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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No.: EB-11-IH-1374
CBS Radio Holdings, Inc. NAL/Acct. No.: 201232080027
Licensee of Station WBAV-FM, FRN: 0009225392
Gastonia, North Carolina )
Facility ID No.: 6587
Notice of apparent liability for forfeiture
Adopted: August 21, 2012 Released: August 21, 2012
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that CBS Radio Holdings, Inc. (CBS), licensee of commercial radio
station WBAV-FM, Gastonia, North Carolina (Station), apparently
willfully and repeatedly violated Section 73.1216 of the Commission's
rules by failing to conduct a contest substantially as announced or
advertised. Based upon our review of the facts, we find CBS apparently
liable for a monetary forfeiture in the amount of ten thousand dollars
2. The Commission received a complaint on September 13, 2011, alleging
that CBS failed to conduct its "Carolina Cuties" contest (Contest) in
accordance with its announced or advertised terms and the Commission's
rules. Specifically, the complainant alleges that CBS conducted a
Contest over the Station in which the Station invited each participant
to submit a picture of his or her baby to be posted to and voted on by
the public through the Station's website, in order to compete for a
grand prize. The complainant alleges that the Station sent an e-mail
to the complainant, and posted information on the Station's website,
that was false and misleading regarding the Contest's final voting
deadline. The complainant alleges that confusion resulting from this
incorrect information deterred public participation through voting and
unfairly compromised her child's chances of winning.
3. The Enforcement Bureau (Bureau) issued a letter of inquiry to CBS
regarding the complainant's allegations. CBS filed a response on April
26, 2012. In its response, CBS acknowledges that Station staff twice
posted erroneous information on the Station's website, and that it
sent e-mails to the Contest's ten finalists containing incorrect dates
for the voting deadline and the announcement of the Contest winner,
but denies the allegation that it did not conduct the Contest
substantially as announced or advertised.
4. According to CBS, the Station broadcast announcements stating that
Contest voting would conclude on September 5, 2011, and that the
Station would announce winners on September 6, 2011. CBS acknowledges,
however, that certain of the key dates that the Station subsequently
supplied to the public and to the Contest's finalists were
inconsistent with the key dates provided in the broadcast
announcements. CBS states that Station staff first posted such
inconsistent information on the Station's website on August 28, 2011.
Specifically, the website posting indicated that the Station would
announce the Contest's grand prize winner on September 4, 2011 (thus
indicating that voting would conclude as of that date). Similarly, on
August 28-29, 2011, Station staff sent e-mail messages to the Contest
finalists, stating that the Station would announce the grand prize
winner on September 4, 2011 (again indicating that voting would
conclude on that date). Later, on September 5, 2011, Station staff
again updated the Station's website, this time asserting that the
Contest concluded on September 4, 2011, and that the Station would
announce the grand prize winner on September 6, 2011. Notwithstanding
these acknowledgements, CBS maintains that the conduct at issue was
inadvertent and the result of its staff's failure to consult with more
knowledgeable colleagues or supervisory personnel. CBS also claims
that these errors were harmless in that they did not favor or disfavor
any of the finalists because CBS actually allowed voting to continue
until September 5, 2011, and that the Station broadcast announcements
to that effect throughout the time the Station conducted the Contest.
5. Under Section 503(b)(1) of the Communications Act of 1934, as amended
(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 and/or repeatedly violated the Act or a Commission rule. As
described in more detail below, we conclude under this procedure that
CBS is apparently liable for a monetary forfeiture for its apparent
willful and repeated violation of Section 73.1216.
A. CBS Failed to Conduct the Contest Substantially As Announced or
6. Under Section 73.1216 of the Commission's rules, a broadcast 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." Material terms, among other things, include the time and
means of selection of winners. Section 73.1216 further provides that
"[n]o contest description shall be false, misleading or deceptive with
respect to any material term."
