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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Journal Broadcast Corporation Licensee of Station
KJOT(FM), Boise, Idaho ) ) ) ) ) ) ) File No. EB-08-IH-5307 FRN:
0002710192 NAL/Acct. No. 201032080021 Facility ID No. 6329
Adopted: March 8, 2013 Released: March 8, 2013
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Forfeiture Order, we assess a monetary forfeiture in the
amount of four thousand dollars ($4,000) against Journal Broadcast
Corporation (Journal), licensee of Station KJOT(FM), Boise, Idaho
(Station), for willfully and repeatedly violating Section 73.1216 of
the Commission's rules by broadcasting information about a contest
without fully and accurately disclosing all of its material terms.^
2. As discussed in more detail in the Notice of Apparent Liability for
Forfeiture (NAL) issued in this case,^ the Commission received a
complaint (Complaint) on May 5, 2008, alleging that the Station failed
to conduct the "complete garage makeover" contest in accordance with
its advertised terms and the Commission's rules.^ Specifically, the
complainant alleged that the Station did not advertise that it would
award all contest prizes to a single individual.^ The complainant also
criticized the selection process and claimed that the contest was
3. On April 17, 2009, the Enforcement Bureau (Bureau) sent a letter of
inquiry (LOI) to Journal regarding the contest.^ In its response,
Journal acknowledged that it conducted the "Ultimate Garage" contest
(Contest) in April 2008.^ Journal stated that it promoted the Contest
using "live-read" and recorded broadcast announcements.^ Journal noted
that, as a "standard practice," it would refer to the Station's
website in its live-read announcements.^ Journal represented that the
Station's website contained the official Contest rules.^ The website
rules referred to single and multiple prize "winners."^
4. In view of the evidence in this case, including Journal's admissions,
the Bureau issued the NAL that proposed a forfeiture of four thousand
dollar ($4,000).^ The NAL found that "Journal failed to fully and
accurately disclose all material terms" of the Contest, and, in
particular, its single-winner nature and how the winner would be
selected.^ The NAL also noted that Journal failed to fully disclose
the prizes being awarded or their values.^ In its response, Journal
requests that the proposed forfeiture be cancelled or reduced to an
admonishment.^ Journal claims that the name of the Contest itself,
"Ultimate Garage," clearly disclosed that there would be a single
winner.^ In addition, Journal asserts that two of its ten recorded
broadcast announcements included disclosures of the winner-take-all
nature of the Contest.^ It also claims that the Station disclosed how
a winner would be selected when it advertised that listeners had to
"qualify" for the Contest.^ It further claims that other selection
criteria were immaterial.^ We reject these arguments, as discussed
5. Under Section 73.1216 of the Commission's rules, 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."^
Material terms, among other things, include the time and means of
selection of winners and the extent, nature, and value of prizes.^
Generally speaking, the time and manner of disclosure of the material
terms are within a licensee's discretion, as recognized by Journal in
its NAL Response.^ However, that discretion is not unfettered.^
Rather, a licensee is obligated to disclose material terms "at the
time the audience is first told how to enter or participate."^
Moreover, this obligation "continues" and "material terms should be
disclosed periodically by announcements broadcast on the station
conducting the contest."^
A. Journal Failed to Fully and Accurately Disclose When a Winner Would Be
6. Neither the live-read announcements nor the recorded promotions
disclosed when the winner would be selected.^ Thus this material term
was never broadcast. The website rules referenced in the live-read
announcements imply that winner(s) would be selected on April 26,
2008.^ However, we repeatedly have 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."^
Because no broadcast promotion disclosed when a winner would be
selected, Journal violated Section 73.1216.^
B. Journal Failed to Fully and Accurately Disclose How a Winner Would Be
7. Neither the live-read announcements nor the recorded promotions
disclosed the means of selection of winners.^ We reject Journal's
claim that by announcing that listeners had to "qualify," the Station
properly disclosed how a winner would be selected.^ Merely telling
listeners that they had to qualify for the Contest told them nothing
about the two-hour, multi-step elimination process in which they would
be required to participate (even after qualifying) in order to have a
chance at winning.^ Briefly, after the 105 qualifying contestants were
assembled on the day of the event, each pulled a numbered toy from a
bucket; the number corresponded to a "qualifier bag" that the Station
then distributed to each contestant.^ ^ The Station next winnowed the
contestants to ten by eliminating those whose bags did not contain
certain specific items.^ The ten finalists' bags contained a key code,
and whoever's key code unlocked the garage door won all prizes.^ None
of Journal's broadcast promotions disclosed that contestants would
need to participate in this lengthy process; nor did they disclose any
part of this process, in violation of Section 73.1216.
