Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of )

) File No. EB-05-IH-0160

Clear Channel Broadcasting Licenses, Inc. ) NAL/Acct. No. 200632080163

) Facility ID No. 59976

Licensee of Station WRUM(FM) ) FRN No. 0001587971

Orlando, Florida )

)

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: June 16, 2006 Released: June 20, 2006**

By the Chief, Investigations and Hearings Division, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this *Notice of Apparent Liability for Forfeiture* ("*NAL*"),
    issued pursuant to section 503(b) of the Communications Act of 1934,
    as amended (the "Act"), and section 1.80 of the Commission's
    rules,[^1] we find that Clear Channel Broadcasting Licenses, Inc.
    ("Clear Channel"), licensee of Station WRUM(FM), Orlando, Florida,
    broadcast information about a contest without fully and accurately
    disclosing all material terms thereof and failed to conduct the
    contest substantially as announced or advertised, in apparent
    willful violation of section 73.1216 of the Commission's rules.[^2]
    Based upon our review of the facts, we find, pursuant to section
    503(b) of the Act , that Clear Channel is apparently liable for a
    forfeiture in the amount of \$6,000.

**II. BACKGROUND**

2.  The Commission received a written complaint dated February 28, 2005,
    (hereinafter "the Complaint") from Mega Communications of Daytona
    Beach Licensee, L.L.C. ("Mega"), licensee of Station WNUE-FM,
    Orlando, Florida. [^3] In the Complaint, Mega alleges that the
    morning talk show hosts on Station WRUM(FM) had conducted a contest
    on February 24, 2005 in violation of section 73.1216 of the
    Commission's rules. The Complaint states that, beginning at
    approximately 7:40 a.m. and repeatedly over the next several hours,
    Station WRUM(FM) hosts announced that the 100^th^ listener to call
    and state the name of the show, "John Musa Y Los Anormales De La
    Mañana" (translated as "John Musa And The Abnormals Of The
    Morning"), would win a cash prize in the amount of \$1,000.[^4]
    According to the Complaint, the hosts urged listeners to call either
    of two telephone numbers, failing to disclose that those telephone
    numbers belonged to rival Orlando Spanish-language Station
    WNUE-FM.[^5] Shortly thereafter, according to the Complaint, Station
    WNUE-FM was inundated with telephone calls from WRUM(FM) listeners
    hoping to win the announced cash prize. The Complaint states that
    many such callers became angry when they were informed by WNUE-FM
    personnel that no such contest was being conducted and that no money
    would be awarded.[^6] After Mega determined the cause of the
    situation, it promptly contacted Station WRUM(FM), which had already
    ceased making further announcements about the contest.[^7]

3.  By Letter of Inquiry dated June 28, 2005, the Enforcement Bureau
    directed Clear Channel to provide information about the contest.[^8]
    On July 18, 2005, Clear Channel Communications Inc. ("CCCI"), the
    ultimate parent company of Clear Channel, responded on the
    licensee's behalf.[^9] CCCI does not dispute the accuracy of the
    Complaint (including the transcript of a portion of the broadcast
    provided by Mega) and confirms that its morning show hosts did air
    information about a false contest and urged listeners to call
    Station WNUE-FM's toll-free and local telephone numbers.[^10] CCCI
    contends, however, that the broadcast in question did not involve an
    actual contest, but instead, was only a "prank" and therefore does
    not fall within the purview of section 73.1216 of the Commission's
    rules.[^11] CCCI further states that the WRUM(FM) show hosts
    disclosed there was no actual contest near the end of their program
    and were thereafter "admonished" by station management that the
    broadcast was unacceptable.[^12] In its Reply, Mega states that,
    contrary to the assertion of CCCI, the broadcast was more than just
    an isolated prank, noting that the Clear Channel hosts continued
    their solicitation of calls for over two hours and that it was only
    at the end of the show that they disclosed that the contest was a
    prank, by which time the Mega phonelines were inundated with calls
    from upset and disappointed Station WRUM(FM) listeners.[^13]

