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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                            )                                
                                                                             
                                            )                                
     In the Matter of                           File No.: EB-11-IH-1374      
                                            )                                
     CBS Radio Holdings, Inc.                   NAL/Acct. No.: 201232080027  
                                            )                                
     Licensee of Station WBAV-FM,               FRN: 0009225392              
     Gastonia, North Carolina               )                                
                                                Facility ID No.: 6587        
                                            )                                
                                                                             
                                            )                                


                  Notice of apparent liability for forfeiture

   Adopted: August 21, 2012 Released: August 21, 2012

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

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
       that CBS Radio Holdings, Inc. (CBS), licensee of commercial radio
       station WBAV-FM, Gastonia, North Carolina (Station), apparently
       willfully and repeatedly violated Section 73.1216 of the Commission's
       rules by failing to conduct a contest substantially as announced or
       advertised. Based upon our review of the facts, we find CBS apparently
       liable for a monetary forfeiture in the amount of ten thousand dollars
       ($10,000).

   II. BACKGROUND

    2. The Commission received a complaint on September 13, 2011, alleging
       that CBS failed to conduct its "Carolina Cuties" contest (Contest) in
       accordance with its announced or advertised terms and the Commission's
       rules. Specifically, the complainant alleges that CBS conducted a
       Contest over the Station in which the Station invited each participant
       to submit a picture of his or her baby to be posted to and voted on by
       the public through the Station's website, in order to compete for a
       grand prize. The complainant alleges that the Station sent an e-mail
       to the complainant, and posted information on the Station's website,
       that was false and misleading regarding the Contest's final voting
       deadline. The complainant alleges that confusion resulting from this
       incorrect information deterred public participation through voting and
       unfairly compromised her child's chances of winning.

    3. The Enforcement Bureau (Bureau) issued a letter of inquiry to CBS
       regarding the complainant's allegations. CBS filed a response on April
       26, 2012. In its response, CBS acknowledges that Station staff twice
       posted erroneous information on the Station's website, and that it
       sent e-mails to the Contest's ten finalists containing incorrect dates
       for the voting deadline and the announcement of the Contest winner,
       but denies the allegation that it did not conduct the Contest
       substantially as announced or advertised.

    4. According to CBS, the Station broadcast announcements stating that
       Contest voting would conclude on September 5, 2011, and that the
       Station would announce winners on September 6, 2011. CBS acknowledges,
       however, that certain of the key dates that the Station subsequently
       supplied to the public and to the Contest's finalists were
       inconsistent with the key dates provided in the broadcast
       announcements. CBS states that Station staff first posted such
       inconsistent information on the Station's website on August 28, 2011.
       Specifically, the website posting indicated that the Station would
       announce the Contest's grand prize winner on September 4, 2011 (thus
       indicating that voting would conclude as of that date). Similarly, on
       August 28-29, 2011, Station staff sent e-mail messages to the Contest
       finalists, stating that the Station would announce the grand prize
       winner on September 4, 2011 (again indicating that voting would
       conclude on that date). Later, on September 5, 2011, Station staff
       again updated the Station's website, this time asserting that the
       Contest concluded on September 4, 2011, and that the Station would
       announce the grand prize winner on September 6, 2011. Notwithstanding
       these acknowledgements, CBS maintains that the conduct at issue was
       inadvertent and the result of its staff's failure to consult with more
       knowledgeable colleagues or supervisory personnel. CBS also claims
       that these errors were harmless in that they did not favor or disfavor
       any of the finalists because CBS actually allowed voting to continue
       until September 5, 2011, and that the Station broadcast announcements
       to that effect throughout the time the Station conducted the Contest.

   I. DISCUSSION

    5. Under Section 503(b)(1) of the Communications Act of 1934, as amended
       (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 and/or repeatedly violated the Act or a Commission rule. As
       described in more detail below, we conclude under this procedure that
       CBS is apparently liable for a monetary forfeiture for its apparent
       willful and repeated violation of Section 73.1216.

   A. CBS Failed to Conduct the Contest Substantially As Announced or
   Advertised

    6. Under Section 73.1216 of the Commission's rules, a broadcast 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." Material terms, among other things, include the time and
       means of selection of winners. Section 73.1216 further provides that
       "[n]o contest description shall be false, misleading or deceptive with
       respect to any material term."

