Federal Communications Commission DA 12-1459 Before the Federal Communications Commission Washington, DC 20554 In the Matter of GOOD KARMA BROADCASTING, LLC Licensee of Station WKNR(AM), Cleveland, Ohio ) ) ) ) ) ) File No. EB-09-IH-0756 FRN: 0015043227 NAL/Account No.: 201132080018 Facility ID No. 28509 FORFEITURE ORDER Adopted: September 7, 2012 Released: September 7, 2012 By the Chief, Investigations and Hearings Division, Enforcement Bureau: I. INTRODUCTION 1. In this Forfeiture Order (Forfeiture Order), we assess a monetary forfeiture in the amount of four thousand dollars ($4,000) against Good Karma Broadcasting, LLC (Good Karma or Licensee), licensee of Station WKNR(AM), Cleveland, Ohio (Station), for willfully and repeatedly violating Section 73.1216 of the Commission’s rules by broadcasting information about a contest without fully and accurately disclosing all of its material terms.1 II. BACKGROUND 2. As discussed in detail in the Notice of Apparent Liability for Forfeiture (NAL) issued in this case,2 the Enforcement Bureau (Bureau) received a complaint alleging that, from approximately November 2007 until September 2009, the Station conducted a “bogus” contest called “Who Said That?” (Contest) during the “Really Big Show,” which, during the time period at issue, aired weekdays from 10:00 a.m. to noon.3 In particular, the complainant alleged that the Station “dropped talking about prizes” during the course of the Contest.4 On June 19, 2009 and August 26, 2009, the Bureau sent letters of inquiry (LOIs) to the Licensee regarding the contests.5 In response to those LOIs, Good Karma admitted 1 47 C.F.R. § 73.1216. 2 See Good Karma Broadcasting, LLC, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 17087 (Enf. Bur. 2010) (NAL). 3 See Complaint, Form 2000E Complaint No. 09-C00093667-1 (Feb. 13, 2009) (on file in EB-09-IH-0756) at 1-2 (Complaint). 4 Id. at 2. 5 See Letter from Rebecca A. Hirselj, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, to Good Karma Broadcasting, LLC (June 19, 2009) (on file in EB-09-IH- 0756); Letter from Rebecca A. Hirselj, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, to Good Karma Broadcasting, LLC (Aug. 26, 2009) (on file in EB-09-IH- 0756). Federal Communications Commission DA 12-1459 2 that on a regular basis during early 2007 through the summer of 2008, and then sporadically thereafter until September 4, 2009, the Station aired a “bit,” or program feature, called “Who Said That?” during “The Really Big Show with Tony Rizzo.”6 Good Karma stated that, during broadcasts of the Contest, the Station aired a voice recording of an unnamed individual in the sports world and listeners called in or sent an e-mail to the Station to try to correctly identify the speaker.7 The Station would award prizes to listeners who correctly identified the speaker.8 Once a listener called in and successfully identified the speaker, the Station would select a new audio clip for listeners to identify and the Contest continued with the new clip.9 3. This practice continued regularly until the Station aired the last clip in the fall of 2007. Good Karma noted that no one correctly identified the speaker of the clip for more than twenty months.10 The Licensee explained that from the fall of 2007 until the summer of 2008, the Station aired a prize announcement during each weekday, two-hour program and notified listeners that additional prizes would be added each week.11 The Licensee admitted, however, that the Station did not announce the entire list of accumulated prizes, and was instead “identify[ing] the new prize and emphasiz[ing] material prizes in the package.”12 The Licensee admitted that for over a year during the course of the Contest (from the summer of 2008 until September 4, 2009), the Station stopped announcing prizes, unless a listener called in and tried to guess the identity of the voice in the last clip.13 According to Good Karma, by September 2009, some originally-identified prizes were no longer available.14 Although the Station did not announce any change in the prizes, Good Karma claimed that if a listener had correctly identified the speaker in the last clip, the Station would have offered a similar package of prizes to what was originally announced.15 In view of the record evidence, the NAL proposed a forfeiture in the amount of four thousand dollars ($4,000) against Good Karma.16 4. In its response to the NAL, Good Karma disputes that it committed a violation of our contest rule.17 Good Karma asserts that “Who Said That?” is more properly characterized as a program 6 See Letter from Nancy A. Ory, Lerman Senter PLLC, Counsel for Good Karma Broadcasting, LLC, to Marlene H. Dortch, Secretary, Federal Communications Commission, at 2 (July 20, 2009) (on file in EB-09-IH-0756) (First LOI Response); Letter from Nancy A. Ory, Lerman Senter PLLC, Counsel for Good Karma Broadcasting, LLC, to Marlene H. Dortch, Secretary, Federal Communications Commission, at 2 (Sept. 11, 2009) (on file in EB-09-IH- 0756) (Second LOI Response). 