**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-06-IH-1116       |
|                                  | * |                              |
| **ENTERCOM WICHITA LICENSE,      | ) | FRN: 0005374145              |
| LLC**                            | * |                              |
|                                  | * | NAL/Acct. No. 200732080005   |
| Licensee of Station KDGS(FM),    |   |                              |
|                                  | * | Facility ID No. 70266        |
| Andover, Kansas                  | * |                              |
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##  FORFEITURE ORDER  {#forfeiture-order .unnumbered}

**Adopted: February 5, 2009 Released: February 5, 2009**

By the Chief, Investigations and Hearings Division:

#  introduction

1.  In this *Forfeiture Order* ("*Order*"), we assess a monetary
    forfeiture in the amount of \$4,000 against Entercom Wichita
    License, LLC ("Entercom"), licensee of Station KDGS(FM), Andover,
    Kansas (the "Station"), for its willful violation of Section 73.1216
    of the Commission's Rules.[^1] As discussed below, Entercom failed
    to announce all of the material terms of a designated caller contest
    and neglected to conduct the contest in accordance with its material
    terms, in violation of the Commission's rules.

#  background

2.  On March 2, 2007, the Investigations and Hearings Division of the
    FCC's Enforcement Bureau (the "Bureau") issued a *Notice of Apparent
    Liability for Forfeiture* ("*NAL*") in the amount of \$4,000 to
    Entercom for failing to announce all of the material terms of its
    contest and for failing to timely award the prize (a \$1,000 cash
    prize) to a contest winner, in violation of Section 73.1216 of the
    Commission's Rules.[^2] As discussed in the *NAL*, the contest,
    called "Santa's Sack," was a designated caller contest whereby the
    Station, on each day of the contest, would give its listeners a clue
    as to what was in "Santa's Sack" and would indicate which numbered
    caller would have the chance to guess what was in "Santa's
    Sack."[^3] With a correct guess, the designated caller received what
    was in "Santa's Sack" as well as a teddy bear. The Complainant, Ms.
    Darelene Harris, alleged that on December 8, 2005, she responded to
    an invitation to call the Station during an episode of the contest,
    and was the designated caller for that contest. Although Ms. Harris
    correctly guessed that there was \$1,000 in "Santa's Sack," the
    on-air announcer who took her call that day said she was incorrect.
    She continued to listen to the Station, and the next day heard that
    another listener guessed the same amount of \$1,000 in "Santa's
    Sack" and the on-air personality announced that \$1,000 was the
    correct answer and awarded the prize to that listener. Ms. Harris
    later visited the Station to dispute the Station's decision not to
    award her the prize.[^4] She stated that several Station employees
    agreed with her contention, but that no one at the Station ever
    rectified the situation, prompting her to file a complaint with the
    Commission.[^5]

3.  In response to the Bureau's Letter of Inquiry, Entercom
    "acknowleg\[ed\] that its investigation revealed that the Station
    did not broadcast the material terms of the Contest," but argued
    that there was no rule violation because the terms of the Contest
    were at all times available on the Station's website.[^6] Further,
    Entercom admitted that a mistake in not awarding the prize to Ms.
    Harris was made due to confusion among members of the Station about
    the contest.[^7] Specifically, the on-air announcer who took the
    Complainant's call apparently thought that the Station's contest
    required that the correct answer include not only the total amount
    in "Santa's Sack" but also the value of the teddy bear, which was
    worth \$10. The Station later clarified to its staff that the value
    of the teddy bear did not need to be included in the total amount
    answered by a contestant. Entercom urged that no further action
    against it was warranted because it had rectified the error by
    awarding the Complainant a \$1,000 check and that it had taken steps
    to ensure that such a mistake would not be made in the future.[^8]
    In the *NAL*, the Bureau found that Entercom, by its own admission,
    violated Section 73.1216 of the Commission's Rules by failing to
    award the cash prize as required under the rules of the "Santa Sack"
    contest and by failing to broadcast the material terms of the
    contest and, thereby, proposed a \$4,000 forfeiture.[^9]

