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Before the
Federal Communications Commission
Washington, DC 20554
)
In the Matter of
) File No. EB-06-IH-0825
Saga Communications of New England,
L.L.C. ) NAL Account No. 200732080018
Licensee of Station WAQY(FM), ) Facility ID No. 58551
Springfield, Massachusetts ) FRN No. 0002749406
)
MEMORANDUM OPINION AND ORDER
Adopted: March 31, 2010 Released: April 1, 2010
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny the petition for
reconsideration filed by Saga Communications of New England, L.L.C.
("Saga"), licensee of Station WAQY(FM), Springfield, Massachusetts
(the "Station"), of an Enforcement Bureau ("Bureau") Forfeiture Order
issued September 25, 2009. The Forfeiture Order imposed a monetary
forfeiture of $4,000 against Saga for violating Section 73.1216 of the
Commission's rules by failing to conduct a broadcast contest
substantially as announced. As discussed below, we deny the Petition
and affirm the $4,000 forfeiture.
I. background
2. The Forfeiture Order held that the Station failed to conduct a contest
substantially as announced in violation of Section 73.1216 of the
Commission's rules because it did not timely deliver a contest prize
consistent with its own contest rules. The Forfeiture Order held that
the Station's contest rules required delivery of the prize within 30
days, but the prize was not delivered until approximately seven months
after the contest was held and without sufficient justification for
the significant delay. Saga seeks reconsideration of this finding and
remission or mitigation of the forfeiture. The salient facts are not
in dispute, and thus are incorporated by reference from the NAL and
Forfeiture Order.
3. In support of its Petition, Saga contends: (1) that, contrary to the
Bureau's finding, promptness is not required by the Commission's
licensee-conducted contest rule; (2) that the Bureau incorrectly found
that Saga's own contest rules required it to award its contest prizes
within thirty days; (3) that the Bureau failed to prove that Saga
possessed the requisite scienter required to establish "willfulness"
under Section 503(b) of the Act; (4) that the precedent relied upon by
the Bureau regarding "willfulness" is untested by the courts and is,
therefore, unreliable; and (5) that the Bureau erred by finding that
Saga's misconduct was "repeated" within the meaning of Section 503(b)
of the Act. Below, we discuss each of Saga's contentions in turn.
II. DISCUSSION
4. Reconsideration is appropriate only where the petitioner 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. Saga has
failed to either demonstrate error, or to present new facts or changed
circumstances, as required. As such, the matter before us does not
warrant reconsideration and we uphold the Bureau's finding in the
Forfeiture Order.
5. First, we find incorrect Saga's contention that the Commission's
contest rule does not require that prizes be awarded promptly. As
discussed in the Forfeiture Order, the Commission has stated that
contest prizes must be awarded promptly. Saga asserts that the
Commission's prior statements regarding promptness are insufficient to
support a forfeiture and require additional notice and rulemaking,
because if the Commission had intended for this specific element to
create liability for a licensee in a broadcast contest, then it would
have included the term in an exhaustive list of elements in the rule.
We reject Saga's assertion. It is evident from the rule itself and
accompanying notes that the enumerated material terms do not
constitute an exhaustive list of every element that is material to a
contest. As an example, Note 1(b) of the rule recognizes that
"material terms may vary widely depending on the exact nature of the
contest" and sets forth contest terms that "generally" would be
included in a station's contest rules. Further, the law is clear that
the Commission may properly interpret its own rules consistent with
existing regulation. As the Forfeiture Order correctly held, the
Commission's prior statements consistently maintain that prizes must
be awarded promptly, and Saga cites no precedent that is inconsistent
with or disavows that position in any manner that might implicate the
need for a rulemaking.
6. Second, we find no merit in Saga's contention that the thirty-day time
period for prize fulfillment specified in its own contest rules did
not apply to the Station. Saga argues that the intent of its contest
rule provision is to "persuade" winners to claim their prizes within
thirty days, not to impose an obligation on Saga to award prizes
within thirty days. Saga's contest rule provision, however, when read
in its full context, belies such claims. Saga's rule states that
"[w]inners will be expected to claim prize (sic) at the [Station]
between 9am - 5pm, Monday through Friday (excluding holidays) within
30 days of being notified that they are winners, unless there is an
expiration date on prize which will be specifically stated." Saga's
own contest rule creates a reasonable expectation on the part of
winners that prizes would be awarded within thirty days because
winners are explicitly given thirty days in which to claim prizes, and
a prize must be awarded in order to be claimed. Moreover, accepting
Saga's interpretation of its own contest rule would render it harmless
from liability for ever failing to award a contest prize, effectively
allowing it to claim that fulfillment would occur at some unspecified
future time of its own choosing. This result would render Saga's
obligations under the Commission's contest rule meaningless, and it
would also be unfair to contest participants.
