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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB-08-IH-5305
Greater Boston Radio, Inc. ) Facility ID No. 25052
Licensee of Station WMJX(FM) ) NAL/Account No. 200932080039
Boston, Massachusetts ) FRN 0005069802
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 8, 2009 Released: April 8, 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
Greater Boston Radio, Inc. ("Greater Boston" or the "Licensee"), licensee
of Station WMJX(FM), Boston, Massachusetts ("Station WMJX" 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 Greater Boston is apparently liable for
a forfeiture in the amount of $4,000.
2. The Commission received a complaint on May 2, 2008 (the "Complaint"),
alleging that the Station failed to conduct its "Win a Car" contest in
accordance with the contest's advertised terms and the Commission's
rules. Specifically, the Complainant states that contest promotions
broadcast by the Station stated that the winner would win one of three
new cars. The Complainant was a preliminary winner who received a cash
prize and an automobile ignition key that he initially believed
represented a chance to win the contest's grand prize, his choice of
one of three cars. After qualifying for a chance to win the grand
prize, the Complainant learned that the prize was not the winner's
choice of three available cars but, instead, a two-year lease of the
selected car. Additionally, after qualifying, he was informed that the
grand prize award was conditioned upon the winner further qualifying
for credit with the car dealer supplying the leased car.
3. By Letter of Inquiry ("LOI"), dated February 11, 2009, the Enforcement
Bureau directed Greater Boston to provide information about the
alleged contest. On March 20, 2009, Greater Boston filed its response
("LOI Response"). In its LOI Response, the Licensee states that the
contest was entitled the "Cool, Hot or Green" contest (the "Contest")
and that it "offered listeners a chance to win a two-year lease on the
winner's choice of one of three automobiles - a `cool' Mercedes Benz C
Series Sedan, a `hot' Audi TT Convertible, or a `green'
environmentally-friendly Toyota Prius." Listeners called into the
Station in order to win a gas card worth $106 (representing the
Station's position on the FM dial - 106.7 MHz) and a chance to win the
grand prize, a two-year lease of the listener's chosen automobile.
4. In its LOI Response, Greater Boston acknowledges that "while the
Contest, as described on air, made plain that the grand prize winner
would be able to choose from three different cars, only the complete
rules of the Contest, made available via the Station's website . . .
spelled out that what was being awarded was a two-year lease of the
car chosen, and not title to a car, and that the winner would have to
be qualified for credit by Prime Motor Group," the contest co-sponsor.
Moreover, the Licensee admits that "the Station's on-air announcements
did not directly refer listeners to the Station's web site for
complete Contest rules."
5. Notwithstanding the foregoing, Greater Boston contends that none of
the Contest contestants were harmed, inconvenienced or "suffered any
reliance damages based on any misunderstanding of the rules." In its
LOI Response, Greater Boston offers assurances that it has taken
"remedial measures to ensure that every material term is fully
disclosed in announcements for future contests" and submits documents
addressed to its staff concerning the Commission's Contest Rule
requirements. Based upon these conditions and its remedial actions,
Greater Boston argues that "it is appropriate for the Bureau to limit
its actions to an admonishment of the Station for the misunderstanding
concerning the grand prize that arose from announcements broadcast to
promote the `Cool, Hot or Green' Contest."
6. 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 Greater
Boston is apparently liable for a forfeiture for its apparent
violation of Section 73.1216 of the Commission's rules.
7. Section 73.1216, the Commission's Contest Rule, 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." 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; . . . ." Additionally, "the obligation
to disclose the material terms arises at the time the audience is
first told how to enter or participate and continues thereafter."
8. 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.
9. In this case, Greater Boston promoted its Contest over the air with
misleading information that did not fully disclose to the listening
audience the Contest's material terms. The promotions did not include,
inter alia, an accurate description of the Contest's grand prize; the
value of the grand prize; the eligibility requirements of the
contestants; or how to access the complete contest rules.
10. Although Greater Boston tacitly admits that it violated the Contest
Rule, it nevertheless argues that it should receive only an
admonishment for "the misunderstanding concerning the grand prize."
In support of its position, Greater Boston references "remedial
measures" it has taken to ensure future compliance with the Contest
Rule and cites a 1990 Mass Media Bureau, Enforcement Division decision
imposing an admonishment on KIRO, Inc. for Contest Rule violations.
Although the remedial action taken by Greater Boston is commendable,
it is well settled that subsequent remedial actions do not excuse or
nullify a licensee's violation of a Commission rule. Further, the
violations in the precedent that Greater Boston cites are minor
compared to the instant case and, therefore, justify a different
11. In KIRO, the complainant did not understand that the station's contest
term stating "enter as often as you like" contemplated participation
in various segments of the contest but did not permit duplicate
entries for the same segment. The station made clarifying
announcements about this contest term during the course of the
contest. The Mass Media Bureau determined that the term as originally
announced could have been reasonably misunderstood to permit
duplicate entries and was material to the contest. The Mass Media
Bureau then determined that the overall circumstances of the case,
including the edited announcements and the station's offer to
compensate the complainant for wasted participation expense, warranted
an admonition. The circumstances of the violations in the instant
case, however, are more serious and justify a forfeiture. In the
instant case, Greater Boston failed to disclose at all several
material terms of the contest, as discussed above. The Station did
not provide an accurate description of the Contest's grand prize; the
value of the grand prize; the eligibility requirements of the
contestants; or how to access the complete contest rules. Finally, the
decision in this case is consistent with more recent decisions where a
forfeiture was imposed for violation of the Commission's contest rule.
