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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-07-IH-9488
CBS Radio East Inc. ) NAL/Acct. No. 200932080026
) Facility ID No. 25443
Licensee of Station KDKA(AM) ) FRN No. 0009225210
Pittsburgh, Pennsylvania )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 5, 2009 Released: February 5, 2009
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), issued
pursuant to Section 503(b) of the Communications Act of 1934, as
amended (the "Act"), and Section 1.80 of the Commission's rules, we
find that CBS Radio East Inc. ("CBS" or the "Licensee"), licensee of
Station KDKA(AM), Pittsburgh, Pennsylvania ("Station KDKA" or the
"Station"), broadcast information about a contest without fully and
accurately disclosing all material terms thereof, and failed to
conduct the contest substantially as announced or advertised, in
apparent willful violation of Section 73.1216 of the Commission's
rules. Based upon our review of the record, we find that CBS is
apparently liable for a forfeiture in the amount of $6,000.
2. The Commission received a complaint, dated November 26, 2007 ("the
Complaint"), alleging that Station KDKA's investigative reporter and
talk show host, Marty Griffin, conducted a contest on November 22,
2007, in apparent violation of Section 73.1216 of the Commission's
rules. Specifically, the Complaint alleges that, beginning at
approximately 9:10 a.m. on November 22, 2007, Mr. Griffin announced
that he would give away one million dollars ($1,000,000) to the
thirteenth caller, and that he would give away "a million an hour"
thereafter. The Complainant alleges that he called the Station, was
told he was the thirteenth caller, and was then put on hold; after
spending forty-three minutes on hold, the Complainant was transferred
to Mr. Griffin, and Mr. Griffin asked him questions about the
Thanksgiving holiday. The Complainant states that after he inquired
about the prize money, the phone was disconnected. The Complainant
called back to the Station, and was told that there was no $1,000,000
prize. The Complainant also states that he sent Mr. Griffin an e-mail
concerning this matter, and received a response from Mr. Griffin
indicating that he was "the only person in the area who didn't get the
3. By Letter of Inquiry ("LOI"), dated December 10, 2007, the Enforcement
Bureau directed CBS to provide information about the alleged contest.
On January 16, 2008, CBS filed its response ("LOI Response"). In its
LOI Response, CBS does not dispute that it aired the complained-of
material, and includes a recording and a transcript of the entire
broadcast of the "Marty Griffin Show" that aired between 9:00 a.m. and
12:00 p.m. on November 22, 2007. CBS contends, however, that the
broadcast in question did not involve an actual contest, but instead
was a "joke," and that the Station's broadcast was not subject to
Section 73.1216 of the Commission's rules. CBS asserts that the
broadcast was, at most, a "harmless prank," that is neither a contest
nor a hoax prohibited under the Commission's rules.
4. Under Section 503(b)(1) of 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 forfeiture
penalty. 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. 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, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. "Repeated" means that the act was
committed or omitted more than once, or lasts more than one day. In
order to impose such a 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 penalty should be imposed. The
Commission will then issue a forfeiture if it finds, by a
preponderance of the evidence, that the person has willfully or
repeatedly violated the Act or a Commission rule. As described in
greater detail below, we conclude under this procedure that CBS is
apparently liable for a forfeiture for its apparent willful violation
of Section 73.1216 of the Commission's rules.
5. 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." Material terms under the
rule "include those factors which define the operation of the contest
and which affect participation therein," and generally include, among
other things, "[instructions on] how to enter or participate;
eligibility restrictions; . . . whether prizes can be won; when prizes
can be won; . . . the extent, nature and value of prizes; time and
means of selection of winners; . . . ."
6. 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. A broadcast announcement concerning a contest is false,
misleading, or deceptive "if the net impression of the announcement
has a tendency to mislead the public." In enforcing this rule, the
Enforcement Bureau has repeatedly held that licensees are responsible
for broadcasting accurate statements as to the nature and value of
contest prizes, and will be held accountable for any announcement that
tends to mislead the public.
7. CBS asserts that there was no contest and no $1,000,000 giveaway on
Station KDKA on the morning of November 26, 2007, and that there is no
evidence that any caller believed that he or she had won $1,000,000
from the Station. Rather, CBS contends that Mr. Griffin's "joke" (the
"Griffin Idea") was a "harmless prank" -- an attempt to "enliven what
[Mr. Griffin] expected to be an extremely quiet Thanksgiving morning
broadcast with an extended joke revolving around what he considered
the laughably absurd idea that he would randomly give away to the 13th
caller that morning a million dollars . . . ." CBS further states that
Mr. Griffin's show on Station KDKA is an "established news/talk show,
which has no cash giveaway component," and notes that "neither
Griffin's conception, nor his execution, of the Griffin Idea meets
with [CBS's] internal broadcast standards, and [CBS] has taken
appropriate action in an effort to prevent recurrence." For these
reasons, CBS asserts that the broadcast was not a contest for purposes
of Section 73.1216, and as such, the complaint should be summarily
8. Specifically, CBS claims that there is sufficient evidence in the
record to support a finding that the Griffin Idea was a joke or prank
that could not be seriously regarded as a licensee-sponsored contest.