**III. DISCUSSION**

4.  Section 73.1216 of the Commission\'s rules provides 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 shall conduct the contest substantially as
    announced or advertised. No contest description shall be false,
    misleading, or deceptive with respect to any material term."[^14]
    Material terms include those factors which define the operation of
    the contest and which affect participation therein, including, among
    other things, "how to enter or participate; eligibility
    restrictions; \[and\] time and means of selection of winners . . .
    ."[^15] The Commission enacted section 73.1216 to proscribe
    broadcasting practices that deceive audiences, are contrary to the
    public interest, or unfair to competitors.[^16]

5.  The Commission has held that licensees, as public trustees, have the
    affirmative obligation to prevent the broadcast of false,
    misleading, or deceptive contest announcements.[^17] A broadcast
    announcement concerning a contest is false, misleading, or deceptive
    "if the net impression of the announcement has a tendency to mislead
    the public."[^18] In enforcing this rule, the Enforcement Bureau has
    repeatedly 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 that tends to
    mislead the public.[^19]

6.  In this case, we find that Clear Channel apparently violated section
    73.1216 by not fully and accurately disclosing the material terms of
    its contest and by not conducting the contest substantially as
    announced.[^20] CCCI admits that the station failed to disclose in
    its announcements promoting the contest that the contest was false,
    and CCCI further concedes that it provided listeners with telephone
    numbers of a competing station that would not actually be utilized
    to award the announced prize. Furthermore, the licensee failed to
    conduct the contest as announced or advertised as offering a prize
    of \$1,000: the station did not award any such prize.

7.  We reject CCCI's contention that Clear Channel should not be subject
    to liability under section 73.1216 of the rules because the
    broadcast was merely a prank. Note 1(a) to the rule expressly states
    that "\[a\] contest is a scheme in which a prize is offered or
    awarded, based on chance, diligence, knowledge or skill, to members
    of the public."[^21] The hosts of Station WRUM(FM)'s morning show
    offered listeners an opportunity to win \$1,000 based on the chance
    that they would be the 100^th^ caller.[^22] Although they eventually
    informed their listeners that the contest was a prank and that no
    prize would be awarded, they misled their listeners for over two
    hours before they broadcast that acknowledgement. Under the
    circumstances, section 73.1216 clearly applies.

8.  Based upon the evidence before us, we find that Clear Channel failed
    to conduct the contest as announced and advertised, in apparent
    violation of section 73.1216 of the Commission\'s rules. Pursuant to
    the Commission's *Forfeiture Policy Statement* [^23] and section
    1.80 of the rules, [^24] the base forfeiture amount for failing to
    fully and accurately disclose the material terms of a contest and
    failing to conduct the contest substantially as announced or
    advertised is \$4,000. The *Forfeiture Policy Statement* and section
    1.80 provide that base forfeitures may be adjusted based upon
    consideration of the factors enumerated in section 503(b)(2)(D) of
    the Act, and section 1.80(a)(4) of the Commission\'s rules, which
    include \"the nature, circumstances, extent, and gravity of the
    violation \... and the degree of culpability, any history of prior
    offenses, ability to pay, and such other matters as justice may
    require.\"[^25]

9.  Based upon our review of all the pertinent factors as required by
    Section 503(b)(2)(D) of the Act, we believe a \$6,000 proposed
    forfeiture is appropriate. Station WRUM(FM)'s broadcast of a "prank"
    contest misled the public, thus violating the rule and undermining
    the public's trust in broadcasters. During the over two hours of the
    broadcast, a substantial number of listeners took the time to call
    the telephone numbers broadcast by Clear Channel based upon the
    fraudulent and irresponsible representations of the station's on-air
    hosts. Additionally, the licensee's actions were intentional and
    maliciously harmed the listener goodwill of its competitor, Station
    WNUE-FM. Station WRUM(FM) made no on-air apology and took no
    disciplinary action against its employees, instead sending an email
    apology to Station WNUE-FM and informing the Program Director and
    station hosts that such behavior was "unacceptable." Finally, we
    note that Clear Channel has a history of violations of the
    Commission's rules, including this rule.[^26] Accordingly, the
    violation warrants an upward adjustment of the base forfeiture
    amount. Based on the factors described above, we find that Clear
    Channel is apparently liable for a \$6,000 forfeiture.

