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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
)
)
ORDER
Adopted: September 25, 2009 Released: September 25, 2009
By the Acting Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and CBS Radio Inc. of
Philadelphia ("CBS"). The Consent Decree terminates an investigation
and cancels a Notice of Apparent Liability for Forfeiture ("NAL"),
Forfeiture Order, and Memorandum Opinion and Order ("MO&O") by the
Bureau against CBS for possible violation of Section 73.1216 of the
Commission's rules regarding licensee-conducted contests.
2. The Bureau and CBS have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree, which terminates the investigation and
cancels the NAL, Forfeiture Order, and MO&O.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether CBS possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
of the Communications Act of 1934, as amended, and Sections 0.111 and
0.311 of the Commission's rules, the Consent Decree attached to this
Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED and the Notice of Apparent Liability for Forfeiture,
Forfeiture Order, and Memorandum Opinion and Order ARE CANCELLED.
7. IT IS FURTHER ORDERED that the third-party complaint against CBS
before the Bureau related to the above-captioned-investigation as of
the date of this Consent Decree IS DISMISSED.
8. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class certified mail, return receipt requested,
to Anne Lucey, Esq., CBS Radio Inc. of Philadelphia, 2175 K Street,
NW, Suite 350, Washington, DC 20037, and to Dennis P. Corbett, Esq.,
Philip A. Bonomo, Esq., and Jessica L. Schneider, Esq., Lerman Senter
PLLC, 2000 K Street, N.W., Suite 600, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Suzanne M. Tetreault
Acting Chief, Enforcement Bureau
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
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and CBS Radio Inc. of Philadelphia
("CBS"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Enforcement Bureau's
investigation into whether CBS violated Section 73.1216 of the
Commission's rules concerning licensee-conducted contests.
I. DEFINITIONS
2. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "CBS" means CBS Radio Inc. of Philadelphia and all of its direct and
indirect subsidiaries that hold authorizations issued by the
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Complaint" means that certain third party complaint received by, or
in the possession of, the Bureau, and subject to the MO&O.
f. "Contest" means that certain contest conducted by CBS on December 1,
2004, whose prize was the opportunity to compete in "Wing Bowl 13," as
described in the MO&O.
g. "Contest Rule" means 47 C.F.R. S: 73.1216.
h. "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
i. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
j. "Forfeiture Order" means that certain Forfeiture Order of the Bureau's
Investigations and Hearings Division released July 10, 2008 (File No.
EB-05-IH-0150, DA 08-1628).
k. "MO&O" means that certain Memorandum Opinion and Order of the Bureau
released August 26, 2009 (File No. EB-05-IH-0150, DA 09-1877).
l. "NAL" means that certain Notice of Apparent Liability for Forfeiture
released by the Bureau's Investigations and Hearings Division on March
2, 2007 (File No. EB-05-IH-0150, DA 07-960).
m. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
n. "Parties" means CBS and the Bureau.
o. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
p. "Station" means Station WIP(AM), Philadelphia, Pennsylvania, Facility
ID # 28626.
II. BACKGROUND
3. The FCC received a complaint, dated January 18, 2005 (the
"Complaint"), alleging that the Station failed to conduct a
competitive eating contest entitled "Wing Off" (the "Contest"), in
accordance with the Contest's advertised material terms. The Complaint
alleged that, on December 1, 2004, the complainant won the Contest,
which offered winners a chance to compete in a popular competitive
eating competition, "Wing Bowl 13." The Complaint alleged that the
Station revoked the prize awarded to the Complainant due to Contest
conditions that the Station neither announced nor advertised. In
response to the Complaint, the Bureau sent a Letter of Inquiry to CBS,
dated June 28, 2005. CBS responded by letter dated August 1, 2005. In
its Response to the Letter of Inquiry, CBS admitted that the
Complainant qualified to win the Contest prize, an opportunity to
compete in the Wing Bowl 13, but that the Station disqualified him
after determining that he belonged to a competitive eating
association, the Association of Independent Competitive Eaters.
4. On March 2, 2007, the Bureau's Investigations and Hearings Division
(the "Division") released a Notice of Apparent Liability for
Forfeiture ("NAL"). The Division found in the NAL that CBS 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 CBS apparently violated the rule by
disqualifying a contest winner and revoking his prize due to an
unannounced term. On April 2, 2007, CBS filed a response to the NAL.
