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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-05-IH-0150
CBS RADIO INC. OF PHILADELPHIA ) FRN: 0003741998
Licensee of Station WIP(AM), ) NAL/Acct. No. 200732080008
Philadelphia, Pennsylvania ) Facility ID No. 28626
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
CBS Radio Inc. of Philadelphia ("CBS" or "Licensee"), Licensee of Station
WIP(AM), Philadelphia, Pennsylvania (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 CBS 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
2. The FCC received a complaint from Mr. Arnie Chapman (the
"Complainant"), dated January 18, 2005 (the "Complaint"), alleging that
the Station failed to conduct a competitive eating contest entitled "Wing
Off" (the "Contest"), in accordance with the Contest's advertised material
terms. The Complaint alleges that, on December 1, 2004, the Complainant
won the Contest, which offered winners a chance to compete in a popular
competitive eating competition, "Wing Bowl 13." The Complaint alleges that
the Station revoked the prize awarded to the Complainant due to Contest
conditions that the Station neither announced nor advertised.
3. In response to the Complaint, the Bureau sent a letter of inquiry to
CBS, dated June 28, 2005 (the "LOI"). CBS responded by letter dated August
1, 2005 (the "LOI Response"). The Complainant did not file a reply.
4. In its LOI Response, CBS admits that the Complainant qualified to win
the Contest prize, an opportunity to compete in the Wing Bowl 13, but that
the Station disqualified him after determining that he belonged to a
competitive eating association, the Association of Independent Competitive
Eaters ("AICE"). CBS states that AICE is a rival of another competitive
eating association historically associated with Wing Bowl 13, the
Independent Federation of Competitive Eating ("IFOCE"). CBS contends that
the Complainant should have known that members of associations in rivalry
with IFOCE could not compete in the Contest because the Station previously
disqualified a participant from Wing Bowl 12 for the same reason.
Moreover, CBS asserts that the published Contest rules provide the Station
discretion to disqualify a contestant based on "subjective criteria."
Finally, CBS states that the Contest rules specify that the Contest is
open to Station listeners, and that Mr. Chapman does not reside within
reach of the Station's broadcast so he could not be a listener.
5. 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. As we set forth in
greater detail below, we conclude under this standard that CBS 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 that "[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 material term." The Notes to the section make clear that
eligibility restrictions are generally considered to be material terms of
the contest Further, the Notes state that "the obligation to disclose the
material terms arises at the time the audience is first told how to enter
or participate and continues thereafter."
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, CBS disqualified the Complainant from the
Contest due to his participation in AICE. The Contest rules do not specify
or permit such disqualification and the contestant was informed of this
eligibility requirement only after the Contest was concluded. CBS argues
that the Complainant should have known about the disqualification of
participants who were members of IFOCE's rival organizations based on the
Station's similar disqualification of a potential Wing Bowl 12 competitor.
This argument has no basis in Commission rules requiring material terms,
like eligibility requirements, to be disclosed prior to the contest.
Further, CBS's position undercuts its own position. That the Station
previously disqualified a contestant from Wing Bowl 12 for similar reasons
suggests that the eligibility requirements were not self-evident to
contestants and put CBS on notice to include information about this
material term in the rules for the Contest preceding Wing Bowl 13. The
argument also fails because the Licensee cannot defend against allegations
that it committed a rule violation by stating that it has undertaken
similar conduct in the past that did not result in a complaint to the
8. CBS points to the Complainant's address as an additional basis to
exclude him, because purportedly he is not a Station "listener." The
Station's correspondence with the Complainant, however, alludes to the
incompatibility of his AICE membership with the IFOCE's historical
association with the Wing Bowl as the reason for his disqualification, and
does not mention the Complainant's listener or residential status.
Accordingly, this after-the-fact justification does not appear to be the
reason for exclusion. Furthermore, the Complainant's address alone in this
situation does not support the conclusion that he did not listen to the
9. Based upon the evidence before us, we find that CBS 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. After considering the record, the factors contained
in Section 503(b)(2)(D) of the Act, 47 U.S.C. S 503(b)(2)(D), and the
Forfeiture Policy Statement, we believe that a $4,000 forfeiture is
appropriate in this case.