8. Journal argues that Section 73.1216 grants licensees "broad
discretion" in "determining which terms must be disclosed as
material."^ We disagree. Section 73.1216 states that licensees "shall
fully and accurately disclose the material terms of the contest."^
Failure to do so violates Section 73.1216. Licensees have no
discretion to completely withhold material terms from disclosure.^ We
also reject Journal's claim that the only material term here was
telling listeners that they had to "qualify" to win.^ Although
material terms may vary based on the nature of a contest,^ Section
73.1216 is clear that the "means of selection of winners" is generally
considered a "material term."^ In this case, the facts do not warrant
departing from that general assessment, particularly given the length
and complexity of the selection process used in the Contest.
Therefore, we affirm our NAL finding that Journal violated Section
73.1216 by failing to disclose how a winner would be selected.
C. Journal Failed to Appropriately Disclose the Single-Winner Nature of
9. Journal was required to disclose the single-winner nature of the
Contest when it first disclosed how listeners could enter or
participate in the Contest.^ Journal first disclosed how listeners
could enter or participate in the Contest in a live-read announcement,
which explained how listeners could "qualify" for the Contest.^ That
announcement also referenced the Station's website,^ which contained
supplemental qualification information.^ However, the live-read
announcement failed to disclose that the Contest would award all of
the prizes to a single winner. Thus, Journal failed to announce the
single winner nature of the Contest at the time the audience was first
told how to enter or participate, in violation of Section 73.1216.
10. We recognize that Bob Rosenthal, General Manager of the Station, has
stated under penalty of perjury (in a declaration attached to
Journal's NAL Response) that the recorded promotions were broadcast
throughout the contest period.^ Journal argues that this "evidenc[es]
that the Station affirmatively broadcast disclosure of the single
winner material term."^ We agree. However, neither Journal nor
Rosenthal has shown that the Station broadcast any announcement
disclosing the single-winner nature of the Contest when it first told
the audience how to enter or participate in the Contest.
11. In addition, only two of the recorded promotions disclosed the single
winner aspect of the contest. Even if we credit Journal with
broadcasting those recorded announcements on a few occasions over the
four week Contest period, we cannot find that Journal "periodically"
broadcast this material term as required by Section 73.1216.^ We note
that Journal previously admitted that "[t]he Station's records . . .
do not reflect which recorded announcement was broadcast at which
time."^ Moreover, the live-read announcements, which were read
multiple times during each of the four daily shifts, wholly failed to
disclose the single-winner format.^ Indeed, the live-read
announcements referred listeners to the Station's website, where the
alleged "Official" Contest rules disclosed that there would be
multiple winners.^ We therefore affirm the finding in the NAL that
Journal violated Section 73.1216 by failing to initially or
periodically disclose the single-winner aspect of the Contest.
