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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
) File No. EB-05-IH-0160
Clear Channel Broadcasting Licenses, Inc. ) NAL/Acct. No. 200632080163
) Facility ID No. 59976
Licensee of Station WRUM(FM) ) FRN No. 0001587971
Orlando, Florida )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 16, 2006 Released: June 20, 2006
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), issued
pursuant to section 503(b) of the Communications Act of 1934, as
amended (the "Act"), and section 1.80 of the Commission's rules, we
find that Clear Channel Broadcasting Licenses, Inc. ("Clear Channel"),
licensee of Station WRUM(FM), Orlando, Florida, broadcast information
about a contest without fully and accurately disclosing all material
terms thereof and failed to conduct the contest substantially as
announced or advertised, in apparent willful violation of section
73.1216 of the Commission's rules. Based upon our review of the facts,
we find, pursuant to section 503(b) of the Act , that Clear Channel is
apparently liable for a forfeiture in the amount of $6,000.
II. BACKGROUND
2. The Commission received a written complaint dated February 28, 2005,
(hereinafter "the Complaint") from Mega Communications of Daytona
Beach Licensee, L.L.C. ("Mega"), licensee of Station WNUE-FM, Orlando,
Florida. In the Complaint, Mega alleges that the morning talk show
hosts on Station WRUM(FM) had conducted a contest on February 24, 2005
in violation of section 73.1216 of the Commission's rules. The
Complaint states that, beginning at approximately 7:40 a.m. and
repeatedly over the next several hours, Station WRUM(FM) hosts
announced that the 100^th listener to call and state the name of the
show, "John Musa Y Los Anormales De La Manana" (translated as "John
Musa And The Abnormals Of The Morning"), would win a cash prize in the
amount of $1,000. According to the Complaint, the hosts urged
listeners to call either of two telephone numbers, failing to disclose
that those telephone numbers belonged to rival Orlando
Spanish-language Station WNUE-FM. Shortly thereafter, according to the
Complaint, Station WNUE-FM was inundated with telephone calls from
WRUM(FM) listeners hoping to win the announced cash prize. The
Complaint states that many such callers became angry when they were
informed by WNUE-FM personnel that no such contest was being conducted
and that no money would be awarded. After Mega determined the cause of
the situation, it promptly contacted Station WRUM(FM), which had
already ceased making further announcements about the contest.
3. By Letter of Inquiry dated June 28, 2005, the Enforcement Bureau
directed Clear Channel to provide information about the contest. On
July 18, 2005, Clear Channel Communications Inc. ("CCCI"), the
ultimate parent company of Clear Channel, responded on the licensee's
behalf. CCCI does not dispute the accuracy of the Complaint (including
the transcript of a portion of the broadcast provided by Mega) and
confirms that its morning show hosts did air information about a false
contest and urged listeners to call Station WNUE-FM's toll-free and
local telephone numbers. CCCI contends, however, that the broadcast in
question did not involve an actual contest, but instead, was only a
"prank" and therefore does not fall within the purview of section
73.1216 of the Commission's rules. CCCI further states that the
WRUM(FM) show hosts disclosed there was no actual contest near the end
of their program and were thereafter "admonished" by station
management that the broadcast was unacceptable. In its Reply, Mega
states that, contrary to the assertion of CCCI, the broadcast was more
than just an isolated prank, noting that the Clear Channel hosts
continued their solicitation of calls for over two hours and that it
was only at the end of the show that they disclosed that the contest
was a prank, by which time the Mega phonelines were inundated with
calls from upset and disappointed Station WRUM(FM) listeners.
III. DISCUSSION
4. Section 73.1216 of the Commission's rules provides that "[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 include
those factors which define the operation of the contest and which
affect participation therein, including, among other things, "how to
enter or participate; eligibility restrictions; [and] time and means
of selection of winners . . . ." The Commission enacted section
73.1216 to proscribe broadcasting practices that deceive audiences,
are contrary to the public interest, or unfair to competitors.
5. The Commission has held that licensees, as public trustees, have the
affirmative obligation to prevent the broadcast of false, misleading,
or deceptive contest announcements. A broadcast announcement
concerning a contest is false, misleading, or deceptive "if the net
impression of the announcement has a tendency to mislead the public."
In enforcing this rule, the Enforcement Bureau has repeatedly held
that licensees are responsible for broadcasting accurate statements as
to the nature and value of contest prizes, and will be held
accountable for any announcement that tends to mislead the public.