IV. ORDERING CLAUSES
10. 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 CBS Radio Inc. of Philadelphia, is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
$3,000 for willfully and repeatedly violating Section 73.1216 of the
11. 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, CBS
Radio Inc. of Philadelphia, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail/Return Receipt Requested, to CBS Radio Inc. of
Philadelphia, 2175 K Street, N.W., Suite 350, Washington, D.C., 20037, and
to its counsel, Steven A. Lerman, Dennis P. Corbett, and Philip A. Bonomo,
Leventhal Senter & Lerman PLLC, 2000 K Street, N.W., Suite 600,
Washington, D.C., 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Infinity Broadcasting Corporation of Philadelphia was the licensee at the
time that this investigation began, January 18, 2005.
See 47 C.F.R. S 73.1216.
See Letter from Mr. Arnie Chapman to the Federal Communications
Commission, dated January 18, 2005 ("Complaint"). The Complaint alleges
that the Contest solicited ideas and actual performance of competitive
eating stunts from participants.
See id. at 1-4.
See id. at 1-3.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Infinity Broadcasting
Corporation of Philadelphia, dated June 28, 2005 ("LOI").
See Letter from Steven A. Lerman, Dennis P. Corbett, and Phillip A.
Bonomo, Attorneys for Infinity Broadcasting Corporation of Philadelphia,
to David J. Brown, Esq., Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, dated August 1, 2005 (the "LOI
See LOI at 5 (providing the Complainant with the opportunity to reply to
the Licensee's response).
See LOI Response at 4 ("Chapman . . . qualified through an eating stunt
performed at the WIP studios.").
See id. at 2 - 5.
See id. at 4 - 5 ("[Chapman's] participation was incompatible with the
IFOCE's participation. Chapman had at least constructive or presumptive
knowledge of this from the facts surrounding Gentleman Joe's
disqualification from Wing Bowl 12 and from the realities of the
competitive eating world . . . In Wing Bowl 12, WIP established that with
IFOCE eaters included as Wing Bowl competitors, professional eaters allied
with national organizations that are active IFOCE rivals would not be
welcome as competitors.").
Specifically, CBS cites: (1) provisions of the rules allowing Station
personnel the right to determine a proposed qualifying eating stunt as
worthy of attempt "based on subjective criteria;" (2) a requirement that
participants sign a release before participating in any portion of the
Contest, agreeing to fully abide by the decisions of the Station Morning
Show hosts and/or others designated by them; (3) a rule provision stating
that "[d]ecisions of station management with respect to the contest are
final;" and (4) a rule provision specifying that "[f]ailure to comply with
the contest rules may result in a contestant's disqualification, at the
sole discretion of WIP . . ." See id. at 4 n.6.
See id. at 5.
47 C.F.R. S 73.1216.
Note 1 (b) to Section 73.1216 states:
Material terms include those factors which define the operation of the
contest and which affect participation therein. Although the material
terms may vary widely depending upon the exact nature of the contest, they
will generally include: how to enter or participate; eligibility
restrictions; entry deadline dates; whether prizes can be won; when prizes
can be won; the extent, nature and value of prizes; basis for valuation of
prizes; time and means of selection of winners; and/or tie-breaking
Id., Note 1(b) (emphasis added).
Id., Note 2.
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 LOI Response at 5.
See Complaint at 8.
See LOI Response at 5 ("In Wing Bowl 12, WIP established that with IFOCE
eaters included as Wing Bowl competitors, professional eaters allied with
national organizations that are active IFOCE rivals would not be welcome
as competitors. This policy is particularly reasonable as applied to
individuals who, like Chapman, cannot be deemed a WIP listener.").
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), recon. 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 authorities cited, supra, note 25; NM Licensing, Inc., Notice of
Apparent Liability, 21 FCC Rcd. 7916 (EB 2006) (imposing $4,000 for
apparent failure to conduct the contest as advertised or announced); New
Northwest Broadcasters, L.L.C., Notice of Apparent Liability, 19 FCC Rcd.
9352 (EB 2004) (same).
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, CBS Radio
Inc. of Philadelphia shall be the only party to this proceeding.
(Continued from previous page)
Federal Communications Commission DA 07-960
Federal Communications Commission DA 07-960