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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                )   File No. EB-04-IH-0330      
     NM LICENSING LLC                )   FRN: 0005804810             
     Licensee of Station WYAV(FM),   )   NAL/Acct. No. 200632080164  
     Myrtle Beach, South Carolina    )   Facility ID No. 36947       


   Adopted: July 19, 2006 Released: July 20, 2006

   By the Chief, Investigations and Hearings Division:


   1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find NM
   Licensing, LLC ("NextMedia"), licensee of Station WYAV(FM), Myrtle Beach,
   South Carolina, apparently liable for a monetary forfeiture in the amount
   of $4,000 for its apparent violation of section 73.1216 of the
   Commission's rules. That rule requires a broadcast licensee to "fully and
   accurately disclose the material terms of a contest...and conduct the
   contest substantially as announced or advertised." As discussed below, we
   find that NextMedia substantially altered material terms of a contest, in
   apparent violation of the Commission's rule.


   2. The Commission received a complaint alleging that NextMedia made a
   significant change to the rules governing the station's advertised
   promotional contest for a concert during "Bike Week 2004," in Myrtle
   Beach, South Carolina (the "Contest"). According to the complainant,
   beginning in April 2004, the station launched a contest in which a
   customized motorcycle would be awarded to the person who drew the one key
   capable of starting it. At the start of the Contest, the station announced
   that it would periodically air a specific sound effect. After each airing
   of the sound effect, a certain numbered caller to the station would
   receive a free ticket to a concert on May 15, 2004 and a key certificate
   that on the concert date would be exchanged for an ignition key. Each
   contestant would then attempt to start the motorcycle, and the contestant
   possessing the actual ignition key would win the motorcycle.

   3. The complainant won a key certificate to participate in the Contest. On
   May 14, 2004, the complainant went to the station, as directed, to pick up
   his free ticket to the concert and his key certificate. At that time, the
   complainant received his ticket, his key certificate and a concert "flyer"
   containing handwritten instructions to arrive at the concert on or before
   7:00 p.m. to exchange the key certificate for an actual key. When the
   complainant arrived at the concert location the next day at 6:30 p.m., he
   learned the drawing for the motorcycle had already taken place and that he
   was denied his opportunity to participate in the drawing.

   4. Based on the allegations contained in the Complaint, the Investigations
   and Hearings Division of the Enforcement Bureau sent a letter of inquiry
   to NextMedia on October 20, 2004. NextMedia responded by letter dated
   November 22, 2004, and included a CD and written transcript of the
   promotional spots it aired for the Contest. NextMedia states that the
   Contest involved the chance to win a $35,000 custom motorcycle. NextMedia
   states that it co-promoted the Contest along with a motorcycle shop, as a
   promotion for a concert to be produced by the Myrtle Beach Rescue Squad.
   NextMedia broadcast promotional spots for the concert "at least 6 times a
   day, seven days a week, from April 16, through May 15, 2004." NextMedia
   awarded key certificates to the tenth caller to the station after each
   broadcast of the sound effect. Those successful callers were then required
   to appear at the station on May 14, 2004, to pick up a free ticket to the
   concert and a key certificate. They also received the concert flyer
   described above, containing handwritten instructions from the station to
   appear at the concert on or before 7:00 p.m. on May 15, 2004. NextMedia
   qualified 35 people in all to participate in the drawing.

   5. NextMedia admits that the drawing for the motorcycle did not take place
   as announced in its instructions to the winners of the key certificates,
   but argues that the changes were necessary. Specifically, on the date of
   the concert at approximately 6:00 p.m., the Myrtle Beach Rescue Squad
   informed station personnel that, due to contractual arrangements with the
   second band, the drawing for the motorcycle could not take place as
   planned. According to NextMedia, the contract provided that no intervening
   activity could take place on stage between the performances of the two
   bands, which were scheduled to begin playing at 7:00 p.m., and required to
   stop playing at 10:00 p.m., due to noise restriction ordinances in effect
   for Myrtle Beach, South Carolina. As a result, station personnel were
   requested to begin the drawing at 6:20 p.m., instead of 7:45 p.m., as
   originally planned. Station personnel read the list of initial winners
   three times between 6:20 and 6:45 p.m. By 6:45 p.m., all but five initial
   winners had received their keys. The contest was then held and the
   motorcycle awarded. After the contest was over but before 7:00 p.m., three
   more initial winners arrived at the concert. A station representative
   apologized to these three and offered additional free concert tickets as


