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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) FRN: 0009510595
Access 1 New Jersey License Company,
LLC ) NAL/Acct. No. 200732080015
Licensee of Station WTKU-FM, ) Facility ID No. 3139
Ocean City, New Jersey ) File No. EB-05-IH-1081
)
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
Access 1 New Jersey License Company, LLC ("Access 1"), licensee of Station
WTKU-FM, Ocean City, New Jersey (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 Access 1 substantially
altered material terms of a contest, in apparent violation of the
Commission's rule.
II. BACKGROUND
2. The Commission received a complaint from Sean Mack (the "Complainant")
alleging that Access 1 made a significant change to the rules governing
the Station's advertised contest entitled the "Treasure Vault" contest
(the "Contest"). According to the Complainant, on September 22, 2005, at
around 7:30 p.m., the Station conducted a contest in which it announced
that a monetary prize of $275 would be awarded to the person who was the
eighth caller, and could guess a "4 digit code." According to the
Complaint, the Complainant called the Station utilizing multiple telephone
lines. He reached the Station on one line first and was informed he was
the seventh caller in line. He was asked to identify himself and told to
call back. When Station personnel picked up the Complainant's second
telephone line next, making him the eighth caller in line, he was informed
by Station personnel, that he was still considered only the seventh
caller, and he was denied an opportunity to participate in the contest.
Shortly thereafter, the Complainant's mother, Elaine Mack, called the
Station and confirmed that Mr. Mack had been eliminated from the Contest
due to his use of multiple phone lines, and further, that there were no
contest rules prohibiting the use of multiple phone lines by callers.
3. Based on the allegations contained in the Complaint, the Investigations
and Hearings Division of the Enforcement Bureau sent a letter of inquiry
to Access 1 on August 14, 2006. Access 1 responded by letter dated
September 18, 2006, and included a CD and a written transcript of the
broadcasts it aired giving the material rules for the Contest. In its
response Access 1 states, that it broadcast the contest rules in 2002 and
2003, but has no record of broadcasting them in September of 2005. Access
1 further states, that on-air personalities broadcast the Contest "terms
and rules as part of the announcements for the Contest." According to
Access 1, the Contest was conducted by "air personality" Joe Ricci, on
September 22, 2005, at 7:30 p.m., and involved the chance to win $275. Mr.
Ricci informed listeners that the eighth caller to the Station would have
an opportunity to solve a four digit code and win the cash prize. The
Complainant, Sean Mack, called the Station utilizing multiple phone lines
which allowed him to occupy two lines simultaneously. When Mr. Ricci
received Mr. Mack's first call, he informed him he was the "seventh
caller" and to "please try again." Upon picking up the next telephone line
in cue and hearing Mr. Mack's voice again, he advised him "that he was
still the seventh caller." Shortly thereafter, Mr. Ricci received a call
from Elaine Mack and explained that the use of multiple phone lines
constituted only one call. Mrs. Mack was eventually routed to the general
manager of the Station, John Ford, who informed her that the use of
multiple phone lines during a contest was, "not consistent with the intent
of the contest."
5. Access 1 admits that the official contest rules in effect during the
Contest contain no restrictions on the use of multiple phone lines by
contest participants. After receipt of the Complaint in this case, Mr.
Ford, determined that "WTKU-FM needed to do a better job of informing
listeners of our contest rules." On October 6, 2005, he revised the
contest rules for the Station, and directed that they be broadcast on a
more frequent basis. The revised rules specifically prohibit the use of
multiple phone lines during the conduct of on-air contests.
III. DISCUSSION
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 set forth in greater
detail below, we conclude under this standard that Access 1 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 Access 1 violated section 73.1216 of the
Commission's rules by altering a material term of the contest and failing
to conduct the Contest substantially as advertised. Indeed, Access 1
does not dispute that the rules, as established for contest participants,
contained no restrictions on the use of multiple phone lines. Accordingly,
any announcements of the rules made by the Station, would fail to notify
potential participants that use of multiple phone lines could result in
disqualification. 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 governing the operation of the
contest by restricting the method by which a potential participant could
be chosen. This change substantially altered the material terms of the
Contest. The fact that Station personnel may have made, in their view, a
"reasonable interpretation" of the "intent" of the rules, as Access 1
argues, does not alter the fact that the manner in which a contestant was
chosen to participate in the contest was changed without notice, during
the contest. Indeed, Access 1 concedes that after receipt of the
Complaint, it revised its rules to specifically eliminate the use of
multiple phone lines for contest participants and took steps to make
certain that the rules were better disseminated to its listening audience.
Similarly, Access 1's contention that the change was not intended to
exclude the Complainant specifically, or that the Station did not award
the advertised prize to anyone else, does not mitigate its liability. The
Commission has stated previously that a showing of harm is not necessary
to establish a violation. In this case, however, the Complainant was
harmed by being denied the chance to win the contest prize.
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." Access 1 has failed to meet these standards.
10. Based upon the evidence before us, we find that Access 1 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.
V. ORDERING CLAUSES
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 Access 1 New Jersey License Company,
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 rules.
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, Access
1 New Jersey License Company, 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 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 Bank, and account number 9116229.
14. 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.
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: Deputy Chief Financial Officer,
Federal Communications Commission, Room 1-A637, 445 12th Street, S.W.,
Washington, D.C. 20554.
17. IT IS FURTHER ORDERED that the complaint filed by Sean Mack 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 Access 1 New Jersey License
Company, LLC, 505 Eighth Avenue, Ninth Floor, New York, New York, 10018,
and to its counsel, James Winston, Esq., 1155 Connecticut Ave., N.W.,
Sixth Floor, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
47 C.F.R. S 73.1216.
Id.
See Email from Sean Mack to the Federal Communications Commission, dated
September 23, 2005 ("Complaint").
Id.
Id.
See Letter from Benigno Bartolome, Esq., Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission
to Access 1, dated August 14, 2006.
See Letter from James Winston, Esq., counsel for Access 1, to Benigno
Bartolome, Esq., Deputy Chief, Investigations & Hearings Division,
Enforcement Bureau, dated September 18, 2006 ("Response").
Id. at 6.
Id. Access states that the Contest rules are posted in the lobby of the
Station. Id at 6.
Id. at 1.
Id. at 3.
Id. at 7, Declaration of John Ford, General Manager of Station WTKU-FM.
Id.
Id at 5.
Id. at 7, Exhibit 11.
[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.
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P 5: Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P9.
[11]47 U.S.C. S 503(b); [12]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).
[13]47 C.F.R. S 73.1216.
Response at 7.
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).
Response at 7.
See NM Licensing LLC, Notice of Apparent Liability for Forfeiture, 2006 WL
2044708 (EB 2006) (forfeiture for violating contest rules imposed due to
unannounced rule change preventing contestant's participation in contest),
Clear Channel Broadcasting Licenses, Inc., Notice of Apparent Liability
for Forfeiture, 21 FCC Rcd 4072, (EB 2006) (forfeiture imposed for
unannounced contest rule change which excluded contestant's multiple
entries), 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).
Response at 7.
Response at 5-6.
See WMJX, 48 RR 2d 1339, P 37.
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).
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).
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, Access 1
New Jersey License Company, LLC, shall be the only party to this
proceeding.
(Continued from previous page)
(continued....)
Federal Communications Commission DA-07-962
1
3
Federal Communications Commission DA-07-962
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