On July 10, 2008, the Division issued a Forfeiture Order against CBS
affirming the findings in the NAL. On August 11, 2008, CBS filed a
Petition for Reconsideration of the Division's decision. On August 26,
2009, the Bureau issued a Memorandum Opinion and Order ("MO&O")
affirming the Forfeiture Order holding CBS liable for a forfeiture of
$4,000 under Section 503(b)(1)(B) of the Act, and ordered CBS to pay
the proposed forfeiture within thirty (30) days of the MO&O release
date.
III. TERMS OF AGREEMENT
5. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
6. Jurisdiction. CBS agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
7. Effective Date: Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
8. Termination of Investigation. As part of the Adopting Order, in
express reliance on the covenants and representations contained
herein, and in order to avoid the potential expenditure of additional
public resources, the Bureau shall terminate the above-captioned case,
cancel the NAL, Forfeiture Order, and MO&O, and dismiss with prejudice
the Complaint. From and after the Effective Date, the Bureau shall
not, either on its own motion or in response to any petition to deny
or other third-party objection, initiate any inquiries,
investigations, forfeiture proceedings, hearings, or other sanctions
or actions against CBS, the Station, or any pending or future
application to which CBS or the Station is a party (including, without
limitation, any application for a new station, for renewal of license,
for assignment of license, or for transfer of control), based in whole
or in part on (i) the NAL, Forfeiture Order, or MO&O, (ii) the
Complaint, (iii) any other similar complaints alleging violation by
the Station of the Contest Rule with respect to the Contest occurring
prior to the Effective Date, or (iv) the allegations contained in any
of the foregoing. Without limitation to the foregoing, the Bureau
shall not use the facts of this Consent Decree, the NAL, Forfeiture
Order, MO&O, the Complaint, any other similar complaints alleging
violation by the Station of the Contest Rule with respect to the
Contest occurring prior to the Effective Date, or the underlying
facts, behavior, or broadcasts that relate to any of the foregoing,
for any purpose relating to CBS or the Station, and shall treat all
such matters as resolved for all purposes. In consideration for the
termination of the above-captioned case and in express reliance on the
provisions of paragraph 8 hereof, CBS agrees to the terms, conditions,
and procedures contained herein, and agrees not to pursue any further
challenges to the Bureau's findings, as outlined in the NAL,
Forfeiture Order, and MO&O described in paragraph 4, above.
9. Compliance Plan. For purposes of settling the matters set forth
herein, CBS agrees to create within 30 days a Compliance Plan related
to future compliance with the Act, the Commission's Rules, and the
Commission's Orders. The Compliance Plan will include, at a minimum,
the following components:
a. CBS shall prepare and distribute a memorandum to all Station employees
materially involved in the broadcast of programming explaining the FCC's
Contest Rule and setting forth Station procedures applicable to conducting
Station contests.
b. Following distribution of the aforesaid memorandum, relevant Station
employees shall receive appropriate training with respect to compliance
with the Contest Rule and Station procedures with respect thereto. CBS
shall conduct such training annually for all relevant employees and on
initial appointment for new relevant employees within the terms of this
Consent Decree.
10. Compliance Reports. CBS will file compliance reports with the Bureau
ninety days after the Effective Date, twelve months after the
Effective Date, and three years after the Effective Date. Each
compliance report shall include a compliance certificate from an
officer, as an agent of CBS, stating that the officer has personal
knowledge that CBS has established operating procedures intended to
ensure compliance with this Consent Decree, together with an
accompanying statement explaining the basis for the officer's
compliance certification. All compliance reports shall be submitted to
Chief, Investigations and Hearings Division, Enforcement Bureau, Room
4-C330, Federal Communications Commission, 445 12th Street, SW,
Washington, D.C. 20554.
11. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire three years after the Effective Date.
12. Voluntary Contribution. CBS agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $4,000.
The payment will be made within five days after the Effective Date of
the Adopting Order. The payment 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 in the caption to the Adopting Order. 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). CBS 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 to
Anjali.Singh@fcc.gov.
13. Waivers. CBS waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Order adopting this Consent Decree, provided the Bureau issues
an Order adopting the Consent Decree without change, addition,
modification, or deletion. CBS shall retain the right to challenge
Bureau interpretation of the Consent Decree or any terms contained
herein. If either Party (or the United States on behalf of the Bureau)
brings a judicial action to enforce the terms of the Adopting Order,
neither CBS nor the Bureau shall contest the validity of the Consent
Decree or the Adopting Order, and CBS shall waive any statutory right
to a trial de novo. CBS hereby agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5 U.S.C. S: 504
and 47 C.F.R. S: 1.1501 et seq., relating to the matters addressed in
this Consent Decree.
