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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
)
FORFEITURE ORDER
Adopted: July 10, 2008 Released: July 10, 2008
By the Chief, Investigations and Hearings Division:
I. introduction
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $4,000 against CBS Radio Inc. of Philadelphia ("CBS"),
licensee of Station WIP(AM), Philadelphia, Pennsylvania (the
"Station"), for its willful violation of Section 73.1216 of the
Commission's Rules. As discussed below, CBS failed to announce the
material terms of a contest and neglected to conduct the contest in
accordance with its material terms, in violation of the Commission's
Rules.
II. background
2. On March 2, 2007, the 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.
The contest required contestants to propose and perform a competitive
eating stunt, and awarded winners a chance to compete in a popular
competitive eating competition called "Wing Bowl 13." CBS initially
awarded the prize to the complainant, but later disqualified him when
it discovered that he belonged to a competitive eating association,
the Association of Independent Competitive Eaters ("AICE"). AICE is a
rival of the Independent Federation of Competitive Eating ("IFOCE"),
which is another competitive eating association historically
associated with Wing Bowl 13. CBS offered two justifications for its
conduct: (1) that the complainant was on constructive notice due to
CBS's prior exclusion of a competitor in a previous contest, Wing Bowl
12, on the same basis; and (2) that the complainant did not meet the
contest's requirements because he did not reside within the Station's
listening area. The Division rejected these arguments and, based on
CBS's violation of Section 73.1216, proposed a forfeiture in the
amount of $4,000.
3. On April 2, 2007, CBS filed a response to the NAL ("NAL Response"). In
its NAL Response, CBS argues that the forfeiture should be cancelled
because the disqualification of the complainant from the contest was
an exercise of the Station's discretionary rights under the Station's
rules for the contest. Further, CBS contends that it substantially
complied with the rule and that its conduct was, at most, a
"technical" violation for which a forfeiture should not be issued
because there was no deception to the public. CBS also argues that the
Commission should impose a burden on the complainant to show that he
listened to the Station even though his address is outside the
Station's listener area contours.
III. discussion
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act, Section 1.80 of the
Commission's Rules, and the Commission's forfeiture guidelines set
forth in its Forfeiture Policy Statement. In assessing forfeitures,
Section 503(b) of the Act requires that we take into account 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 matters as justice may
require. As discussed further below, we have examined CBS's response
to the NAL pursuant to the aforementioned statutory factors, our
rules, and the Forfeiture Policy Statement, and find no basis for
cancellation or reduction of the forfeiture.
5. CBS acknowledges that it disqualified the complainant because he was a
member of another competitive eating organization (i.e., AICE), yet
its contest rules do not state that contestants who are members of
other competitive eating organizations are ineligible; nor do its
rules state that the Station would have the authority to disqualify a
winner later found to be a member of another competitive eating
organization. In its NAL Response, CBS argues that the complainant's
disqualification was an exercise of the Station's discretionary rights
under its rules, which provided the Station broad discretion as to how
to conduct the contest and modify the rules. We find this argument
unpersuasive. The Commission's contest rule generally does not permit
a licensee to modify the material terms of a contest - in this case,
eligibility requirements -- after the contest has been conducted. We
affirm the NAL's conclusion that CBS failed to conduct the contest
"substantially" as announced in violation of our rules.