**IV. ORDERING CLAUSES**

10. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
    Communications Act of 1934, as amended, and section 1.80 of the
    Commission's rules,[^27] that Clear Channel Broadcasting Licenses,
    Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in
    the amount of \$6,000 for apparently 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 (30) days of the release of this *NAL*,
    Clear Channel Broadcasting Licenses, Inc. SHALL PAY 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 must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the appropriate NAL/Acct. No.
    and FRN No. referenced above. Payment by check or money order may be
    mailed to Federal Communications Commission, P.O. Box 358340,
    Pittsburgh, Pennsylvania 15251-8340. Payment by overnight mail may
    be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
    Pittsburgh, Pennsylvania 15251. Payment by wire transfer may be made
    to ABA Number 043000261, receiving bank Mellon Bank, and account
    number 911-6106.

13. The response, if any, must be mailed to William H. Davenport, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W, Room 4-C330,
    Washington D.C. 20554, and MUST INCLUDE the NAL/Acct. No. referenced
    above.

14. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the respondent
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices ("GAAP"); or (3) some other reliable
    and objective documentation that accurately reflects the
    respondent's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

15. Requests for payment of the full amount of this *NAL* under an
    installment plan should be sent to: Associate Managing Director \--
    Financial Operations, 445 12th Street, S.W., Room 1-A625,
    Washington, D.C. 20554.[^28]

16. Accordingly, IT IS ORDERED, that the Complaint in this proceeding IS
    GRANTED, and the Complaint proceeding IS HEREBY TERMINATED.[^29]

17. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
    First Class Mail and Certified Mail - Return Receipt Requested, to
    Andrew W. Levin, Esquire, Executive Vice President and Chief Legal
    Counsel, Clear Channel Communications, Inc., 200 East Basse Road,
    San Antonio, Texas, 78209 and to its counsel, John Fiorini, Esquire,
    Wiley, Rein, & Fielding LLP, 1776 K Street N.W. Washington, D.C.
    20006; and, by regular mail, to Arthur H. Harding, Esquire, and
    Mark B. Denbo, Esquire, counsel for Mega Communications of Daytona
    Beach Licensee, L.L.C., Fleischman and Walsh L.L.P., 1919
    Pennsylvania Ave, N.W., Suite 600, Washington, D.C. 20006.

FEDERAL COMMUNICATIONS COMMISSION

William H. Davenport

Chief, Investigations and Hearings Division

Enforcement Bureau

[^1]: 47 U.S.C. § 503(b), 47 C.F.R. § 1.80.

[^2]: 47 C.F.R. § 73.1216.

[^3]: Letter from Arthur H. Harding, Esq., counsel for Mega
    Communications of Daytona Beach Licensee, L.L.C., to David H.
    Solomon, Chief, Enforcement Bureau, Federal Communications
    Commission, dated February 28, 2005 ("Complaint").

[^4]: Complaint at 1.

[^5]: *Id.* at 2.

[^6]: *Id*.

[^7]: *Id.*

[^8]: Letter from William D. Freedman, Deputy Chief, Investigations and
    Hearings Division, Enforcement Bureau, Federal Communications
    Commission, to Clear Channel Broadcasting Licenses, Inc., dated June
    28, 2005 ("LOI").

