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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                                                        
                                             )   FRN: 0009510595             
     Access 1 New Jersey License Company,                                    
     LLC                                     )   NAL/Acct. No. 200732080015  
     Licensee of Station WTKU-FM,            )   Facility ID No. 3139        
     Ocean City, New Jersey                  )   File No. EB-05-IH-1081      


   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
   Access 1 New Jersey License Company, LLC ("Access 1"), licensee of Station
   WTKU-FM, Ocean City, New Jersey (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 Access 1 substantially
   altered material terms of a contest, in apparent violation of the
   Commission's rule.


   2. The Commission received a complaint from Sean Mack (the "Complainant")
   alleging that Access 1 made a significant change to the rules governing
   the Station's advertised contest entitled the "Treasure Vault" contest
   (the "Contest"). According to the Complainant, on September 22, 2005, at
   around 7:30 p.m., the Station conducted a contest in which it announced
   that a monetary prize of $275 would be awarded to the person who was the
   eighth caller, and could guess a "4 digit code." According to the
   Complaint, the Complainant called the Station utilizing multiple telephone
   lines. He reached the Station on one line first and was informed he was
   the seventh caller in line. He was asked to identify himself and told to
   call back. When Station personnel picked up the Complainant's second
   telephone line next, making him the eighth caller in line, he was informed
   by Station personnel, that he was still considered only the seventh
   caller, and he was denied an opportunity to participate in the contest.
   Shortly thereafter, the Complainant's mother, Elaine Mack, called the
   Station and confirmed that Mr. Mack had been eliminated from the Contest
   due to his use of multiple phone lines, and further, that there were no
   contest rules prohibiting the use of multiple phone lines by callers.

   3. Based on the allegations contained in the Complaint, the Investigations
   and Hearings Division of the Enforcement Bureau sent a letter of inquiry
   to Access 1 on August 14, 2006. Access 1 responded by letter dated
   September 18, 2006, and included a CD and a written transcript of the
   broadcasts it aired giving the material rules for the Contest. In its
   response Access 1 states, that it broadcast the contest rules in 2002 and
   2003, but has no record of broadcasting them in September of 2005. Access
   1 further states, that on-air personalities broadcast the Contest "terms
   and rules as part of the announcements for the Contest." According to
   Access 1, the Contest was conducted by "air personality" Joe Ricci, on
   September 22, 2005, at 7:30 p.m., and involved the chance to win $275. Mr.
   Ricci informed listeners that the eighth caller to the Station would have
   an opportunity to solve a four digit code and win the cash prize. The
   Complainant, Sean Mack, called the Station utilizing multiple phone lines
   which allowed him to occupy two lines simultaneously. When Mr. Ricci
   received Mr. Mack's first call, he informed him he was the "seventh
   caller" and to "please try again." Upon picking up the next telephone line
   in cue and hearing Mr. Mack's voice again, he advised him "that he was
   still the seventh caller." Shortly thereafter, Mr. Ricci received a call
   from Elaine Mack and explained that the use of multiple phone lines
   constituted only one call. Mrs. Mack was eventually routed to the general
   manager of the Station, John Ford, who informed her that the use of
   multiple phone lines during a contest was, "not consistent with the intent
   of the contest."

   5. Access 1 admits that the official contest rules in effect during the
   Contest contain no restrictions on the use of multiple phone lines by
   contest participants. After receipt of the Complaint in this case, Mr.
   Ford, determined that "WTKU-FM needed to do a better job of informing
   listeners of our contest rules." On October 6, 2005, he revised the
   contest rules for the Station, and directed that they be broadcast on a
   more frequent basis. The revised rules specifically prohibit the use of
   multiple phone lines during the conduct of on-air contests.


   6. 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 set forth in greater
   detail below, we conclude under this standard that Access 1 is apparently
   liable for a forfeiture for its apparent willful violation of section
   73.1216 of the Commission's rules.

   7. 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 material term.

   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 the material terms
   may be made in a non-broadcast manner.

   8. In this case, it appears that Access 1 violated section 73.1216 of the
   Commission's rules by altering a material term of the contest and failing
   to conduct the Contest substantially as advertised.   Indeed, Access 1
   does not dispute that the rules, as established for contest participants,
   contained no restrictions on the use of multiple phone lines. Accordingly,
   any announcements of the rules made by the Station, would fail to notify
   potential participants that use of multiple phone lines could result in
   disqualification. The Commission has stated previously that, for the
   purposes of the rule, "a term is considered material if it defines
   operation of, or affects participation in a contest." In this case,
   Station management changed the rules governing the operation of the
   contest by restricting the method by which a potential participant could
   be chosen. This change substantially altered the material terms of the
   Contest. The fact that Station personnel may have made, in their view, a
   "reasonable interpretation" of the "intent" of the rules, as Access 1
   argues, does not alter the fact that the manner in which a contestant was
   chosen to participate in the contest was changed without notice, during
   the contest. Indeed, Access 1 concedes that after receipt of the
   Complaint, it revised its rules to specifically eliminate the use of
   multiple phone lines for contest participants and took steps to make
   certain that the rules were better disseminated to its listening audience.
   Similarly, Access 1's contention that the change was not intended to
   exclude the Complainant specifically, or that the Station did not award
   the advertised prize to anyone else, does not mitigate its liability. The
   Commission has stated previously that a showing of harm is not necessary
   to establish a violation. In this case, however, the Complainant was
   harmed by being denied the chance to win the contest prize.

   9. Licensees, as public trustees, have the affirmative obligation to
   prevent the broadcast of false, misleading or deceptive contest
   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." Access 1 has failed to meet these standards.