12. We find no merit in Journal's claim that the contest name, "Ultimate
Garage," clearly disclosed that there would be a single winner.^
Journal cites no precedent in support of its position. It also fails
to cite any direct evidence showing that any listener or contestant
equated "Ultimate Garage" with "single winner," let alone evidence
sufficient to warrant a finding that the Contest name inherently
disclosed a single winner. We note that two contestants (the
complainant and her son) were confused,^ which weakens Journal's claim
that the single-winner nature of the Contest was "baked into" its
name.^ Moreover, the website rules refer to both single and multiple
winners,^ and appear more strongly to disclose that there would be
multiple winners,^ which underscores the lack of clarity on this
D. Journal Failed to Fully and Accurately Disclose the Nature, Extent, and
Value of Prizes
13. The Station awarded the following prizes to the winner:
A 2001 Honda Civic
A set of tires and wheels for the Honda Civic
Tinting and Customizing for the Honda Civic
A $500.00 gift card from R.C. Willey
A $500.00 gift certificate from Stor Mor Sheds
Custom Garage Cabinets
A Honda CRF-50 dirt bike
A stair stepper
A Traeger wood pellet grill
A 15 drawer tool chest
A toolbox shaped refrigerator and beer
A Nintendo Wii system and 6 games
A one-night stay from Anniversary Inn^
However, Journal failed to fully and accurately disclose in its broadcast
promotions the nature, extent, and value of these prizes. Each of
Journal's recorded promotions referenced only a few select prizes,^ and
the live-read announcement only (and vaguely) referenced "cool stuff from
Larry Miller Honda and Mountain Dew."^ In its LOI Response, Journal
claimed that the "Contest's . . . prizes . . . were posted on the
Station's website."^ However, the website screenshots that Journal cited
in support of its position do not list the prizes.^
14. In addition, to the extent we credit Journal with broadcasting all
recorded promotions during the Contest period,^ we can reasonably
infer that the Station promoted it would give away a "Honda Accord
from Larry Miller Honda...Pimped Out by Sun Busters and Big-O Tires"
as well as a "Honda Civic from Larry Miller Honda."^ Yet the Station
only awarded a Honda Civic, which generally is a less expensive car
than a Honda Accord. Moreover, the Civic was more than six years old
at the time of the Contest. ^ ^ No broadcast promotion disclosed that
the Station was giving away used or older model car(s), was giving
away only a single car, or was substituting a lower tier model (the
Civic) for the higher tier model (the Accord).^ These failures violate
Section 73.1216.^ We note that the website rules state that the
Station "may, due to the unavailability of prizes awarded, substitute
another prize of equal or greater value."^ However, online disclosure
of contest terms does not substitute for broadcast announcements of
such terms.^ In any event, the instant record does not demonstrate
that the 2001 Civic in question was equal or greater value to a
"Pimped Out" Accord, and no prize of equal or greater value was
substituted for the missing Accord.
15. Journal claims that it structured the Contest to provide the winner
with a variety of prizes that would result in that individual
"possessing" the "Ultimate Garage."^ However, the phrase "Ultimate
Garage" provides no information about the actual prizes being awarded.
We note that some of the prizes (for example, a one-night stay from
Anniversary Inn) ^ are not consistent with the alleged "Ultimate
Garage" contest theme. We also note that the winner was not awarded an
actual garage, but a $500.00 gift certificate from Stor Mor Sheds,
which begs the question (unanswered on the record before us) whether
the garage itself was a prize, and if so, whether the $500.00 gift
certificate reflected the value of the actual garage structure. We
therefore find that Journal failed to fully and accurately disclose
the nature, extent, and value of the Contest prizes, in violation of
E. Proof of Actual Listener Injury Is Not Required to Sustain a Forfeiture
16. Journal claims that the NAL improperly relied on announcements made at
the giveaway event, as opposed to broadcast announcements, as a basis
for finding Journal apparently liable. We disagree. The NAL found that
Journal violated Section 73.1216 because it failed to disclose
material terms in its broadcast promotions, errors that were
exacerbated by Journal's web-based contest rules.^ We also reject
Journal's contention that the Complaint only focused on off-air
conduct. The Complaint explains that the complainant's son apparently
"never heard" the "winner-take-all theme" that Journal's General
Manager claimed had been advertised on the station.^ Journal appears
to concede that the Complainant's son (who had pre-qualified for the
event) was a Station listener.^ It therefore seems reasonable to
interpret the "never heard" phrase in the Complaint as follows: the
son was a Station listener that never heard any information (including
in any broadcast promotion) disclosing there would be a single winner.
