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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-06-IH-1116
ENTERCOM WICHITA LICENSE, LLC ) FRN: 0005374145
Licensee of Station KDGS(FM), ) NAL/Acct. No. 200732080005
Andover, Kansas ) Facility ID No. 70266
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
Entercom Wichita License, LLC ("Entercom"), licensee of Station KDGS(FM),
Andover, Kansas (the "Station"), apparently liable for a monetary
forfeiture in the amount of $4,000 for its apparent 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 a contest . . .
and conduct the contest substantially as announced or advertised." As
discussed below, we find that Entercom failed to announce the material
terms of a contest and neglected to conduct the contest in accordance with
its material terms, in apparent violation of the Commission's rule.
2. The FCC received a complaint from Ms. Darlene Harris, dated January 10,
2006 (the "Complaint"), alleging that Entercom failed to conduct a contest
entitled "Guess What is in the Santa Sack" (the "Contest"), in accordance
with the Contest's material terms. The Complaint alleged that, on December
8, 2005, the Station failed to award the complainant a $1,000 prize for
her correct guess in the Contest.
3. In response to the Complaint, the Bureau sent a letter of inquiry to
Entercom, dated June 9, 2006 (the "LOI"). Entercom responded by letter
dated July 24, 2006 (the "LOI Response"). The complainant did not file a
4. In its LOI Response, Entercom states that, when the complainant
initially contacted Entercom about its failure to award her a prize, it
conducted an internal investigation of the Contest and believed that it
had conducted the contest properly. However, in its LOI Response, Entercom
also concedes that it initiated a second internal investigation after
receiving the Bureau-issued LOI. It was during this second internal
investigation when Entercom discovered that it had: (1) failed to award
the complainant the cash prize she should have won; and (2) failed to
broadcast over the air the material terms of the Contest. Entercom
explains that employee error caused the violations to occur. Entercom
further asserts that it addressed the employee errors internally by
reprimanding the program director responsible for conducting the Contest,
and by sending the complainant an apology letter, which included a check
for $1,000, the prescribed cash prize to which the complainant was
5. Section 503(b)(1) of the Communications Act of 1934, as amended,
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or willfully
or repeatedly fails to comply with any of the provisions of the Act or of
any rule, regulation, or order issued by the Commission thereunder, shall
be liable for a forfeiture penalty. The term "willful" as used in Section
503(b)(1) has been interpreted to mean simply that the acts or omissions
are committed knowingly. The term "repeated" means that the action was
committed or omitted more than once, or lasts more than one day. Based on
the evidence before us, we conclude under this standard that Entercom is
apparently liable for a forfeiture for its apparent willful violation of
Section 73.1216 of the Commission's rules.
6. Section 73.1216 of the Commission's rules provides ""A licensee that
broadcasts or advertises information about a contest it conducts shall
fully and accurately disclose the material terms of the contest, and shall
conduct the contest substantially as announced or advertised. No contest
description shall be false, misleading or deceptive with respect to any
7. Licensees, as public trustees, have the affirmative obligation to
prevent the broadcast of false, misleading or deceptive contests
announcements, and to conduct their contests substantially as announced.
The Commission has noted in this regard that "[t]he standards are high,
for while contests are particularly susceptible to abuse, abuses can be
prevented by diligent licensee attention to the planning and conduct of
contests." By its own admission, Entercom failed to award the cash prize
as required under the contest rules and failed to broadcast the material
terms of the contest. Accordingly, we find that Entercom apparently
violated Section 73.1216 of the Commission's rules. Entercom attributes
these violations to employee error. Inadvertence or employee oversight
does not excuse Entercom from liability for its failure to follow
Commission rules. Licensees are responsible for the actions of their
8. The statutory maximum forfeiture for Entercom's apparent willful
violation of Section 73.1216 is $32,500. Pursuant to Section 1.80 of the
Commission's rules, the base forfeiture amount for a violation of the
contest rule is $4,000. Section 1.80(b)(4) of the Commission's rules also
specifies that, in determining the amount of a forfeiture penalty, the
Commission or its designee will take into account "the nature,
circumstances, extent, and gravity of the violations and, with respect to
the violator, the degree of culpability, any history of prior offenses,
ability to pay, and such other matters as justice may require." Having
considered these factors, we find that a $4,000 proposed forfeiture is
appropriate in this case.
V. 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 Entercom Wichita License, LLC, 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
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 Notice,
Entercom Wichita License, LLC, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11. 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 Acct. No. and FRN No. referenced in the caption.
Payment by check or money order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by
overnight mail may be sent to Mellon Bank /LB 358340, 500 Ross Street,
Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer may be made
to ABA Number 043000261, receiving bank Mellon Pittsburgh, and account
number FCC/ACV 9116229.
12. The response, if any, must be mailed to Hillary S. DeNigro, 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 NOTICE OF APPARENT
LIABILITY FOR FORFEITURE under an installment plan should be sent to the
Deputy Chief Financial Officer, Room 1-A637, 445 12th Street, S.W.,
Washington, D.C. 20554.
