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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                    )                                 
                                                                      
     In the Matter of               )   EB-08-IH-5305                 
                                                                      
     Greater Boston Radio, Inc.     )   Facility ID No. 25052         
                                                                      
     Licensee of Station WMJX(FM)   )   NAL/Account No. 200932080039  
                                                                      
     Boston, Massachusetts          )   FRN 0005069802                
                                                                      
                                    )                                 


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  April 8, 2009 Released:  April 8, 2009

   By the Chief, Investigations and Hearings Division, Enforcement Bureau:

   I. INTRODUCTION

   1. In this  Notice of Apparent Liability for Forfeiture ("NAL"), issued
   pursuant to Section 503(b) of the Communications Act of 1934, as amended
   (the "Act"), and Section 1.80 of the Commission's rules, we find that
   Greater Boston Radio, Inc. ("Greater Boston" or the "Licensee"), licensee
   of Station WMJX(FM), Boston, Massachusetts ("Station WMJX" or the
   "Station"), broadcast information about a contest without fully and
   accurately disclosing all material terms thereof, and failed to conduct
   the contest substantially as announced or advertised, in apparent willful
   violation of Section 73.1216 of the Commission's rules. Based upon our
   review of the record, we find that Greater Boston is apparently liable for
   a forfeiture in the amount of $4,000.

   II. BACKGROUND

    2. The Commission received a complaint on May 2, 2008 (the "Complaint"),
       alleging that the Station failed to conduct its "Win a Car" contest in
       accordance with the contest's advertised terms and the Commission's
       rules. Specifically, the Complainant states that contest promotions
       broadcast by the Station stated that the winner would win one of three
       new cars. The Complainant was a preliminary winner who received a cash
       prize and an automobile ignition key that he initially believed
       represented a chance to win the contest's grand prize, his choice of
       one of three cars. After qualifying for a chance to win the grand
       prize, the Complainant learned that the prize was not the winner's
       choice of three available cars but, instead, a two-year lease of the
       selected car. Additionally, after qualifying, he was informed that the
       grand prize award was conditioned upon the winner further qualifying
       for credit with the car dealer supplying the leased car.

    3. By Letter of Inquiry ("LOI"), dated February 11, 2009, the Enforcement
       Bureau directed Greater Boston to provide information about the
       alleged contest. On March 20, 2009, Greater Boston filed its response
       ("LOI Response"). In its LOI Response, the Licensee states that the
       contest was entitled the "Cool, Hot or Green" contest (the "Contest")
       and that it "offered listeners a chance to win a two-year lease on the
       winner's choice of one of three automobiles - a `cool' Mercedes Benz C
       Series Sedan, a `hot' Audi TT Convertible, or a `green'
       environmentally-friendly Toyota Prius." Listeners called into the
       Station in order to win a gas card worth $106 (representing the
       Station's position on the FM dial - 106.7 MHz) and a chance to win the
       grand prize, a two-year lease of the listener's chosen automobile.

    4. In its LOI Response, Greater Boston acknowledges that "while the
       Contest, as described on air, made plain that the grand prize winner
       would be able to choose from three different cars, only the complete
       rules of the Contest, made available via the Station's website . . .
       spelled out that what was being awarded was a two-year lease of the
       car chosen, and not title to a car, and that the winner would have to
       be qualified for credit by Prime Motor Group," the contest co-sponsor.
       Moreover, the Licensee admits that "the Station's on-air announcements
       did not directly refer listeners to the Station's web site for
       complete Contest rules."

    5. Notwithstanding the foregoing, Greater Boston contends that none of
       the Contest contestants were harmed, inconvenienced or "suffered any
       reliance damages based on any misunderstanding of the rules."  In its
       LOI Response, Greater Boston offers assurances that it has taken
       "remedial measures to ensure that every material term is fully
       disclosed in announcements for future contests"  and submits documents
       addressed to its staff concerning the Commission's Contest Rule
       requirements.  Based upon these conditions and its remedial actions,
       Greater Boston argues that "it is appropriate for the Bureau to limit
       its actions to an admonishment of the Station for the misunderstanding
       concerning the grand prize that arose from announcements broadcast to
       promote the `Cool, Hot or Green' Contest."

