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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                      )                               
                                                                      
     In the Matter of                 )   File No. EB-05-IH-0150      
                                                                      
     CBS RADIO INC. OF PHILADELPHIA   )   FRN: 0003741998             
                                                                      
     Licensee of Station WIP(AM),     )   NAL/Acct. No. 200732080008  
                                                                      
     Philadelphia, Pennsylvania       )   Facility ID No. 28626       
                                                                      
                                      )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: March 2, 2007 Released: March 2, 2007

   By the Chief, Investigations and Hearings Division:

   I.  INTRODUCTION

   1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
   CBS Radio Inc. of Philadelphia ("CBS" or "Licensee"), Licensee of Station
   WIP(AM), Philadelphia, Pennsylvania (the "Station"), 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 CBS failed to announce the
   material terms of a contest, and neglected to conduct the contest in
   accordance with its material terms, in apparent violation of the
   Commission's rule.

   II.  BACKGROUND

   2. The FCC received a complaint from Mr. Arnie Chapman (the
   "Complainant"), dated January 18, 2005 (the "Complaint"), alleging that
   the Station failed to conduct a competitive eating contest entitled "Wing
   Off" (the "Contest"), in accordance with the Contest's advertised material
   terms. The Complaint alleges that, on December 1, 2004, the Complainant
   won the Contest, which offered winners a chance to compete in a popular
   competitive eating competition, "Wing Bowl 13." The Complaint alleges that
   the Station revoked the prize awarded to the Complainant due to Contest
   conditions that the Station neither announced nor advertised.

   3. In response to the Complaint, the Bureau sent a letter of inquiry to
   CBS, dated June 28, 2005 (the "LOI"). CBS responded by letter dated August
   1, 2005 (the "LOI Response"). The Complainant did not file a reply.

   4. In its LOI Response, CBS admits that the Complainant qualified to win
   the Contest prize, an opportunity to compete in the Wing Bowl 13, but that
   the Station disqualified him after determining that he belonged to a
   competitive eating association, the Association of Independent Competitive
   Eaters ("AICE"). CBS states that AICE is a rival of another competitive
   eating association historically associated with Wing Bowl 13, the
   Independent Federation of Competitive Eating ("IFOCE"). CBS contends that
   the Complainant should have known that members of associations in rivalry
   with IFOCE could not compete in the Contest because the Station previously
   disqualified a participant from Wing Bowl 12 for the same reason.
   Moreover, CBS asserts that the published Contest rules provide the Station
   discretion to disqualify a contestant based on "subjective criteria."
   Finally, CBS states that the Contest rules specify that the Contest is
   open to Station listeners, and that Mr. Chapman does not reside within
   reach of the Station's broadcast so he could not be a listener.

   III. DISCUSSION

   5. 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 CBS is
   apparently liable for a forfeiture for its apparent willful violation of
   Section 73.1216 of the Commission's rules.

   6. 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." The Notes to the section make clear that
   eligibility restrictions are generally considered to be material terms of
   the contest Further, the Notes state that "the obligation to disclose the
   material terms arises at the time the audience is first told how to enter
   or participate and continues thereafter."

   7. Licensees, as public trustees, have the affirmative obligation to
   prevent the broadcast of false, misleading or deceptive contests
   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." By its own admission, CBS disqualified the Complainant from the
   Contest due to his participation in AICE. The Contest rules do not specify
   or permit such disqualification and the contestant was informed of this
   eligibility requirement only after the Contest was concluded. CBS argues
   that the Complainant should have known about the disqualification of
   participants who were members of IFOCE's rival organizations based on the
   Station's similar disqualification of a potential Wing Bowl 12 competitor.
   This argument has no basis in Commission rules requiring material terms,
   like eligibility requirements, to be disclosed prior to the contest.
   Further, CBS's position undercuts its own position. That the Station
   previously disqualified a contestant from Wing Bowl 12 for similar reasons
   suggests that the eligibility requirements were not self-evident to
   contestants and put CBS on notice to include information about this
   material term in the rules for the Contest preceding Wing Bowl 13. The
   argument also fails because the Licensee cannot defend against allegations
   that it committed a rule violation by stating that it has undertaken
   similar conduct in the past that did not result in a complaint to the
   Commission.

