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                                   Before the

                       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            

                          MEMORANDUM OPINION AND ORDER

   Adopted: March 31, 2010 Released: April 1, 2010

   By the Chief, Enforcement Bureau:


    1. In this Memorandum Opinion and Order, we deny the petition for
       reconsideration filed by Saga Communications of New England, L.L.C.
       ("Saga"), licensee of Station WAQY(FM), Springfield, Massachusetts
       (the "Station"), of an Enforcement Bureau ("Bureau") Forfeiture Order
       issued September 25, 2009. The Forfeiture Order imposed a monetary
       forfeiture of $4,000 against Saga for violating Section 73.1216 of the
       Commission's rules by failing to conduct a broadcast contest
       substantially as announced. As discussed below, we deny the Petition
       and affirm the $4,000 forfeiture.

   I. background

    2. The Forfeiture Order held that the Station failed to conduct a contest
       substantially as announced in violation of Section 73.1216 of the
       Commission's rules because it did not timely deliver a contest prize
       consistent with its own contest rules. The Forfeiture Order held that
       the Station's contest rules required delivery of the prize within 30
       days, but the prize was not delivered until approximately seven months
       after the contest was held and without sufficient justification for
       the significant delay. Saga seeks reconsideration of this finding and
       remission or mitigation of the forfeiture. The salient facts are not
       in dispute, and thus are incorporated by reference from the NAL and
       Forfeiture Order.

    3. In support of its Petition, Saga contends: (1) that, contrary to the
       Bureau's finding, promptness is not required by the Commission's
       licensee-conducted contest rule; (2) that the Bureau incorrectly found
       that Saga's own contest rules required it to award its contest prizes
       within thirty days; (3) that the Bureau failed to prove that Saga
       possessed the requisite scienter required to establish "willfulness"
       under Section 503(b) of the Act; (4) that the precedent relied upon by
       the Bureau regarding "willfulness" is untested by the courts and is,
       therefore, unreliable; and (5) that the Bureau erred by finding that
       Saga's misconduct was "repeated" within the meaning of Section 503(b)
       of the Act. Below, we discuss each of Saga's contentions in turn.


    4. Reconsideration is appropriate only where the petitioner shows a
       material error or omission in the original order or raises additional
       facts not known or existing until after the petitioner's last
       opportunity to present such matters. A petition that simply repeats
       arguments previously considered and rejected will be denied. Saga has
       failed to either demonstrate error, or to present new facts or changed
       circumstances, as required. As such, the matter before us does not
       warrant reconsideration and we uphold the Bureau's finding in the
       Forfeiture Order.

    5. First, we find incorrect Saga's contention that the Commission's
       contest rule does not require that prizes be awarded promptly. As
       discussed in the Forfeiture Order, the Commission has stated that
       contest prizes must be awarded promptly. Saga asserts that the
       Commission's prior statements regarding promptness are insufficient to
       support a forfeiture and require additional notice and rulemaking,
       because if the Commission had intended for this specific element to
       create liability for a licensee in a broadcast contest, then it would
       have included the term in an exhaustive list of elements in the rule.
       We reject Saga's assertion. It is evident from the rule itself and
       accompanying notes that the enumerated material terms do not
       constitute an exhaustive list of every element that is material to a
       contest. As an example, Note 1(b) of the rule recognizes that
       "material terms may vary widely depending on the exact nature of the
       contest" and sets forth contest terms that "generally" would be
       included in a station's contest rules. Further, the law is clear that
       the Commission may properly interpret its own rules consistent with
       existing regulation. As the Forfeiture Order correctly held, the
       Commission's prior statements consistently maintain that prizes must
       be awarded promptly, and Saga cites no precedent that is inconsistent
       with or disavows that position in any manner that might implicate the
       need for a rulemaking.

    6. Second, we find no merit in Saga's contention that the thirty-day time
       period for prize fulfillment specified in its own contest rules did
       not apply to the Station. Saga argues that the intent of its contest
       rule provision is to "persuade" winners to claim their prizes within
       thirty days, not to impose an obligation on Saga to award prizes
       within thirty days. Saga's contest rule provision, however, when read
       in its full context, belies such claims. Saga's rule states that
       "[w]inners will be expected to claim prize (sic) at the [Station]
       between 9am - 5pm, Monday through Friday (excluding holidays) within
       30 days of being notified that they are winners, unless there is an
       expiration date on prize which will be specifically stated." Saga's
       own contest rule creates a reasonable expectation on the part of
       winners that prizes would be awarded within thirty days because
       winners are explicitly given thirty days in which to claim prizes, and
       a prize must be awarded in order to be claimed. Moreover, accepting
       Saga's interpretation of its own contest rule would render it harmless
       from liability for ever failing to award a contest prize, effectively
       allowing it to claim that fulfillment would occur at some unspecified
       future time of its own choosing. This result would render Saga's
       obligations under the Commission's contest rule meaningless, and it
       would also be unfair to contest participants.

