Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | Control No. 99100031         |
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| **CLEAR CHANNEL BROADCASTING     | ) | NAL/Acct. No. X32080003      |
| LICENSES, INC.**                 | * |                              |
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| Licensee of Station KPRR(FM)     |   |                              |
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| El Paso, Texas                   | * |                              |
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[NOTICE OF APPARENT LIABILITY FOR FORFEITURE]{.underline}

**Adopted: February 9, 2000 Released: February 10, 2000**

By the Chief, Enforcement Bureau:

# Introduction

1.  In this Notice of Apparent Liability for Forfeiture, we find Clear
    Channel Broadcasting Licenses, Inc. ("Clear Channel"), licensee of
    Station KPRR(FM), El Paso, Texas, apparently liable for a forfeiture
    in the amount of \$4,000 for an apparent violation Section 73.1216
    of the Commission's rules, which requires licensees, among other
    things, to fully and accurately disclose material terms of a
    contest. We find that Clear Channel conducted a contest, "So You
    Want to Win 10,000," without disclosing a material term of the
    contest, *i.e.*, that the prize was 10,000 Italian lira, not
    \$10,000.

# Background

2.  On October 4, 1999, the Commission's Mass Media Bureau received a
    complaint from Ms. Trisha Dean. According to Ms. Dean, in early
    September 1999, Station KPRR(FM) began promoting a contest in which,
    by answering ten questions correctly, a contestant could win
    "10,000." On Monday, September 10, 1999, Ms. Dean was chosen as the
    contestant, and she answered the ten questions correctly. After
    being told that she had won, the disc jockeys told Ms. Dean that
    they had never said what the winner would win 10,000 of, and they
    told her that she had won 10,000 Italian lira. Ms. Dean states that
    she took their comment as a joke because both she and the disc
    jockeys laughed.

3.  On September 30, 1999, Ms. Dean went to the station to pick up her
    check, and found that the check was only for \$53.00 (the
    approximate value of 10,000 Italian lira). Ms. Dean states that Bill
    Struck, the station manager, told her that she had won Italian lira.

4.  On November 4, 1999, the Commission staff sent Clear Channel a
    letter of inquiry. In its response, which was filed on December 13,
    1999, Clear Channel states that the contest "So You Want to Win
    10,000" was intended as a spoof of the television show "Who Wants to
    Be A Millionaire?" Clear Channel claims that the teases for the
    contest suggested "that the 'contest' was just another silly bit on
    the KPRR morning show." Clear Channel admits, "The morning show
    intentionally did not state what the 'ten thousand' referred to."
    According to Clear Channel, the station never stated "on the air"
    that it was giving away ten thousand dollars. Rules for the contest,
    which stated that the prize was 10,000 Italian lira, were posted on
    Clear Channel's web site.

# Discussion

5.  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.

    Under Note 1 to that rule, the material terms of the contest include
    "the extent, nature, and value of prizes" and "the basis for
    valuation of prizes." 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.

6.  In this case, it appears that Clear Channel violated Section 73.1216
    of the Commission's rules by not disclosing a material term of the
    "So You Want to Win 10,000" contest -- the fact that the prize was
    10,000 Italian lira. Clear Channel admits that it intentionally did
    not disclose the nature of the prize. The failure to disclose the
    nature and value of the prize is a clear violation of the rule.
    Moreover, despite Clear Channel's protestations that it never
    claimed that the prize was \$10,000, a listener had no way of
    determining that the prize in question was 10,000 Italian lira (or
    anything other than \$10,000). The Commission has held that
    licensees are "responsible for broadcasting accurate statements as
    to the nature and value of contest prizes, and will be held
    accountable for any announcement which tends to mislead the
    public."[^1]

7.  We reject Clear Channel's argument that disclosure of the contest
    rules on its web site complied with our 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 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.

8.  Section 503(b) of the Communications Act[^2] and Section 1.80(a) of
    the Commission's rules[^3] both 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), 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.[^4]

9.  Based on the evidence before us, we find that Clear Channel
    conducted the "So You Want to Win 10,000" contest without disclosing
    a material term of the contest, in apparent willful 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.[^5] In this case,
    based upon our review of all the pertinent factors as required by
    Section 503(b)(2)(D) of the Act, we believe a \$4,000 forfeiture is
    appropriate.

# 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,[^6] Clear Channel Broadcasting
    Licenses, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
    FORFEITURE in the amount of four thousand dollars (\$4,000) for
    willfully 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, Clear
    Channel SHALL PAY[^7] 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. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
    Certified Mail/Return Receipt Requested, to Clear Channel's counsel,
    John M. Burgett, Esq., Wiley, Rein & Fielding, 1776 K Street, N.W.,
    Washington, DC 20006.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon

    Chief, Enforcement Bureau

[^1]: *WMJX, Inc.*, 48 RR 2d 1339, 1357 (1981).

[^2]: 47 U.S.C. § 503(b).

[^3]: 47 C.F.R. § 1.80.

[^4]: *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^5]: *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* FCC 99-407 (released December 28, 1999); 47
    C.F.R. § 1.80(b).

[^6]: 47 C.F.R. §§ 0.111, 0.311 and 1.80.

[^7]: Payment 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 Federal Communications Commission,
    P.O. Box 73482, Chicago, Illinois 60673-7482. The payment should
    note the NAL/Account No. listed in the caption.