   8. CBS points to the Complainant's address as an additional basis to
   exclude him, because purportedly he is not a Station "listener." The
   Station's correspondence with the Complainant, however, alludes to the
   incompatibility of his AICE membership with the IFOCE's historical
   association with the Wing Bowl as the reason for his disqualification, and
   does not mention the Complainant's listener or residential status.
   Accordingly, this after-the-fact justification does not appear to be the
   reason for exclusion. Furthermore, the Complainant's address alone in this
   situation does not support the conclusion that he did not listen to the
   Contest.

   9. Based upon the evidence before us, we find that CBS 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.

   IV.  ORDERING CLAUSES

   10. 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 CBS Radio Inc. of Philadelphia, is
   hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
   $3,000 for 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 Notice, CBS
   Radio Inc. of Philadelphia, 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 NAL Acct. No. and FRN No. referenced in the caption.
   Payment by check or money order may be mailed to Federal Communications
   Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by
   overnight mail may be sent to Mellon Bank /LB 358340, 500 Ross Street,
   Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer may be made
   to ABA Number 043000261, receiving bank Mellon Pittsburgh, and account
   number FCC/ACV 9116229.

   13. The response, if any, must be mailed to Hillary S. DeNigro, 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.

   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 NOTICE OF APPARENT
   LIABILITY FOR FORFEITURE under an installment plan should be sent to the
   Deputy Chief Financial Officer, Room 1-A637, 445 12th Street, S.W.,
   Washington, D.C. 20554.

   16. IT IS FURTHER ORDERED that the complaint filed by Darlene Harris IS
   GRANTED to the extent indicated herein and IS OTHERWISE DENIED, and the
   complaint proceeding IS HEREBY TERMINATED.

   17. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
   Certified Mail/Return Receipt Requested, to CBS Radio Inc. of
   Philadelphia, 2175 K Street, N.W., Suite 350, Washington, D.C., 20037, and
   to its counsel, Steven A. Lerman, Dennis P. Corbett, and Philip A. Bonomo,
   Leventhal Senter & Lerman PLLC, 2000 K Street, N.W., Suite 600,
   Washington, D.C., 20006-1809.

   FEDERAL COMMUNICATIONS COMMISSION

   Hillary S. DeNigro

   Chief, Investigations and Hearings Division

   Enforcement Bureau

   Infinity Broadcasting Corporation of Philadelphia was the licensee at the
   time that this investigation began, January 18, 2005.

   See 47 C.F.R. S 73.1216.

   Id.

   See Letter from Mr. Arnie Chapman to the Federal Communications
   Commission, dated January 18, 2005 ("Complaint"). The Complaint alleges
   that the Contest solicited ideas and actual performance of competitive
   eating stunts from participants.

   See id. at 1-4.

   See id. at 1-3.

   See Letter from William D. Freedman, Deputy Chief, Investigations and
   Hearings Division, Enforcement Bureau, to Infinity Broadcasting
   Corporation of Philadelphia, dated June 28, 2005 ("LOI").

   See Letter from Steven A. Lerman, Dennis P. Corbett, and Phillip A.
   Bonomo, Attorneys for Infinity Broadcasting Corporation of Philadelphia,
   to David J. Brown, Esq., Investigations and Hearings Division, Enforcement
   Bureau, Federal Communications Commission, dated August 1, 2005 (the "LOI
   Response").

   See LOI at 5 (providing the Complainant with the opportunity to reply to
   the Licensee's response).

   See LOI Response at 4 ("Chapman . . . qualified through an eating stunt
   performed at the WIP studios.").

   See id.

   See id. at 2 - 5.