CBS offers the following evidence from the broadcast itself in support
of its argument that the public should have known the contest
announcement was a joke: (1) the absurdity of the idea that this
news/talk station would give away one million dollars without any
promotion; (2) Mr. Griffin's frequent laughter when discussing the
idea of giving away one million dollars; (3) the preposterous details
concerning the prize money, such as including information that the
money was in the form of new bills contained in a barrel at the
station or that it was in a briefcase secured by handcuffs; (4) Mr.
Griffin's repeated claim, through the end of the three hour show, that
fewer than thirteen calls had been received, even though more than
fifty listeners had called the station; and (5) the fact that no
thirteenth caller was identified and no caller mentioned the
$1,000,000 prize on the air.
9. We disagree with CBS's contention that Section 73.1216 of the
Commission's rules should not apply simply because the Station viewed
the broadcast as a prank or joke. Section 73.1216 provides that "[a]
contest is a scheme in which a prize is offered or awarded, based on
chance, diligence, knowledge or skill, to members of the public." CBS
does not deny -- and the recording and transcript of the broadcast
clearly demonstrate -- that Mr. Griffin offered listeners an
opportunity to win $1,000,000 based on the chance that they would be
the thirteenth caller. The transcript of the broadcast further
illustrates that Mr. Griffin repeatedly made on-air announcements
regarding the $1,000,000 giveaway during the three-hour program. Mr.
Griffin made no statement on-air to clarify that the offer was a joke
or prank, and, instead called the contest "the real deal," and took
calls from the listening public, several of whom asked on the air
whether they were the winning caller. The recording and transcript
also make perfectly clear that the public was in fact misled by the
contest announcements. Mr. Griffin himself admitted during the
broadcast that several individuals placed follow-up calls to the
Station to complain that they had not won the $1,000,000 prize despite
having been the thirteenth caller.
10. Section 73.1216 was implemented to proscribe broadcasting practices
that deceive audiences or are unfair to competitors, and thus is
intended to protect listeners from the type of deceptive and
misleading contest announcements broadcast by Station KDKA. Although
CBS claims that material from the broadcast itself supports its
argument that Section 73.1216 does not apply here, the material that
CBS identifies highlights the deceptive nature of the broadcast
concerning a purported $1,000,000 giveaway. In addition, CBS's
argument places the burden on a listener to discern that the contest
was not legitimate despite the repeated on-air announcements offering
the $1,000,000 prize. For example, CBS argues that listeners should
have known that a contest of this magnitude would not have been
offered without advance promotion and on a day when listenership was
low. This assumes that the show attracts only regular listeners, and
excludes the possibility that others, including those traveling in the
station's service area, may have been listening. CBS's argument also
disregards the possibility that not all listeners and callers may have
heard the portions of the broadcast in which there was laughter and
discussion of the "absurd" or inconsistent details concerning the
location and source of the prize money. It also assumes that all
listeners are savvy with regard to the ordinary promotional practices
for broadcast contests.
11. The relevant focus of the analysis under the rule is the
announcement's impact on the public, and not the announcer's state of
mind. "With regard to what constitutes a false, misleading or
deceptive announcement, it is enough if the net impression of the
announcement has a tendency to mislead the public." While Mr. Griffin
may have believed the contest was a "joke," in light of the number of
announcements made referring to the $1,000,000 giveaway, and the
number of callers who responded to the announcements (including the
Complainant), the public was led to believe, and clearly did believe,
that a contest was occurring at the Station. Moreover, CBS cannot
avoid application of Section 73.1216 because the Station staff on duty
during the broadcast independently concluded that the broadcast was a
joke, and informed callers that there was no $1,000,000 prize being
offered. The Bureau has consistently ruled that other broadcast
"pranks" which met Section 73.1216's contest definition violated the
Commission's rule prohibiting the broadcast of false, misleading or
deceptive contest announcements. Based upon the evidence before us, we
find that CBS's broadcast at issue was, indeed, a contest subject
Section 73.1216 of the Commission's rules.
12. Having established that the Station broadcast a contest subject to
Section 73.1216, we find that CBS apparently violated Section 73.1216
by not fully and accurately disclosing the material terms of its
contest, and by not conducting the contest substantially as announced.
