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Federal Communications Commission
Washington, DC 20554
In the Matter of
) File No. EB-06-IH-0825
Saga Communications of New England,
L.L.C. ) NAL Account No. 200732080018
Licensee of Station WAQY(FM), ) Facility ID No. 58551
Springfield, Massachusetts ) FRN No. 0002749406
Adopted: September 25, 2009 Released: September 25, 2009
By the Acting Chief, Enforcement Bureau:
1. In this Forfeiture Order, we impose a monetary forfeiture of $4,000
against Saga Communications of New England, L.L.C. ("Saga"), licensee
of Station WAQY(FM), Springfield, Massachusetts, for violating Section
73.1216 of the Commission's rules by failing to conduct a broadcast
contest substantially as announced.
2. On December 31, 2005, Mr. Robert Naginewicz filed a complaint with the
Commission, alleging that Station WAQY(FM) failed to conduct a contest
broadcast by the Station in June and July 2005 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 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 alleged 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 acknowledged,
however, that its failure to fulfill the memorabilia portion until after
Mr. Naginewicz had contacted the Commission, represented a Station
"problem" that it claimed to have resolved after the Commission's inquiry.
Saga indicated that, because of its delay in fulfilling its promise to Mr.
Naginewicz, it enhanced the award made to him by contributing additional
prizes. On March 2, 2007, the Bureau issued a Notice of Apparent Liability
("NAL") for $4,000 against Saga, rejecting its arguments that no rule
4. On April 2, 2007, Saga responded to the NAL. Saga argues that its
failure to promptly award the contest prizes in question cannot be deemed
prohibited conduct because "promptness" is not an enumerated requirement
identified in the licensee-conducted contest rule. Saga further argues
that, even if its conduct could be deemed to have violated the contest
rule, the NAL erred in concluding that Saga acted "willfully." Saga
contends that its failure to fully complete its award of the prizes in a
prompt manner was due to inadvertence, employee miscommunication, and not
any deliberate or conscious attempt to avoid its obligations, and that
this was demonstrated by its ultimate award of all promised prizes
including bonus items to compensate the complainant for his trouble. Saga
urges that the Commission cancel or substantially reduce the proposed
$4,000 forfeiture amount.
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act, Section 1.80 of the
Commission's rules, and the Commission's forfeiture guidelines set forth
in its Forfeiture Policy Statement. In assessing forfeitures, Section
503(b) of the Act requires that we take into account 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 matters as justice may require. As discussed
further below, we have examined Saga's response to the NAL pursuant to the
aforementioned statutory factors, our rules, and the Forfeiture Policy
Statement, and find no basis for cancellation or reduction of the
6. 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, when prizes can
be won, and instructions regarding entry and participation.
7. Saga argues that the proposed sanction for an untimely award of contest
prizes represents a departure from the Commission's precedent, or an abuse
of discretion. We disagree with Saga's contention that the NAL's holding
is not supported by Commission precedent. The Commission has clearly
stated that prizes must be awarded promptly. In its 1974 Public Notice
regarding licensees' failure to conduct contests fairly, the Commission
expressed its concern that "serious questions would be raised" respecting
practices including "failing to award prizes, or failing to award them
within a reasonable time." Similarly, in its 1975 Notice of Proposed
Rulemaking concerning the contest rule, the Commission listed various
hypothetical situations that illustrate the types of practices that would
violate the proposed rule. One of these hypothetical situations involved a
contest offering an automobile, in which the winner did not receive the
prize until more than a year after the contest ended. The Commission
stated that the delayed award of the prize was improper and further noted
that "[t]he prompt award of prizes at the conclusion of a contest is an
implied term of every contest. Unreasonable delay in awarding prizes,
therefore, is a failure to conduct the contest substantially as
announced." Finally, while the Commission did not ultimately include
promptness in the awarding of contest prizes as a specific example in its
final rule, it did indicate its "continued concern for the abuses
described in our 1966 and 1974 Public Notices and, to the extent that they
have not been superseded by the new rule, we shall continue to enforce the
policies summarized therein." As a result, the NAL's finding did not
constitute a departure from agency precedent or an abuse of discretion.
8. Additionally, as noted in the NAL, the Station's own contest rules
anticipate that award fulfillment of prizes would be completed no more
than thirty days from the drawing. As the NAL found, and Saga does not
dispute, nearly seven months passed between the time that the contest
concluded and the time it fulfilled its award of the memorabilia portion
of the prize. Under the circumstances of this case, we find that Saga's
delay in award fulfillment violated a material term of its own contest
rules. Although Saga indicates that it took subsequent remedial steps to
correct its internal procedures to avoid recurrence, and that it also
enhanced the number of prizes awarded to the complainant in recompense,
these factors are neither exculpatory nor mitigating.
9. We reject Saga's argument that its rule violation was not "willful."
Saga argues that its failure to promptly award Mr. Naginewicz's prizes was
inadvertent, and not a deliberate or conscious attempt to avoid its
obligations. Whether Saga intended to violate the contest rules is
immaterial, however. Under Section 503(b), "willful" refers to "the
conscious and deliberate commission or omission of [any] act, irrespective
of any intent to violate" the law. Saga asserts that its failure to award
the prizes was not conscious or deliberate, but the facts before us belie
that claim. Mr. Naginewicz repeatedly contacted Saga over a period of
several months in an effort to obtain the memorabilia portion of the
prize, but to no avail. It was not until Saga received the Bureau's LOI
that it finally awarded the prizes. Saga was under an affirmative
obligation to honor the terms of its contest, and it failed to do so
despite repeated inquiries by the winner. Under these circumstances,
Saga's assertion of mere inadvertence is not plausible, and we find that
Saga's failure to promptly award the prizes was "willful" within the
meaning of Section 503(b).