    7. We find that CBS failed to conduct the Contest substantially as
       announced or advertised. According to the record, CBS conducted the
       Contest over the Internet by requiring contestants to upload pictures
       of their children on the Station's website and by requiring the
       participating public to use the Station's website to vote to determine
       the grand prize winner. On the same website, however, during the
       course of the Contest, CBS staff misinformed the voting public and the
       Contest's finalists about the dates when voting would conclude and
       when the grand prize winner would be announced. On August 28, 2011,
       and again on September 5, 2011, CBS staff posted incorrect information
       indicating that voting would and did conclude on September 4, 2011.
       Visiting the website to cast a vote was an essential part of the
       conduct of the Contest. The public, therefore, necessarily viewed this
       misinformation and may have reasonably believed that voting concluded
       on September 4 rather than September 5, 2011, as described in the
       broadcast announcement. Such misinformation may have caused
       participant confusion and led some members of the public to cease
       voting before the Contest actually ended. Indeed, based on the
       Complaint, at least one Contest finalist saw the incorrect
       information-both on the website and in e-mails sent by Station
       staff-and expressed confusion about the information. Thus, CBS's
       conduct in communicating with the public and contestants clearly
       departed from what the broadcast announcements stated would occur in
       terms of the dates of the voting deadline and the announcement of the
       grand prize winner.

    8. Therefore, although CBS's on air announcements technically covered the
       Contest's material terms, CBS failed to conduct the Contest
       substantially in accordance with those announcements, in violation of
       the rule. The Station's website and e-mail announcements conflicted
       with its broadcast announcements, thus confusing and misleading the
       public with respect to how the contest would be conducted. We have
       repeatedly held that any non-broadcast means used by a Station to
       announce contest rules can only supplement, but not replace, the
       obligation to broadcast a Contest's material terms. In this case, the
       non-broadcast communications were a fundamental part of the Station's
       conduct of the contest. Far from supplementing the broadcast
       announcements, the Station's contradictory announcements undermined
       the conduct of the Contest.

   B. Employee Error, Inadvertence, and Alleged Lack of Harm

   Do Not Excuse the Violation

    9. CBS's attempts to mitigate or exculpate the Station's multiple errors
       by blaming its staff and its staff's inadvertent actions do not
       persuade us. Rather, we find that these excuses underscore the
       Station's failure to adequately supervise the conduct of the Contest,
       which is noteworthy given CBS's past violations of the Contest rule.
       For example, CBS stresses that Station staff acted without consulting
       supervisors regarding the incorrect website postings and e-mails. It
       is well-established that a licensee is responsible for its employee's
       actions. Consequently, this argument does not preclude us from finding
       a violation nor mitigate the conduct here, but instead acknowledges
       that the Station management failed to exercise effective oversight of
       the Contest. CBS also attempts to justify the Station's violation by
       arguing that its staff's errors were inadvertent. Here, too, the
       inadvertence argument merely emphasizes the lack of supervision and
       does not prevent the violation from being willful, nor prevent us from
       finding CBS liable for the violation.

   10. CBS also suggests that its staff's errors in conducting the Contest
       did not favor or disfavor any one contestant over another, and that
       the lack of harm requires that we determine that its conduct conforms
       to Commission standards. The Commission has held, however, that "proof
       of actual injury to the public" is not a necessary component when
       determining a violation of Section 73.1216. Moreover, contrary to
       CBS's assertions, the Station caused actual as well as potential harm
       to the public. As discussed above, at least one contestant (i.e., the
       complainant), alleged that her child's participation in the contest
       was harmed as a direct result of the conflict between the terms as
       broadcast and the terms as posted on the Station's website, as well as
       included in e-mails it sent directly to the contestants. Additionally,
       the public, which used the website to vote on pictures entered as part
       of the Contest, would certainly have encountered the erroneous website
       postings. Thus, although a finding of harm is not required to assess a
       forfeiture in this case, we find that CBS's conduct misled both the
       public and at least one contestant with respect to a key element of
       the operation of the Contest.

   C. Forfeiture Amount

   11. Based on the evidence before us, and in view of the applicable law and
       Commission precedent, we find that CBS apparently willfully and
       repeatedly violated Section 73.1216 of the Commission's rules. The
       Commission's Forfeiture Policy Statement and Section 1.80 of the
       Commission's rules specify a base forfeiture amount of four thousand
       dollars ($4,000) for each 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 and
       Section 1.80 of the Commission's rules, 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. We believe that the base amount is inadequate in this case
       due to the repeated nature of the violation here and the licensee's
       previous violations of the same rule. It appears that the forfeiture
       amounts assessed against CBS stations previously have not had a
       sufficient deterrent effect. Thus, where, as here, a case presents a
       violation comparable to past violations, it appears necessary to
       upwardly adjust the base forfeiture amount to strengthen the deterrent
       effect.  In this context, we also must take into account that CBS is a
       large company with substantial revenues.

   12. After considering all the foregoing factors, and given the particular
       facts of this case, we find that CBS is apparently liable for a
       forfeiture in the amount of ten thousand dollars ($10,000). In view of
       today's action, and in light of CBS's prior history of non-compliance,
       we caution that the imposition of still higher forfeitures may result
       in the future if such misconduct persists.