7. Third, we disagree with Saga's assertion that in order to impose a
forfeiture for its failure to award the prizes promptly, the
Commission must demonstrate scienter to establish that the conduct
was "willful." The case which Saga cites as authority for this
argument arose in the broadcast indecency context in which "scienter
is the constitutional minimum showing for penalizing the speech or
expression of broadcasters." There is no such constitutional
requirement in cases regarding violations of the licensee-conducted
contest rule; therefore, the cited authority is inapposite. It is well
established that Section 312(f)(1) of the Act provides that "the term
`willful,' when used with reference to the commission or omission of
any act, means the conscious or deliberate commission or omission of
such act, irrespective of any intent to violate any provision of this
Act or any rule or regulation of the Commission." As noted in the
Forfeiture Order, "willful" does not require a finding that the rule
violation was intentional or that the violator was aware that it was
committing a rule violation. Rather, the term "willful" simply
requires that the violator knew it was taking or failing to take the
action in question, irrespective of any intent to violate the
Commission's rules. Moreover, Saga's claim regarding its lack of
intent is not supported by the facts of this case. As noted in the
Forfeiture Order, the complainant repeatedly contacted Saga over
several months seeking the memorabilia portion of his prize, to no
avail. It was not until Saga received the Bureau's letter of inquiry
that it finally awarded the prizes. Under these circumstances, Saga's
assertion of mere inadvertence is not plausible.
8. Fourth, Saga questions the authority of the Commission decision that
the Bureau relied on for interpreting the "willfulness" standard
because it is untested by the courts. We find no validity in this
unsupported assertion. It is well established that the Commission may
rely on its precedents in the absence of controlling court opinions to
the contrary.
9. Finally, Saga argues that its violations of Section 73.1216 of the
Rules were not repeated as that term is contemplated by Section 503(b)
of the Act. Commission precedent clearly holds that "repeated" means
that the act was committed or omitted more than once, or lasts more
than one day. In this case, nearly seven months passed between the
drawing and the time that Saga awarded the memorabilia portion of the
prize. We find that the violations were repeated. Therefore, after
reviewing Saga's Petition and the underlying record, we find no basis
for reconsideration.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED, pursuant to Section 1.106 of the
Commission's rules, that the Petition for Reconsideration filed on October
26, 2009, by Saga Communications of New England, L.L.C., IS DENIED, and
the Forfeiture Order IS AFFIRMED.
11. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the rules within thirty (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 No. and FRN No. 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 24A (payment type code). Saga 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 Paul.Noone@fcc.gov.
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.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent, by
Certified Mail/Return Receipt Requested, to Saga Communications of New
England, L.L.C., 73 Kercheval Avenue, Grosse Pointe Farms, Michigan 48236,
by regular mail to its counsel, Gary S. Smithwick, Esq., Smithwick &
Belendiuk, P.C., 5028 Wisconsin Avenue, N.W., Suite 301, Washington, D.C.
20016.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
See Saga Communications of New England, L.L.C., Petition for
Reconsideration (filed Oct. 26, 2009) ("Petition").
See Saga Communications of New England, L.L.C., Forfeiture Order, 24 FCC
Rcd 11934 (Enf. Bur. 2009) ("Forfeiture Order"), aff'g, Saga
Communications of New England, L.L.C., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 4206 (Enf. Bur., Investigations & Hearings Div.
2007) ("NAL").
See 47 C.F.R. S: 73.1216.
See Forfeiture Order. See also paragraph 6, infra.
See Forfeiture Order, 24 FCC Rcd at 11934-35; NAL, 22 FCC Rcd at 4206-07.
See Petition at 4.
See id. at 5.
See id. at 7-8.
See id. at 7; 47 U.S.C. S: 503(b).
See id. at 3; 47 U.S.C. S: 503(b).
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 Forfeiture Order, 24 FCC Rcd at 11936-37 (citing Public Notice
Concerning Failure of Broadcast Licensees to Conduct Contests Fairly,
Public Notice, 45 FCC 2d 1056 (1974) ("1974 Public Notice")); Amendment of
Part 73 of the Commission's Rules Relating to Licensee-Conducted Contests,
Notice of Proposed Rulemaking, 53 FCC 2d 934 (1975) ("1975 NPRM"); and
Amendment of Part 73 of the Commission's Rules Relating to
Licensee-Conducted Contests, Report and Order, 60 FCC 2d 1072, 1073 (1976)
("1976 R&O").
See Petition at 4-5.
See 47 C.F.R. S: 73.1216. Note 1(b) states that "[m]aterial terms include
those factors which define the operation of the contest and which affect
participation therein. Although the material terms may vary widely
depending upon the exact nature of the contest, they will generally
include: how to enter or participate; eligibility restrictions; entry
deadline dates; whether prizes can be won; when prizes can be won; the
extent, nature and value of prizes; basis for valuation of prizes; time
and means of selection of winners; and/or tie-breaking procedures."