CBS admits that Station KDKA broadcast multiple announcements,
offering $1,000,000 to the thirteenth caller to contact the Station.
The Station, however, did not award any $1,000,000 prize, although
over 50 callers contacted the Station. At the end of the broadcast,
Mr. Griffin also announced that the Station "never got to the 13th
caller," and that the contest "carries over" and that the Station
would "try to get to it again tomorrow." In fact, the contest was not
continued, and CBS states that "the Griffin Idea simply died."
Therefore, we find that CBS did not conduct the contest substantially
as announced in violation of Section 73.1216.
13. Based upon the evidence before us, we find that Station KDKA
apparently willfully violated Section 73.1216 of the Commission's
rules. The Commission's Forfeiture Forfeiture Policy Statement sets a
base forfeiture amount of $4,000 for violation of Section 73.1216. In
assessing the monetary forfeiture amount, we must take into account
the statutory factors set forth in Section 503(b)(2)(E) 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 or prior offenses, ability to pay, and other
such matters as justice may require. Taking this standard into
account, and based upon the facts and circumstances presented here, we
find that a forfeiture in the amount of $6,000 is appropriate in this
case. Based upon the entire record, including the egregious nature of
the misconduct that misled listeners and CBS's prior history of
violations of Section 73.1216, we conclude that an upward adjustment
of the forfeiture amount is warranted in this case. Thus we find that
the appropriate forfeiture amount is $6,000.
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules, that
CBS Radio East Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of $6,000 for apparently willfully and
repeatedly violating Section 73.1216 of the Commission's rules.
15. 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, CBS
Radio East Inc. SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
16. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. CBS Radio East Inc. will also send
electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, and
17. The response, if any, must be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, SW, Room 4-C330,
Washington, D.C. 20554, and must include the NAL/Account Number
referenced above. In addition, to the extent practicable, a copy of
the response, if any, should also be transmitted via e-mail to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, and
18. 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.
19. Accordingly, IT IS ORDERED, that the Complaint in this proceeding IS
GRANTED, and the Complaint proceeding IS HEREBY TERMINATED.
20. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First
Class Mail and Certified Mail - Return Receipt Requested, to Anne
Lucey, Senior Vice President, CBS Corporation, 2175 K Street, N.W.,
Suite 350, Washington, DC. 20037 and to its counsel, Dennis P.
Corbett, Esquire, Leventhal Senter & Lerman PLLC, 2000 K Street, N.W.,
Suite 600, Washington, DC 20006, and by First Class mail to the
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80.
See 47 C.F.R. S: 73.1216.
See Complaint, IC Number 07-WB13557366, filed on November 26, 2007.
See id. The Complainant also alleges that Mr. Griffin repeatedly said he
would award $1,000,000 to the thirteenth caller, and that there was a
person in the studio with a "briefcase handcuffed to him with one million
dollars in it." Id. The Complaint alleges that multiple individuals who
called the Station asked if they had won the prize. See id.
See Letter from Jennifer A. Lewis, Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, to Anne Lucey, Senior Vice
President CBS Corp., dated December 10, 2007 (the "LOI").
See Letter from Dennis P. Corbett, Leventhal Senter & Lerman PLLC, to
Jennifer A. Lewis, Investigations and Hearings Division, Enforcement
Bureau, dated January 16, 2008 ("LOI Response"). The Complainant did not
file a formal reply to the LOI Response, but only an email stating that
his response is that he "stands with [his] original statement." See Email
from Complainant to Jennifer A. Lewis, dated January 29, 2008.
See LOI Response at 2 & attached Recording and Transcript.
See id. CBS asserts that host Marty Griffin "unilaterally conceived, on
the spur of the moment, and then executed, on air, a joke." Id. In
addition, CBS submitted electronic mail correspondence between Mr. Griffin
and the Complainant, whereby Mr. Griffin states that $1,000,000 prize was
a joke. See LOI Response at attachment labeled "Inquiry 8."
See id. at 6-7 (citing Amendment of Part 73 Regarding Broadcast Hoaxes,
Report and Order, 7 FCC Rcd 4106, 4109 P: 18 (1992)). We agree that the
broadcast at issue does not implicate the Commission's broadcast hoax
rule. See 47 C.F.R. S: 73.1217. That rule is explicitly limited to
prohibit the broadcast of false information concerning a crime or
catastrophe if the licensee knows the information is false, it is
foreseeable that the broadcast will cause substantial public harm, and the
broadcast in fact directly causes substantial public harm. The broadcast
at issue here included admittedly false information, but did not concern a
crime or catastrophe and thus the broadcast hoax rule does not apply.
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991).
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
47 U.S.C. S: 503(b); 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).
47 C.F.R. S: 73.1216.
Id. Note 1(b).