In other words, insofar as the Complainant's son was a listener
allegedly harmed by Journal's failure to disclose material terms of
the Contest, the Complaint itself evidences actual listener harm.
17. Yet we need not find that the Complaint evidences listener harm to
take action and impose a forfeiture. Journal's on-air promotion of the
Contest provides sufficient grounds for the Bureau to take action.^
Moreover, "proof of actual injury to the public" is not a necessary
component when determining a violation of Section 73.1216.^ As shown
above, Journal failed to broadcast accurate statements concerning the
nature and value of contest prizes, the time and means of selection of
winners, and the winner-take-all format of the Contest. This had the
tendency to mislead the public about key elements of the operation of
the Contest.^ In addition, Journal's live-read announcements referred
to the Station's website, so it is reasonable to infer that at least a
portion of the listening public would have encountered the erroneous
website information disclosing "multiple" winners.^
F. Forfeiture Amount
18. Based on the evidence before us, and in view of the applicable law and
Commission precedent, we find that Journal willfully and repeatedly
violated Section 73.1216 of the Commission's rules and assess a
monetary forfeiture in the amount of four thousand dollars ($4,000).
The 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 above, we have examined Journal's response to
the NAL pursuant to the aforementioned statutory factors, our rules,
and our Forfeiture Policy Statement, and find insufficient basis for
19. Journal argues that its conduct, at most, warrants an admonishment. In
support, Journal cites the Mass Media Bureau's admonishment in Kevin
Cooney.^ The Mass Media Bureau's judgment as to the appropriate
sanction in that case, however, is not binding precedent and does not
prevent the Bureau from imposing a forfeiture here.^ The Bureau has
broad discretion to consider a variety of factors in determining an
amount of forfeiture, if appropriate, when faced with a violation of
Commission rules.^ As set forth in the NAL, the various factors
applicable in proposing the forfeiture were duly considered in this
20. In any event, we disagree that the circumstances of this case warrant
the result in Kevin Cooney, which involved more minor violations and
justified a different result. In Kevin Cooney, the complainant
misunderstood the contest term "enter as often as you like."^
According to the licensee in that case, the term contemplated
participation in various segments of the contest at issue, but
actually prohibited duplicate entries (like the complainant's) from
the same listener for the same music segment. The Mass Media Bureau
determined that this exclusion, which could have been reasonably
misunderstood, was a material term of the contest that should have
been announced by the Station. It then determined that the overall
circumstances of the case, which included consideration of the
Station's offer to compensate the complainant and to take steps to
assure accuracy in its contests, warranted an admonition.^ The
circumstances of the violations in the instant case, however, justify
a forfeiture. Here, Journal failed to broadcast virtually any Contest
term, and, in particular, failed to disclose there would only be a
single winner, when and how that winner would be selected, and the
nature, extent, and value of prizes. In contrast, in Kevin Cooney, the
Station did announce material terms, except that one term was open to
various interpretations, which the Mass Media Bureau determined should
have been better defined.^
21. The Bureau's decision in this case is consistent with recent decisions
concerning Section 73.1216. For example, in Entercom the Bureau
entered a $4,000 forfeiture based on a licensee's failure to conduct a
contest as announced, even where (unlike Journal) the Station
rectified the error with the complainant and assured the FCC it had
taken steps to ensure that the mistake at issue would not occur in the
future.^ Accordingly, as a result of our review of Journal's response
to the NAL, and in view of the statutory factors and the Forfeiture
Policy Statement, we affirm the NAL and issue a forfeiture in the
amount of $4,000.^
IV. ORDERING CLAUSES
22. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended,^ Section 1.80 of the
Commission's rules,^ and authority delegated by Sections 0.111, 0.204,
and 0.311 of the Commission's rules,^ Journal Broadcasting Corporation
IS LIABLE FOR A MONETARY FORFEITURE in the amount of four thousand
dollars ($4,000) for repeated and willful violations of Section
73.1216 of the Commission's rules.^
23. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules by close of business on or before ten days
after the date of the entry of this Order.^ If the forfeiture is not
paid within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Journal Broadcasting Corporation shall
send electronic notification of payment to Evan Parke at
Evan.Parke@fcc.gov, Kenneth M. Scheibel, Jr. at
Kenneth.Scheibel@fcc.gov, and Jeffrey J. Gee at Jeffrey.Gee@fcc.gov on
the date said payment is made.
24. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and
FRN referenced above. 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.
25. 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.
26. IT IS FURTHER ORDERED, that a copy of this FORFEITURE ORDER shall be
sent by First Class Mail and Certified Mail, Return Receipt Requested,
to the Licensee at its address of record, and to its counsel John W.
Bagwell, Esq., and Sally A. Buckman, Esq., Lerman Senter PLLC, 2000 K
Street, NW, Suite 600, Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Theresa Z. Cavanaugh
Chief, Investigations and Hearings Division
^ 47 C.F.R. S 73.1216.
^ See Journal Broadcast Corporation, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 2797 (Enf. Bur. 2010) (NAL).
^ See Letter from complainant to Federal Communications Commission (April
29, 2008) (on file in EB-08-IH-5307) (Complaint). The complainant did not
authorize release of personal information so the complainant's name shall
^ See Complaint at 2.
^ Id. The NAL found that there was insufficient evidence to conclude that
the Station pre-determined the winner. NAL, 25 FCC Rcd at 2802, para. 11.
^ See Letter from Rebecca Hirselj, Assistant Chief, Investigations and
Hearings Division, FCC Enforcement Bureau, to Journal Broadcasting
Corporation (April 17, 2009) (on file in EB-08-IH-5307).
^ See Letter from Sally Buckman and John Bagwell, counsel for Journal
Broadcast Corporation, to Dana Leavitt, Investigations and Hearings
Division, FCC Enforcement Bureau, at 1 (May 18, 2009) (on file in
EB-08-IH-5307) (LOI Response).
^ Id. at 2, 4.
^ See id. at 4 ("it is the Station's standard practice for live-read
announcements to include a statement that listeners can visit the
Station's website where full contest rules are available" and "[the]
live-read announcements... included referrals to the station's website
where listeners could obtain the full Contest rules"); see also id. at Ex.
2 (transcript of representative live-read announcement).
^ See id.; see also id. at Ex. 3 (screenshot of website rules stating, at
the top of the rules section, "Official Rules KJOT Ultimate Garage Contest
Rules THE FOLLOWING ARE CONTEST RULES FOR the J015 Ultimate Garage
^ See id. at Ex. 3, paras. 3 (referring to multiple winners), 6 (referring
to single and multiple winners), 8-9 (referring to a single winner). See
also infra note 56 (explaining why the website rules more strongly
indicate there would be multiple winners, as opposed to a single winner).
^ See NAL, 25 FCC Rcd at 2801-2, paras. 9-12.
^ Id. at 2801-2, paras. 9-10.
^ Id. at 2799 and 2801, paras. 6 ("The [website] Rules also do not list
the prizes to be awarded, or their value.") and 9 (noting that several of
the Station's recorded promotions vary in content and only mention certain
^ See Letter from John W. Bagwell, Esq., and Sally A. Buckman, Esq.,
counsel for Journal Broadcast Corporation, to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, FCC Enforcement Bureau, at 8 (April
23, 2010) (on file in EB-08-IH-5307) (NAL Response).
^ Id. at 4-5.
^ Id. at 7-8.
^ 47 C.F.R. S 73.1216.
^ Id., Note 1(b).