7. We find that CBS failed to conduct the Contest substantially as
announced or advertised. According to the record, CBS conducted the
Contest over the Internet by requiring contestants to upload pictures
of their children on the Station's website and by requiring the
participating public to use the Station's website to vote to determine
the grand prize winner. On the same website, however, during the
course of the Contest, CBS staff misinformed the voting public and the
Contest's finalists about the dates when voting would conclude and
when the grand prize winner would be announced. On August 28, 2011,
and again on September 5, 2011, CBS staff posted incorrect information
indicating that voting would and did conclude on September 4, 2011.
Visiting the website to cast a vote was an essential part of the
conduct of the Contest. The public, therefore, necessarily viewed this
misinformation and may have reasonably believed that voting concluded
on September 4 rather than September 5, 2011, as described in the
broadcast announcement. Such misinformation may have caused
participant confusion and led some members of the public to cease
voting before the Contest actually ended. Indeed, based on the
Complaint, at least one Contest finalist saw the incorrect
information-both on the website and in e-mails sent by Station
staff-and expressed confusion about the information. Thus, CBS's
conduct in communicating with the public and contestants clearly
departed from what the broadcast announcements stated would occur in
terms of the dates of the voting deadline and the announcement of the
grand prize winner.
8. Therefore, although CBS's on air announcements technically covered the
Contest's material terms, CBS failed to conduct the Contest
substantially in accordance with those announcements, in violation of
the rule. The Station's website and e-mail announcements conflicted
with its broadcast announcements, thus confusing and misleading the
public with respect to how the contest would be conducted. We have
repeatedly held that any non-broadcast means used by a Station to
announce contest rules can only supplement, but not replace, the
obligation to broadcast a Contest's material terms. In this case, the
non-broadcast communications were a fundamental part of the Station's
conduct of the contest. Far from supplementing the broadcast
announcements, the Station's contradictory announcements undermined
the conduct of the Contest.
B. Employee Error, Inadvertence, and Alleged Lack of Harm
Do Not Excuse the Violation
9. CBS's attempts to mitigate or exculpate the Station's multiple errors
by blaming its staff and its staff's inadvertent actions do not
persuade us. Rather, we find that these excuses underscore the
Station's failure to adequately supervise the conduct of the Contest,
which is noteworthy given CBS's past violations of the Contest rule.
For example, CBS stresses that Station staff acted without consulting
supervisors regarding the incorrect website postings and e-mails. It
is well-established that a licensee is responsible for its employee's
actions. Consequently, this argument does not preclude us from finding
a violation nor mitigate the conduct here, but instead acknowledges
that the Station management failed to exercise effective oversight of
the Contest. CBS also attempts to justify the Station's violation by
arguing that its staff's errors were inadvertent. Here, too, the
inadvertence argument merely emphasizes the lack of supervision and
does not prevent the violation from being willful, nor prevent us from
finding CBS liable for the violation.
10. CBS also suggests that its staff's errors in conducting the Contest
did not favor or disfavor any one contestant over another, and that
the lack of harm requires that we determine that its conduct conforms
to Commission standards. The Commission has held, however, that "proof
of actual injury to the public" is not a necessary component when
determining a violation of Section 73.1216. Moreover, contrary to
CBS's assertions, the Station caused actual as well as potential harm
to the public. As discussed above, at least one contestant (i.e., the
complainant), alleged that her child's participation in the contest
was harmed as a direct result of the conflict between the terms as
broadcast and the terms as posted on the Station's website, as well as
included in e-mails it sent directly to the contestants. Additionally,
the public, which used the website to vote on pictures entered as part
of the Contest, would certainly have encountered the erroneous website
postings. Thus, although a finding of harm is not required to assess a
forfeiture in this case, we find that CBS's conduct misled both the
public and at least one contestant with respect to a key element of
the operation of the Contest.
C. Forfeiture Amount
11. Based on the evidence before us, and in view of the applicable law and
Commission precedent, we find that CBS apparently willfully and
repeatedly violated Section 73.1216 of the Commission's rules. The
Commission's Forfeiture Policy Statement and Section 1.80 of the
Commission's rules specify a base forfeiture amount of four thousand
dollars ($4,000) for each 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 and
Section 1.80 of the Commission's rules, 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. We believe that the base amount is inadequate in this case
due to the repeated nature of the violation here and the licensee's
previous violations of the same rule. It appears that the forfeiture
amounts assessed against CBS stations previously have not had a
sufficient deterrent effect. Thus, where, as here, a case presents a
violation comparable to past violations, it appears necessary to
upwardly adjust the base forfeiture amount to strengthen the deterrent
effect. In this context, we also must take into account that CBS is a
large company with substantial revenues.