4.  On April 2, 2007, Entercom filed a response to the *NAL*
    ("Response"), requesting that the proposed forfeiture be cancelled
    or reduced to, at most, an admonishment.[^10] In support of its
    request, Entercom reiterates much of the same points it previously
    made, and asserts that its actions demonstrate that it endeavored to
    run the contest fairly and in good faith. Further, it states that
    although the Station did not broadcast all material terms of the
    contest, the essential terms of the contest were understood by the
    Station's listeners through the promotional advertisements aired (or
    "promo") and that listeners were advised in each promo that the full
    contest rules were posted on the Station's website. Entercom states
    that it has undertaken remedial measures to ensure that the mistakes
    that occurred in conducting this contest would not happen again in
    the future. Relying in a 1990 letter decision in which an
    admonishment was issued by the Mass Media Bureau concerning a
    contest rule violation in *Kevin Cooney*, Entercom argues that, at
    most, the circumstances of this case might merit an admonishment,
    but not a forfeiture.[^11]

#  discussion

5.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act,[^12]
    Section 1.80 of the Commission's Rules,[^13] and the Commission's
    forfeiture guidelines set forth in its *Forfeiture Policy
    Statement*.[^14] 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.[^15] As
    discussed further below, we have examined Entercom'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.

6.  Although Entercom's corrective measure to award the prize to the
    Complainant after the commencement of this investigation is
    commendable, it is well-settled that neither the improper actions of
    a licensee's employees[^16] nor subsequent remedial actions
    undertaken by a licensee can excuse or nullify a licensee\'s rule
    violation.[^17] We find that Entercom's argument in this regard,
    when considered along with other circumstances of this case, does
    not justify cancellation or reduction of the forfeiture.[^18]

7.  Furthermore, as explained in the *NAL*, it is undisputed that
    Entercom failed to broadcast all the material terms of the contest
    as Section 73.1216 requires, including a clear statement of how the
    Station would determine the winner.[^19] As Entercom stated in its
    LOI Response, "Entercom acknowledges that its investigation revealed
    that the Station did not broadcast the material terms of the
    Contest, in contravention of written Corporate policy . . . and
    Corporate training materials . . . both of which were provided to
    the Station prior to the commencement of the Contest."[^20] Entercom
    attempts to excuse that error by claming that listeners nevertheless
    could understand the rules of the contest from Entercom's
    promotional announcements of the contest, which directed listeners
    to the Station's website.[^21] This contention, however, is undercut
    by the fact that even Station personnel were unclear as to how
    winners were selected, which is a material term under the Rule.
    Additionally, as we have previously stated:

    The rules state that, although 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 . . . ."
    Thus, although non-broadcast disclosures may supplement broadcast
    announcements, they cannot act as a substitute for broadcast
    announcements.[^22]

8.  Finally, Entercom argues that its conduct, at most, warrants an
    admonishment.[^23] In support, Entercom cites one case, *Kevin
    Cooney*, in which an admonishment was adjudged to be the appropriate
    remedy concerning allegations of a Station's violation of the
    Commission's contest rule.[^24] We disagree that the circumstances
    of this case warrant the same result. The Commission has broad
    discretion to consider a variety of factors in determining an amount
    of forfeiture, if appropriate, when faced with a violation of its
    Rules.[^25] As set forth in the *NAL*, the various factors
    applicable in proposing the forfeiture were duly considered in this
    case.[^26] As described below, the violations in Entercom's cited
    precedent are of a more minor degree when compared to the instant
    case and, therefore, justifies a different result.