   6. Under section 503(b)(1) of the Communications Act of 1934, as amended
   (the "Act"), any person who is determined by the Commission to have
   willfully or repeatedly failed to comply with any provision of the Act or
   any rule, regulation, or order issued by the Commission shall be liable to
   the United States for a monetary forfeiture penalty. In order to impose
   such a forfeiture 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 forfeiture penalty should be imposed. The Commission will then
   issue a forfeiture if it finds by a preponderance of the evidence that the
   person has violated the Act or a Commission rule. As we set forth in
   greater detail below, we conclude under this standard that NextMedia is
   apparently liable for a forfeiture for its apparent willful violation of
   section 73.1216 of the Commission's rules.

   7. Section 73.1216 of the Commission's rules provides:

   A licensee that broadcasts or advertises information about a contest it
   conducts shall fully and accurately disclose the material terms of the
   contest, and shall conduct the contest substantially as announced or
   advertised. No contest description shall be false, misleading or deceptive
   with respect to any material term.

   Note 2 to the rule states:

   In general, the time and manner of disclosure of the material terms of a
   contest are within the licensee's discretion. However, the obligation to
   disclose the material terms arises at the time the audience is first told
   how to enter or participate and continues thereafter. 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. Disclosure of material
   terms in a reasonable number of announcements is sufficient. In addition
   to the required broadcast announcements, disclosure of the material terms
   may be made in a non-broadcast manner.

   8. In this case, it appears that NextMedia violated section 73.1216 of the
   Commission's rules by failing to conduct the Contest substantially as
   advertised.   Indeed, NextMedia does not dispute that it failed to conduct
   the drawing for the Contest as announced. The rules, as established for
   the 35 participants, stated that, in order to be eligible to win the
   motorcycle, key certificate holders would have to be present at the
   concert on May 15, 2004, on or before 7:00 p.m. However, even though the
   complainant and two others complied with the station's requirements,
   alterations in the contest's parameters prevented them from participating
   in the contest. The Commission has stated previously that, for the
   purposes of the rule, "a term is considered material if it defines
   operation of, or affects participation in a contest." In this case,
   station management changed the rules regarding the operation of the
   contest by changing the time for appearing to participate in the drawing
   as well as the time of the drawing itself. These changes substantially
   altered the material terms of the Contest. NextMedia concedes that three
   contestants who complied with the requirement to appear at the concert on
   or before 7:00 p.m. were prevented from participating in the contest
   because it had already taken place.

   9. Licensees, as public trustees, have the affirmative obligation to
   prevent the broadcast of false, misleading or deceptive contest
   announcements, and to conduct their contests substantially as announced.
   The Commission has noted in this regard that "[t]he standards are high,
   for while contests are particularly susceptible to abuse, abuses can be
   prevented by diligent licensee attention to the planning and conduct of
   contests." Here, NextMedia changed material terms of the Contest. The fact
   that the change was at the behest of a third party, in this case the
   Myrtle Beach Rescue Squad, in its capacity as the producer of the concert,
   does not absolve NextMedia of its responsibility to fulfill the contest
   terms. In any event, the changes in the contest rules and instructions
   appear to be the result of NextMedia's inadequate planning and management
   of the Contest. Similarly, NextMedia's contention that the station
   ultimately awarded the advertised prize, and that it offered compensation
   to the participants that were unable to participate due to the alteration
   in schedule, does not mitigate its liability. The Commission has stated
   previously that a showing of harm is not necessary to establish a
   violation. However, in this case three contestants were harmed by being
   denied the chance to win the contest prize.

   10. Based upon the evidence before us, we find that NextMedia apparently
   willfully violated section 73.1216 of the Commission's rules. The
   Commission's Forfeiture Policy Statement sets a base forfeiture amount of
   $4,000 for failure to conduct a station contest substantially as
   announced. In assessing the monetary forfeiture amount, we must take into
   account the statutory factors set forth in section 503(b)(2)(D) of the
   Act, which include the nature, circumstances, extent, and gravity of the
   violation, and with respect to the violator, the degree of culpability,
   any history of prior offenses, ability to pay, and other such matters as
   justice may require. After considering the record, the factors contained
   in section 503(b)(2)(D) of the Act, 47 U.S.C. S 503(b)(2)(D), and the
   Forfeiture Policy Statement, we believe that a $4,000 forfeiture is
   appropriate in this case. Specifically, we conclude that the violation
   occurred due to inadequate planning and control, and not due to a
   deliberate attempt to deceive or to favor a particular contestant or class
   of contestants.