6. In this case, we find that Clear Channel apparently violated section
73.1216 by not fully and accurately disclosing the material terms of
its contest and by not conducting the contest substantially as
announced. CCCI admits that the station failed to disclose in its
announcements promoting the contest that the contest was false, and
CCCI further concedes that it provided listeners with telephone
numbers of a competing station that would not actually be utilized to
award the announced prize. Furthermore, the licensee failed to conduct
the contest as announced or advertised as offering a prize of $1,000:
the station did not award any such prize.
7. We reject CCCI's contention that Clear Channel should not be subject
to liability under section 73.1216 of the rules because the broadcast
was merely a prank. Note 1(a) to the rule expressly states that "[a]
contest is a scheme in which a prize is offered or awarded, based on
chance, diligence, knowledge or skill, to members of the public." The
hosts of Station WRUM(FM)'s morning show offered listeners an
opportunity to win $1,000 based on the chance that they would be the
100^th caller. Although they eventually informed their listeners that
the contest was a prank and that no prize would be awarded, they
misled their listeners for over two hours before they broadcast that
acknowledgement. Under the circumstances, section 73.1216 clearly
applies.
8. Based upon the evidence before us, we find that Clear Channel failed
to conduct the contest as announced and advertised, in apparent
violation of section 73.1216 of the Commission's rules. Pursuant to
the Commission's Forfeiture Policy Statement and section 1.80 of the
rules, the base forfeiture amount for failing to fully and accurately
disclose the material terms of a contest and failing to conduct the
contest substantially as announced or advertised is $4,000. The
Forfeiture Policy Statement and section 1.80 provide that base
forfeitures may be adjusted based upon consideration of the factors
enumerated in section 503(b)(2)(D) of the Act, and section 1.80(a)(4)
of the Commission's rules, which include "the nature, circumstances,
extent, and gravity of the violation ... and the degree of
culpability, any history of prior offenses, ability to pay, and such
other matters as justice may require."
9. Based upon our review of all the pertinent factors as required by
Section 503(b)(2)(D) of the Act, we believe a $6,000 proposed
forfeiture is appropriate. Station WRUM(FM)'s broadcast of a "prank"
contest misled the public, thus violating the rule and undermining the
public's trust in broadcasters. During the over two hours of the
broadcast, a substantial number of listeners took the time to call the
telephone numbers broadcast by Clear Channel based upon the fraudulent
and irresponsible representations of the station's on-air hosts.
Additionally, the licensee's actions were intentional and maliciously
harmed the listener goodwill of its competitor, Station WNUE-FM.
Station WRUM(FM) made no on-air apology and took no disciplinary
action against its employees, instead sending an email apology to
Station WNUE-FM and informing the Program Director and station hosts
that such behavior was "unacceptable." Finally, we note that Clear
Channel has a history of violations of the Commission's rules,
including this rule. Accordingly, the violation warrants an upward
adjustment of the base forfeiture amount. Based on the factors
described above, we find that Clear Channel is apparently liable for a
$6,000 forfeiture.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and section 1.80 of the
Commission's rules, that Clear Channel Broadcasting Licenses, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount
of $6,000 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 NAL, Clear
Channel Broadcasting Licenses, Inc. 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 appropriate NAL/Acct. No. and FRN No.
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 358340, Pittsburgh,
Pennsylvania 15251-8340. Payment by overnight mail may be sent to
Mellon Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
Pennsylvania 15251. Payment by wire transfer may be made to ABA Number
043000261, receiving bank Mellon Bank, and account number 911-6106.
13. The response, if any, must be mailed to William H. Davenport, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12^th Street, S.W, Room 4-C330,
Washington D.C. 20554, and MUST INCLUDE the NAL/Acct. No. referenced
above.
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. Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Associate Managing Director --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554.
16. Accordingly, IT IS ORDERED, that the Complaint in this proceeding IS
GRANTED, and the Complaint proceeding IS HEREBY TERMINATED.
17. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First
Class Mail and Certified Mail - Return Receipt Requested, to Andrew W.