9.  In *Kevin Cooney*, the complainant misunderstood that the station's
    contest term stating "enter as often as you like" -- which,
    according to the Station, contemplated participation in various
    segments of the contest -- actually prohibited duplicate
    entries.[^27] The Mass Media Bureau determined that this exclusion,
    which could have been reasonably misunderstood, was a material term
    of the contest that should have been announced by the Station. The
    Mass Media Bureau then determined that the overall circumstances of
    the case, which included consideration of the Station's offer to
    compensate the complainant and to take steps to assure accuracy in
    its contests, warranted an admonition.[^28] The circumstances of the
    violations in the instant case, however, justify a forfeiture. In
    the instant case, Entercom failed to advertise *any* material term
    of the contest, as it has acknowledged. In contrast, in *Kevin
    Cooney*, the Station did announce materials terms, except that one
    term was open to various interpretations, which the Mass Media
    Bureau determined should have been better defined. Additionally, it
    is clear in this case, as opposed to *Kevin Cooney*, that Station
    personnel misapplied its own contest rules that resulted in the
    actual denial of the prize to the Complainant in the first
    instance.[^29]

10. Furthermore, the Bureau's decision in this case is consistent with
    recent decisions concerning Section 73.1216.[^30] For example, both
    in *NM Licensing*[^31] and in *Clear Channel Broadcasting Licenses,
    Inc.*,[^32] the Bureau proposed a \$4,000 forfeiture based on a
    licensee's failure to conduct a contest as announced despite the
    respective licensee's efforts to rectify the situation directly with
    the complainant in each case.[^33] Accordingly, as a result of our
    review of Entercom's response to the NAL, and in view of the
    statutory factors and the *Forfeiture Policy Statement*, we affirm
    the *NAL* and issue a forfeiture in the amount of \$4,000.

#  ORDERING CLAUSES

11. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act[^34], and Sections 0.111, 0.311 and 1.80(f)(4) of the
    Commission\'s Rules,[^35] Entercom Wichita License, LLC **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.[^36] 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. Entercom Wichita License, LLC will
    also send electronic notification on the date said payment is made
    to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
    Kenneth.Scheibel@fcc.gov, and Anjali.Singh@fcc.gov.

12. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Entercom Wichita License, LLC, 401 City Avenue, Suite 809, Bala
    Cynwyd, Pennsylvania, 19004, and to its counsel, Brian M. Madden and
    Dennis P. Corbett, Lerman Senter PLLC, 2000 K Street, NW, Suite 600,
    Washington, DC 20006-1809.

    FEDERAL COMMUNICATIONS COMMISSION

Hillary S. DeNigro

Chief, Investigations and Hearings Division

Enforcement Bureau

[^1]: *See* 47 C.F.R. § 73.1216 ("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.")

[^2]: *See Entercom Wichita License, LLC*, Notice of Apparent Liability
    for Forfeiture, 22 FCC Rcd 4212 (Enf. Bur. Investigations & Hearings
    Div. 2007) ("*NAL*").

[^3]: *See id*. at 4212-13; Letter from Brian M. Madden and Jean W.
    Benz, Attorneys, Leventhal, Senter & Lerman PLLC, to Mary Turner,
    Program Analyst, Investigations & Hearings Division, Enforcement
    Bureau, dated July 24, 2006 ("*LOI Response*"). *See also* note 10,
    *infra*.

[^4]: *See* E-mail from Ms. Darlene Harris to the Federal Communications
    Commission via fccinfo@fcc.gov, sent January 10, 2006 ("Complaint").

[^5]: *See id*.

[^6]: *LOI Response* at 2.

[^7]: *See id.* at 3-4.

[^8]: *See id*. at 1-2.

[^9]: *See* note 2, *supra*.

[^10]: *See* Letter and Response to Notice of Apparent Liability for
    Forfeiture from Brian M. Madden and Dennis P. Corbett, 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*").

[^11]: *See* note 25*, infra.*

[^12]: *See* 47 U.S.C. § 503(b).

[^13]: *See* 47 C.F.R. § 1.80.

[^14]: *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*").

[^15]: *See* 47 U.S.C. § 503(b)(2)(E).

