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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                )   File No. EB-06-IH-1116      
     ENTERCOM WICHITA LICENSE, LLC   )   FRN: 0005374145             
     Licensee of Station KDGS(FM),   )   NAL/Acct. No. 200732080005  
     Andover, Kansas                 )   Facility ID No. 70266       


   Adopted: February 5, 2009 Released: February 5, 2009

   By the Chief, Investigations and Hearings Division:

   I. introduction

    1. In this Forfeiture Order ("Order"), we assess a monetary forfeiture in
       the amount of $4,000 against Entercom Wichita License, LLC
       ("Entercom"), licensee of Station KDGS(FM), Andover, Kansas (the
       "Station"), for its willful violation of Section 73.1216 of the
       Commission's Rules. As discussed below, Entercom failed to announce
       all of the material terms of a designated caller contest and neglected
       to conduct the contest in accordance with its material terms, in
       violation of the Commission's rules.

   II. background

    2. On March 2, 2007, the Investigations and Hearings Division of the
       FCC's Enforcement Bureau (the "Bureau") issued a Notice of Apparent
       Liability for Forfeiture ("NAL") in the amount of $4,000 to Entercom
       for failing to announce all of the material terms of its contest and
       for failing to timely award the prize (a $1,000 cash prize) to a
       contest winner, in violation of Section 73.1216 of the Commission's
       Rules. As discussed in the NAL, the contest, called "Santa's Sack,"
       was a designated caller contest whereby the Station, on each day of
       the contest, would give its listeners a clue as to what was in
       "Santa's Sack" and would indicate which numbered caller would have the
       chance to guess what was in "Santa's Sack." With a correct guess, the
       designated caller received what was in "Santa's Sack" as well as a
       teddy bear. The Complainant, Ms. Darelene Harris, alleged that on
       December 8, 2005, she responded to an invitation to call the Station
       during an episode of the contest, and was the designated caller for
       that contest. Although Ms. Harris correctly guessed that there was
       $1,000 in "Santa's Sack," the on-air announcer who took her call that
       day said she was incorrect. She continued to listen to the Station,
       and the next day heard that another listener guessed the same amount
       of $1,000 in "Santa's Sack" and the on-air personality announced that
       $1,000 was the correct answer and awarded the prize to that listener.
       Ms. Harris later visited the Station to dispute the Station's decision
       not to award her the prize. She stated that several Station employees
       agreed with her contention, but that no one at the Station ever
       rectified the situation, prompting her to file a complaint with the

    3. In response to the Bureau's Letter of Inquiry, Entercom "acknowleg[ed]
       that its investigation revealed that the Station did not broadcast the
       material terms of the Contest," but argued that there was no rule
       violation because the terms of the Contest were at all times available
       on the Station's website. Further, Entercom admitted that a mistake in
       not awarding the prize to Ms. Harris was made due to confusion among
       members of the Station about the contest. Specifically, the on-air
       announcer who took the Complainant's call apparently thought that the
       Station's contest required that the correct answer include not only
       the total amount in "Santa's Sack" but also the value of the teddy
       bear, which was worth $10. The Station later clarified to its staff
       that the value of the teddy bear did not need to be included in the
       total amount answered by a contestant. Entercom urged that no further
       action against it was warranted because it had rectified the error by
       awarding the Complainant a $1,000 check and that it had taken steps to
       ensure that such a mistake would not be made in the future. In the
       NAL, the Bureau found that Entercom, by its own admission, violated
       Section 73.1216 of the Commission's Rules by failing to award the cash
       prize as required under the rules of the "Santa Sack" contest and by
       failing to broadcast the material terms of the contest and, thereby,
       proposed a $4,000 forfeiture.