12. Based upon the evidence before us, we find that the Licensee
apparently willfully violated Section 73.1216 of the Commission's
rules. The Commission's Forfeiture Policy Statement specifies 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 of 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 $4,000 is appropriate in this
IV. ORDERING CLAUSES
13. 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
Greater Boston Radio, Inc., licensee of Station WMJX(FM), Boston,
Massachusetts, is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of $4,000 for apparently willfully and
repeatedly violating Section 73.1216 of the Commission's rules.
14. 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, Greater
Boston Radio, Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of the
15. 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[s] 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.
Greater Boston Radio, Inc. will also send electronic notification on the
date said payment is made to Hillary.DeNigro@fcc.gov,
Rebecca.Hirselj@fcc.gov, and Judy Lancaster@fcc.gov.
16. The response, if any, must be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W, Room 4-C330, Washington
D.C. 20554 and SHALL INCLUDE the NAL/Acct. No. referenced above. The
Licensee shall also, to the extent practicable, transmit a copy of the
response via e-mail to Hillary.DeNigro@fcc.gov, Rebecca.Hirslef@fcc.gov,
17. 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.
18. IT IS FURTHER ORDERED that the complaint in this proceeding IS GRANTED
to the extent indicated herein and IS OTHERWISE DENIED, and the complaint
proceeding IS HEREBY TERMINATED.
19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent, by Certified Mail/Return Receipt Requested,
to Greater Boston Radio, Inc., 35 Braintree Hill Office Park, Suite 300,
Braintree, Massachusetts 02184-8703, and to its counsel, David S. Keir,
Esq., at Lerman Senter PLLC, 2000 K Street, NW, Suite 600, Washington, DC
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 (the "Contest Rule").
See Complaint to Federal Communication Commission filed May 2, 2008
("Complaint") (copy on file).
See id. at 1.
See Letter from Rebecca Hirselj, Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, to Greater Boston Radio, Inc.,
dated February 11, 2009 (the "LOI").
See Letter from David S. Keir, Esq., Lerman Senter PLLC, to Judy
Lancaster, Investigations and Hearings Division, Enforcement Bureau, dated
March 20, 2009 ("LOI Response").
See LOI Response at 2.
See id. at 2, 4. A check in the amount of $106 was substituted for each
advertised gas card because the Station was unable to procure gas cards in
the amount of $106. See LOI Response at 4.
See id. at 3.
See id. at 2. The Station's announcements consistently described the grand
prize in the "Cool, Hot or Green" contest as "A Cool Mercedes Benz...A Hot
Audi TT Convertible...or a [Green] Toyota Prius Hybrid ... from Prime Auto
Group...No fine print gimmicks...on line at Driveprime.com!" See id. at 2
& Exhibit 2.
See id. at 6, 7.
See id. at 7.
See id. at Exhibits 3 (a 2004 Memorandum to its General Managers and
Program and Promotion Directors concerning contests and lotteries,
referred to in the LOI Response as a copy of its corporate policy
regarding contests), 8 (containing a March 19, 2009 "Important Advisory"
regarding "Required Announcements Concerning Station-Sponsored Contests"
addressed to "All Greater Media Programming and Promotions Personnel" and
a copy of Exhibit 3).
See id. at 7.
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.
See 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).
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").
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 (Enf.
Bur., Investigations & Hearings Div. 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 2 & Exhibit 2.
See id at Exhibit 4 ("Contest Rules, as Posted on WMJX(FM) Website").
See id. at 7.
See id. (citing KIRO, Inc., 5 FCC Rcd 7105 (MMB, Enf. Div. 1990)
See Entercom Wichita License, LLC, Forfeiture Order, DA 09-183, at P: 7 &
note 17 (Enf. Bur., Investigations and Hearings Div. Feb. 5, 2009)
("Entercom Wichita") (finding that subsequent remedial actions undertaken
by a licensee cannot excuse or nullify a licensee's rule violation);
Capstar TX Limited Partnership, Notice of Apparent Liability, 20 FCC Rcd
10636, 10640 (Enf. Bur., Investigations & Hearings Division 2005) (same);
Padre Serra Communications, Inc., Letter Decision, 14 FCC Rcd 9709, 9714
(Mass Media Bur. 1999) (citing Gaffney Broadcasting, Inc., Memorandum
Opinion and Order, 23 FCC 2d 912, 913 (1970); Eleven Ten Broadcasting
Corp., Notice of Apparent Liability, 33 FCC 2d 706 (1962)).
KIRO, 5 FCC Rcd at 7105.
See paragraph 9, supra.
E.g., CBS Radio East Inc., Notice of Apparent Liability, DA 09-189 (Enf.
Bur., Investigations & Hearings Div. rel. Feb. 5, 2009) (finding licensee
apparently liable for a $6,000 forfeiture for failing to disclose all
material terms of a contest), response to NAL pending.; Clear Channel
Broadcasting Licenses, Inc., Notice of Apparent Liability for Forfeiture,
21 FCC Rcd 4072 (Enf. Bur. Investigations & Hearings Div. 2006) (imposing
a $4,000 forfeiture despite licensee's prompt remedial action) (forfeiture
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), recons. 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)(E); 47 C.F.R S: 1.80(c)(4).
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.
See 47 C.F.R. S: 1.1914.
For the purposes of the forfeiture proceeding initiated by this NAL,
Greater Boston shall be the only party to this proceeding.
Federal Communications Commission DA 09-779
Federal Communications Commission DA 09-779