[^16]: *See* *Nationwide Communications, Inc.*, Letter, 9 FCC Rcd 175
    (Mass Media Bur. 1994) (finding forfeiture for violating contest
    rules imposed, notwithstanding licensee's contention that its
    failure to conduct a contest substantially as announced was due to
    "inadvertence") (subsequent history omitted); *George McKay, III*,
    Letter, 6 FCC Rcd 7385 (Mass Media Bur. 1991) (forfeiture imposed
    for violating contest rules, notwithstanding licensee's contention
    that its failure to conduct a contest substantially as announced was
    due to acts of third parties).

[^17]: *See, e.g., Capstar TX Limited Partnership,* Notice of Apparent
    Liability*,* 20 FCC Rcd 10636, 10640 (Enf. Bur., Investigations &
    Hearings Division 2005) (remedial actions undertaken by licensee,
    after it received complaint about a contest that resulted in a
    finding of a rule violation, does not absolve licensee of proposed
    forfeiture); *Padre Serra Communications, Inc.,* Letter Decision, 14
    FCC Rcd 9709, 9714 (Mass Media Bur. 1999) (*citing Gaffney
    Broadcasting, Inc*., Memorandum Opinion and Order, 23 FCC 2d 912,
    913 (1970); *Eleven Ten Broadcasting Corp*., Notice of Apparent
    Liability, 33 FCC 2d 706 (1962)).

[^18]: We point out that Entercom certainly could have addressed the
    situation with the Complainant, Ms. Harris, after she complained
    directly with Station personnel and before Ms. Harris filed her
    complaint, but it did not do so until after this investigation was
    initiated. In its LOI Response (at 4), Entercom stated that the
    Complaint "is largely factually correct," but "does not have
    adequate information to confirm or deny" some of the Complainant's
    statements with respect to her conversations with specific Station
    employees. The Declaration of the Station's Market Manager, Jackie
    Wise, confirms that Ms. Harris contacted the Station to dispute the
    results of the contest. *See id*., at Declaration of Jackie Wise.

[^19]: *See NAL*, 22 FCC Rcd at 4214.

[^20]: *LOI Response* at 2-3.

[^21]: *See* *NAL Response* at 4.

[^22]: *Isothermal Community College*, Notice of Apparent Liability, 18
    FCC Rcd 23932, 23934-935 (Enf. Bur. 2003) (internal citations
    omitted).

[^23]: *See* *NAL Response* at 5.

[^24]: *See* *id.* (citing *Kevin Cooney*, Letter, 5 FCC Rcd 7105 (Mass
    Media Bur. 1990)).

[^25]: *See* 47 U.S.C. § 504(b) (authorizing the Commission to remit or
    mitigate forfeitures imposed "under such regulations and methods of
    ascertaining the facts as may seem to it advisable"); 47 C.F.R. §
    1.80 (setting forth factors that the Commission must consider in
    determining what amount of forfeiture to impose).

[^26]: *See* *NAL*, 22 FCC Rcd at 4214.

[^27]: *Kevin Cooney*, 5 FCC Rcd at 7105.

[^28]: *See id.*

[^29]: In *Kevin Cooney*, it could not be determined whether the
    complainant in that case would have won the contest because the
    dispute concerned the number of times and the method by which she
    could participate in a drawing. Notwithstanding that uncertainty,
    the Station nevertheless decide to compensate the complainant. *See
    id*.

[^30]: *See NM Licensing, LLC*, Notice of Apparent Liability for
    Forfeiture, 21 FCC Rcd 7916 (Enf. Bur., Investigations & Hearings
    Div. 2006); *Clear Channel Broadcasting Licenses, Inc.*, Notice of
    Apparent Liability for Forfeiture, 21 FCC Rcd 4072 (Enf. Bur.
    Investigations & Hearings Div. 2006).

[^31]: *See* *NM Licensing, LLC*, 21 FCC Rcd 7916.

[^32]: *See* *Clear Channel Broadcasting Licenses, Inc.*, 21 FCC Rcd
    4072.

[^33]: *See NM Licensing, LLC*, 21 FCC Rcd. 7916, 7918-7920.

[^34]: *See* 47 U.S.C. § 503(b).

[^35]: *See* 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^36]: *See* 47 C.F.R. § 73.1216.