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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB-08-IH-5274
Nassau Broadcasting III, L.L.C. ) Facility ID No. 39806
Licensee of Station WWEG(FM) ) NAL/Account No. 201032080035
Myersville, Maryland ) FRN 0011378676
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 23, 2010 Released: August 23, 2010
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Nassau Broadcasting III, L.L.C. ("Nassau" or the "Licensee"),
licensee of Station WWEG(FM), Myersville, Maryland (the "Station"), failed
to conduct a contest substantially as announced or advertised, in apparent
willful and repeated violation of Section 73.1216 of the Commission's
rules. Based upon our review of the record, we find that Nassau is
apparently liable for a forfeiture in the amount of $4,000.
2. The Commission received a complaint on June 16, 2008 (the
"Complaint"), alleging that the Station failed to conduct a "Father's
Day" contest in accordance with its advertised terms and the
Commission's rules. Specifically, the Complainant states that
promotions broadcast by the Station stated that the contest was open
"through June 13, 2008." When the Complainant attempted to enter the
contest on June 13, 2008, she was informed by Station staff that the
contest winner had been picked on June 12, 2008, and already announced
on June 13, 2008.
3. Based on the allegations contained in the Complaint, the Enforcement
Bureau sent a letter of inquiry to the Licensee. On July 17 and 20,
2009, Nassau filed its responses to the LOI collectively the
"Responses"). In its Responses, the Licensee states that it conducted
the contest, entitled the "Father Time Contest" (the "Contest"). The
Licensee states that, to enter the Contest, listeners were instructed
to "log on to 1069 the Eagle dot com," the Station's website, "[f]rom
May 22, 2008 through June 13th 2008 . . . [and] to send a photo of
their Dad from the past, to show how `Father Time' has aged their
father." At 7:20 a.m. each day, the Station announced daily winners,
who won "a round of golf . . . or Deluxe Car Washes and Oil Changes .
. . ." Those daily winners also became eligible for a chance to win an
Alfred Hammel watch, the Contest's grand prize. The "Official Contest
Rules," posted on the Station's website, and Contest promotions
broadcast by the Station stated that the grand prize winner would be
picked by random drawing on June 13, 2008.
4. Nassau asserts that the Contest promotions "indicate clearly that the
contest winners would be announced at 7:20 a.m." and that the "winner
[of the grand prize] would be selected on June 13, 2008." While
acknowledging in its Responses that the winner was selected the
evening of June 12, 2008, Nassau nevertheless claims that the
Complainant could no longer enter the Contest when she arrived at the
Station after 8:30 a.m. on June 13th because the Contest had ended at
7:20 a.m. on June 13th. Nassau maintains that, even under these
circumstances, the "Contests [sic] material terms were fully and
accurately disclosed and the Contest was conducted substantially as
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 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 Nassau is apparently liable for a forfeiture for its apparent
violation of Section 73.1216 of the Commission's rules.
6. 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; [and] 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." Finally, disclosure of material terms must be by
announcements broadcast on the station; non-broadcast disclosures of
material terms can be made to supplement, but not substitute for,
7. 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."
8. In this case, we agree with Nassau that its Contest rules and
promotions "clearly" stated that the grand prize winner would be
chosen "on June 13, 2008." Although the daily winners were announced
at 7:20 a.m. each day, the "Official Contest Rules" and the Station's
on-air and website promotions stated that the Contest would run
"through" June 13, 2008, without mention of a specific time that day
for the grand prize drawing. By selecting the grand prize winner on
June 12, 2008, which is a day before the announced expiration of the
contest entry period, the Station violated the advertised material
terms of the Contest. Accordingly, we disagree with Nassau's
contention that it conducted the Contest "substantially" as
9. Based upon the evidence before us, we find that the Licensee
apparently willfully and repeatedly 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 case.
IV. ORDERING CLAUSES
10. 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
Nassau Broadcasting III, L.L. C., licensee of Station WWEG(FM),
Myersville, Maryland, 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.
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,
Nassau Broadcasting, III, L.L.C. 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/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. Nassau Broadcasting III,
L.L.C., will also send electronic notification on the date said
payment is made to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Anjali.Singh@fcc.gov, and Judy Lancaster@fcc.gov.