    4. On April 2, 2007, Entercom filed a response to the NAL ("Response"),
       requesting that the proposed forfeiture be cancelled or reduced to, at
       most, an admonishment. In support of its request, Entercom reiterates
       much of the same points it previously made, and asserts that its
       actions demonstrate that it endeavored to run the contest fairly and
       in good faith. Further, it states that although the Station did not
       broadcast all material terms of the contest, the essential terms of
       the contest were understood by the Station's listeners through the
       promotional advertisements aired (or "promo") and that listeners were
       advised in each promo that the full contest rules were posted on the
       Station's website. Entercom states that it has undertaken remedial
       measures to ensure that the mistakes that occurred in conducting this
       contest would not happen again in the future. Relying in a 1990 letter
       decision in which an admonishment was issued by the Mass Media Bureau
       concerning a contest rule violation in Kevin Cooney, Entercom argues
       that, at most, the circumstances of this case might merit an
       admonishment, but not a forfeiture.

   III. discussion

    5. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Communications Act, Section 1.80 of the
       Commission's Rules, and the Commission's forfeiture guidelines set
       forth in its Forfeiture Policy Statement. In assessing forfeitures,
       Section 503(b) of the Act requires that we take into account 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 matters as justice may
       require. As discussed further below, we have examined Entercom's
       response to the NAL pursuant to the aforementioned statutory factors,
       our rules, and the Forfeiture Policy Statement, and find no basis for
       cancellation or reduction of the forfeiture.

    6. Although Entercom's corrective measure to award the prize to the
       Complainant after the commencement of this investigation is
       commendable, it is well-settled that neither the improper actions of a
       licensee's employees nor subsequent remedial actions undertaken by a
       licensee can excuse or nullify a licensee's rule violation. We find
       that Entercom's argument in this regard, when considered along with
       other circumstances of this case, does not justify cancellation or
       reduction of the forfeiture.

    7. Furthermore, as explained in the NAL, it is undisputed that Entercom
       failed to broadcast all the material terms of the contest as Section
       73.1216 requires, including a clear statement of how the Station would
       determine the winner. As Entercom stated in its LOI Response,
       "Entercom acknowledges that its investigation revealed that the
       Station did not broadcast the material terms of the Contest, in
       contravention of written Corporate policy . . . and Corporate training
       materials . . . both of which were provided to the Station prior to
       the commencement of the Contest." Entercom attempts to excuse that
       error by claming that listeners nevertheless could understand the
       rules of the contest from Entercom's promotional announcements of the
       contest, which directed listeners to the Station's website. This
       contention, however, is undercut by the fact that even Station
       personnel were unclear as to how winners were selected, which is a
       material term under the Rule. Additionally, as we have previously

   The rules state that, although disclosure by non-broadcast means (such as
   making rules available at the stations and on the World Wide Web) can be
   considered in determining whether adequate disclosure has been made, the
   non-broadcast disclosures must be "[i]n addition to the required broadcast
   announcements . . . ." Thus, although non-broadcast disclosures may
   supplement broadcast announcements, they cannot act as a substitute for
   broadcast announcements.

    8. Finally, Entercom argues that its conduct, at most, warrants an
       admonishment. In support, Entercom cites one case, Kevin Cooney, in
       which an admonishment was adjudged to be the appropriate remedy
       concerning allegations of a Station's violation of the Commission's
       contest rule. We disagree that the circumstances of this case warrant
       the same result. The Commission has broad discretion to consider a
       variety of factors in determining an amount of forfeiture, if
       appropriate, when faced with a violation of its Rules. As set forth in
       the NAL, the various factors applicable in proposing the forfeiture
       were duly considered in this case. As described below, the violations
       in Entercom's cited precedent are of a more minor degree when compared
       to the instant case and, therefore, justifies a different result.

