuing a Letter of
Inquiry to the licensee.
6. Although the contest-specific rules in this case are silent on the
issue of when the prizes will be delivered, we believe that licensees are
obligated to provide all promised prizes in a reasonably prompt manner in
such circumstances, consistent with their overall duty to conduct
broadcast contests fairly and without deception. Timely fulfillment is an
implied term of any contest in which prizes are advertised, unless contest
rules expressly state to the contrary, and no such contrary provision is
present here. Saga's six-month delay in awarding the memorabilia prize
constitutes a failure to comply with that term. We find, therefore, that
Saga failed to conduct its contest substantially as announced and thus
violated Section 73.1216 of our rules. That the lapses in this case may
have been due to either negligence or inadvertence does not absolve Saga
of liability because licensees are responsible for the acts of their
employees. Finally, even if Saga has since taken steps to improve its
contest award procedures, and provided additional compensation to the
contest winner for the inconvenience he experienced, neither factor
excuses the licensee's apparent rule violation.
7. Under Section 503(b)(1) of the Communications Act of 1934, as amended
(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 monetary forfeiture penalty. In order to impose
such a forfeiture 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 forfeiture penalty should be imposed. The Commission will then
issue a forfeiture if it finds by a preponderance of the evidence that the
person has violated the Act or a Commission rule.
8. Based upon the evidence before us, we find that Saga apparently
willfully violated Section 73.1216 of the Commission's rules. The
Commission's Forfeiture Policy Statement sets a base forfeiture amount of
$4,000 for failure to conduct a station contest substantially as
announced. In assessing the monetary forfeiture amount, we must take into
account the statutory factors set forth in Section 503(b)(2)(D) of the
Act, which 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 other such matters as
justice may require. We conclude that the violation here primarily
occurred due to inadequate planning and control, and not due to a
deliberate attempt to deceive and that the base forfeiture amount of
$4,000 is appropriate in this case.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, and
1.80 of the Commission's rules, that Saga Communications of New England,
L.L.C., is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the
amount of $4,000 for willfully and repeatedly violating Section 73.1216 of
the Commission's rules.
10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty (30) days of the release of this NAL, Saga
Communications of New England, L.L.C., SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. IT IS FURTHER ORDERED, that payment of the forfeiture shall be made by
check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No. and
FRN No. referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 358340, Pittsburgh,
Pennsylvania 15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, Pennsylvania
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
12. The response, if any, must be mailed to William H. Davenport, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12^th Street, S.W, Room 3-B433, Washington,
D.C. 20554 and MUST INCLUDE the NAL/Acct. No. referenced above.
13. 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.
14. Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Associate Managing Director --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
15. IT IS FURTHER ORDERED that the complaint filed by Mr. Robert
Naginewicz IS GRANTED to the extent indicated herein, and the complaint
proceeding IS HEREBY TERMINATED.
16. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail/Return Receipt Requested, to Saga Communications of New
England, L.L.C., 73 Kercheval Avenue, Grosse Pointe Farms, Michigan 48236,
by regular mail to its counsel, Gary S. Smithwick, Esq.,
Smithwick & Belendiuk, P.C., 5028 Wisconsin Avenue, N.W., Suite 301,
Washington, D.C. 20016, and to the Complainant, Mr. Robert Naginewicz, 119
Fernwood Street, Chicopee, Massachusetts 01020.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
47 C.F.R. S 73.1216.
See letter from Mr. Robert Naginewicz to the FCC, dated December 31, 2005
Id. at 1-2.
Id. at 2-3.
See letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Saga Communications of New
England, L.L.C., dated January 24, 2006 ("LOI").
See letter from Lawrence D. Goldberg, Vice President, Saga Communications
of New England, L.L.C., to William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, dated February
28, 2006, and filed through its counsel on March 2, 2006 ("Response").
Counsel for Saga sought and received a one-week extension of time in which
to file its response.
Id. at 4.
See id. at 4-5.
See id. at 3.
47 C.F.R. S 73.1216.
See 47 C.F.R. S 73.1216, notes 1(b) and 2. Note 1 to that rule provides in
relevant part that the material terms of a contest include "how to enter
or participate; eligibility restrictions; entry deadline dates; whether
prizes can be won; when prizes can be won;" and "time and means of
selection of winners." Note 2 to the rule states:
In general, the time and manner of disclosure of the material terms of a
contest are within the licensee's discretion. However, the obligation to
disclose the material terms arises at the time the audience is first told
how to enter or participate and continues thereafter. The material terms
should be disclosed periodically by announcements broadcast on the station
conducting the contest, but need not be enumerated each time an
announcement promoting the contest is broadcast. Disclosure of material
terms in a reasonable number of announcements is sufficient. In addition
to the required broadcast announcements, disclosure of material terms may
be made in a non-broadcast manner.