14. Liability. CBS admits, solely for the purpose of this Consent Decree
and for Commission civil enforcement purposes, and in express reliance
on the provisions of paragraph 8 hereof, that the broadcast material
at issue in the NAL, Forfeiture Order, and MO&O is in violation of 47
C.F.R. S: 73.1216, assuming construction of this term as it is
construed by the Bureau as of the date hereof. Notwithstanding any
other provision of this Consent Decree, it is expressly agreed and
understood that if this Consent Decree, or paragraph 8 hereof, or
both, are breached by the Bureau, or are invalidated or modified to
CBS' prejudice by the Commission, Bureau, or any court, then and in
that event the provisions of the immediately-preceding sentence shall
be of no force or effect whatever, and CBS shall not, by virtue of
that sentence of any other provision of this Consent Decree, be deemed
to have made any admission concerning any material broadcast on the
Station. Notwithstanding the terms of paragraph 8 and the preceding
terms of this paragraph, the underlying broadcast material at issue in
the NAL, Forfeiture Order, and MO&O remains viable law in terms of
precedent purposes regarding the Contest Rule, unless and until a
ruling of an authority of competent jurisdiction finds otherwise.
15. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which CBS does not expressly consent)
that provision will be superseded by such Commission rule or Order.
16. Successors and Assigns. CBS agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
17. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties.
18. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
19. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
20. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
21. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
Suzanne M. Tetreault
Acting Chief
Enforcement Bureau
________________________________
Date
________________________________
Stephen A. Hildebrandt
Vice President and Deputy General Counsel
CBS Radio Inc.
________________________________
Date
See CBS Radio Inc. of Philadelphia, Notice of Apparent Liability, 22 FCC
Rcd 4223 (Enf. Bur., Investigations & Hearings Div. 2007) ("NAL")
See CBS Radio Inc. of Philadelphia, Forfeiture Order, 23 FCC Rcd 10569
(Enf. Bur., Investigations & Hearings Div., 2008).
See CBS Radio Inc. of Philadelphia, Memorandum Opinion and Order, DA
09-1877 (Enf. Bur., Investigations & Hearings Div. rel. August 26, 2009).
See 47 C.F.R. S: 73.1216.
See 47 U.S.C. S: 154(i), 503(b).
See 47 C.F.R. S:S: 0.111, 0.311.
See 47 C.F.R. S: 73.1216.
See Letter from Mr. Arnie Chapman to the Federal Communications
Commission, dated January 18, 2005 ("Complaint"). The Complaint alleges
that the Contest solicited ideas and actual performance of competitive
eating stunts from participants.
See id. at 1-4.
See id. at 1-3.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Infinity Broadcasting
Corporation of Philadelphia, dated June 28, 2005 ("LOI").
See Letter from Steven A. Lerman, Dennis P. Corbett, and Phillip A.
Bonomo, Attorneys for Infinity Broadcasting Corporation of Philadelphia,
to David J. Brown, Esq., Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, dated August 1, 2005 (the "LOI
Response").
See LOI Response at 4 ("Chapman . . . qualified through an eating stunt
performed at the WIP studios.").
See id.
See CBS Radio Inc. of Philadelphia, Notice of Apparent Liability, 22 FCC
Rcd 4223 (Enf. Bur., Investigations & Hearings Div. 2007) ("NAL").
See id. at 4225-4226. 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 NAL, 22 FCC Rcd at 4225-4226.
See Response to Notice of Apparent Liability for Forfeiture from Steven A.
Lerman, Dennis P. Corbett, and Philip A. Bonomo, 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 CBS Radio Inc. of Philadelphia, Forfeiture Order, 23 FCC Rcd 10569
(Enf. Bur., Investigations & Hearings Div., 2008).
See CBS Radio Inc. of Philadelphia, Petition for Reconsideration (filed
August 11, 2008).
See CBS Radio Inc. of Philadelphia, Memorandum Opinion and Order, DA
09-1877 (Enf. Bur., Investigations & Hearings Div. rel. August 26, 2009).
Federal Communications Commission DA 09-2104
2
Federal Communications Commission DA 09-2104