^ NAL Response at 3. See also 47 C.F.R. S 73.1216, Note 2 ("In general,
the time and manner of disclosure of the material terms of a contest are
within the licensee's discretion."); Multicultural Radio Broadcasting
Licensee, LLC, Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
21555, 21558, para. 7 (Enf. Bur. 2007).
^ See Good Karma Broadcasting, LLC, Forfeiture Order, 27 FCC Rcd 10938,
10943, para. 11 (Enf. Bur. 2012) (rejecting claim that it was within
licensee's discretion to withhold broadcasting information about certain
contest prizes that the licensee believed were not worthy of disclosure)
(forfeiture paid); cf. Multicultural Radio Broadcasting Licensee, LLC, 22
FCC Rcd at 21559, para. 10 (holding that the licensee violated Section
73.1216 by failing to disclose that employees were ineligible to
participate in a contest, rejecting the licensee's argument that
disclosure was unnecessary because employees were expected to know they
^ 47 C.F.R. S 73.1216, Note 2 ("the obligation to disclose the material
terms arises at the time the audience is first told how to enter or
participate and continues thereafter"). See also Kiro, Inc., Letter, 5 FCC
Rcd 7105 (Mass Media Bur. 1990) (holding that the station violated Section
73.1216 where contest term was not announced at the outset of the contest
or in a reasonable number of announcements thereafter).
^ 47 C.F.R. S 73.1216, Note 2 ("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."). See also Good Karma, 27 FCC Rcd at 10942,
para. 9 (holding that the station violated Section 73.1216 by failing to
broadcast with sufficient frequency announcements disclosing material
^ See LOI Response at Ex. 1 (recorded promotions), Ex. 2 (representative
^ In particular, the website rules state that Contest qualifiers "must
appear on April 26^th, 2008, at Stor More [sic] Sheds," "must check in by
3pm,"and "must be present to win." See id. at Ex. 3.
^ CBS Radio Holdings, Inc., Notice of Apparent Liability for Forfeiture,
27 FCC Rcd 10099, 10102, para. 8 (Enf. Bur. 2012) (response pending); see
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); 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; also finding the
substance of the online rules to be deficient in communicating material
terms to the public).
^ 47 C.F.R. S 73.1216. See also AMFM Broadcasting Licenses, LLC, Notice
of Apparent Liability for Forfeiture, 24 FCC Rcd 1529, 1533, para. 9 (Enf.
Bur. 2009) (holding that station violated Section 73.1216 by failing to
properly disclose when the drawing would take place, among other material
^ See LOI Response at Ex. 1 (recorded promotions), Ex. 2 (representative
^ NAL Response at 7.
^ Complaint at 2 (stating that there was a "2-1/2 hours [sic] wait" before
a winner was selected).
^ See NAL, 25 FCC Rcd at 2797-98, para. 3 (describing selection process).
^ NAL Response at 3.
^ 47 C.F.R. S 73.1216.
^ See supra note 23 (citing relevant cases).
^ NAL Response at 7.
^ 47 C.F.R. S 73.1216, Note 1(b).
^ 47 C.F.R. S 73.1216, Note 2 (stating that "the obligation to disclose
the material terms arises at the time the audience is first told how to
enter or participate"). Cf. Access 1 New Jersey Licensing Co., 22 FCC Rcd
at 4235 (holding that station violated Section 73.1216 when it changed a
rule governing the operation of the contest).
^ See LOI Response at 2 (explaining that it was the Station's practice to
initiate live-read announcements prior to, or on the same date as, the
recorded announcements); id. at Ex. 2 (representative live-read
^ See LOI Response at Ex. 3 (stating "[o]nly one qualifier or winner per
family and per household is permitted," that "[q]ualifiers will be chosen
at random," and that the "Contest can be entered at specified sponsor
locations, or via on-air contesting").
^ See AK Media Group, Inc., 15 FCC Rcd at 7543, para. 7 (holding that
while non-broadcast disclosures can supplement broadcast announcements,
they cannot act as a substitute for broadcast announcements).