10. Saga further claims that its lapse was due to the failure of its
employees to properly contact and respond to Mr. Naginewicz's pleas. The
Commission, however, has long held that licensees and other Commission
regulatees are responsible for the acts and omissions of their employees
and contractors, and when the conduct of such individuals has resulted in
violations, the Commission has "consistently refused to excuse licensees
from forfeiture penalties." Nothing in the instant record suggests that we
should depart from such precedent in the instant case. Accordingly, as a
result of our reviewing Saga's response to the NAL, and in view of the
statutory factors and the Forfeiture Policy Statement, we affirm the NAL
and issue a monetary forfeiture in the amount of $4,000.
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended (the "Act"), and Section 1.80 of
the Commission's rules, Saga Communications of New England, L.L.C., IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for willfully and
repeatedly violating Section 73.1216 of the Commission's rules.
12. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the rules within thirty (30) days of the release of this
Forfeiture Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act. 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 No. and FRN No. 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 24A (payment type code). Saga will also send electronic
notification on the date said payment is made to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov, and Paul.Noone@fcc.gov.
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.
13. IT IS FURTHER ORDERED that a copy of this Order 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.
FEDERAL COMMUNICATIONS COMMISSION
Suzanne M. Tetreault
Acting Chief, Enforcement Bureau
See 47 C.F.R. S: 73.1216.
See letter from Mr. Robert Naginewicz to the FCC, dated December 31, 2005
See id. at 1-2.
See 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 ("LOI Response").
See id. at 4.
See id. at 4-5.
See id. at 3. The memorabilia portion of the prize was ultimately
delivered to Mr. Naginewicz on February 8, 2006. See id.
See Saga Communications of New England, L.L.C., Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 4206 (Enf. Bur., Investigations &
Hearings Div. 2007) ("NAL").
See Response to Notice of Apparent Liability for Forfeiture, dated April
2, 2007 ("NAL Response").
See NAL Response at 4-6 (citing Nat'l Black Media Coalition v. FCC, 775
F.2d 342, 355 (D.C. Cir. 1985) and Airmark Corp. v. FAA, 758 F.2d 685, 692
(D.C. Cir. 1985) for the proposition that an agency departure from its
precedent "must provide a principled explanation for its change of
See NAL Response at 6-10.
See id. at 2.
See id. at 6, 10.
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80.
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 (1997), recons. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
See 47 U.S.C. S: 503(b)(2)(E).
See 47 C.F.R. S: 73.1216. See also New Northwest Broadcasters, Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 9352 (Enf. Bur. 2004)
(forfeiture paid); ABC, Inc., Notice of Apparent Liability for Forfeiture,
18 FCC Rcd 25647 (Enf. Bur. 2003) (forfeiture paid); Isothermal Community
College, Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 23932
(Enf. Bur. 2003) (forfeiture paid); Citicasters Co., Notice of Apparent
Liability for Forfeiture, 15 FCC Rcd 16612 (Enf. Bur. 2000) (forfeiture
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.
See NAL Response at 5-6.
See id. at 5-6.
See Public Notice Concerning Failure of Broadcast Licensees to Conduct
Contests Fairly, Public Notice, 45 FCC 2d 1056 (1974).
See Amendment of Part 73 of the Commission's Rules Relating to
Licensee-Conducted Contests, Notice of Proposed Rulemaking, 53 FCC 2d 934
See id. at 942.
See Amendment of Part 73 of the Commission's Rules Relating to
Licensee-Conducted Contests, Report and Order, 60 FCC 2d 1072, 1073 (1976)
(internal citation omitted). The resulting rule did not supersede the
earlier Commission policy concerning promptness in the awarding of contest
prizes. See id. at 1073-74.
See LOI Response at 2. The generic contest rules submitted by Saga, which
it asserts applied to this contest, 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." Id.; see LOI Response at Attachment 4, unnumbered
See NAL, 22 FCC Rcd at 4206-208 P:P: 3 and 5; see also NAL Response at 2.
See, e.g., Capstar TX Limited Partnership (WKSS(FM)), Notice of Apparent
Liability, 20 FCC Rcd 10636 (Enf. Bur. 2005) (forfeiture paid) (finding
remedial efforts undertaken after complaint lodged not mitigating) (citing
AT&T Wireless Services, Inc., Notice of Apparent Liability, 17 FCC Rcd
21866, 21871 (2002); KVGL, Inc., Memorandum Opinion and Order, 42 FCC 2d
258, 259 (1973)).
See NAL Response at 6-9.
See 47 U.S.C. S: 312(f)(1); Application for Review of Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388
See Complaint at 2-3.
See supra note 9.
See NAL Response at 6-9.
See, e.g., Wagenvoord Broadcasting Co., Memorandum Opinion and Order, 35
FCC 2d 361 (1972) (holding a licensee responsible for violations of FCC
rules despite its reliance on a consulting engineer); Petracom of Joplin,
L.L.C., Forfeiture Order, 19 FCC Rcd 6248 (Enf. Bur. 2004) (holding a
licensee liable for its employee's failure to conduct weekly EAS tests and
to maintain the "issues/programs" list).
See American Paging, Inc. of Virginia, Notice of Apparent Liability for
Forfeiture, 12 FCC Rcd 10417, 10420 P: 11 (WTB, Enf. & Cons. Inf. Div.
1997) (quoting Triad Broadcasting Company, Inc., 96 FCC 2d 1235, 1244
See 47 U.S.C. S: 503(b), 47 C.F.R. S: 1.80.
See 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 504(a).
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Federal Communications Commission DA 09-2069
Federal Communications Commission DA 09-2069