[^9]: Letter from Andrew W. Levin, Esquire, Executive Vice President and
    Chief Legal Officer, Clear Channel Communications Inc., to Marlene
    H. Dortch, Secretary, Federal Communications Commission, dated July
    18, 2005 ("Response"). On August 10, 2005, Mega filed a reply to the
    Response. Letter from Mark B. Denbo, Esq., counsel for Mega
    Communications LLC, to Marlene H. Dortch, Secretary, Federal
    Communications Commission dated August 10, 2005 ("Reply").

[^10]: Response at 2.

[^11]: *Id*. at 2.

[^12]: *Id* at 3.

[^13]: Reply at 2.

[^14]: 47 C.F.R. § 73.1216.

[^15]: *Id*.

[^16]: *Amendment of Part 73 of the Commission's Rules Relating to
    Licensee-Conducted Contests*, Notice of Proposed Rulemaking, 53 FCC
    2d 934, 934-35, ¶ 3 (1975), *proposed rule adopted in pertinent
    part*, Report and Order, 60 FCC.2d 1072 (1976).

[^17]: *Application of WMJX, Inc., WMJX-FM Miami, Florida For Renewal of
    License,* Decision, 85 FCC 2d 251, 269 (1981) ("*WMJX*") (forfeiture
    paid).

[^18]: *Id*. at 269-70. "The Commission stated in *Eastern Broadcasting
    Corp.,* 144 FCC 2d 228, 229 (1968): 'Deception may result from the
    use of statements which are not technically false or which may be
    literally true, since only the relevant consideration is the impact
    of the statements to the public.'" *WMJX, Inc.,* 85 FCC 2d at 270,
    n. 82.

[^19]: *See, e.g., Citicasters, Co*., Notice of Apparent Liability, 15
    FCC Rcd 16612, 16613-14 (Enf. Bur. 2000) (forfeiture paid); *Clear
    Channel Broadcasting Licenses, Inc.,* Notice of Apparent Liability,
    15 FCC Rcd 2734, 2735 (Enf. Bur. 2000) (forfeiture paid).

[^20]: 47 C.F.R. § 73.1216.

[^21]: 47 C.F.R. § 73.1216 Note 1(a).

[^22]: Note 1(b) to section 73.1216 provides further guidance relating
    to a licensee's obligation to accurately disclose the material terms
    of a contest:

    > Material terms include those factors which define the operation of
    > the contest and which affect participation therein . . . and they
    > generally include: how to enter or participate; eligibility
    > restrictions; entry deadline dates; whether prizes can be won;
    > nature and value of prizes; basis for valuation of prizes; time
    > and means of selection of winner; and/or tie breaking procedures.

    The Complaint establishes, and Clear Channel does not deny, that the
    broadcast provided the rules of the contest and identified the prize
    to be awarded. Complaint at 1.

[^23]: *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, 17113 (1997), *recon. denied*,
    15 FCC Rcd 303 (1999) ("*Forfeiture Policy Statement*").

[^24]: 47 C.F.R. § 1.80(b).

[^25]: 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4).

[^26]: *See, e.g., Capstar TX Limited Partnership*, Notice of Apparent
    Liability for Forfeiture, 20 FCC Rcd 10636 (Enf. Bur. 2005)
    (forfeiture paid); *Citicasters, Co*., Notice of Apparent Liability,
    15 FCC Rcd 16612, 16613-14 (Enf. Bur. 2000) (forfeiture paid);
    *Clear Channel Broadcasting Licenses, Inc.,* Notice of Apparent
    Liability, 15 FCC Rcd 2734, 2735 (Enf. Bur. 2000) (forfeiture paid).

[^27]: 47 C.F.R. § 1.80.

[^28]: *See* 47 C.F.R. § 1.1914.

[^29]: Consistent with section 503(b) of the Act and consistent
    Commission practice, for the purposes of the forfeiture proceeding
    initiated by this *NAL*, Clear Channel Broadcasting Licenses, Inc.
    shall be the only party to this proceeding.