7 See First LOI Response at 2. 8 See id. at 2–3. 9 See id. at 3. 10 See id. 11 See Second LOI Response at 2–3. 12 Id. at 2. 13 See id. at 4–5. 14 See id. at 3. 15 See id. 16 See NAL, 25 FCC Rcd at 17092, para. 12. 17 See Response to Notice of Apparent Liability for Forfeiture of Good Karma Broadcasting, LLC (Jan. 7, 2011) (on file in EB-09-IH-0756) (NAL Response). Federal Communications Commission DA 12-1459 3 feature or “bit” rather than a traditional radio contest and therefore is not subject to our contest rule.18 Good Karma further contends that, even assuming that its programming constitutes a contest, it was “generally and substantially conducted in material compliance” with Section 73.1216 and therefore the Bureau should rescind the forfeiture.19 In support of its argument, Good Karma submits that: (1) the Station was, at most, required to broadcast a “reasonable number” of prize list announcements “periodically,” which Good Karma asserts that it did;20 and (2) Good Karma complied with the spirit of Section 73.1216 with respect to prize disclosure.21 Good Karma also asserts that the NAL improperly cites Clear Channel Broadcasting Licenses, Inc. (Clear Channel NAL).22 Moreover, Good Karma suggests that, to the extent the Bureau rejects Good Karma’s argument that its actions at most constitute technical violations of Section 73.1216, no action beyond an admonition is appropriate.23 We reject these arguments as discussed below. III. DISCUSSION 5. The proposed forfeiture amount in this case was assessed in accordance with Section 503(b) of the Communications Act of 1934, as amended (Act),24 Section 1.80 of the Commission’s rules,25 and the Commission’s forfeiture guidelines set forth in its Forfeiture Policy Statement.26 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.27 As discussed further below, we have examined Good Karma’s response to the NAL pursuant to the aforementioned statutory factors, our rules, and the Forfeiture Policy Statement, and we find no basis for cancellation or reduction of the forfeiture. We therefore affirm the forfeiture in the amount of four thousand dollars ($4,000). 6. Section 73.1216 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 18 Id. at 2. 19 Id. at 2, 3. 20 Id. at 4, 7. 21 See id. at 4–6. 22 See id. at 3 n.3 (citing Clear Channel Broadcasting Licenses, Inc., Notice of Apparent Liability for Forfeiture, 15 FCC Rcd 2734, 2735 (Enf. Bur. 2000) (Clear Channel NAL)). 23 See NAL Response at 7–8 (citing Entercom Buffalo License, LLC, Order, 17 FCC Rcd 11997, 11998 (Enf. Bur. 2002) (stating, as quoted for support in the NAL Response, that “the First Amendment is a critical constitutional limitation that demands we proceed cautiously and with appropriate restraint”); Action for Children’s Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988)). 24 47 U.S.C. § 503(b). 25 47 C.F.R. § 1.80. 26 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). 27 47 U.S.C. § 503(b)(2)(E). Federal Communications Commission DA 12-1459 4 the contest substantially as announced or advertised. No contest description shall be false, misleading, or deceptive with respect to any material term.”28 Material terms under the rule “include those factors which define the operation of the contest and which affect participation therein,”29 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; [and] time and means of selection of winners; . . . .”30 Although a licensee has discretion in determining the time and manner of disclosing a contest’s material terms, and need not enumerate the terms each time it airs an announcement promoting a contest, “the obligation to disclose the material terms arises at the time the audience is first told how to enter or participate [in the contest] and continues thereafter.”31 Finally, disclosure of material terms must be by announcements broadcast on the station; non-broadcast disclosures of material terms can be made to supplement, but not substitute for, broadcast announcements. 32 A. Good Karma Conducted a Contest. 