   III.  DISCUSSION

    6. Under Section 503(b)(1) of the Act, any person who is determined by
       the Commission to have willfully or repeatedly failed to comply with
       any provision of the Act or any rule, regulation, or order issued by
       the Commission shall be liable to the United States for a forfeiture
       penalty. Section 312(f)(1) of the Act defines willful as "the
       conscious and deliberate commission or omission of [any] act,
       irrespective of any intent to violate" the law. The legislative
       history to Section 312(f)(1) of the Act clarifies that this definition
       of willful applies to both Sections 312 and 503(b) of the Act, and the
       Commission has so interpreted the term in the Section 503(b) context.
       The Commission may also assess a forfeiture for violations that are
       merely repeated, and not willful.  "Repeated" means that the act was
       committed or omitted more than once, or lasts more than one day. In
       order to impose such a penalty, the Commission must issue a notice of
       apparent liability, the notice must be received, and the person
       against whom the notice has been issued must have an opportunity to
       show, in writing, why no such penalty should be imposed. The
       Commission will then issue a forfeiture if it finds, by a
       preponderance of the evidence, that the person has willfully or
       repeatedly violated the Act or a Commission rule. As described in
       greater detail below, we conclude under this procedure that Greater
       Boston is apparently liable for a forfeiture for its apparent
       violation of Section 73.1216 of the Commission's rules.

    7. Section 73.1216, the Commission's Contest Rule, 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." Material terms under the
       rule "include those factors which define the operation of the contest
       and which affect participation therein," and generally include, among
       other things, instructions on "how to enter or participate;
       eligibility restrictions; . . . whether prizes can be won; when prizes
       can be won; . . . the extent, nature and value of prizes; time and
       means of selection of winners; . . . ." Additionally, "the obligation
       to disclose the material terms arises at the time the audience is
       first told how to enter or participate and continues thereafter."

    8. Licensees, as public trustees, have the affirmative obligation to
       prevent the broadcast of false, misleading or deceptive contest
       announcements, and to conduct their contests substantially as
       announced. 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." In enforcing this rule, the
       Enforcement Bureau has repeatedly held that licensees are responsible
       for broadcasting accurate statements as to the nature and value of
       contest prizes, and will be held accountable for any announcement that
       tends to mislead the public.

    9. In this case, Greater Boston promoted its Contest over the air with
       misleading information that did not fully disclose to the listening
       audience the Contest's material terms. The promotions did not include,
       inter alia, an accurate description of the Contest's grand prize; the
       value of the grand prize; the eligibility requirements of the
       contestants; or how to access the complete contest rules.

   10. Although Greater Boston tacitly admits that it violated the Contest
       Rule, it nevertheless argues that it should receive only an
       admonishment for "the misunderstanding concerning the grand prize." 
       In support of its position, Greater Boston references "remedial
       measures" it has taken to ensure future compliance with the Contest
       Rule and cites a 1990 Mass Media Bureau, Enforcement Division decision
       imposing an admonishment on KIRO, Inc. for Contest Rule violations.
       Although the remedial action taken by Greater Boston is commendable,
       it is well settled that subsequent remedial actions do not excuse or
       nullify a licensee's violation of a Commission rule. Further, the
       violations in the precedent that Greater Boston  cites are minor
       compared to the instant case and, therefore, justify a different
       result.

   11. In KIRO, the complainant did not understand that the station's contest
       term stating "enter as often as you like" contemplated participation
       in various segments of the contest but  did not permit  duplicate
       entries for the same segment.  The station made clarifying
       announcements about this contest term during the course of the
       contest. The Mass Media Bureau determined that the  term as originally
       announced could have been reasonably misunderstood  to permit
       duplicate entries and  was material to  the contest.  The Mass Media
       Bureau then determined that the overall circumstances of the case,
       including  the edited announcements and the station's offer to
       compensate the complainant for wasted participation expense, warranted
       an admonition. The circumstances of the violations in the instant
       case, however, are more serious and justify a forfeiture. In the
       instant case, Greater Boston failed to disclose  at all several
       material terms of the contest, as discussed above.  The Station did
       not provide an accurate description of the Contest's grand prize; the
       value of the grand prize; the eligibility requirements of the
       contestants; or how to access the complete contest rules. Finally, the
       decision in this case is consistent with more recent decisions where a
       forfeiture was imposed for violation of the Commission's contest rule.

