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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File Number EB-04-IH-0331
)
Clear Channel Broadcasting Licenses, NAL/Acct. No. 200632080152
Inc. )
Facility ID No. 11909
Licensee of Station WAWS(TV), )
Jacksonville, Florida FRN No. 0001587971
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 19, 2006 Released: April 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 WAWS(TV), Jacksonville, Florida, failed to conduct
its "Win A Hot Rod for Dad" contest (the "Contest") substantially as
announced or advertised, in apparent willful violation of section
73.1216 of the Commission's rules. Specifically, it appears that,
contrary to the official announced rules of the Contest, at the
Contest drawing, Clear Channel excluded multiple entries from
consideration, misplaced other legitimate entries, and failed to award
all announced prizes. Based upon our review of the facts, we conclude
that Clear Channel is apparently liable for a monetary forfeiture in
the amount of $4,000.
II. BACKGROUND
2. On August 2, 2004, the Commission received a complaint from a viewer
alleging that Station WAWS(TV) had engaged in a number of
improprieties relating to the Contest that it had conducted earlier
that year. Among other things, the complainant maintained that,
contrary to the official announced rules of the Contest, the station
had improperly excluded multiple entries that he had submitted,
thereby substantially limiting his chances of winning any of the
advertised prizes. The complainant also asserted that the Contest was
rigged, and demanded an investigation of the matter by the Commission.
3. By letter of inquiry dated October 25, 2004, the Enforcement Bureau
(the "Bureau") directed Clear Channel to provide information about the
Contest. Clear Channel timely responded on November 23, 2004. In its
Response, Clear Channel explains that the Contest involved one grand
prize, a 2004 Dodge automobile, and 15 second-place prizes consisting
of tickets to a Florida theme park. According to Clear Channel, the
Contest rules required participants to complete and submit entry forms
at any of 15 participating Dodge dealerships in the Jacksonville,
Florida, area. The rules did not limit the number of Contest entries
that an individual could submit. They required participants to be
present at the June 19, 2004, drawing in order to win, and specified
that all announced prizes would be awarded.
4. Clear Channel concedes that Station WAWS(TV) personnel did not
conduct the Contest in accordance with the official rules. It states
that, in preparing for the drawing, station personnel incorrectly
relied on an outdated, draft version of the rules which contained
language limiting to one the number of Contest entries that an
individual could submit. As a consequence, station personnel disposed
of all but one of the 21 entries that the complainant had submitted.
5. Clear Channel also indicates in its Response that, of the 15 area
Dodge dealerships referenced in the Contest rules as locations at
which participants could register to win, entries from only nine such
dealerships were actually included in the June 19, 2004, drawing.
According to Clear Channel, of the remaining six dealerships, one did
not sell Dodge automobiles and, thus, decided not to participate in
the Contest; the entries from two dealerships were apparently lost in
transit to the station; one dealership failed to return its entries to
the station by the specified deadline; and two dealerships received no
entries from members of the public.
6. Clear Channel further describes additional problems at the June 19
drawing, which it characterizes as having been sparsely attended.
According to Clear Channel, station personnel pulled 15 entries for
each of the second-place prizes. However, after concluding that no
participant whose entry was drawn was present, station personnel
declined to draw any additional entries. As a consequence, none of the
announced second-place prizes, the theme park tickets, was awarded at
the June 19 drawing. Station personnel used a different method,
however, with respect to the grand prize drawing, continuing to pull
entries until arriving at one for which the participant was in
attendance at the drawing. The new car was awarded on the 13^th
attempt, to a participant other than the complainant.
7. After receiving a number of complaints about the manner in which it
had conducted the June 19 drawing, Clear Channel decided to conduct a
second drawing, on August 28, 2004, applying the official rules from
the first drawing. Clear Channel did not promote or advertise the
second drawing. All known entries -- including multiple entries and
those that had not arrived from dealerships in time for the first
drawing -- were included in the second drawing. All participants were
notified by mail in advance of the second drawing. According to Clear
Channel, the complainant's name was selected several times at the
second drawing, but because he was not present, he was not awarded any
prize. A second grand prize automobile was awarded, as well as all
second-place theme park tickets.
III. DISCUSSION
8. 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 . . . ."
9. In the instant case, Clear Channel concedes that it failed to conduct
the Contest substantially as announced or advertised. By Clear
Channel's admission, contrary to the official rules, its personnel
excluded multiple entries from the June 19, 2004 drawing and failed to
award any second-place theme park tickets. In addition, entries from
several dealerships were not even considered in the drawing, either
because they were lost or were untimely submitted to the station. One
dealership identified in the official rules as a participating
location where one could register did not participate. Although Clear
Channel later conducted a second drawing, such remedial action does
not absolve it from liability and the proposed forfeiture penalty.
10. We reject Clear Channel's contention that the Contest's official rules
implicitly barred persons from submitting multiple entries because
they contained language allowing the station to disqualify "a person
who . . . has gained unfair advantage in participating in the
Contest." Such language does not provide participants with sufficient
information describing actions that might result in an unfair
advantage. In any event, since the contest rules allowed multiple
entries, the complainant had no specific "unfair advantage" over any
other contest participant. Clear Channel does not allege that the
complainant was the only--or even the most prolific--person to submit
multiple entries.