7. We find that the actions at issue here constitute a contest under the Commission’s contest rule and therefore are subject to Section 73.1216. Good Karma asserts that “Who Said That?” is more properly characterized as a program feature or “bit” rather than a traditional contest, thereby exempting it from the requirements of Section 73.1216 of the Commission’s rules.33 We disagree. Section 73.1216, Note 1(a), defines a contest as “a scheme in which a prize is offered or awarded, based upon chance, diligence, knowledge or skill, to members of the public.”34 As we explained in the NAL, because the Station offered or awarded various prizes to members of the public, its listeners, based upon the listeners’ knowledge of sports trivia, the material at issue clearly satisfies this definition.35 Accordingly, Section 73.1216 applies here. B. Good Karma’s Contest Violated Section 73.1216. 8. We uphold our earlier finding that Good Karma’s Contest violated Section 73.1216. Good Karma argues that even if “Who Said That?” was a contest, the Contest was “generally and substantially conducted in material compliance” with Section 73.1216 for two overarching reasons.36 28 47 C.F.R. § 73.1216. 29 Id., Note 1(b). 30 Id. (emphasis added). 31 Id., Note 2. 32 See id. (“material terms should be disclosed periodically by announcements broadcast on the station conducting the contest”). Posting contest rules on a station’s website does not satisfy Section 73.1216’s requirement that a licensee broadcast the material terms of a contest it conducts. See, e.g., AK Media Group, Notice of Apparent Liability for Forfeiture, 15 FCC Rcd 7541, 7543 (Enf. Bur. 2000) (forfeiture paid); Service Broadcasting Group, LLC, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 8494, 8498–99 (Enf. Bur. 2009) (forfeiture paid). 33 See NAL Response at 2. 34 47 C.F.R. § 73.1216, Note 1(a). 35 Good Karma has acknowledged certain elements of the contest rule requirements, namely that it awarded prizes based on listeners’ knowledge of who was speaking in the audio recording, and that these listeners were members of the public. See First LOI Response at 2, 3; see also NAL, 25 FCC Rcd at 17090. 36 NAL Response at 2. Good Karma also argues that, at the time of its NAL Response, the Third Circuit Court of Appeals was exploring the issue of scienter with respect to the willfulness factor in FCC forfeiture cases. See NAL (Continued on next page....) Federal Communications Commission DA 12-1459 5 First, Good Karma asserts that the Station was, at most, required to broadcast a “reasonable number” of prize list announcements “periodically,” which Good Karma asserts that it did.37 Second, Good Karma asserts that it complied with the spirit of Section 73.1216 with respect to prize disclosure.38 We address each of these assertions in turn below. 1. Good Karma Failed to Announce the Contest’s Material Terms with Sufficient Frequency. 9. In its NAL Response, Good Karma correctly notes that the Commission’s rules required the Station to broadcast a “reasonable number” of announcements “periodically.”39 Based on the record, however, we found in the NAL that Good Karma failed to meet this requirement with respect to the list of prizes offered in the Contest because we concluded that the frequency of announcements in this case was insufficient to meet the announcement requirement.40 As explained in the NAL, the record reflects that the frequency of the announcements decreased over the course of the Contest, to the point that the Licensee did not announce the Contest terms unless prompted by a listener to do so.41 As described in the NAL, the Licensee admitted that for over a year during the Contest, the Station stopped announcing prizes unless a listener called in and tried to guess the identity of the voice in the last clip.42 Good Karma does not dispute these facts, and given that admission, we conclude that the material terms, including the prizes offered, were not “periodically” broadcast throughout the course of the Contest. 2. Good Karma Failed to Fully and Accurately Announce the Contest Prizes. 10. We also uphold our earlier finding that Good Karma failed to comply with Section 73.1216’s requirements concerning prize disclosure. In particular, we noted that Good Karma failed to announce on-air the list of accumulated prizes and failed to announce the fact that the announced prizes were subject to substitution.43 After reviewing Good Karma’s NAL Response, we reject Good Karma’s claims that: (a) Section 73.1216 does not require it to broadcast a list of accumulated prizes; and (b) Section 73.1216 does not require it to broadcast the fact that prizes of equal value might be substituted for certain previously announced prizes.44 (...Continued from previous page) Response at 2 n.2. To the extent the Third Circuit has since resolved the case in question and specifically declined to adopt findings related to the issue of scienter, that issue now appears moot. See CBS Corp. v. FCC, 663 F.3d 122 (3d Cir. 2011), petition for rehearing en banc denied, No. 06–3575 (3d Cir. Jan. 18, 2012), petition for cert. denied, No. 11–1240, 2012 WL 2470244 (U.S. Jun. 29, 2012). 