    7. Third, we disagree with Saga's assertion that in order to impose a
       forfeiture for its failure to award the prizes promptly, the
       Commission must demonstrate scienter  to establish that the conduct
       was "willful." The case which Saga cites as authority for this
       argument arose in the broadcast indecency context in which "scienter 
       is the constitutional minimum showing for penalizing the speech or
       expression of broadcasters." There is no such constitutional
       requirement in cases regarding violations of the licensee-conducted
       contest rule; therefore, the cited authority is inapposite. It is well
       established that Section 312(f)(1) of the Act provides that "the term
       `willful,' when used with reference to the commission or omission of
       any act, means the conscious or deliberate commission or omission of
       such act, irrespective of any intent to violate any provision of this
       Act or any rule or regulation of the Commission." As noted in the
       Forfeiture Order, "willful" does not require a finding that the rule
       violation was intentional or that the violator was aware that it was
       committing a rule violation. Rather, the term "willful" simply
       requires that the violator knew it was taking or failing to take the
       action in question, irrespective of any intent to violate the
       Commission's rules. Moreover, Saga's claim regarding its lack of
       intent is not supported by the facts of this case. As noted in the
       Forfeiture Order, the complainant repeatedly contacted Saga over
       several months seeking the memorabilia portion of his prize, to no
       avail. It was not until Saga received the Bureau's letter of inquiry
       that it finally awarded the prizes. Under these circumstances, Saga's
       assertion of mere inadvertence is not plausible.

    8. Fourth, Saga questions the authority of the Commission decision that
       the Bureau relied on for interpreting the "willfulness" standard
       because it is untested by the courts. We find no validity in this
       unsupported assertion. It is well established that the Commission may
       rely on its precedents in the absence of controlling court opinions to
       the contrary.

    9. Finally, Saga argues that its violations of Section 73.1216 of the
       Rules were not repeated as that term is contemplated by Section 503(b)
       of the Act. Commission precedent clearly holds that "repeated" means
       that the act was committed or omitted more than once, or lasts more
       than one day. In this case, nearly seven months passed between the
       drawing and the time that Saga awarded the memorabilia portion of the
       prize. We find that the violations were repeated. Therefore, after
       reviewing Saga's Petition and the underlying record, we find no basis
       for reconsideration.


   10. Accordingly, IT IS ORDERED, pursuant to Section 1.106 of the
   Commission's rules, that the Petition for Reconsideration filed on October
   26, 2009, by Saga Communications of New England, L.L.C., IS DENIED, and
   the Forfeiture Order IS AFFIRMED.

   11. 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
   Memorandum Opinion and 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,,, and
   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:
   with any questions regarding payment procedures.

   12. 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.


   P. Michele Ellison


   Enforcement Bureau

   See Saga Communications of New England, L.L.C., Petition for
   Reconsideration (filed Oct. 26, 2009) ("Petition").

   See Saga Communications of New England, L.L.C., Forfeiture Order, 24 FCC
   Rcd 11934 (Enf. Bur. 2009) ("Forfeiture Order"), aff'g, 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 47 C.F.R. S: 73.1216.

   See Forfeiture Order. See also paragraph 6, infra.

   See Forfeiture Order, 24 FCC Rcd at 11934-35; NAL, 22 FCC Rcd at 4206-07.

   See Petition at 4.

   See id. at 5.

   See id. at 7-8.

   See id. at 7; 47 U.S.C. S: 503(b).

   See id. at 3; 47 U.S.C. S: 503(b).

   See WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal Co.
   v. FCC, 351 F.2d 824 (D.C. 1965), cert. denied, 383 U.S. 967 (1966); 47
   C.F.R. S: 1.106(c).

   See Infinity Broadcasting Operations, Inc., Memorandum Opinion and Order,
   19 FCC Rcd 4216 (2004); Bennett Gilbert Gaines, 8 FCC Rcd 3986 (Rev. Bd.

   See Forfeiture Order, 24 FCC Rcd at 11936-37 (citing Public Notice
   Concerning Failure of Broadcast Licensees to Conduct Contests Fairly,
   Public Notice, 45 FCC 2d 1056 (1974) ("1974 Public Notice")); Amendment of
   Part 73 of the Commission's Rules Relating to Licensee-Conducted Contests,
   Notice of Proposed Rulemaking, 53 FCC 2d 934 (1975) ("1975 NPRM"); and
   Amendment of Part 73 of the Commission's Rules Relating to
   Licensee-Conducted Contests, Report and Order, 60 FCC 2d 1072, 1073 (1976)
   ("1976 R&O").

   See Petition at 4-5.

   See 47 C.F.R. S: 73.1216. Note 1(b) states that "[m]aterial terms include
   those factors which define the operation of the contest and which affect
   participation therein. Although the material terms may vary widely
   depending upon the exact nature of the contest, they will generally
   include: how to enter or participate; eligibility restrictions; entry
   deadline dates; whether prizes can be won; when prizes can be won; the
   extent, nature and value of prizes; basis for valuation of prizes; time
   and means of selection of winners; and/or tie-breaking procedures."