The contest winners were picked at a drawing on July 17, 2005, and the
memorabilia were delivered to the complainant on February 8, 2006. See
Response at 3-4.
See supra note 6.
See Response at 2, Attachment 4, unnumbered pages 1-2.
If anything, the rules applicable to this contest suggest that prizes
would be awarded no more than 30 days from the drawing. The generic
contest rules submitted by Saga, which it asserts applied to this contest
(see Response at 2), provide that "[w]inners will be expected to claim
prize . . . within 30 days of being notified that they are winners, unless
there is an expiration date on prize which will be specifically stated."
Response at Attachment 4, unnumbered pages 3-4 (item no. 9).
Where a licensee fails to complete award of a promised prize until after a
complaint is filed with the Commission, the Commission has found that a
contest rule violation has occurred. See, e.g., Lesnick Communications,
Inc., Notice of Apparent Liability, 13 FCC Rcd 23696 (Mass Med. Bur.
In the circumstances of this case, we need not reach whether the one-month
delay in delivering the car-lease or cash-equivalent prize was
See Nationwide Communications Inc., Notice of Apparent Liability, 9 FCC
Rcd 175 (Mass Med. Bur. 1994) (forfeiture for violating contest rules
imposed, notwithstanding licensee's contention that its failure to conduct
a contest substantially as announced was due to "inadvertence"),
forfeiture reduced, Memorandum Opinion and Order, 9 FCC Rcd 2054 (Mass
Med. Bur. 1994) (licensee's history of compliance with Commission rules
warranted forfeiture reduction, whereas licensee's general good faith
efforts, "awarding the contest prize as announced, and receiving no
benefit from its error" did not).
See, e.g., Capstar TX Limited Partnership (WKSS(FM)), Notice of Apparent
Liability, 20 FCC Rcd 10636 (Enf. Bur. 2005) (forfeiture paid)
(licensees's remedial efforts undertaken after complaint lodged not
mitigating) citing AT&T Wireless Services, Inc., Notice of Apparent
Liability, 17 FCC Rcd 21866, 21871 (2002) and KVGL, Inc., Memorandum
Opinion and Order, 42 FCC 2d 258, 259 (1973).
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. 47 U.S.C. S 312(f)(1). 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, H.R. Rep. No. 97-765,
97^th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Application for Review of Southern
California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387
(1991) ("Southern California Broadcasting Co."). The Commission may also
assess a forfeiture for violations that are merely repeated, and not
willful. See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana,
Notice of Apparent Liability, 16 FCC Rcd 1359 (2001) ("Callais
Cablevision, Inc.") (issuing a Notice of Apparent Liability for, inter
alia, a cable television operator's repeated signal leakage). "Repeated"
merely means that the act was committed or omitted more than once, or
lasts more than one day. Southern California Broadcasting Co., 6 FCC Rcd
at 4388, P 5; Callais Cablevision, Inc., 16 FCC Rcd at 1362, P 9.
See 47 U.S.C. S 503(b)(1)(B); see also 47 C.F.R. S 1.80(a)(1).
See 47 U.S.C. S 503(b); 47 C.F.R. S 1.80(f).
See 47 U.S.C. S 503(b)(4); 47 C.F.R. S 1.80(f).
See The 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 17087, 17113 (1997), recons. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement"); 47 C.F.R. S 1.80(b).
See 47 U.S.C. S 503(b)(2)(D).
See, e.g., New Northwest Broadcasters, L.L.C. , Notice of Apparent
Liability, 19 FCC Rcd 9352 (Enf. Bur. 2004) (forfeiture paid) (base
forfeiture amount imposed where contest not conducted substantially as
announced and no other compounding factors were present).
See 47 U.S.C. S 503(b).
See 47 C.F.R. SS 0.111, 0.311 and 1.80.
See 47 C.F.R. S 1.1914.
For purposes of the forfeiture proceeding initiated by this NAL, Saga
Communications of New England, L.L.C., shall be the only party to this
(Continued from previous page)
Federal Communications Commission DA 07-957
Federal Communications Commission DA-07-957