12. After considering all the foregoing factors, and given the particular
facts of this case, we find that CBS is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000). In view of
today's action, and in light of CBS's prior history of non-compliance,
we caution that the imposition of still higher forfeitures may result
in the future if such misconduct persists.
II. ORDERING CLAUSES
13. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.204, 0.311, and 1.80 of the Commission's rules, that
CBS Radio Holdings, Inc. is hereby NOTIFIED of its APPARENT LIABILITY
FOR FORFEITURE in the amount of ten thousand dollars ($10,000) for
apparently willfully and repeatedly violating Section 73.1216 of the
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 NAL, CBS
Radio Holdings, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
15. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. CBS Radio Holdings, Inc. shall send
electronic notification of payment to Jeffrey.Gee@fcc.gov,
Anjali.Singh@fcc.gov, and Gary.Oshinsky@fcc.gov, on the date said
payment is made. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must be submitted. When completing the
FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
16. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
17. The response, if any, must be mailed to Theresa Z. Cavanaugh, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, SW, Room 4-C330,
Washington, D.C. 20554, and SHALL INCLUDE the NAL/Acct. number
referenced above. In addition, to the extent practicable, a copy of
the response, if any, should also be transmitted via e-mail to
Terry.Cavanaugh@fcc.gov, Jeffrey.Gee@fcc.gov, Anjali.Singh@fcc.gov,
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
19. 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.
20. IT IS FURTHER ORDERED that a copy of this NAL shall be sent by First
Class Mail and by Certified Mail, Return Receipt Requested, to Anne
Lucey, Senior Vice President for Regulatory Policy, CBS Corporation,
601 Pennsylvania Avenue, NW, Suite 540, Washington, DC 20004; and to
Peter M. Gould, Esquire, Lerman Senter PLLC, 2000 K Street, NW, Suite
600, Washington DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Theresa Z. Cavanaugh
Chief, Investigations and Hearings Division
47 C.F.R. S: 73.1216.
See Complaint from Yolanda Harris to Federal Communications Commission,
Form 2000A, No. 11-C00331766-1, at 1 (Sept. 13, 2011) (on file in
See Letter from Anjali K. Singh, Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
to CBS Radio Holdings, Inc. (Mar. 13, 2012) (on file in EB-11-IH-1374).
See Letter from Peter M. Gould, Counsel to CBS Radio Holdings, Inc., to
Gary A. Oshinsky, Attorney Advisor, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission (Apr. 26, 2012) (on
file in EB-11-IH-1374) (CBS April 26 Letter).
See id. at 3-4.
See id. at 4.
See id. at 3.
See id. at 4.
See id. at 4, Attach. 6 (including various e-mails between Station staff
and Contest finalists).
See id. at 4.
See id. at 4-5.
47 U.S.C. S: 503(b)(1)(B). See also 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, para. 5 (1991).
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para.
10 (2001) (Callais Cablevision, Inc.) (issuing a Notice of Apparent
Liability for, inter alia, a cable television operator's repeated signal
Southern California Broadcasting Co., 6 FCC Rcd at 4388, para. 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, para. 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, para. 4 (2002) (forfeiture paid).
47 C.F.R. S: 73.1216.
Id., Notes 1(b), 2.
47 C.F.R. S: 73.1216.
See, e.g., CBS April 26 Letter at Attachs. 1-2 (containing descriptions of
the Contest's material terms, which required online participation from
contestants, such as through announcements like "Log on to V1019.com and
upload your Carolina Cuties photo" and " . . . log on to V1019.com and
vote for your favorite cutie . . . ").
See id. at 3-4, Attach. 6.
See id. at 4.
