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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
)
)
MEMORANDUM OPINION AND ORDER
Adopted: August 26, 2009 Released: August 26, 2009
By the Acting Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny a Petition for
Reconsideration ("Petition") filed by CBS Radio Inc. of Philadelphia
("CBS"), licensee of Station WIP(AM), Philadelphia, Pennsylvania, (the
"Station"), of a Forfeiture Order for $4,000. In the Forfeiture Order,
we found that CBS violated Section 73.1216 of the Commission's rules
by failing to announce the material terms of a contest and neglecting
to conduct the contest in accordance with its material terms. The
Forfeiture Order was based on a complaint alleging that CBS improperly
disqualified the complainant as a contest winner based on an
unannounced term. As discussed below, we deny the Petition and thereby
affirm the $4,000 forfeiture.
II. BACKGROUND
2. On July 10, 2008, the Enforcement Bureau's Investigations and Hearings
Division ("Division") issued a Forfeiture Order against CBS because
its Station 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 contest rule, 47
C.F.R. S: 73.1216. Specifically, the Division found that the Station
violated the rule by disqualifying a contest winner and revoking the
prize, the opportunity to compete in a popular eating competition
called "Wing Bowl 13," due to an unannounced term, his membership in a
different competitive eating association than the one historically
associated with the prize. CBS seeks reconsideration of these findings
and urges rescission of the Forfeiture Order.
III. DISCUSSION
3. Reconsideration is appropriate only where the petitioner either shows
a material error or omission in the original order or raises
additional facts not known or existing until after the petitioner's
last opportunity to present such matters. A petition that simply
repeats arguments previously considered and rejected will be denied.
We find that CBS has failed to either demonstrate error or present new
facts or changed circumstances, as required. In fact, CBS again raises
arguments already considered and rejected in the Notice of Apparent
Liability and the Forfeiture Order: (1) that the Station's own contest
rules contain restrictions on participation that allowed CBS to
properly disqualify the complainant from the contest and, therefore,
there was no violation of the Commission's contest rule; and (2) that
the Commission's contest rule applies or should apply a standing
requirement similar to that used by the Commission in indecency cases.
To the extent that the Petition repeats arguments previously
considered and rejected, we will summarily deny the petition. CBS
contends, however, that the Forfeiture Order misunderstood or failed
to fully consider its argument with respect to standing. Although we
disagree with this contention, we do herein offer additional
clarification.
4. CBS asserts that the contest rule is limited to protecting only those
individuals residing in a station's listening area and that,
therefore, it does not confer the complainant in this case with
standing to file the instant complaint without his first demonstrating
that he resides within the Station's market. CBS misinterprets the
Commission's contest rule. The contest rule is designed to protect the
general public from false, misleading, or deceptive licensee-conducted
and advertised contests, and does not preclude any member of the
public from filing a complaint if they have information establishing
that a contest rule violation has occurred. To limit
licensee-conducted contest complaints, filed outside the license
application proceeding, only to regular listeners and/or listeners
residing in the station's market would have the unintended effect of
providing a safe harbor for licensees engaged in contest rule
violations. Consumer participation assists the Commission in ensuring
that all licensees are in full compliance with applicable rules and
properly discharging their statutory duty to operate in the public
interest. The Commission, of course, must review the propriety and
sufficiency of a complaint to ensure that there is a sufficient basis
to warrant an investigation. Contrary to CBS's assertion, however,
neither the Commission's contest rule nor its precedent in this area
require that a complainant specifically aver in its complaint that he
or she resides in the community of license where the station
complained against is located.
5. CBS argues that because Note 2 to Section 73.1216 includes the term
"audience," the rule must have been intended to protect only the
station's listeners residing within its predicted coverage contour. We
disagree with this reading. The rule and the accompanying Note 2
plainly do not limit the definition of "audience" only to those
individuals residing in a coverage contour. The term simply states
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." As is made clear by this very language, Note 2 just
describes the time and manner in which a licensee must disclose the
material contest terms to its audience, and makes no comment about
standing or the requirements for filing a complaint.