6. CBS further argues that its conduct was merely a technical violation
that did not result in deception of the public and, therefore, should
not result in forfeiture action, consistent with the result in another
contest case, Lincoln Dellar. We disagree. CBS's reliance on Lincoln
Dellar is unavailing because the facts and circumstances in Lincoln
Dellar are completely different from the facts in the instant case. In
Lincoln Dellar, the licensee allegedly cancelled a contest, for which
it aired teasers telling listeners that prizes worth thousands of
dollars would be awarded, before its scheduled start date but
conducted the contest one month later. The Mass Media Bureau
determined that, although cancellation of a contest is technically a
violation of the contest rule, the record did not actually support
finding a rule violation because the facts and circumstances did not
effectively result in any deception of the public, since the teasers
never stated a firm date for the contest and the contest was actually
conducted. Here, the licensee changed the material terms of its
contest and disqualified a contestant after-the-fact which, in effect,
resulted in deceiving the public. Furthermore, it did so despite being
on notice itself from a prior competitive eating contest it conducted
(when the Station ended up disqualifying a contestant because of prior
membership to another competitive eating organization) that its rules
were unclear as to whether members from competitive eating
associations besides IFOCE could compete. In addition, CBS failed to
broadcast or announce its requirement that contestants may not be
members of any eating associations other than IFOCE. Thus, based on
the factual circumstances of this case, the manner in which the
Station conducted the contest could, and did, lead to deception of the
public, thereby justifying the forfeiture imposed, unlike in Lincoln
Dellar.
7. CBS also requests reconsideration of the NAL on the ground that the
complainant's residency is outside of the Station's listener area and,
therefore, is a contest condition supporting disqualification of the
complainant. In support, CBS cites to Complaints Regarding Various
Television Broadcasts Between February 2, 2002 and March 8, 2005
("Omnibus Indecency Order"). There, the Commission dismissed certain
indecency complaints, finding that "there is nothing in the record . .
. to tie the complaints to the . . . local viewing area" of the
station. CBS asserts that a similar burden should be imposed on the
complainant in this case - i.e., that he should be required to
demonstrate that he was a Station listener. CBS's reliance on the
Omnibus Indecency Order is misplaced and reflects a misunderstanding
of the Commission's indecency enforcement policy. The indecency policy
statement referenced was intended to clarify that the Commission's
indecency enforcement policy does not require the complainant to
submit a statement that it viewed the material alleged to be indecent.
The Commission determined that indecency complaints lacking such a
statement would not be rendered procedurally defective if the
complaint otherwise shows that the complainant is a viewer in the
market served by the station alleged to have violated the Commission's
indecency rule. That policy simply has no relevance to the proper
application and enforcement of the Commission's contest rule, and CBS
has not provided any precedent to support its suggestion for a narrow
application of the rule.
8. Notwithstanding the foregoing, even if we were to apply the burden
suggested by CBS to the instant case, the record evidence supports a
finding that the complainant would have met that burden. The
complainant in this case actively engaged the Station during the
contest by visiting the Station to perform the stunt which qualified
him to win. CBS's rules for the contest at issue here - as written and
announced - did not preclude the complainant's participation, and CBS
has not provided evidence or arguments to counter that conclusion.
CBS's decision to disqualify the contest winner (here, the
complainant) resulted in the substantial modification of a material
term of its contest rules, in violation of Section 73.1216.
9. We therefore find that the proposed forfeiture of $4,000 is
appropriate in the instant case. We have examined the Response to the
NAL pursuant to the statutory factors above, and in conjunction with
the Forfeiture Policy Statement. As a result of our review, we
conclude that the CBS willfully violated Section 73.1216 of the
Commission's Rules.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's Rules,
CBS Radio Inc. of Philadelphia IS LIABLE FOR A MONETARY FORFEITURE in
the amount of four thousand dollars ($4,000) for willful violation of
Section 73.1216 of the Commission's Rules.
11. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this
Forfeiture 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 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 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. CBS Radio Inc. of Philadelphia will
also send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, and
Anjali.Singh@fcc.gov.
12. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by First Class Mail and Certified Mail Return Receipt Requested
to CBS Radio Inc. of Philadelphia, 2175 K Street, N.W., Suite 350,
Washington, DC 20037, and to its counsel, Brian M. Madden, Dennis P.
Corbett, and Philip A. Bonomo, Leventhal Senter & Lerman PLLC, 2000 K
Street, N.W., Suite 600, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
Infinity Broadcasting Corporation of Philadelphia was the licensee at the
time that this investigation began, January 18, 2005.