   11. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
   Communications Act of 1934, as amended, and sections 0.111, 0.311, and
   1.80 of the Commission's rules, that NM Licensing, LLC, is hereby NOTIFIED
   of its APPARENT LIABILITY FOR FORFEITURE in the amount of $4,000 for
   willfully and repeatedly violating section 73.1216 of the Commission's

   12. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
   rules, that within thirty (30) days of the release of this Notice, NM
   Licensing, LLC SHALL PAY the full amount of the proposed forfeiture or
   SHALL FILE a written statement seeking reduction or cancellation of the
   proposed forfeiture.

   13. Payment of the forfeiture must be made by mailing check or similar
   instrument, payable to the order of the Federal Communications Commission.
   The payment MUST INCLUDE the FCC Registration Number ("FRN") and the
   NAL/Account Number specified in the caption of this NAL. Payment by check
   or money order may be mailed to the Forfeiture Collection Section, Finance
   Branch, Federal Communications Commission, P.O. Box 73482, Chicago,
   Illinois 60673-7482. Payment by overnight mail may be sent to Bank One/LB
   73482, 525 West Monroe Street, 8^th Floor Mailroom, Chicago, IL 60661.
   Payment by wire transfer may be made to ABA Number 071000013, receiving
   bank Bank One, and account number 1165259.

   14. 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 3-B433, Washington,
   D.C. 20554 and MUST INCLUDE the NAL/Acct. No. referenced above.

   15. 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.

   16. Requests for payment of the full amount of this NAL under an
   installment plan should be sent to: Chief, Revenue and Receivables
   Operations Group, 445 12th Street, S.W., Washington, D.C. 20554.

   17. IT IS FURTHER ORDERED that the complaint filed by Danny Muckleroy IS
   GRANTED to the extent indicated herein and IS OTHERWISE DENIED, and the
   complaint proceeding IS HEREBY TERMINATED.

   18. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
   Certified Mail/Return Receipt Requested, to NM Licensing, LLC, 6312 S.
   Fiddlers Green Circle, Suite 360E, Englewood, Colorado, 80111-4946, and to
   its counsel, Mathew L. Leibowitz, Esq., Suntrust International Center, One
   Southeast Third Ave., Miami, Florida 33131-1715.


   William H. Davenport

   Chief, Investigations and Hearings Division

   Enforcement Bureau

   47 C.F.R. S 73.1216.


   See Complaint from Danny Muckelroy to the Federal Communications
   Commission, dated May 24, 2004 ("Complaint").




   See Letter from William H. Davenport, Chief, Investigations and Hearings
   Division, Enforcement Bureau, Federal Communications Commission to Next
   Media Group, dated October 20, 2004.

   See Letter from Martin Leibowitz, Esq., counsel for NextMedia, to David
   Brown, Esq., Assistant Chief, Investigations & Hearings Division,
   Enforcement Bureau, dated November 22, 2004 ("Response").

   Id. at 1.

   Id. at 2.

   Id. at 3-4.


   Id. at 2, 3.

   Id. at 4.

   [1]47 U.S.C. S 503(b)(1)(B); [2]47 C.F.R. S 1.80(a)(1); see also [3]47
   U.S.C. S 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. S 1464).
   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. [4]47 U.S.C. S 312(f)(1). The legislative history to
   [5]section 312(f)(1) of the Act clarifies that this definition of willful
   applies to both [6]sections 312 and [7]503(b) of the Act, H.R. Rep. No.
   97-765, 97^th Cong. 2d Sess. 51 (1982), and the Commission has so
   interpreted the term in the [8]section 503(b) context. See, e.g., Southern
   California Broadcasting Co., Memorandum Opinion and Order, [9]6 FCC Rcd
   4387, 4388 (1991) ("Southern California Broadcasting Co."). The Commission
   may also assess a forfeiture for violations that are merely repeated, and
   not willful. See, e.g., Callais Cablevision, Inc., Notice of Apparent
   Liability for Monetary Forfeiture, [10]16 FCC Rcd 1359 (2001) (issuing a
   Notice of Apparent Liability for, inter alia, a cable television
   operator's repeated signal leakage). "Repeated" merely means that the act
   was committed or omitted more than once, or lasts more than one day.
   [11]Southern California Broadcasting Co., 6 FCC Rcd at 4388, P 5; Callais
   Cablevision, Inc.,  16 FCC Rcd  at 1362, P9.