   II. ORDERING CLAUSES

   13. ACCORDINGLY, IT IS ORDERED, pursuant to Section 503(b) of the Act, and
       Sections 0.111, 0.204, 0.311, and 1.80 of the Commission's rules, that
       CBS Radio Holdings, Inc. is hereby NOTIFIED of its APPARENT LIABILITY
       FOR FORFEITURE in the amount of ten thousand dollars ($10,000) 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 NAL, CBS
       Radio Holdings, 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,
       wire transfer, or credit card, and must include the NAL/Account number
       and FRN referenced above. CBS Radio Holdings, Inc. shall send
       electronic notification of payment to Jeffrey.Gee@fcc.gov,
       Anjali.Singh@fcc.gov, and Gary.Oshinsky@fcc.gov, on the date said
       payment is made. Regardless of the form of payment, a completed FCC
       Form 159 (Remittance Advice) must be submitted. When completing the
       FCC Form 159, enter the Account Number in block number 23A (call
       sign/other ID) and enter the letters "FORF" in block number 24A
       (payment type code).  Below are additional instructions you should
       follow based on the form of payment you select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. 

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated. 

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101. 

   16. Any request for full payment under an installment plan should be sent
       to:  Chief Financial Officer-Financial Operations, Federal
       Communications Commission, 445 12th Street, S.W., Room 1-A625,
       Washington, D.C.  20554.  If you have questions regarding payment
       procedures, please contact the Financial Operations Group Help Desk by
       phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.  

   17. The response, if any, must be mailed to Theresa Z. Cavanaugh, Chief,
       Investigations and Hearings Division, Enforcement Bureau, Federal
       Communications Commission, 445 12th Street, SW, Room 4-C330,
       Washington, D.C. 20554, and SHALL INCLUDE the NAL/Acct. number
       referenced above. In addition, to the extent practicable, a copy of
       the response, if any, should also be transmitted via e-mail to
       Terry.Cavanaugh@fcc.gov, Jeffrey.Gee@fcc.gov, Anjali.Singh@fcc.gov,
       and Gary.Oshinsky@fcc.gov.

   18. 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.

   19. 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.

   20. IT IS FURTHER ORDERED that a copy of this NAL  shall be sent by First
       Class Mail and by Certified Mail, Return Receipt Requested, to Anne
       Lucey, Senior Vice President for Regulatory Policy, CBS Corporation,
       601 Pennsylvania Avenue, NW, Suite 540, Washington, DC 20004; and to
       Peter M. Gould, Esquire, Lerman Senter PLLC, 2000 K Street, NW, Suite
       600, Washington DC 20006.

   FEDERAL COMMUNICATIONS COMMISSION

   Theresa Z. Cavanaugh

   Chief, Investigations and Hearings Division

   Enforcement Bureau

   47 C.F.R. S: 73.1216.

   See Complaint from Yolanda Harris to Federal Communications Commission,
   Form 2000A, No. 11-C00331766-1, at 1 (Sept. 13, 2011) (on file in
   EB-11-IH-1374) (Complaint).

   See  id.

   See id.

   See id.

   See Letter from Anjali K. Singh, Assistant Chief, Investigations and
   Hearings Division, Enforcement Bureau, Federal Communications Commission,
   to CBS Radio Holdings, Inc. (Mar. 13, 2012) (on file in EB-11-IH-1374).

   See Letter from Peter M. Gould, Counsel to CBS Radio Holdings, Inc., to
   Gary A. Oshinsky, Attorney Advisor, Investigations and Hearings Division,
   Enforcement Bureau, Federal Communications Commission (Apr. 26, 2012) (on
   file in EB-11-IH-1374) (CBS April 26 Letter).

   See id. at 3-4.

   See id. at 4.

   See id. at 3.

   See id. at 4.

   See id. at 4, Attach. 6 (including various e-mails between Station staff
   and Contest finalists).

   See id. at 4.

   See id.

   See id. at 4-5.

   47 U.S.C. S: 503(b)(1)(B). See also 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, para. 5 (1991).

   See, e.g.,  Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
   Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para.
   10 (2001) (Callais Cablevision, Inc.) (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, para. 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362, para. 9.

   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, para. 4 (2002) (forfeiture paid).

   47 C.F.R. S: 73.1216.

   Id.

   Id., Notes 1(b), 2.

   47 C.F.R. S: 73.1216.

   See  id.

   See, e.g., CBS April 26 Letter at Attachs. 1-2 (containing descriptions of
   the Contest's material terms, which required online participation from
   contestants, such as through announcements like "Log on to V1019.com and
   upload your Carolina Cuties photo" and " . . . log on to V1019.com and
   vote for your favorite cutie . . . ").