   See Cost-Based Terminating Compensation for CMRS Providers;
   Interconnection Between Local Exchange Carriers and Commercial Mobile
   Radio Service Providers; Implementation of the Local Competition
   Provisions of the Telecommunications Act of 1996; Calling Party Pays
   Service Offering in the Commercial Mobile Radio Services, Order, 18 FCC
   Rcd 18441, 18450 P: 22 (2003):

   The D.C. Circuit has repeatedly held that interpretive rulings are
   properly used to clarify the original meaning and application of an
   agency's substantive rules. The Supreme Court in reaffirming the authority
   of agencies to interpret their own rules stated that "a new APA rulemaking
   is required only if an agency adopt[s] a new position inconsistent with
   any of the [agency's] existing regulations."

   See 1974 Public Notice, 1975 NPRM, and 1976 R&O, supra note 13.

   See Petition at 5.

   See id.

   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, at Attachment 4,
   unnumbered pages 3-4.

   See Petition at 7-8 (citing CBS Corporation et al. v. FCC, 535 F.3d 167
   (3rd Cir. 2008) ("CBS v. FCC", cert. granted, vacated, and remanded, 129
   S. Ct. 2176 (2009).

   See Petition at 7-8 (citing CBS v. FCC).

   CBS v. FCC, 535 F.3d at 205.

   47 C.F.R. S: 312(f)(1). The legislative history of Section 312(f)(1) of
   the Act clarifies that this definition of willful applies to both Sections
   312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51
   (1982), and the Commission has so interpreted the term in the Section
   503(b) context. See Application for Review of Southern California
   Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388
   (1991), recon. denied, 7 FCC Rcd 3454 (1992) ("Southern California").

   See Southern California, 6 FCC Rcd at 4387-88 (stating that "inadvertence
   . . . is at best, ignorance of the law, which the Commission does not
   consider a mitigating circumstance" and applying the definition of willful
   in Section 312(f)(1) to forfeiture cases). See also Abocom Systems, Inc.,
   Memorandum Opinion and Order, 22 FCC Rcd 7448, 7451 (Enf. Bur. 2007)
   (rejecting Abocom's argument that it was only "inadvertently noncompliant"
   and that "its actions were not deliberate or intended to violate the
   rules"); Five Star Parking d/b/a Five Star Taxi Dispatch, Forfeiture
   Order, 23 FCC Rcd 2649, 2651-52 (Enf. Bur., Spectrum Enf. Div. 2008)
   (declining to reduce or cancel forfeiture for late-filed renewal based on
   licensee's administrative error); Domtar Industries, Inc., Notice of
   Apparent Liability for Forfeiture, 21 FCC Rcd 13811, 13815 (Enf. Bur.,
   Spectrum Enf. Div. 2006) (same).

   See Forfeiture Order, 24 FCC Rcd at 11937-38.

   See id. (citing Letter from Mr. Robert Naginewicz to the FCC, dated
   December 31, 2005).

   See Forfeiture Order, 24 FCC Rcd at 11938.

   See Southern California, 6 FCC Rcd at 4388.

   See Petition at 6-7.

   The absence of interpretive court opinion does not diminish the vitality
   or applicability of the Commission's own precedents, and Saga has cited no
   authority demonstrating otherwise. To the contrary, under principles of
   administrative stare decisis, an agency is bound by its precedents, and
   has flexibility to depart from them only when it finds, and can adequately
   explain, sound reasons for doing so, which Saga has not offered. See,
   e.g., Atchison, Topeka & Santa Fe Railway v. Wichita Board of Trade, 412
   U.S. 800, 806-17 (1973) (citing, inter alia, SEC v. Chenery Corp., 332
   U.S. 194 (1947); Secretary of Agriculture v. United States, 347 U.S. 645,
   653-54 (1954); and Columbia Gas Transmission Corp. v. FERC, 628 F.2d 578,
   585-86 (D.C. Cir. 1979).

   See Petition at 3.

   See Sudbury Service, Inc., Licensee of Station KLCN(AM), Blytheville,
   Arkansas, Forfeiture Order, 23 FCC Rcd 11232, 11234 (Media Bur., Audio
   Div. 2008) (rejecting licensee's argument that its violations were not
   repeated where licensee had not properly maintained its public inspection
   file over a four-year period); Global Teldata II, LLC,  Order of
   Forfeiture, 22 FCC Rcd 8710, 8716-17 (2007) (rejecting licensee's argument
   that, under Section 503(b)(1)(B), an entity cannot be held liable for a
   continuing violation in a case involving the licensee's violations of
   several rules related to the Universal Service Fund ).

   See Forfeiture Order, 24 FCC Rcd at 11937.

   See 47 C.F.R. S: 1.106.

   See 47 C.F.R. S: 1.80.

   See 47 U.S.C. S: 504(a).

   (...continued from previous page)


   Federal Communications Commission DA 10-580


   Federal Communications Commission DA 10-580