37 NAL Response at 4, 7. 38 See id. at 4–6. 39 See id. at 4 (citing 47 C.F.R. § 73.1216, Note 2). 40 See NAL, 25 FCC Rcd at 17090-91, para. 9. 41 See id. 42 See id. (citing Second LOI Response at 4–5). 43 See id. (citing Second LOI Response at 2–3). 44 See NAL Response at 4–5. Federal Communications Commission DA 12-1459 6 11. As noted above, Section 73.1216 requires that licensees conducting contests “shall fully and accurately disclose the material terms of the contest.”45 Note 1(b) of Section 73.1216 clearly states that “the extent, nature and value of prizes” is a material term.46 Nothing in Section 73.1216 indicates that prizes of low value are excluded from this requirement. Thus, we reject Good Karma’s assertion that it is within the licensee’s discretion to determine that certain prizes are “not as worthy of discussion.”47 Good Karma correctly notes that nothing prohibits a station from awarding more prizes than announced.48 Listeners, however, may not know if the station actually awarded fewer than previously announced prizes unless the station periodically announces complete prize lists. Moreover, without such periodic announcements, listeners cannot know whether previously announced prizes remain part of the total package of prizes. Failing to periodically announce the full extent of the prizes, as Good Karma did in this case, violates Section 73.1216.49 12. We also reject Good Karma’s assertion that Section 73.1216 did not require it to broadcast an announcement that prizes of equal value might be substituted for certain previously announced prizes when Good Karma, in fact, made such substitutions and, by its own admission, anticipated that it might do so.50 As discussed above, it is beyond dispute that “the extent, nature and value of prizes” is a material term that must be disclosed.51 By announcing one prize and awarding another without any broadcast notice that such a substitution might occur, Good Karma failed to adequately announce the nature of the prize and failed to conduct the contest as announced. 13. Good Karma further asserts that the general contest rules posted on the Station’s website state that, “Stations reserve the right to substitute a prize of equal or greater value for all contests and giveaways.”52 The Station acknowledges, however, that a comparable disclosure was never broadcast on the Station.53 As noted above, online disclosure of contest terms does not substitute for broadcast announcements of such terms.54 14. Good Karma claims that the substitutable nature of the Contest’s prizes was self-evident to listeners, including to the complainant.55 In particular, Good Karma explains that some prizes announced during “Who Said That?” (such as tickets to sporting events set on precise dates) had 45 47 C.F.R. § 73.1216. 46 Id., Note 1(b). 47 NAL Response at 5. Even contests with comparatively low value prizes remain subject to Section 73.1216. See, e.g., AMFM Broadcasting Licenses, LLC, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 1529 (Enf. Bur. 2009) (forfeiture paid) (theater tickets); ABC, Inc., Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 25647 (Enf. Bur. 2003) (forfeiture paid) (movie passes). 48 See NAL Response at 5 n.7. 49 See Complaint at 2 (noting that the Station has “dropped talking about prizes”). 50 See NAL Response at 5; First LOI Response at 3; Second LOI Response at 3. 51 47 C.F.R. § 73.1216, Note 1(b). 52 Second LOI Response at 3. 53 See id. 54 See supra note 32. 55 See NAL Response at 5–6. Federal Communications Commission DA 12-1459 7 definitive “expiration dates” after which they would be of no value.56 Good Karma states that it intended to award prizes—or their equivalent—that had already been announced.57 Listeners, however, could not be expected to know the Licensee’s intentions without notice from the Licensee. The burden is not on the listener to surmise the nature of the prizes, but rather on the licensee to announce it.58 C. Imposition of a Forfeiture is the Appropriate Sanction for Good Karma’s Rule Violation. 15. We continue to assess a forfeiture in this case. Good Karma contends that the NAL’s proposed forfeiture is overly harsh and no action beyond admonition is appropriate here.59 In urging a more restrained approach for a Section 73.1216 violation, Good Karma argues that Section 73.1216 constitutes “government regulation of program content” and, therefore, the Commission should exercise “restrained agency enforcement” relating to that regulation, consistent with the Commission’s approach to the regulation of program content.60 In support, Good Karma relies on two cases involving the regulation of indecent speech, not the Commission’s contest rule.61 These cases provide no relevant guidance about the contest case at issue, which has nothing to do with regulating indecency and the sensitive First Amendment implications that such regulation entails. Indeed, the Commission has stated that the contest rule, unlike matters involving indecency, is content neutral and “does not implicate the First Amendment.”62 16. Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the Commission’s rules, the base forfeiture for violations of the contest rules is four thousand dollars ($4,000).63 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 violations, and with respect to the violator, the degree of culpability, any history of prior offenses, 56 Id. 57 See Second LOI Response at 3. 58 See, e.g., WMJX, Inc., Decision, 85 FCC 2d 251, 269 (1981) (subsequent history omitted) (WMJX, Inc.) (holding, in part, that the licensee, as a public trustee, has an affirmative obligation to prevent the broadcast of false, misleading or deceptive contest announcements). 59 See NAL Response at 2, 7. Good Karma also claims that the Clear Channel NAL was not pertinent to the facts at issue in this case. See NAL Response at 3 n.3. However, the purpose for citing the Clear Channel NAL was to demonstrate that the Bureau repeatedly has held that licensees are responsible for broadcasting accurate statements as to the nature and value of contest prizes. In the Clear Channel NAL, the Bureau stated that licensees “will be held accountable for any announcement which tends to mislead the public.” Clear Channel NAL, 15 FCC Rcd at 2735 (emphasis added) (citing WMJX, Inc., 85 FCC 2d at 272). Thus, citation to the Clear Channel NAL was appropriate. 60 NAL Response at 7 n.11. 61 See id. (citing Entercom Buffalo License, LLC, Order, 17 FCC Rcd 11997, 11998 (Enf. Bur. 2002) (stating, as quoted for support in the NAL Response, that “the First Amendment is a critical constitutional limitation that demands we proceed cautiously and with appropriate restraint”); Action for Children’s Television v. FCC, 852 F.2d 1332, 1344 (D.C. Cir. 1988) (subsequent history omitted)). 62 CBS Radio Inc. of Philadelphia, Memorandum Opinion and Order, 24 FCC Rcd 10993, 10996 (Enf. Bur. 2009) (subsequent history omitted). 63 See supra note 26; 47 C.F.R. § 1.80. Federal Communications Commission DA 12-1459 8 ability to pay, and other such matters as justice may require.64 Accordingly, as a result of our reviewing Good Karma’s response to the NAL, we affirm the NAL and impose a forfeiture in the amount of four thousand dollars ($4,000). IV. ORDERING CLAUSES 17. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act and Section 1.80 of the Commission’s rules,65 and authority delegated by Sections 0.111 and 0.311 of the Commission’s rules,66 Good Karma Broadcasting, LLC, IS LIABLE FOR A MONETARY FORFEITURE in the amount of four thousand dollars ($4,000) for willfully and repeatedly violating Section 73.1216 of the Commission’s rules. 18. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Commission’s rules by the close of business on or before September 21, 2012.67 If the forfeiture is not paid within the period specified, the case may be referred to the U.S. Department of Justice for enforcement of the forfeiture pursuant to Section 504(a) of the Act.68 Good Karma Broadcasting, LLC shall send electronic notification of payment to Jeffrey Gee, Anjali Singh, and Melissa Marshall at Jeffrey.Gee@fcc.gov, Anjali.Singh@fcc.gov, and Melissa.Marshall@fcc.gov on the date said payment is made. 19. The payment must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account number and FRN referenced above. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted.69 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. 64 47 U.S.C. § 503(b)(2)(E). 65 47 U.S.C. § 503(b); 47 C.F.R. § 1.80. 66 47 C.F.R. §§ 0.111, 0.311. 67 47 C.F.R. § 1.80. 68 47 U.S.C. § 504(a). 69 An FCC Form 159 and detailed instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. Federal Communications Commission DA 12-1459 9 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. 20. 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. 20554.70 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. 21. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be sent, by Certified Mail/Return Receipt Requested, to Good Karma Broadcasting, LLC, 100 Stoddart Street, P.O. Box 902, Beaver Dam, Wisconsin 53916, and to its counsel, Dennis P. Corbett, Esquire, Nancy A. Ory, Esquire, and F. Scott Pippin, Esquire, Lerman Senter PLLC, 2000 K Street, N.W., Suite 600, Washington, D.C. 20006. FEDERAL COMMUNICATIONS COMMISSION Theresa Z. Cavanaugh Chief, Investigations and Hearings Division Enforcement Bureau 70 See 47 C.F.R. § 1.1914.