   See id. at 3-4, Attach. 6.

   See id. at 4.

   See id. at 4, Attach. 6; Complaint at 1.

   See, e.g., AK Media Group, Inc., Notice of Apparent Liability for
   Forfeiture, 15 FCC Rcd 7541, 7543, para. 7 (Enf. Bur. 2000) (holding that
   while non-broadcast disclosures can supplement broadcast announcements,
   they cannot act as a substitute for broadcast announcements). We have,
   however, commented on the sufficiency of Internet materials that licensees
   purport to use as a substitute for, or as a supplement to, broadcast
   announcements of material terms that can be both "misleading and
   deceptive" and result in "participant confusion," preventing listeners
   from meaningful participation in a contest. See AMFM Broadcasting
   Licenses, LLC, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd
   1529, 1532, para. 9 (Enf. Bur. 2009) (finding broadcast announcements and
   website rules were insufficient to inform the public of the contest's
   material terms); see also Journal Broadcast Corporation, Notice of
   Apparent Liability for Forfeiture, 25 FCC Rcd 2797, 2799, para. 6 (Enf.
   Bur. 2010) (same); Clear Channel Communications, Inc., Notice of Apparent
   Liability for Forfeiture, 27 FCC Rcd 343, 345-46, paras. 6-7 (Enf. Bur.
   2012) (finding contest rules that are posted only on the station's website
   were insufficient to meet the contest rule's requirements concerning
   broadcast of material terms; and also finding the substance of the online
   rules to be deficient in communicating material terms to the public);
   infra note 41 (regarding misleading or deceptive matter under Section
   73.1216).

   See CBS April 26 Letter at 4-5.

   See  CBS Radio Inc. of Philadelphia, Order, 24 FCC Rcd 12047, 12051, para.
   14 (Enf. Bur. 2009) (containing CBS's admission of liability for violating
   the contest rule in the underlying investigation); CBS, Inc., Letter, 9
   FCC Rcd 705 (Mass Media Bur. 1994) (imposing a $5,000 forfeiture for
   failure to disclose the material terms of a contest in a reasonable number
   of announcements).

   See CBS April 26 Letter at 3-4.

   See, e.g., Nationwide Communications Inc., Notice of Apparent Liability
   for Forfeiture, 9 FCC Rcd 175 (Mass Med. Bur. 1994) (licensee held liable
   for a contest violation despite staff's error in violative conduct); Triad
   Broadcasting Company, Inc., Memorandum Opinion and Order, 96 F.C.C.2d
   1235, 1242, para. 16 (1984) (holding that "[a] licensee will not be
   excused for violation because he may have been deceived by an employee
   since licensees are responsible for acts of their employees").

   See CBS April 26 Letter at 4-5.

   See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 17
   FCC Rcd 2088, 2089, para. 5 (1992) ("The fact that a licensee's violation
   occurred through inadvertence does not prevent it from being willful.");
   see also Corr Wireless Communications LLC, Notice of Apparent Liability
   for Forfeiture, 24 FCC Rcd 5419, 5421, para. 7 (Enf. Bur. 2009) ("[T]he
   Commission has long held that a downward adjustment of a forfeiture is not
   justified where violators claim their actions or omissions were due to
   inadvertent errors.").

   See CBS April 26 Letter at 5.

   See WMJX, Inc., Decision, 85 FCC 2d 251, 269, para. 31 (1981) (stating
   that "a tendency to mislead the public" is enough for a contest
   description to constitute false, misleading or deceptive matter under
   Section 73.1216).

   See Complaint at 1; supra note 40.

   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(b)(4).

   See id.

   See  supra note  35.

   See, e.g., Acme Television Licenses of Ohio, LLC, 25 FCC Rcd 6145, 6148,
   para. 11 (2010) (increased forfeiture amount justified by "numerous
   violations" such that "[it] appears that the forfeiture amounts assessed
   previously have not had a sufficient deterrent effect").

   In 2011, CBS Corporation, the licensee's parent company, and its
   consolidated subsidiaries had revenues of over $14.245 billion. See United
   States Securities and Exchange Commission Form 10-K, Annual Report, CBS
   Corporation (2011) at II-3
   (http://sec.gov/Archives/edgar/data/813828/000104746912001373/a2207377z10-k.htm).

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

   See 47 C.F.R. S:S: 0.111, 0.204, 0.311, and 1.80.

   An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

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

   For purposes of the forfeiture proceeding initiated by this NAL, CBS Radio
   Holdings, Inc. shall be the only party to this proceeding.

   (Continued from previous page)

   (continued....)

                                 Federal Communications Commission DA 12-1368

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                                 Federal Communications Commission DA 12-1368