   12. Based upon the evidence before us, we find that the Licensee
       apparently willfully violated Section 73.1216 of the Commission's
       rules. The Commission's Forfeiture Policy Statement specifies a base
       forfeiture amount of $4,000 for violation of Section 73.1216. In
       assessing the monetary forfeiture amount, we must take into account
       the statutory factors set forth in Section 503(b)(2)(E) of the Act,
       which include 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
       such matters as justice may require. Taking this standard into
       account, and based upon the facts and circumstances presented here, we
       find that a forfeiture in the amount of $4,000 is appropriate in this
       case.

   IV. ORDERING CLAUSES

   13. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the Act, and
       Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules, that
       Greater Boston Radio, Inc., licensee of Station WMJX(FM), Boston,
       Massachusetts, is hereby NOTIFIED of its APPARENT LIABILITY FOR
       FORFEITURE in the amount of $4,000 for apparently willfully and
       repeatedly violating Section 73.1216 of the Commission's rules.

   14. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
   rules, that within thirty (30) days of the release of this Notice, Greater
   Boston Radio, Inc. SHALL PAY the full amount of the proposed forfeiture or
   SHALL FILE a written statement seeking reduction or cancellation of the
   proposed forfeiture.

   15. 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[s] 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.  
   Greater Boston Radio, Inc. will also send electronic notification on the
   date said payment is made to Hillary.DeNigro@fcc.gov,
   Rebecca.Hirselj@fcc.gov, and Judy Lancaster@fcc.gov.

   16. The response, if any, must be mailed to Hillary S. DeNigro, Chief,
   Investigations and Hearings Division, Enforcement Bureau, Federal
   Communications Commission, 445 12th Street, S.W, Room 4-C330, Washington
   D.C. 20554 and SHALL INCLUDE the NAL/Acct. No. referenced above. The
   Licensee shall also, to the extent practicable, transmit a copy of the
   response via e-mail to Hillary.DeNigro@fcc.gov, Rebecca.Hirslef@fcc.gov,
   and Judy.Lancaster@fcc.gov.

   17. The Commission will not consider reducing or canceling a forfeiture in
   response to a claim of inability to pay unless the respondent submits: (1)
   federal tax returns for the most recent three-year period; (2) financial
   statements prepared according to generally accepted accounting practices
   ("GAAP"); or (3) some other reliable and objective documentation that
   accurately reflects the respondent's current financial status. Any claim
   of inability to pay must specifically identify the basis for the claim by
   reference to the financial documentation submitted.

   18. IT IS FURTHER ORDERED that the complaint in this proceeding IS GRANTED
   to the extent indicated herein and IS OTHERWISE DENIED, and the complaint
   proceeding IS HEREBY TERMINATED.

   19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
   for Forfeiture shall be sent, by Certified Mail/Return Receipt Requested,
   to Greater Boston Radio, Inc., 35 Braintree Hill Office Park, Suite 300,
   Braintree, Massachusetts 02184-8703, and to its counsel, David S. Keir,
   Esq., at 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 U.S.C. S: 503(b); 47 C.F.R. S: 1.80.

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

   See Complaint to Federal Communication Commission filed May 2, 2008
   ("Complaint") (copy on file).

   See id. at 1.

   See id.

   See Letter from Rebecca Hirselj, Assistant Chief, Investigations and
   Hearings Division, Enforcement Bureau, to Greater Boston Radio, Inc.,
   dated February 11, 2009 (the "LOI").

   See Letter from David S. Keir, Esq., Lerman Senter PLLC, to Judy
   Lancaster, Investigations and Hearings Division, Enforcement Bureau, dated
   March 20, 2009 ("LOI Response").

   See LOI Response at 2.

   See id. at 2, 4. A check in the amount of $106 was substituted for each
   advertised gas card because the Station was unable to procure gas cards in
   the amount of $106. See LOI Response at 4.

   See id. at 3.

   See id. at 2. The Station's announcements consistently described the grand
   prize in the "Cool, Hot or Green" contest as "A Cool Mercedes Benz...A Hot
   Audi TT Convertible...or a [Green] Toyota Prius Hybrid ... from Prime Auto
   Group...No fine print gimmicks...on line at Driveprime.com!" See id. at 2
   & Exhibit 2.

   See id. at 6, 7.

   See id. at 7.

   See id. at Exhibits 3 (a 2004 Memorandum to its General Managers and
   Program and Promotion Directors concerning contests and lotteries,
   referred to in the LOI Response as a copy of its corporate policy
   regarding contests), 8 (containing a March 19, 2009 "Important Advisory"
   regarding "Required Announcements Concerning Station-Sponsored Contests"
   addressed to "All Greater Media Programming and Promotions Personnel" and
   a copy of Exhibit 3).