15. IT IS FURTHER ORDERED that the complaint filed by Darlene Harris IS
GRANTED to the extent indicated herein and IS OTHERWISE DENIED, 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 Entercom Wichita License, LLC,
401 City Avenue, Suite 809, Bala Cynwyd, Pennsylvania, 19004, and to its
counsel, Brian M. Madden and Jean W. Benz, Leventhal Senter & Lerman PLLC,
2000 K Street, NW, Suite 600, Washington, DC 20006-1809
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
47 C.F.R. S 73.1216.
See E-mail from Ms. Darlene Harris to the Federal Communications
Commission via email@example.com, dated January 10, 2006 ("Complaint").
See Complaint; LOI Response at 3.
See Letter from Tom Hutton, Assistant Chief, Investigations and Hearings
Division, Enforcement Bureau, to Entercom Wichita License, LLC, dated June
9, 2006 ("LOI").
See Letter from Brian M. Madden and Jean W. Benz, Attorneys, Leventhal,
Senter & Lerman PLLC, to Mary Turner, Program Analyst, Investigations and
Hearings Division, Enforcement Bureau, dated July 24, 2006 ("LOI
See LOI at 6 (providing the complainant the opportunity to reply within 10
days of the receipt of the LOI Response).
See Complaint; LOI Response at Declaration of Jackie Wise, at 1-2, PP 2-3
See LOI Response at 3; Wise Declaration, at 1-2, PP 2-3; Declaration of
McKinely Paynes, at 1, P 2; Declaration of Jessica Moreno, at 1, P 2.
See LOI Response at 1-2; Wise Declaration, at 2, PP 3, 5.
See 47 U.S.C. S 503(b)(1).
Section 312(f)(1) of the Communications Act, or 1934, as amended, 47
U.S.C. S 312(f)(1), which applies to violations for which forfeitures are
assessed under Section 503(b) of the Act, provides that "[t]he term
'willful', when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of such
act, irrespective of any intent to violate any provision of this Act or
any rule or regulation of the Commission authorized by this Act...." See
Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC
Rcd 4387 (1991).
See Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of Apparent
Liability, 16 FCC Rcd 1359, 1362 (2001).
47 C.F.R. S 73.1216.
See WMJX, Inc., Decision, 85 FCC 2d 251, 269 (1981) (holding that proof
of actual deception is not necessary to find violations of contest rules,
and that the licensee, as a public trustee, has an affirmative obligation
to prevent the broadcast of false, misleading or deceptive contest
announcements); Amendment of Part 73 of the Commission's Rules Relating to
Licensee-Conducted Contests, Report and Order, 60 FCC 2d 1072 (1976).
See Headliner Radio, Inc., Memorandum Opinion and Order, 8 FCC Rcd 2962
(Mass Media Bur. 1993) (finding that the airing of a misleading
advertisement concerning a licensee's contest violated the Commission
contest rules because the contest was not then conducted "substantially as
announced or advertised"); Lincoln Dellar, Memorandum Opinion and Order, 8
FCC Rcd 2582, 2585 (Mass Media Bur. 1993) (finding that the cancellation
of a pre-announced contest violated the pertinent Commission rules because
the contest was not then conducted "substantially as announced").
Honeyradio, Inc., Memorandum Opinion and Order, 69 FCC 2d 833 (1978),
quoting Licensee-Conducted Contests, Proposed Rulemaking, 40 Fed. Reg.
26692 (1975) (holding licensee responsible for mistakes made during its
conduct of a contest, and affirming forfeiture and denying petition for
reconsideration of a letter of admonishment for violation of the
See Nationwide Communications, Inc., Letter, 9 FCC Rcd 175 (Mass Media
Bur. 1994) (finding forfeiture for violating contest rules imposed,
notwithstanding licensee's contention that its failure to conduct a
contest substantially as announced was due to "inadvertence"); Nationwide
Communications Inc., Memorandum Opinion and Order, 9 FCC Rcd 2054 (Mass
Media Bur. 1994) (reducing forfeiture due to licensee's good faith efforts
in awarding the prize as announced and not receiving any benefit from its
error); George McKay, III, Letter, 6 FCC Rcd 7385 (Mass Media Bur. 1991)
(finding forfeiture for violating contest rules imposed, notwithstanding
licensee's contention that its failure to conduct a contest substantially
as announced was due to acts of third parties).
See Amendment of Section 1.80 of the Commission's Rules, Order, 19 FCC Rcd
10945 (2004) (the current statutory maximum is $32,500 for violations of
See 47 C.F.R. S 1.80.
See id. See also NM Licensing, LLC, Notice of Apparent Liability, 21 FCC
Rcd. 7916 (Enf. Bur. 2006) (proposing $4,000 forfeiture for apparent
violation of the Commission's contest rules due to the licensee's failure
to conduct the contest substantially as advertised).
47 C.F.R. S 1.80(b)(4).
47 U.S.C. S 503(b).
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, Entercom
Wichita License, LLC, shall be the only party to this proceeding.
(Continued from previous page)
Federal Communications Commission DA 07-958
Federal Communications Commission DA 07-958