    9. In Kevin Cooney, the complainant misunderstood that the station's
       contest term stating "enter as often as you like" - which, according
       to the Station, contemplated participation in various segments of the
       contest - actually prohibited duplicate entries. The Mass Media Bureau
       determined that this exclusion, which could have been reasonably
       misunderstood, was a material term of the contest that should have
       been announced by the Station. The Mass Media Bureau then determined
       that the overall circumstances of the case, which included
       consideration of the Station's offer to compensate the complainant and
       to take steps to assure accuracy in its contests, warranted an
       admonition. The circumstances of the violations in the instant case,
       however, justify a forfeiture. In the instant case, Entercom failed to
       advertise any material term of the contest, as it has acknowledged. In
       contrast, in Kevin Cooney, the Station did announce materials terms,
       except that one term was open to various interpretations, which the
       Mass Media Bureau determined should have been better defined.
       Additionally, it is clear in this case, as opposed to Kevin Cooney,
       that Station personnel misapplied its own contest rules that resulted
       in the actual denial of the prize to the Complainant in the first

   10. Furthermore, the Bureau's decision in this case is consistent with
       recent decisions concerning Section 73.1216. For example, both in NM
       Licensing and in Clear Channel Broadcasting Licenses, Inc., the Bureau
       proposed a $4,000 forfeiture based on a licensee's failure to conduct
       a contest as announced despite the respective licensee's efforts to
       rectify the situation directly with the complainant in each case.
       Accordingly, as a result of our review of Entercom's response to the
       NAL, and in view of the statutory factors and the Forfeiture Policy
       Statement, we affirm the NAL and issue a forfeiture in the amount of


   11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's
       Rules, Entercom Wichita License, LLC IS LIABLE FOR A MONETARY
       FORFEITURE in the amount of four thousand dollars ($4,000) for willful
       violation of Section 73.1216 of the Commission's Rules. 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/Account Number and FRN Number referenced above.
       Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
       Payment by overnight mail may be sent to U.S. Bank - Government
       Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
       63101. Payment by wire transfer may be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and account number 27000001. For payment by
       credit card, an FCC Form 159 (Remittance Advice) must be submitted.
        When completing the FCC Form 159, enter the NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to:  Chief Financial Officer --
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C.  20554.   Please contact the Financial Operations Group Help Desk
       at 1-877-480-3201 or Email: with any questions
       regarding payment procedures. Entercom Wichita License, LLC will also
       send electronic notification on the date said payment is made to,,, and

   12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to Entercom
       Wichita License, LLC, 401 City Avenue, Suite 809, Bala Cynwyd,
       Pennsylvania, 19004, and to its counsel, Brian M. Madden and Dennis P.
       Corbett, Lerman Senter PLLC, 2000 K Street, NW, Suite 600, Washington,
       DC 20006-1809.


   Hillary S. DeNigro

   Chief, Investigations and Hearings Division

   Enforcement Bureau

   See 47 C.F.R. S: 73.1216 ("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.")

   See Entercom Wichita License, LLC, Notice of Apparent Liability for
   Forfeiture, 22 FCC Rcd 4212 (Enf. Bur. Investigations & Hearings Div.
   2007) ("NAL").

   See id. at 4212-13; Letter from Brian M. Madden and Jean W. Benz,
   Attorneys, Leventhal, Senter & Lerman PLLC, to Mary Turner, Program
   Analyst, Investigations & Hearings Division, Enforcement Bureau, dated
   July 24, 2006 ("LOI Response"). See also note 10, infra.

   See E-mail from Ms. Darlene Harris to the Federal Communications
   Commission via, sent January 10, 2006 ("Complaint").

   See id.

   LOI Response at 2.

   See id. at 3-4.

   See id. at 1-2.

   See note 2, supra.

   See Letter and Response to Notice of Apparent Liability for Forfeiture
   from Brian M. Madden and Dennis P. Corbett, Attorneys, Leventhal Senter &
   Lerman PLLC, to Hillary S. DeNigro, Chief, Investigations and Hearings
   Division, Enforcement Bureau, Federal Communications Commission, dated
   April 2, 2007 ("NAL Response").

   See note 25, infra.

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

   See 47 C.F.R. S: 1.80.

   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 (1997), recons. denied, 15 FCC Rcd 303 (1999)
   ("Forfeiture Policy Statement").

