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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AK MEDIA GROUP, INC. ) File No. EB-00-IH-0010
) NAL/Acct. No. X32080011
Licensee of Station KJR-FM )
Seattle, Washington )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 17, 2000 Released: April 19, 2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find AK Media Group, Inc. (``AK''), licensee of Station KJR-FM,
Seattle, Washington, apparently liable for a forfeiture in the
amount of two thousand dollars ($2,000) for a violation of
Section 73.1216 of the Commission's rules, which requires
licensees, among other things, to broadcast the material terms of
a contest. We find that AK conducted a contest, ``$10,000 Music
Challenge,'' without broadcasting the material terms of the
contest.
II. BACKGROUND
2. On November 7, 1999, Ms. Debra Barto sent a complaint
to the Commission against KJR-FM. According to Ms. Barto,
Station KJR-FM conducted a contest under which a contestant could
win $10,000 by being the ninth caller and identifying the title
and artist of ten songs from which the station played very brief
excerpts. On November 4, 1999, at 12:30 p.m., Ms. Barto was the
ninth caller, and she correctly identified the ten songs from
which excerpts were played. According to her complaint, Ms.
Barto was then told that day by Laura in the station's Promotions
Department, and by Gary Bryan, the station's Program Director,
that she would not be awarded the $10,000 because she had played
the Fall 1999 contest previously within the last ten days. Ms.
Barto admitted that she had played the contest on October 26,
1999 and won $95 (which was the prize for being the ninth
caller). Ms. Barto claims that she had been told in April 1999
by Laura of the station's Promotions Department that if only the
last song remained to be guessed, she could play for the $10,000
prize even if she had played within the last seven days,1
although she would not win $95 just for being the correct caller.
3. On December 29, 1999, the Commission staff sent AK a
letter of inquiry. In its response, which was filed on March 2,
2000, AK explains that it ran the ``$10,000 Music Challenge'' in
the spring of 1999 and again in the fall of 1999. Three times
each day, the station would play a ten-song montage consisting of
very brief excerpts of songs. The ninth caller would then have
the opportunity to name all ten songs by title and artist. If
the contestant named all ten songs correctly, the contestant
would win $10,000. Otherwise, they won $95 for being the ninth
caller.
4. AK confirmed that Ms. Barto was announced as the winner
of the ``$10,000 Music Challenge'' on November 4, 1999, and that
she was later disqualified for having played the contest within
the previous ten business days. The written rules for the Fall
1999 version of the contest state:
YOU MAY ONLY PARTICIPATE IN THE CONTEST ONCE EVERY TEN
BUSINESS DAYS. IF YOU GET THROUGH AND WIN $95, YOU ARE
NOT ELIGIBLE TO PLAY AGAIN FOR TEN BUSINESS DAYS.
(Emphasis in original). When asked to provide a tape or
transcript of ``any over-the-air announcements describing
the material terms of the contest,'' AK claimed that it ran
live liners referring listeners to its web site for complete
contest rules. AK states that all contest rules were posted
at the station's reception desk, in the studio, and on its
web site. AK admits that Ms. Barto and Laura Rieder of the
station's Promotions Department had a conversation in April
1999 concerning the rules for the Spring 1999 contest, but
AK denies that Ms. Barto was told anything that would apply
to the Fall 1999 contest.
5. AK claims that before each contestant played the
Fall 1999 contest, they were asked three eligibility
questions: ``1) Are you a Washington State resident? 2) Are
you 18 years or older? [and] 3) Have you played this contest
within the last ten business days?'' AK claims that Ms.
Barto was asked those eligibility questions before she
played, and she denied that she had played in the last ten
days. AK did not support its claim with an affidavit or
declaration from Heidi May, the disc jockey who spoke with
Ms. Barto. Ms. Barto claims that she was not asked those
questions until after she won the contest. In her comments
on the station's response to the letter of inquiry, Ms.
Barto submits a tape of her on-the-air conversation with Ms.
May during which no eligibility questions were asked. The
parties agree that Ms. Barto and Ms. May discussed Ms.
Barto's eligibility after Ms. Barto played the contest.
III. DISCUSSION
6. 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.
Note 2 to the rule 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.
7. It appears that AK violated Section 73.1216 of the
Commission's rules by not broadcasting material terms of the
``$10,000 Music Challenge,'' including, but not limited to, the
restriction that contestants could only play once every ten
business days. AK's disclosure of the contest rules at the
station and on its web site does not comply with the rule. The
Commission's rules clearly state that ``[t]he material terms
should be disclosed periodically by announcements broadcast on
the station conducting the contest.'' 47 C.F.R. § 73.1216 n.2
(emphasis added). The rules state that while disclosure by non-
broadcast means (such as making rules available at the stations
and on the World Wide Web) can be considered in determining
whether adequate disclosure has been made, the non-broadcast
disclosures must be ``[i]n addition to the required broadcast
announcements . . . .'' Id. Thus, while non-broadcast
disclosures can supplement broadcast announcements, they cannot
act as a substitute for broadcast announcements. The dispute
between Ms. Barto and AK concerning their different
understandings of the rules for the ``$10,000 Music Challenge''
demonstrates why it is important for stations to broadcast all of
the material terms of a contest.
8. Section 503(b) of the Communications Act, 47 U.S.C. §
503(b) and Section 1.80(a) of the Commission's rules, 47 C.F.R. §
1.80(a), each state that any person who willfully or repeatedly
fails to comply with the provisions of the Communications Act or
the Commission's rules shall be liable for a forfeiture penalty.
For purposes of Section 503(b) of the Communications Act, the
term ``willful'' means that the violator knew it was taking the
action in question, irrespective of any intent to violate the
Commission's rules. See Southern California Broadcasting Co., 6
FCC Rcd 4387, 4387-4388 (1991). Furthermore, a continuing
violation is ``repeated'' if it lasts more than one day. Id., 6
FCC Rcd at 4388.
9. Based on the evidence before us, we find that AK
conducted the ``$10,000 Music Challenge'' contest without
broadcasting the material terms of the contest, in apparent
willful and repeated violation of Section 73.1216 of the
Commission's rules. The Commission's Forfeiture Policy Statement
sets a base forfeiture amount of $4,000 for a violation of
Section 73.1216 of the rules.2 In this case, we note that while
AK did not comply with the rule, it made some efforts to make the
rules available to the public. We believe these efforts mitigate
the violation. Based upon our review of all the pertinent
factors as required by Section 503(b)(2)(D) of the Act, we
believe a $2,000 forfeiture is appropriate.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED pursuant to Section 503(b)
of the Communications Act of 1934, as amended, and Sections
0.111, 0.311 and 1.80 of the Commission's rules,3 AK Media Group,
Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE
in the amount of two thousand dollars ($2,000) for willfully and
repeatedly violating Section 73.1216 of the Commission's rules.
11. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, AK SHALL PAY to the United States the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. referenced
above.
13. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W,
Room 3-B443, Washington DC 20554 and MUST INCLUDE the file number
listed above.
14. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to AK's
counsel, James L. Winston, Esq., Rubin, Winston, Diercks, Harris
& Cooke, L.L.P., 1155 Connecticut Avenue, N.W., 6th Floor,
Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 The rules for the Spring 1999 contest provided that a
contestant ``may only win the $95 cash prize once per five
business days.''
2 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087, 17114
(1997), recon. denied 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b).
3 47 C.F.R. §§ 0.111, 0.311 and 1.80.