^ NAL Response, Declaration of Bob Rosenthal (Rosenthal NAL Response
^ NAL Response at 4.
^ See supra note 42; see also Isothermal Community College, Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 23932, 23933-34, paras. 4-6
(Enf. Bur. 2003) (holding that the station violated Section 73.1216 for
failing to regularly broadcast announcements disclosing the contest's
rules; rejecting argument that there was no need to periodically broadcast
"simple" contest rules); cf. Arnold, Notice of Apparent Liability for
Forfeiture, 8 FCC Rcd 41 (Mass Media Bur. 1992) (noting that the station's
records failed to show that the contest prize was ever awarded, holding
that the station violated Section 73.1216 by failing to conduct the
contest substantially as advertised).
^ See LOI Response at 2; see also Good Karma, 27 FCC Rcd at 10942, para. 9
(holding that the station violated Section 73.1216 by failing to broadcast
with sufficient frequency announcements disclosing material terms).
^ See LOI Response at 2-4.
^ See infra note 56.
^ See NAL Response at 5 (arguing that the "contest name, the `Ultimate
Garage,' inherently states that the contest winner was to receive a single
^ Journal represented in its LOI Response that promotions used at the
giveaway event "emphasized" that it was the "Ultimate Garage" contest. See
LOI Response at 7. Yet the complainant and her son, both of whom were
contestants, nevertheless were confused about the number of winners.
^ See NAL Response at 8.
^ See AMFM Broadcasting Licenses, LLC, 24 FCC Rcd at 1533, para. 9
(holding that broadcast announcements and website rules failed to inform
the public of the contest's material terms). 
^ See LOI Response at Ex. 3, paras. 2-3, 6, 8-9. In particular, paragraph
2 states that there can only be one "winner" per family; paragraph 3
refers to multiple "winners"; and paragraph 6 begins with "winners" and
uses the term near the end of that paragraph, which implies that the use
of "winner" in the middle of that paragraph is a reference to individual
winners of certain prizes. See id. In light of the foregoing, one
reasonably could infer that "winner" found in later paragraphs is
referring to specific winners of different prizes. See id.
^ Id. at 5.
^ Id. at Ex. 1. The ten recorded promotions, collectively, identify the
following specific prizes that would be awarded: "a Honda Accord . . .
[p]imped-out by Sun Busters and Big-O Tires," a Honda Civic, a Nintendo
Wii, a Traeger grill, and a toolbox refrigerator from Budweiser. The ten
recorded promotions, collectively, also state or imply that the Ultimate
Garage would contain other products provided by Carl's Cycle, Treasure
Valley Echo Dealers, Total Garage, Idaho Athletic Club, and Stor Mor
Sheds; however, the promotions do not further specify the Contest prizes
being provided by these entities. Id.; see also NAL, 25 FCC Rcd at 2798,
para. 4, n.18 (discussing prizes disclosed by recorded promotions).
^ See LOI Response at Ex. 2 (representative live-read announcement).
^ See id. at 4 ("In addition to the material terms contained in the on-air
announcements broadcast by the station, the Contest's rules, prizes and
sponsors, and the locations of enter-to-qualify drop-boxes were posted on
the Station's website. See Exhibit 3.").
^ See id. at Ex. 3.
^ See NAL Response, Rosenthal NAL Response Declaration at para. 2 ("The
recorded promotional announcements submitted by Journal regarding the 2008
KJOT(FM) Ultimate Garage contest were broadcast throughout the period in
which that contest was conducted by KJOT(FM).").
^ LOI Response at Ex. 1.
^ See Stoner Broadcasting System, Inc., Memorandum Opinion and Order, 7
FCC Rcd 3574, para. 2 (Mass Media Bur. 1992) (finding that forfeiture was
appropriate where "broadcast promotions...appeared to indicate that
$100,000 worth of automobiles would be given away as prizes, when in fact
the prize was one car worth substantially less than that amount").