11. We also reject Clear Channel's contention that the official rules
provided the station with the authority to alter the outcome of the
Contest, if the Contest was "affected by human error." Such a reading
of the rules would provide the licensee with virtually unlimited
discretion to change the Contest rules. Clear Channel cannot, by
relying on such a provision, absolve itself of its obligations under
the Commission's rules. It failed to provide participants with the
necessary material information identifying the types of possible
alterations that could occur, describing how these changes would
affect an individual's participation in the Contest, and specifying
the manner in which these alterations would affect the selection of
the winners.
12. Section 503(b) of the Act, 47 U.S.C. S 503(b), and section 1.80(a) of
the Commission's rules, 47 C.F.R S 1.80, both state that any person
who willfully or repeatedly fails to comply with the provisions of the
Act or the rules shall be liable for a forfeiture penalty. For
purposes of section 503(b) of the Act, the term "willful" means that
the violator knew it was taking the action in question, irrespective
of any intent to violate the Commission's rules. Based on the
material before us, it appears that Clear Channel apparently willfully
violated section 73.1216 of the Commission's rules by failing to
conduct its "Win A Hot Rod for Dad" Contest on June 19, 2004,
substantially as announced or advertised.
13. The Commission's Forfeiture Policy Statement sets a base forfeiture
amount of $4,000 for contest-related misconduct. The Forfeiture
Policy Statement also specifies that the Commission shall adjust a
forfeiture based upon consideration of the factors enumerated in
section 503(b)(2)(D) of the Act, 47 U.S.C. S 503(b)(2)(D), such as
"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 such other matters as justice
may require." Based on our review of each of these factors, we propose
a forfeiture of $4,000 in this instance. Although Clear Channel
apparently violated our rules, it took reasonably prompt remedial
action prior to learning of our investigation. As such, the base
forfeiture amount for this apparent misconduct is most appropriate.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, and 1.80
of the Commission's rules, Clear Channel Broadcasting Licenses, Inc.,
licensee of Station WAWS(TV), Jacksonville, Florida, is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
$4,000 for apparently willfully violating section 73.1216 of the
Commission's rules.
15. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the rules,
within thirty (30) calendar days of the release of this NOTICE OF
APPARENT LIABILITY, 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.
16. IT IS FURTHER ORDERED that payment of the forfeiture must be made by
check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/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.
17. IT IS FURTHER ORDERED THAT the response, if any, must be mailed to
William H. Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Room 4-C330, Washington, D.C. 20554 and MUST INCLUDE THE
NAL/Acct. No. referenced above.
18. IT IS FURTHER ORDERED THAT requests for payment of the full amount of
this Notice of Apparent Liability 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.
19. IT IS FURTHER ORDERED that a copies of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail - Return Receipt Requested
to Clear Channel Broadcasting Licenses, Inc., 2625 South Memorial
Drive, Suite A, Tulsa, Oklahoma 74129; its counsel, Gregory L.
Masters, Esq., Wiley Rein & Fielding LLP, 1776 K Street N.W.,
Washington, D.C. 20006; and to Robert Hawxhurst, 2890 Emily Lane West,
Jacksonville, Florida, 32216.
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.
[1]47 C.F.R. S 73.1216.
See e-mail from complainant to Enforcement Bureau, Federal Communications
Commission, dated August 2, 2004 ("Complaint").
Id. at 1.
Id.
See Letter from William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, to Clear
Channel Broadcasting Licenses, Inc., dated October 25, 2004.
See Letter from Andrew W. Levin, Executive Vice President and Chief Legal
Officer, Clear Channel Communications, Inc., parent of Clear Channel
Broadcasting Licenses, Inc., to Marlene H. Dortch, Esq., Secretary,
Federal Communications Commission, dated November 22, 2004 ("Response").
By email dated August 2, 2005, the complainant replied to the Response,
indicating that the Contest had been videotaped by the licensee. By a
supplemental letter of inquiry dated October 3, 2005, we requested any
such tapes from Clear Channel, which provided a raw videotape of the
portion of the June 19 drawing awarding the automobile. The complainant,
by e-mail dated October 25, 2005, commented on the videotape. Although the
videotape depicts the first drawing for the 2004 Dodge automobile, it does
not contain probative evidence regarding the issues raised in the
Complaint.
Id. at 1-3.
Id. at 7.
Id. at 5.
Id.
Id.
Id.
Id.
Id. at 7.
Id.
Id. at 5.
Id. at 6.
Id.
Id.
Id. at 5-6.
Id.
Id. at 7.
Id.
Id.
Id.
Id. at 7-8.
Id.
47 C.F.R. S 73.1216.
Id.
Id. at 6.
Id. at 5.
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4387-88 (1991).
See Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Memorandum Opinion
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).
Id., 12 FCC Rcd at 17110.
[2]47 U.S.C. S 503(b).
[3]47 C.F.R. SS 0.111 and [4]1.80.
47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-867
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1
Federal Communications Commission DA 04-xxxx
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