   [12]47 U.S.C. S 503(b); [13]47 C.F.R. S 1.80(f).

   See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
   7591, P 4 (2002) (forfeiture paid).

   ABC, INC., Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 25,647
   (Enf. Bur. 2003).

   [14]47 C.F.R. S 73.1216.

   Response at 2.

   Application for Review of Staff Ruling Concerning Complaint of Violation
   of Section 73.1216 of the Commission's Rules, Memorandum Opinion and
   Order, 2 FCC Rcd 5638 (1987).

   NextMedia does not dispute that three initial winners arrived at the
   concert before 7:00 p.m., the designated time in the contest rules.
   Therefore, we need not decide the precise time the complainant arrived at
   the concert.

   WMJX, Inc., Decision, 48 RR 2d 1339, 1355 (1981); Rules Relating to
   Licensee-Conducted Contests, Report and Order, 60 FCC 2d 1072 (1976).

   Headliner Radio, Inc., Memorandum Opinion and Order, 8 FCC Rcd 2962 (Mass
   Media Bur. 1993); Lincoln Dellar, Memorandum Opinion and Order, 8 FCC Rcd
   2582, 2585 (Mass Media Bur. 1993) (where the cancellation of a
   pre-announced contest violated the pertinent Commission rule because the
   contest was not then conducted "substantially as announced").

   Honeyradio, Inc., Memorandum Opinion and Order, 19 FCC 2d 833 (1978),
   quoting Notice of Proposed Rulemaking, 40 Fed. Reg. 26692 (1975) (holding
   licensee responsible for mistakes made during its conduct of a contest,
   and affirming forfeiture and denying petition for reconsideration of a
   letter of admonishment for violation of the Commission's contest rules).

   See George Mckay, III, Notice of Apparent Liability for Forfeiture, 6 FCC
   Rcd 7385 (Mass Media Bur. 1991) (forfeiture for violating contest rules
   imposed, notwithstanding licensee's contention that its failure to conduct
   a contest substantially as announced was due to acts of third parties);
   Nationwide Communications Inc., Notice of Apparent Liability for
   Forfeiture, 9 FCC Rcd 175 (Mass Media Bur. 1994) (forfeiture for violating
   contest rules imposed, notwithstanding licensee's contention that its
   failure to conduct a contest substantially as announced was due to
   "inadvertence"), forfeiture reduced, Nationwide Communications Inc.,
   Memorandum Opinion and Order, 9 FCC Rcd 2054 (Mass Media Bur. 1994)
   (licensee's history of compliance with Commission rules warranted
   forfeiture reduction, whereas licensee's general good faith efforts,
   "awarding the contest prize as announced, and receiving no benefit from
   its error" did not).

   See WMJX, 48 RR 2d 1339, P 37.

   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), 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).

   We note that NextMedia is a publicly traded company with total revenue of
   more than $115 million last year. See NextMedia Operating Inc., press
   release, March 10, 2005. This could support an upward adjustment pursuant
   to section 1.80's "Ability to pay /relative disincentive" factor. See
   section 1.80, note to paragraph (b)(4), Section II. However, in this case
   that factor is counterbalanced by the downward adjustment factor of
   NextMedia's history of overall compliance. Id., Downward Adjustment
   criterion No. 2. We find that a baseline forfeiture is appropriate in this

   47 U.S.C. S 503(b).

   47 C.F.R. SS 0.111, 0.311 and 1.80.

   See 47 C.F.R. S 1.1914.

   For purposes of the forfeiture proceeding initiated by this NAL, NM
   Licensing, LLC, shall be the only party to this proceeding.

   (Continued from previous page)


   Federal Communications Commission DA  06-1459



   Federal Communications Commission DA 06-1459


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