   10. Based upon the evidence before us, we find that Access 1 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. Specifically, we conclude that the violation
   occurred due to inadequate planning and control, and not due to a
   deliberate attempt to deceive or to favor a particular contestant or class
   of contestants.


   11. 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 Access 1 New Jersey License Company,
   amount of $4,000 for willfully and repeatedly violating section 73.1216 of
   the Commission's rules.

   12. 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, Access
   1 New Jersey License Company, LLC SHALL PAY the full amount of the
   proposed forfeiture or SHALL FILE a written statement seeking reduction or
   cancellation of the proposed forfeiture.

   13. Payment of the forfeiture must be made by mailing check or similar
   instrument, payable to the order of the Federal Communications Commission.
   The payment MUST INCLUDE the FCC Registration Number ("FRN") and the
   NAL/Account Number specified in the caption of this NAL. Payment by check
   or money order may be mailed to the Forfeiture Collection Section, Finance
   Branch, 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 Bank, and account number 9116229.

   14. 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.

   15. 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.

   16. Requests for payment of the full amount of this NAL under an
   installment plan should be sent to: Deputy Chief Financial Officer,
   Federal Communications Commission, Room 1-A637, 445 12th Street, S.W.,
   Washington, D.C. 20554.

   17. IT IS FURTHER ORDERED that the complaint filed by Sean Mack IS GRANTED
   to the extent indicated herein and IS OTHERWISE DENIED, and the complaint

   18. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
   Certified Mail/Return Receipt Requested, to Access 1 New Jersey License
   Company, LLC, 505 Eighth Avenue, Ninth Floor, New York, New York, 10018,
   and to its counsel, James Winston, Esq., 1155 Connecticut Ave., N.W.,
   Sixth Floor, Washington, DC 20036.


   Hillary S. DeNigro

   Chief, Investigations and Hearings Division

   Enforcement Bureau

   47 C.F.R. S 73.1216.


   See Email from Sean Mack to the Federal Communications Commission, dated
   September 23, 2005 ("Complaint").



   See Letter from Benigno Bartolome, Esq., Deputy Chief, Investigations and
   Hearings Division, Enforcement Bureau, Federal Communications Commission
   to Access 1, dated August 14, 2006.

   See Letter from James Winston, Esq., counsel for Access 1, to Benigno
   Bartolome, Esq., Deputy Chief, Investigations & Hearings Division,
   Enforcement Bureau, dated September 18, 2006 ("Response").

   Id. at 6.

   Id. Access states that the Contest rules are posted in the lobby of the
   Station.  Id at 6.

   Id. at 1.

   Id. at 3.

   Id. at 7, Declaration of John Ford, General Manager of Station WTKU-FM.


   Id at 5.

   Id. at 7, Exhibit 11.

   [1]47 U.S.C. S 503(b)(1)(B); [2]47 C.F.R. S 1.80(a)(1); see also [3]47
   U.S.C. S 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. S 1464).
   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. [4]47 U.S.C. S 312(f)(1). The legislative history to
   [5]section 312(f)(1) of the Act clarifies that this definition of willful
   applies to both [6]sections 312 and [7]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 [8]section 503(b) context. See, e.g., Southern
   California Broadcasting Co., Memorandum Opinion and Order, [9]6 FCC Rcd
   4387, 4388 (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., Notice of Apparent
   Liability for Monetary Forfeiture, [10]16 FCC Rcd 1359 (2001) (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, P9.

   [11]47 U.S.C. S 503(b); [12]47 C.F.R. S 1.80(f).

   See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
   7591, P 4 (2002) (forfeiture paid).

   ABC, INC., Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 25,647
   (Enf. Bur. 2003).

   [13]47 C.F.R. S 73.1216.

   Response at 7.

   Application for Review of Staff Ruling Concerning Complaint of Violation
   of Section 73.1216 of the Commission's Rules, Memorandum Opinion and
   Order, 2 FCC Rcd 5638 (1987).

   Response at 7.

   See NM Licensing LLC, Notice of Apparent Liability for Forfeiture, 2006 WL
   2044708 (EB 2006) (forfeiture for violating contest rules imposed due to
   unannounced rule change preventing contestant's participation in contest),
   Clear Channel Broadcasting Licenses, Inc., Notice of Apparent Liability
   for Forfeiture, 21 FCC Rcd 4072, (EB 2006) (forfeiture imposed for
   unannounced contest rule change which excluded contestant's multiple
   entries), Nationwide Communications Inc., Notice of Apparent Liability for
   Forfeiture, 9 FCC Rcd 175 (Mass Media 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, Nationwide Communications Inc.,
   Memorandum Opinion and Order, 9 FCC Rcd 2054 (Mass Media 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).

   Response at 7.

   Response at 5-6.

   See WMJX, 48 RR 2d 1339, P 37.

   WMJX, Inc., Decision, 48 RR 2d 1339, 1355 (1981); Rules Relating to
   Licensee-Conducted Contests, Report and Order, 60 FCC 2d 1072 (1976).

   Headliner Radio, Inc., Memorandum Opinion and Order, 8 FCC Rcd 2962 (Mass
   Media Bur. 1993); Lincoln Dellar, Memorandum Opinion and Order, 8 FCC Rcd
   2582, 2585 (Mass Media Bur. 1993) (where the cancellation of a
   pre-announced contest violated the pertinent Commission rule because the
   contest was not then conducted "substantially as announced").

   Honeyradio, Inc., Memorandum Opinion and Order, 19 FCC 2d 833 (1978),
   quoting Notice of 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 Commission's contest rules).

   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).

   47 U.S.C. S 503(b)(2)(D).

   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, Access 1
   New Jersey License Company, LLC, shall be the only party to this

   (Continued from previous page)


   Federal Communications Commission DA-07-962



   Federal Communications Commission DA-07-962


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