   See id. at 7.

   See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).

   47 U.S.C. S: 312(f)(1).

   See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

   See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
   Order, 6 FCC Rcd 4387, 4388 (1991).

   See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
   Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10
   (2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
   for, inter alia, a cable television operator's repeated signal leakage).

   Southern California Broadcasting Co., 6 FCC Rcd at 4388 P: 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362 P: 9.

   See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).

   See, e.g., SBC Communications, Inc.,  Forfeiture Order, 17 FCC Rcd 7589,
   7591 P: 4 (2002) (forfeiture paid).

   47 C.F.R. S: 73.1216.

   Id. Note 1(b).

   Id.

   Id., Note 2.

   See 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, Report and Order, 60 FCC 2d 1072 (1976).

   See Headliner Radio, Inc., Memorandum Opinion and Order, 8 FCC Rcd 2962
   (Mass Media Bur. 1993) (finding that the airing of a misleading
   advertisement concerning a licensee's contest violated the Commission
   contest rules because the contest was not then conducted "substantially as
   announced or advertised"); Lincoln Dellar, Memorandum Opinion and Order, 8
   FCC Rcd 2582, 2585 (Mass Media Bur. 1993) (finding that the cancellation
   of a pre-announced contest violated the pertinent Commission rules because
   the contest was not then conducted "substantially as announced").

   WMJX Inc., 85 FCC 2d at 269-270, n.82 (citing Eastern Broadcasting Corp.
   (Station WCVS(AM)), Decision, 14 FCC 2d 228, 229 (1968)).

   See, e.g., Clear Channel Broadcasting Licenses, Inc. (Station WRUM(FM)),
   Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 6808, 6809 (Enf.
   Bur., Investigations & Hearings Div. 2006) (forfeiture paid); Citicasters
   Co. (Station KITT(FM)), Notice of Apparent Liability for Forfeiture, 15
   FCC Rcd 16612, 16613-614 (Enf. Bur. 2000) (forfeiture paid); Clear Channel
   Broadcasting Licenses, Inc.(Station KPRR(FM), Notice of Apparent Liability
   for Forfeiture, 15 FCC Rcd 2734, 2735 (Enf. Bur. 2000) (forfeiture paid).

   See LOI Response at 2 & Exhibit 2.

   See id at Exhibit 4 ("Contest Rules, as Posted on WMJX(FM) Website").

   See id. at 7.

   See id.  (citing  KIRO, Inc., 5 FCC Rcd 7105 (MMB, Enf. Div. 1990)
   ("KIRO")).

   See Entercom Wichita License, LLC, Forfeiture Order, DA 09-183, at P: 7 &
   note 17 (Enf. Bur., Investigations and Hearings Div. Feb. 5, 2009)
   ("Entercom Wichita") (finding that subsequent remedial actions undertaken
   by a licensee cannot excuse or nullify a licensee's rule violation);
   Capstar TX Limited Partnership, Notice of Apparent Liability, 20 FCC Rcd
   10636, 10640 (Enf. Bur., Investigations & Hearings Division 2005) (same);
   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)).

   KIRO, 5 FCC Rcd at 7105.

   See id.

   See paragraph 9, supra.

   E.g.,  CBS Radio East Inc., Notice of Apparent Liability, DA 09-189 (Enf.
   Bur., Investigations & Hearings Div. rel. Feb. 5, 2009) (finding licensee
   apparently liable for a $6,000 forfeiture for failing to disclose all
   material terms of a contest), response to NAL pending.; Clear Channel
   Broadcasting Licenses, Inc., Notice of Apparent Liability for Forfeiture,
   21 FCC Rcd 4072 (Enf. Bur. Investigations & Hearings Div. 2006) (imposing
   a $4,000 forfeiture despite licensee's prompt remedial action) (forfeiture
   paid).

   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, 17113 (1997), recons. denied, 15 FCC Rcd 303
   (1999) ("Forfeiture Policy Statement");  47 C.F.R. S: 1.80(b).

   See 47 U.S.C. S: 503(b)(2)(E); 47 C.F.R S: 1.80(c)(4).

   See id.

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

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

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

   See 47 C.F.R. S: 1.1914.

   For the purposes of the forfeiture proceeding initiated by this NAL,
   Greater Boston shall be the only party to this proceeding.

   Federal Communications Commission DA 09-779

   2

   7

   Federal Communications Commission DA 09-779