   See 47 U.S.C. S: 503(b)(2)(E).

   See Nationwide Communications, Inc., Letter, 9 FCC Rcd 175 (Mass Media
   Bur. 1994) (finding forfeiture for violating contest rules imposed,
   notwithstanding licensee's contention that its failure to conduct a
   contest substantially as announced was due to "inadvertence") (subsequent
   history omitted); George McKay, III, Letter, 6 FCC Rcd 7385 (Mass Media
   Bur. 1991) (forfeiture imposed for violating contest rules,
   notwithstanding licensee's contention that its failure to conduct a
   contest substantially as announced was due to acts of third parties).

   See, e.g., Capstar TX Limited Partnership, Notice of Apparent Liability,
   20 FCC Rcd 10636, 10640 (Enf. Bur., Investigations & Hearings Division
   2005) (remedial actions undertaken by licensee, after it received
   complaint about a contest that resulted in a finding of a rule violation,
   does not absolve licensee of proposed forfeiture); Padre Serra
   Communications, Inc., Letter Decision, 14 FCC Rcd 9709, 9714 (Mass Media
   Bur. 1999) (citing Gaffney Broadcasting, Inc., Memorandum Opinion and
   Order, 23 FCC 2d 912, 913 (1970); Eleven Ten Broadcasting Corp., Notice of
   Apparent Liability, 33 FCC 2d 706 (1962)).

   We point out that Entercom certainly could have addressed the situation
   with the Complainant, Ms. Harris, after she complained directly with
   Station personnel and before Ms. Harris filed her complaint, but it did
   not do so until after this investigation was initiated. In its LOI
   Response (at 4), Entercom stated that the Complaint "is largely factually
   correct," but "does not have adequate information to confirm or deny" some
   of the Complainant's statements with respect to her conversations with
   specific Station employees. The Declaration of the Station's Market
   Manager, Jackie Wise, confirms that Ms. Harris contacted the Station to
   dispute the results of the contest. See id., at Declaration of Jackie

   See NAL, 22 FCC Rcd at 4214.

   LOI Response at 2-3.

   See NAL Response at 4.

   Isothermal Community College, Notice of Apparent Liability, 18 FCC Rcd
   23932, 23934-935 (Enf. Bur. 2003) (internal citations omitted).

   See NAL Response at 5.

   See id. (citing Kevin Cooney, Letter, 5 FCC Rcd 7105 (Mass Media Bur.

   See 47 U.S.C. S: 504(b) (authorizing the Commission to remit or mitigate
   forfeitures imposed "under such regulations and methods of ascertaining
   the facts as may seem to it advisable"); 47 C.F.R. S: 1.80 (setting forth
   factors that the Commission must consider in determining what amount of
   forfeiture to impose).

   See NAL, 22 FCC Rcd at 4214.

   Kevin Cooney, 5 FCC Rcd at 7105.

   See id.

   In Kevin Cooney, it could not be determined whether the complainant in
   that case would have won the contest because the dispute concerned the
   number of times and the method by which she could participate in a
   drawing. Notwithstanding that uncertainty, the Station nevertheless decide
   to compensate the complainant. See id.

   See NM Licensing, LLC, Notice of Apparent Liability for Forfeiture, 21 FCC
   Rcd 7916 (Enf. Bur., Investigations & Hearings Div. 2006); Clear Channel
   Broadcasting Licenses, Inc., Notice of Apparent Liability for Forfeiture,
   21 FCC Rcd 4072 (Enf. Bur. Investigations & Hearings Div. 2006).

   See NM Licensing, LLC, 21 FCC Rcd 7916.

   See Clear Channel Broadcasting Licenses, Inc., 21 FCC Rcd 4072.

   See NM Licensing, LLC, 21 FCC Rcd. 7916, 7918-7920.

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

   See 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).

   See 47 C.F.R. S: 73.1216.

   (Continued from previous page)


   Federal Communications Commission DA 09-183



   Federal Communications Commission DA 09-183