See WMJX, Inc. (Station WMJX-FM), 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. (Station KSXY-FM), 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 (Stations
KPRL(AM) and KDDB(FM)), 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").
WMJX Inc., 85 FCC 2d at 269-270, n.82 (citing Eastern Broadcasting Corp.
(Station WCVS(AM)), Decision, 14 FCC 2d 228, 229 (1968)).
See e.g., Clear Channel Broadcasting Licenses, Inc. (Station WRUM(FM)),
Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 6808, 6809
(Investigations & Hearings Div., Enf. Bur. 2006) (forfeiture paid);
Citicasters Co. (Station KITT(FM)), Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 16612, 16613-614 (Enf. Bur. 2000) (forfeiture
paid); Clear Channel Broadcasting Licenses, Inc.(Station KPRR(FM), Notice
of Apparent Liability for Forfeiture, 15 FCC Rcd 2734, 2735 (Enf. Bur.
2000) (forfeiture paid).
See LOI Response at 3-4.
See id at 7, 2.
Id. at 2.
See id. at 3-4.
47 C.F.R. S: 73.1216, Note 1(a).
See LOI Response, Transcript at 6-10, 23, 27, 34, 36, 52, 57, 68, 72, 90
and 150-151 (quoting Transcript "Oh, you know, before I left yesterday,
uh, the boss called and said `The 13th caller, given them a million
dollars' - (laughing) - so that's what we're going to do. It's right here
in a barrel. Every hour, it's a three-hour show, they gave us three
million dollars to give away on Thanksgiving. And this is the real deal,
we would not mess around." Transcript at 7. "The truth is, it's a big old
surprise for me. We have a big million-dollar giveaway. We have a million
dollars in Matt's briefcase, and we're apparently supposed to give it
away. And we're talking to you, Pittsburgh [...]." Transcript at 34).
See LOI Response, Transcript at 7
See id., Transcript at 12, 17, 29.
See id., Transcript at 52: "A couple of questions I have and then I'm
going to the phones, because we still have not given away the million
dollars cash - cash. And, and, quit calling and complaining in - to the
newsroom on Thanksgiving. People complaining that they were the 13th
caller. Why would we, if you're the 13th caller, not tell you you're the
winner? Come on! These old folks call in the newsroom, "I think I won and
Mr. Griffin said I wasn't the 13th . I counted on my abacus."
See Amendment of Part 73 of the Commission's Rules Relating to
Licensee-Conducted Contests, Notice of Proposed Rulemaking, 53 FCC 2d 934,
934-935 P: 3 (1975), proposed rule adopted in pertinent part, Report and
Order, 60 FCC 2d 1072 (1976).
See WMJX, 85 FCC 2d at 269-270.
See, e.g., Clear Channel Broadcasting Licenses, Inc. (Station WRUM(FM)),
21 FCC Rcd 6808 (finding a Section 73.1216 violation for "prank" contest
in which broadcaster induced listeners to call a rival station);
Citicasters, Co. (Station KITT(FM)), 15 FCC Rcd 16612 (finding that
failure to disclose a $1,000,000 prize as 1,000,000 Turkish lira violated
Section 73.1216); Clear Channel Broadcasting Licenses, Inc. (Station
KPRR(FM), 15 FCC Rcd 2734 (finding that failure to disclose a $10,000
prize as 10,000 Italian lira violated Section 73.1216).
See 47 C.F.R. S: 73.1216.
See Complaint; LOI Response, Transcript at 150-51.
See LOI Response at 5.
See 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").
See 47 C.F.R. S: 1.80(b).
47 U.S.C. S: 503(b)(2)(E); 47 C.F.R. S: 1.80(b)(4).
See, e.g., CBS Radio Inc. of Philadelphia (WIP(AM)), Forfeiture Order, 23
FCC Rcd 10569 (Investigations & Hearings Div., Enf. Bur. 2007) (finding a
$4000 forfeiture for violation of Section 73.1216), recon. pending.
See, e.g., Clear Channel Broadcasting Licenses, Inc. (Station WRUM(FM)),
21 FCC Rcd at 6811 P: 9 (imposing upward adjustment based upon egregious
nature of apparent violation of Section 73.1216 and licensee's history of
violations of the Commission's rules, including the licensee-conducted
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S:S: 0.111, 0.311 and 1.80(f)(4).
See 47 C.F.R. S: 73.1216.
Consistent with Section 503(b) of the Act and consistent Commission
practice, for the purposes of the forfeiture proceeding initiated by this
NAL, CBS Radio East. Inc. shall be the only party to this proceeding.
Federal Communications Commission DA 09-189
Federal Communications Commission DA 09-189