6. As the Commission described in its Report and Order adopting the rule
and accompanying Notes, "Note 2 contains guidelines with respect to
the time and manner of disclosure of material contest terms." In the
Commission's Notice of Proposed Rulemaking regarding the contest rule,
the Commission applied the proposed rule to "all contests (a)
conducted by the licensee and (b) broadcast to the public," using the
terms "audience" interchangeably with "viewers," "listeners," and
those engaged in contest "participation." Additionally, in subsequent
precedent, the terms "public," "participant," and "potential
participant" have been used when discussing the contest rule's
requirements and those whom it protects. These phrasings make clear
that the contest rule was designed to protect both contestants (like
the complainant in this case) and those who might potentially
participate in licensee-conducted contests. Neither the text of the
rule, the rulemaking documents, nor precedent mentions or imposes the
standing requirement described by CBS, and CBS cites nothing
demonstrating otherwise in its Petition.
7. CBS further argues that the standing requirement applied to
individuals and parties filing a petition to deny under Section
309(d)(1) in the license application context should apply here as
well. The Commission has established standards by which consumers may
qualify as parties in interest under Section 309(d)(1). As a general
matter, in a license application proceeding, a party seeking to file a
petition to deny may qualify as a party in interest if the petitioner
alleges that he or she is a listener or viewer of the station in
question or that he or she resides within the station's service area.
The Commission, however, has not applied the same requirement when it
receives alleged contest rule violation complaints filed outside the
license renewal or application contexts. Although the Commission has
limited prosecution of actionable indecency cases to those matters for
which we have a complaint from a viewer of the station at issue, that
policy reflects the Commission's sensitivity to the First Amendment
concerns raised by such cases. The Commission's contest rule, by
contrast, is content neutral and does not implicate the First
Amendment. Therefore, it is not appropriate to adopt such a limitation
on our contest enforcement actions.
8. We find that enforcement action taken in this case was wholly
appropriate and consistent with the rule and applicable precedent.
Therefore, we affirm the Forfeiture Order's finding that CBS violated
the Commission's contest rule and affirm the $4,000 forfeiture imposed
on CBS.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED, pursuant to Section 1.106 of the
Commission's rules, 47 C.F.R. S: 1.106, that the Petition for
Reconsideration filed August 11, 2008, by CBS Radio Inc. of
Philadelphia IS DENIED, and that the Division's Forfeiture Order IS
AFFIRMED.
10. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this
Memorandum Opinion and Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act. 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. CBS Radio Inc. of Philadelphia will
also send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, and
Anjali.Singh@fcc.gov.
11. IT IS FURTHER ORDERED, that copies of this Order on Reconsideration
shall be sent by Certified Mail, Return Receipt Requested, to CBS
Radio Inc. of Philadelphia, 2175 K Street, N.W., Suite 350,
Washington, DC 20037, and to its counsel, Brian M. Madden, Dennis P.
Corbett, and Philip A. Bonomo, Senter Lerman PLLC, 2000 K Street,
N.W., Suite 600, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Suzanne M. Tetreault
Acting Chief, Enforcement Bureau
See CBS Radio Inc. of Philadelphia, Petition for Reconsideration (filed
August 11, 2008) ("Petition").
See 47 C.F.R. S: 73.1216.
See CBS Radio Inc. of Philadelphia, Forfeiture Order, 23 FCC Rcd 10569
(Enf. Bur., Investigations & Hearings Div., 2008) ("Forfeiture Order").
See Letter from Mr. Arnie Chapman to the Federal Communications
Commission, dated January 18, 2005 ("Complaint").
See Forfeiture Order, 23 FCC Rcd at 10573. 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." 47
C.F.R. S: 47.1216.