13. 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. In addition, a copy of the response must also be transmitted
via e-mail to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Anjali.Singh@fcc.gov, and Judy.Lancaster@fcc.gov.
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. 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.
16. 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 Nassau Broadcasting III, L.L.C., 619 Alexander Road, 3rd
Floor, Princeton, New Jersey 08540-6003, and to its counsel, Janet
Fitzpatrick Moran, Esquire, Patton Boggs, LLP, 2500 M Street, N.W.,
Washington, D.C. 20037-1350.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
See 47 C.F.R. S: 73.1216 (the "Contest Rule").
See Complaint to Federal Communication Commission filed June 16, 2008, No.
See id. at 1. The Complaint also states that the Station disclosed this
information on its website.
See Letter from Rebecca Hirselj, Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, to Nassau Broadcasting III, L.L.C.,
dated June 10, 2009 (the "LOI").
See Letter from Janet Fitzpatrick Moran, Esq., Patton Boggs, LLP,, to
Marlene H. Dortch, Secretary, Federal Communications Commission, dated
July 17, 2009 ("Initial Response"); Letter from Carly T. Didden, Patton
Boggs, LLP, to Marlene H. Dortch, Secretary, Federal Communications
Commission, July 20, 2009 ("Revised Response") (correcting the first page
of the Initial Response). The substantive responses in the Initial
Response and the Revised Response (collectively, the "Responses") are the
See Responses at Exhibits B-C (Written Transcript of Pre-recorded Spot;
Id. at Exhibit E (Official Contest Rules) (emphasis added). See also id.
at Exhibits B-C.
Id. at Exhibit B. See also id. at Exhibits C & E.
See id. at Exhibits B-C & E.
See id. at Exhibits B-C & E.
Id. at 5 (emphasis added).
See id. at 3.
Id. at 5.
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), recons. denied, 7 FCC Rcd 3454 (1992).
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 id. ("material terms should be disclosed periodically by announcements
broadcast on the station conducting the contest"). Posting contest rules
on a station's website does not satisfy Section 73.1216's requirement that
a licensee broadcast the material terms of a contest it conducts. See,
e.g., AK Media Group, Notice of Apparent Liability for Forfeiture, 15 FCC
Rcd 7541, 7543 P: 7 (Enf. Bur. 2000) (forfeiture paid); Service
Broadcasting Group, LLC, Notice of Apparent Liability for Forfeiture, 24
FCC Rcd 8494, 8498 (Enf. Bur., Investigations & Hearings Div. 2009)
(forfeiture paid) ("Service Broadcasting").
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").
WMJX Inc., 85 FCC 2d at 263 (citing Eastern Broadcasting Corp., Decision,
14 FCC 2d 228, 229 (1968)).
Responses at 5. See also id. at Exhibits A (CD recording), B-C, & E.
See id. at Exhibit E; Complaint at 1. In addition to stating that it would
conduct the drawing "on June 13, 2008," by stating that it would conduct
the Contest "through" June 13, 2008, the Licensee promoted the impression
that it would conduct the drawing on that day rather than the day before,
June 12, 2008. See, e.g., Merriam-Webster's Collegiate Dictionary,
Eleventh Edition, available at www.merriam-webster.com/dictionary/through
(defining "through" as a "function word to indicate a period of time" that
is "during the entire period of" or "to and including"); Oil Shale
Broadcasting Company (KWSR), 70 FCC 2d 984 (1976) (subsequent history
omitted) (calculating the number of contestants by including those winning
on Friday in the days "Monday through Friday").
See Responses at 3.
Id. at 5.
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 AMFM Broadcasting Licenses, LLC, Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 1529, 1533 (Enf. Bur., Investigations and Hearings
Div., 2009) (forfeiture paid) (finding that selection of contest winners
prior to the close of the contest was "misleading and deceptive without
clarification to the public of the Contest's rules and procedures that
would allow it" and increasing base forfeiture of $4,000 to $6,000 because
of licensee's history of violations).
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,
Nassau shall be the only party to this proceeding.
___ _ Federal Communications Commission _____ DA 10-1592
_____ Federal Communications Commission _ DA 10-1592