See id. at 4, Attach. 6; Complaint at 1.
See, e.g., AK Media Group, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 7541, 7543, para. 7 (Enf. Bur. 2000) (holding that
while non-broadcast disclosures can supplement broadcast announcements,
they cannot act as a substitute for broadcast announcements). We have,
however, commented on the sufficiency of Internet materials that licensees
purport to use as a substitute for, or as a supplement to, broadcast
announcements of material terms that can be both "misleading and
deceptive" and result in "participant confusion," preventing listeners
from meaningful participation in a contest. See AMFM Broadcasting
Licenses, LLC, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd
1529, 1532, para. 9 (Enf. Bur. 2009) (finding broadcast announcements and
website rules were insufficient to inform the public of the contest's
material terms); see also Journal Broadcast Corporation, Notice of
Apparent Liability for Forfeiture, 25 FCC Rcd 2797, 2799, para. 6 (Enf.
Bur. 2010) (same); Clear Channel Communications, Inc., Notice of Apparent
Liability for Forfeiture, 27 FCC Rcd 343, 345-46, paras. 6-7 (Enf. Bur.
2012) (finding contest rules that are posted only on the station's website
were insufficient to meet the contest rule's requirements concerning
broadcast of material terms; and also finding the substance of the online
rules to be deficient in communicating material terms to the public);
infra note 41 (regarding misleading or deceptive matter under Section
See CBS April 26 Letter at 4-5.
See CBS Radio Inc. of Philadelphia, Order, 24 FCC Rcd 12047, 12051, para.
14 (Enf. Bur. 2009) (containing CBS's admission of liability for violating
the contest rule in the underlying investigation); CBS, Inc., Letter, 9
FCC Rcd 705 (Mass Media Bur. 1994) (imposing a $5,000 forfeiture for
failure to disclose the material terms of a contest in a reasonable number
See CBS April 26 Letter at 3-4.
See, e.g., Nationwide Communications Inc., Notice of Apparent Liability
for Forfeiture, 9 FCC Rcd 175 (Mass Med. Bur. 1994) (licensee held liable
for a contest violation despite staff's error in violative conduct); Triad
Broadcasting Company, Inc., Memorandum Opinion and Order, 96 F.C.C.2d
1235, 1242, para. 16 (1984) (holding that "[a] licensee will not be
excused for violation because he may have been deceived by an employee
since licensees are responsible for acts of their employees").
See CBS April 26 Letter at 4-5.
See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 17
FCC Rcd 2088, 2089, para. 5 (1992) ("The fact that a licensee's violation
occurred through inadvertence does not prevent it from being willful.");
see also Corr Wireless Communications LLC, Notice of Apparent Liability
for Forfeiture, 24 FCC Rcd 5419, 5421, para. 7 (Enf. Bur. 2009) ("[T]he
Commission has long held that a downward adjustment of a forfeiture is not
justified where violators claim their actions or omissions were due to
See CBS April 26 Letter at 5.
See WMJX, Inc., Decision, 85 FCC 2d 251, 269, para. 31 (1981) (stating
that "a tendency to mislead the public" is enough for a contest
description to constitute false, misleading or deceptive matter under
See Complaint at 1; supra note 40.
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(b)(4).
See supra note 35.
See, e.g., Acme Television Licenses of Ohio, LLC, 25 FCC Rcd 6145, 6148,
para. 11 (2010) (increased forfeiture amount justified by "numerous
violations" such that "[it] appears that the forfeiture amounts assessed
previously have not had a sufficient deterrent effect").
In 2011, CBS Corporation, the licensee's parent company, and its
consolidated subsidiaries had revenues of over $14.245 billion. See United
States Securities and Exchange Commission Form 10-K, Annual Report, CBS
Corporation (2011) at II-3
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S:S: 0.111, 0.204, 0.311, and 1.80.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
For purposes of the forfeiture proceeding initiated by this NAL, CBS Radio
Holdings, Inc. shall be the only party to this proceeding.
(Continued from previous page)
Federal Communications Commission DA 12-1368
Federal Communications Commission DA 12-1368