See Cost-Based Terminating Compensation for CMRS Providers;
Interconnection Between Local Exchange Carriers and Commercial Mobile
Radio Service Providers; Implementation of the Local Competition
Provisions of the Telecommunications Act of 1996; Calling Party Pays
Service Offering in the Commercial Mobile Radio Services, Order, 18 FCC
Rcd 18441, 18450 P: 22 (2003):
The D.C. Circuit has repeatedly held that interpretive rulings are
properly used to clarify the original meaning and application of an
agency's substantive rules. The Supreme Court in reaffirming the authority
of agencies to interpret their own rules stated that "a new APA rulemaking
is required only if an agency adopt[s] a new position inconsistent with
any of the [agency's] existing regulations."
See 1974 Public Notice, 1975 NPRM, and 1976 R&O, supra note 13.
See Petition at 5.
See id.
See Letter from Lawrence D. Goldberg, Vice President, Saga Communications
of New England, L.L.C., to William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, dated February
28, 2006, and filed through its counsel on March 2, 2006, at Attachment 4,
unnumbered pages 3-4.
See Petition at 7-8 (citing CBS Corporation et al. v. FCC, 535 F.3d 167
(3rd Cir. 2008) ("CBS v. FCC", cert. granted, vacated, and remanded, 129
S. Ct. 2176 (2009).
See Petition at 7-8 (citing CBS v. FCC).
CBS v. FCC, 535 F.3d at 205.
47 C.F.R. S: 312(f)(1). The legislative history of Section 312(f)(1) of
the Act clarifies that this definition of willful applies to both Sections
312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51
(1982), and the Commission has so interpreted the term in the Section
503(b) context. See Application for Review of Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388
(1991), recon. denied, 7 FCC Rcd 3454 (1992) ("Southern California").
See Southern California, 6 FCC Rcd at 4387-88 (stating that "inadvertence
. . . is at best, ignorance of the law, which the Commission does not
consider a mitigating circumstance" and applying the definition of willful
in Section 312(f)(1) to forfeiture cases). See also Abocom Systems, Inc.,
Memorandum Opinion and Order, 22 FCC Rcd 7448, 7451 (Enf. Bur. 2007)
(rejecting Abocom's argument that it was only "inadvertently noncompliant"
and that "its actions were not deliberate or intended to violate the
rules"); Five Star Parking d/b/a Five Star Taxi Dispatch, Forfeiture
Order, 23 FCC Rcd 2649, 2651-52 (Enf. Bur., Spectrum Enf. Div. 2008)
(declining to reduce or cancel forfeiture for late-filed renewal based on
licensee's administrative error); Domtar Industries, Inc., Notice of
Apparent Liability for Forfeiture, 21 FCC Rcd 13811, 13815 (Enf. Bur.,
Spectrum Enf. Div. 2006) (same).
See Forfeiture Order, 24 FCC Rcd at 11937-38.
See id. (citing Letter from Mr. Robert Naginewicz to the FCC, dated
December 31, 2005).
See Forfeiture Order, 24 FCC Rcd at 11938.
See Southern California, 6 FCC Rcd at 4388.
See Petition at 6-7.
The absence of interpretive court opinion does not diminish the vitality
or applicability of the Commission's own precedents, and Saga has cited no
authority demonstrating otherwise. To the contrary, under principles of
administrative stare decisis, an agency is bound by its precedents, and
has flexibility to depart from them only when it finds, and can adequately
explain, sound reasons for doing so, which Saga has not offered. See,
e.g., Atchison, Topeka & Santa Fe Railway v. Wichita Board of Trade, 412
U.S. 800, 806-17 (1973) (citing, inter alia, SEC v. Chenery Corp., 332
U.S. 194 (1947); Secretary of Agriculture v. United States, 347 U.S. 645,
653-54 (1954); and Columbia Gas Transmission Corp. v. FERC, 628 F.2d 578,
585-86 (D.C. Cir. 1979).
See Petition at 3.
See Sudbury Service, Inc., Licensee of Station KLCN(AM), Blytheville,
Arkansas, Forfeiture Order, 23 FCC Rcd 11232, 11234 (Media Bur., Audio
Div. 2008) (rejecting licensee's argument that its violations were not
repeated where licensee had not properly maintained its public inspection
file over a four-year period); Global Teldata II, LLC, Order of
Forfeiture, 22 FCC Rcd 8710, 8716-17 (2007) (rejecting licensee's argument
that, under Section 503(b)(1)(B), an entity cannot be held liable for a
continuing violation in a case involving the licensee's violations of
several rules related to the Universal Service Fund ).
See Forfeiture Order, 24 FCC Rcd at 11937.
See 47 C.F.R. S: 1.106.
See 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 504(a).
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Federal Communications Commission DA 10-580
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Federal Communications Commission DA 10-580