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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:


    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.


    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.


    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

    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.


    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

   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: with any questions
       regarding payment procedures.  CBS Radio Inc. of Philadelphia will
       also send electronic notification on the date said payment is made to,, and

   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.


   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.

   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

   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

   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.


   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).

   (...continued from previous page)


   Federal Communications Commission DA 09-1877


   Federal Communications Commission DA 09-1877