See id. The contest required contestants to propose and perform a
competitive eating stunt, and awarded winners a chance to compete in a
popular eating competition called "Wing Bowl 13." CBS initially awarded
the prize to the complainant, but later disqualified him when it
discovered that he belonged to a competitive eating association, the
Association of Independent Competitive Eaters ("AICE"). AICE is a rival of
the Independent Federation of Competitive Eating ("IFOCE"), which is
another competitive eating association historically associated with Wing
Bowl 13.
See WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal Co.
v. FCC, 351 F.2d 824 (D.C. 1965), cert. denied, 383 U.S. 967 (1966); 47
C.F.R. S: 1.106 (c).
See Infinity Broadcasting Operations, Inc., Memorandum Opinion and Order,
19 FCC Rcd 4216 (2004); Bennett Gilbert Gaines, 8 FCC Rcd 3986 (Rev. Bd.
1993).
See Petition at 1-2.
See id. at 2-4.
See CBS Radio Inc. of Philadelphia, Inc., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 4223, 4226 (Enf. Bur., Investigations & Hearings
Div. 2007)("NAL")(rejecting argument that CBS's disqualification of the
complainant from the contest was proper under the contest's rules because
those rules require contestants to be Station "listeners"); Forfeiture
Order, 23 FCC Rcd at 10572 (rejecting argument that standing requirement
from Commission's indecency enforcement applies to contest cases).
See Petition at 1 n.1.
See id. at 1-2.
See, e.g., 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, 60 FCC 2d 1072, 1073 (1976)
(finding that public interest, convenience, and necessity requires
adoption of contest rule to prevent abuses described in previous public
notices).
See infra paragraph 7 (regarding Section 309(d)(1) proceedings, which
require specific standing requirements).
Compare Chet-5 Broadcasting, L.P., Memorandum Opinion and Order, 14 FCC
Rcd 13041, 13042-43 (1999) (awarding petition to deny standing to market
residents and regular viewers and listeners of a station); Complaints
Regarding Various Television Broadcasts Between February 2, 2002 and March
8, 2005, Order, 21 FCC Rcd 13299, 13329 (2006) ("Omnibus Order")
(subsequent history omitted) (announcing enforcement policy of proposing
forfeitures only against licensees and stations whose broadcasts of
actionable material were the subject of complaints by viewers of those
stations).
See 47 C.F.R. S: 73.1216 Note 2. That Note 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.
See Petition at 2.
Id.
See supra note 17.
Amendment of Part 73 of the Commission's Rules Relating to
Licensee-Conducted Contests, Report and Order, 60 FCC 2d 1072 (1976).
Amendment of Part 73 of the Commission's Rules Relating to
Licensee-Conducted Contests, Notice of Proposed Rulemaking, 53 FCC 2d 934,
936 (1975) (describing scope of proposed rule).
See id. at 937-38.
See Randall T. Odeneal, Letter, 7 FCC Rcd 4474 (Mass Media Bur. 1992)
(discussing that "contests were presented to the public" and "potential
participants" as the station's contests); Access 1 New Jersey Company,
LLC, Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 4232, 4235
(Enf. Bur., Investigations & Hearings Div. 2007) (noting that "the rules,
as established for contest participants, contained no restrictions on the
use of multiple phone lines" and that "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"); CBS Radio East,
Inc., Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 1293 P:P: 6,
11 (Enf. Bur., Investigations & Hearings Div. 2009) (citing WMJX, Inc.,
Decision, 85 FCC 2d 251, 269 (1981) ("A broadcast announcement concerning
a contest is false, misleading, or deceptive if the net impression of the
announcement has a tendency to mislead the public . . . the analysis under
the rule is the announcement's impact on the public . . . . ")).
See authorities cited supra notes 21-24.
See authorities cited supra note 16.
See Omnibus Order, 21 FCC Rcd at 13329.
See 47 U.S.C. S: 504(a).
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Federal Communications Commission DA 09-1877
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Federal Communications Commission DA 09-1877