^ See id.; see also Good Karma, 27 FCC Rcd at 10943, para. 12 ("By
announcing one prize and awarding another without any broadcast notice
that such a substitution might occur, Good Karma failed to adequately
announce the nature of the prize and failed to conduct the contest as
^ See Good Karma, 27 FCC Rcd at 10942-43, paras. 10-12.
^ LOI Response at Ex. 3, para. 10.
^ See Good Karma, 27 FCC Rcd at 10943, para. 13.
^ LOI Response at 2.
^ See Good Karma, 27 FCC Rcd at 10942-43, paras. 10-11.
^ See NAL at paras. 9 (finding that Journal failed to disclose there would
be a single winner in its broadcast promotions, errors that were
"replicated in its web-based Rules") and 10 (holding that "neither the
live-read nor the recorded promotional announcements mention the Drawing
or disclose how the winner would be selected," and that "[t]his
deficiency" was "exacerbated by the same omission in the Station's
^ Complaint at 2 (explaining that the General Manager told complainant "a
`winner take all' theme was advertised on the station," but complainant's
"son never heard that . . . .").
^ See NAL Response at 7 ("other attendees, could have, like the
Complainant, been attending the event with Station listeners who had
pre-qualified" (emphasis added)).
^ See AMFM Broadcasting Licenses, LLC, 24 FCC Rcd at 1532, para. 8
(explaining that the contest rule applies to all contests conducted by the
licensee and broadcast to the public (citing Amendment of Part 73 of the
Commission's Rules Relating to Licensee-Conducted Contests, Notice of
Proposed Rulemaking, 53 FCC 2d 934 (1975))); CBS Radio Inc. of
Philadelphia, Memorandum Opinion and Order, 24 FCC Rcd 10993, 10994-95,
para. 4 (Enf. Bur. 2009) (rejecting argument that non-listener lacked
standing to file broadcast contest complaint; explaining that the contest
rule is designed to protect the general public from false, misleading, or
deceptive licensee-conducted and advertised contests and does not preclude
any member of the public from filing a complaint).
^ 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 id. at 269-70, n.82.
^See CBS Radio Holdings, Inc., Notice of Apparent Liability for
Forfeiture, 27 FCC Rcd 10099, 10103, para. 10 (Enf. Bur. 2012) (holding
that the public, which used a website to vote on pictures entered as part
of a contest, would certainly have encountered the erroneous website
^ 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 NAL Response at 8 (citing Kevin Cooney, Letter, 5 FCC Rcd 7105 (Mass
Media Bur. 1990)).
^ See Gaston College, Forfeiture Order, 25 FCC Rcd 982, 986, para. 10
(Enf. Bur. 2010) (imposing a forfeiture for licensee's failure to maintain
and make available a public inspection file, declining to follow prior
Media Bureau ruling that admonished a licensee for similar behavior); see
also Forfeiture Policy Statement, 12 FCC Rcd at 17102, para. 31 (rejecting
proposal to always issue a warning to first-time violators, except in
particular cases, because doing so "would greatly undermine the
credibility and effectiveness of our overall compliance efforts").
^ See 47 U.S.C. S 504(b) (authorizing the Commission to remit or mitigate
forfeitures imposed "under such regulations and methods of ascertaining
the facts as may seem to it advisable"); 47 C.F.R. S 1.80 (setting forth
factors that the Commission must consider in determining what amount of
forfeiture to impose).
^ See Kevin Cooney, 5 FCC Rcd 7105.
^ See id.
^ See id.
^ See Entercom Wichita License, LLC, Forfeiture Order, 24 FCC Rcd 1270,
1271, para. 4 (Enf. Bur. 2009).
^ We caution licensees that future violations of comparable severity may
incur higher penalties.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80(f)(4).
^ 47 C.F.R. SS 0.111, 0.204, 0.311.
^ 47 C.F.R. S 73.1216.
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ 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.
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Federal Communications Commission DA 13-370
Federal Communications Commission DA 13-370