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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
)
FORFEITURE ORDER
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
Commission.
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
stated:
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
instance.
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
$4,000.
IV. ORDERING CLAUSES
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: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Entercom Wichita License, LLC will also
send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Kenneth.Scheibel@fcc.gov, and Anjali.Singh@fcc.gov.
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.
FEDERAL COMMUNICATIONS COMMISSION
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 fccinfo@fcc.gov, 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
Wise.
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.
1990)).
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)
(continued....)
Federal Communications Commission DA 09-183
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Federal Communications Commission DA 09-183