Levin, Esquire, Executive Vice President and Chief Legal Counsel,
Clear Channel Communications, Inc., 200 East Basse Road, San Antonio,
Texas, 78209 and to its counsel, John Fiorini, Esquire, Wiley, Rein, &
Fielding LLP, 1776 K Street N.W. Washington, D.C. 20006; and, by
regular mail, to Arthur H. Harding, Esquire, and Mark B. Denbo,
Esquire, counsel for Mega Communications of Daytona Beach Licensee,
L.L.C., Fleischman and Walsh L.L.P., 1919 Pennsylvania Ave, N.W.,
Suite 600, Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
William H. Davenport
Chief, Investigations and Hearings Division
Enforcement Bureau
47 U.S.C. S 503(b), 47 C.F.R. S 1.80.
47 C.F.R. S 73.1216.
Letter from Arthur H. Harding, Esq., counsel for Mega Communications of
Daytona Beach Licensee, L.L.C., to David H. Solomon, Chief, Enforcement
Bureau, Federal Communications Commission, dated February 28, 2005
("Complaint").
Complaint at 1.
Id. at 2.
Id.
Id.
Letter from William D. Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, to Clear
Channel Broadcasting Licenses, Inc., dated June 28, 2005 ("LOI").
Letter from Andrew W. Levin, Esquire, Executive Vice President and Chief
Legal Officer, Clear Channel Communications Inc., to Marlene H. Dortch,
Secretary, Federal Communications Commission, dated July 18, 2005
("Response"). On August 10, 2005, Mega filed a reply to the Response.
Letter from Mark B. Denbo, Esq., counsel for Mega Communications LLC, to
Marlene H. Dortch, Secretary, Federal Communications Commission dated
August 10, 2005 ("Reply").
Response at 2.
Id. at 2.
Id at 3.
Reply at 2.
47 C.F.R. S 73.1216.
Id.
Amendment of Part 73 of the Commission's Rules Relating to
Licensee-Conducted Contests, Notice of Proposed Rulemaking, 53 FCC 2d 934,
934-35, P 3 (1975), proposed rule adopted in pertinent part, Report and
Order, 60 FCC.2d 1072 (1976).
Application of WMJX, Inc., WMJX-FM Miami, Florida For Renewal of
License, Decision, 85 FCC 2d 251, 269 (1981) ("WMJX") (forfeiture paid).
Id. at 269-70. "The Commission stated in Eastern Broadcasting Corp., 144
FCC 2d 228, 229 (1968): `Deception may result from the use of statements
which are not technically false or which may be literally true, since only
the relevant consideration is the impact of the statements to the
public.'" WMJX, Inc., 85 FCC 2d at 270, n. 82.
See, e.g., Citicasters, Co., Notice of Apparent Liability, 15 FCC Rcd
16612, 16613-14 (Enf. Bur. 2000) (forfeiture paid); Clear Channel
Broadcasting Licenses, Inc., Notice of Apparent Liability, 15 FCC Rcd
2734, 2735 (Enf. Bur. 2000) (forfeiture paid).
47 C.F.R. S 73.1216.
47 C.F.R. S 73.1216 Note 1(a).
Note 1(b) to section 73.1216 provides further guidance relating to a
licensee's obligation to accurately disclose the material terms of a
contest:
Material terms include those factors which define the operation of the
contest and which affect participation therein . . . and they generally
include: how to enter or participate; eligibility restrictions; entry
deadline dates; whether prizes can be won; nature and value of prizes;
basis for valuation of prizes; time and means of selection of winner;
and/or tie breaking procedures.
The Complaint establishes, and Clear Channel does not deny, that the
broadcast provided the rules of the contest and identified the prize to be
awarded. Complaint at 1.
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), recon. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
47 C.F.R. S 1.80(b).
47 U.S.C. S 503(b)(2)(D); 47 C.F.R. S 1.80(b)(4).
See, e.g., Capstar TX Limited Partnership, Notice of Apparent Liability
for Forfeiture, 20 FCC Rcd 10636 (Enf. Bur. 2005) (forfeiture paid);
Citicasters, Co., Notice of Apparent Liability, 15 FCC Rcd 16612, 16613-14
(Enf. Bur. 2000) (forfeiture paid); Clear Channel Broadcasting Licenses,
Inc., Notice of Apparent Liability, 15 FCC Rcd 2734, 2735 (Enf. Bur. 2000)
(forfeiture paid).
47 C.F.R. S 1.80.
See 47 C.F.R. S 1.1914.
Consistent with section 503(b) of the Act and consistent Commission
practice, for the purposes of the forfeiture proceeding initiated by this
NAL, Clear Channel Broadcasting Licenses, Inc. shall be the only party to
this proceeding.
Federal Communications Commission DA 06-1286
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Federal Communications Commission DA 06-1286