   See id. at 4 - 5 ("[Chapman's] participation was incompatible with the
   IFOCE's participation. Chapman had at least constructive or presumptive
   knowledge of this from the facts surrounding Gentleman Joe's
   disqualification from Wing Bowl 12 and from the realities of the
   competitive eating world . . . In Wing Bowl 12, WIP established that with
   IFOCE eaters included as Wing Bowl competitors, professional eaters allied
   with national organizations that are active IFOCE rivals would not be
   welcome as competitors.").

   Specifically, CBS cites: (1) provisions of the rules allowing Station
   personnel the right to determine a proposed qualifying eating stunt as
   worthy of attempt "based on subjective criteria;" (2) a requirement that
   participants sign a release before participating in any portion of the
   Contest, agreeing to fully abide by the decisions of the Station Morning
   Show hosts and/or others designated by them; (3) a rule provision stating
   that "[d]ecisions of station management with respect to the contest are
   final;" and (4) a rule provision specifying that "[f]ailure to comply with
   the contest rules may result in a contestant's disqualification, at the
   sole discretion of WIP . . ." See id. at 4 n.6.

   See id. at 5.

   47 C.F.R. S 73.1216.

   Note 1 (b) to Section 73.1216 states:

   Material terms include those factors which define the operation of the
   contest and which affect participation therein. Although the material
   terms may vary widely depending upon the exact nature of the contest, they
   will generally include: how to enter or participate; eligibility
   restrictions; entry deadline dates; whether prizes can be won; when prizes
   can be won; the extent, nature and value of prizes; basis for valuation of
   prizes; time and means of selection of winners; and/or tie-breaking
   procedures.

   Id., Note 1(b) (emphasis added).

   Id., Note 2.

   See WMJX, Inc., Decision, 85 FCC 2d 251, 269 (1981) (holding that proof of
   actual deception is not necessary to find violations of contest rules, and
   that the licensee, as a public trustee, has an affirmative obligation to
   prevent the broadcast of false, misleading or deceptive contest
   announcements); Amendment of Part 73 of the Commission's Rules Relating to
   Licensee-Conducted Contests, Report and Order, 60 FCC 2d 1072 (1976).

   See Headliner Radio, Inc., Memorandum Opinion and Order, 8 FCC Rcd. 2962
   (Mass Media Bur. 1993) (finding that the airing of a misleading
   advertisement concerning a licensee's contest violated the Commission
   contest rules because the contest was not then conducted "substantially as
   announced or advertised"); Lincoln Dellar, Memorandum Opinion and Order, 8
   FCC Rcd. 2582, 2585 (Mass Media Bur. 1993) (finding that the cancellation
   of a pre-announced contest violated the pertinent Commission rules because
   the contest was not then conducted "substantially as announced").

   Honeyradio, Inc., Memorandum Opinion and Order, 69 FCC 2d 833 (1978),
   quoting Licensee-Conducted Contests, 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 rules).

   See LOI Response at 5.

   See Complaint at 8.

   See LOI Response at 5 ("In Wing Bowl 12, WIP established that with IFOCE
   eaters included as Wing Bowl competitors, professional eaters allied with
   national organizations that are active IFOCE rivals would not be welcome
   as competitors. This policy is particularly reasonable as applied to
   individuals who, like Chapman, cannot be deemed a WIP listener.").

   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), recon. 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)(D).

   See authorities cited, supra, note 25; NM Licensing, Inc., Notice of
   Apparent Liability, 21 FCC Rcd. 7916 (EB 2006) (imposing $4,000 for
   apparent failure to conduct the contest as advertised or announced); New
   Northwest Broadcasters, L.L.C., Notice of Apparent Liability, 19 FCC Rcd.
   9352 (EB 2004) (same).

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

   See 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, CBS Radio
   Inc. of Philadelphia shall be the only party to this proceeding.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 07-960

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   Federal Communications Commission DA 07-960