See 47 C.F.R. S: 73.1216.
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 id. at 4224.
See id.
See id. at 4225-4226.
See id.
See Response to Notice of Apparent Liability for Forfeiture from Brian M.
Madden, 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 NAL Response at 2.
See id. at 3. In support of its contention, CBS cites Lincoln Dellar,
Memorandum Opinion and Order, 8 FCC Rcd 2582, 2586 (MMB 1993). See infra
paragraph 6.
See id. at 2-3.
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80.
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 (1997), recons. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
See 47 U.S.C. S: 503(b)(2)(E).
See NAL Response at 2 ("Here, WIP exercised that flexibility in a very
limited manner, by disqualifying a single Wing Bowl 13 contestant on the
basis of his incompatible AICE membership.")
See id. at 1-2.
See Clear Channel Broadcasting Licenses, Inc., Notice of Apparent
Liability, 21 FCC Rcd 4072, 4075 (EB 2006) (finding a violation of the
contest rules and rejecting licensee's contentions that the contest rules
provided it the ability to alter the outcome of a contest if it was
affected by human error because "[s]uch a reading of the rules would
provide the licensee with virtually unlimited discretion to change the
Contest rules"). The Commission's contest rules only mention "discretion"
in terms of the time and manner of disclosure of the material terms of the
contest, but even limit that discretion. See 47 C.F.R. S: 73.1216 Note 2
("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.") (emphasis added).
See also CBS, Inc., Letter, 9 FCC Rcd 705 (MMB 1994) (finding violation of
contest rules due to the licensee's failure to disclose a contest's
material terms in a reasonable number of announcements during the hours in
which a contest was conducted).
See Lincoln Dellar, 8 FCC Rcd at 2586.
See Lincoln Dellar, 8 FCC Rcd at 2585.
CBS disqualified a contestant from both Wing Bowl 13 and the prior contest
it cites as precedent for doing so, Wing Bowl 12. See NAL Response at 3.
CBS asserts that "[t]he adversarial relationship of IFOCE and AICE, as
described in the Letter Inquiry Response, and the history of the Wing Bowl
itself, including the disqualification of an AICE member during the prior
year's Wing Bowl competition, provided constructive knowledge to the
Complainant that his participation in Wing Bowl 13 is not allowed." The
rules, however, do not allow for a contest's material terms to be
advertised through "constructive notice." The rules require that "[a]
licensee that broadcasts or advertises information about a contest it
conducts shall fully and accurately disclose the material terms of the
contest" and requires that those "material terms should be disclosed
periodically by announcements broadcast on the station conducting the
contest . . . ." See 47 C.F.R. S: 73.1216 & Note 2 (emphasis added).
See NAL Response at 3-4.
21 FCC Rcd 13299, 13329 (2006). See NAL Response at 4.
See Complaints Regarding Various Television Broadcasts Between February 2,
2002 and March 8, 2005, Order, 21 FCC Rcd 13299, 13329 (2006).
See In the Matter of Complaints Against Various Television Licensees
Concerning Their February 25, 2003 Broadcast of the Program "NYPD Blue,"
Forfeiture Order, 23 FCC Rcd 3147, 3156 (2008).
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, at 4
(noting that the complainant "qualified through an eating stunt performed
at the WIP studios").
See supra note 20; NM Licensing, Inc., Notice of Apparent Liability, 21
FCC Rcd 7916 (Enf. Bur., Investigations & Hearings Div. 2006) (imposing
$4,000 forfeiture for failure to conduct the contest as advertised or
announced); New Northwest Broadcasters, L.L.C., Notice of Apparent
Liability, 19 FCC Rcd 9352 (Enf. Bur. 2004) (same).
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
See 47 C.F.R. S: 73.1216.
See 47 U.S.C. S: 504(a).
(Continued from previous page)
(continued....)
Federal Communications Commission DA-08-1628
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Federal Communications Commission DA-08-1628