Posted on August 25, 2010 by David Oxenford

A $4000 Fine After a Complaint About a Broadcast Contest - Make Sure that Contest Rules are Precise

In another sign of just how closely the FCC monitors contests conducted by broadcast stations, the FCC this week issued a Notice of Apparent Liability (a notice of a fine of $4000) to Nassau Broadcasting for being imprecise in the wording of the contest rules for a contest to be held at one of its stations.  In the rules of the contest, the station stated that entries would be accepted "through June 13, 2008."  In fact, the contest was conducted on the evening of June 12, and the station cut off entries to the contest on June 12.  When a listener went to enter the contest on June 13, and was told that she could not enter as the prize had already been awarded, the listener filed a complaint at the FCC.  The FCC, reading the language "through June 13" to mean that listeners could enter the contest up to and including that day, fined the licensee $4000 for misleading its listeners as to the proper rules for the contest it conducted.  This is another indication of just how seriously the FCC's Enforcement Bureau is taking the enforcement of Section 73.1216 of the Commission's rules, which requires licensees "to fully and accurately disclose the material terms" of any contests that it conducts, and to "conduct the contest substantially as announced or advertised."  Broadcasters need to be very precise in their wording of contest rules, and make sure that they carefully observe the details of the rules that they adopt.

In this case, it seems likely that the licensee was simply imprecise in its wording - stating that entries would be taken "through June 13" when it meant "before June 13."  This would have seemed evident from the fact that the rules said that the winner would be announced on the morning show on June 13.  Clearly, if the winner was going to be announced on the morning of June 13, it wouldn't do much good entering after that time.  But the ambiguity in the rules is construed by the FCC against the party who prepared the rules - as is evident from the finding in this case that these rules did not fully and accurately describe the rules of the contest (and actually holding the contest on the night of the 12th instead of the morning of the 13th probably didn't help much).  So what should a broadcaster do to make sure that this kind of ambiguity does not hit them in one of their contests?

Here are a couple of ideas:

  1. Carefully write the rules for the contest to state exactly what one needs to do to participate in the contest and to win the prize being given away (see our post here about another case where imprecise rules cost a station a fine).   Make sure to disclose any material benefits that will enhance anyone's chances to win a contest (like being a member of a loyal listener's club, who is told when a drawing will be held - see our post on that subject).
  2. Have several people read the rules as written to make sure that there are no ambiguities like the one that hit the licensee here.  Include an outsider in the review (a lawyer is always a good choice), as sometimes what seems evident in the rules to the people planning the contest is not so evident to someone looking at the rules from a fresh perspective.  But make sure to fully disclose to the reviewers exactly how you mean for the contest to work, so they can decide if what you explain to them is the same thing as what the rules say.
  3. Carefully conduct the contest in accordance with the rules.  Don't write the rules and forget them - as that can lead to trouble as is evident in this case, and has been the cause of other fines in past cases.
  4. Make sure that the contest rules are properly publicized.  As we have written before, the FCC requires that stations broadcast the material rules over-the-air enough that the station is confident that the average listener likely to participate in the contest will have had the opportunity to hear them.

Given the emphasis that the FCC has put on contests in the past few years, broadcasters need to conduct their contests carefully.  Especially when giving away something big that listeners will care about enough to complain to the FCC if they think that their chances to win have been compromised (like a car or backstage passes to a concert, or a trip or a valuable watch, as in the recent case), don't rely on stock contest rules that may govern your more routine casual giveaway (a new CD or a free donut at the local bakery to the 5th caller).   But be careful with any contest or give-away - as it is clear that the Commission is watching!
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Posted on January 23, 2008 by David Oxenford

FCC Rules Against Kucinich Request for Inclusion in CNN Presidential Debate

The FCC has now joined the Nevada Courts (see our post here) in denying Dennis Kucinich entry into the Presidential debates.  In a decision released this week, the FCC found that they could not force CNN to include Kucinich in its Democratic Presidential Debate, as such an action would violate the First Amendment.  The FCC only has the jurisdiction to determine if Kucinich was entitled to equal opportunities for not being included, and the Commission rejected that claim as well, finding that the carriage of the debate was on-the-spot coverage of a news event, exempt from equal opportunities. 

This decision is what we predicted in our post when the court's denied Kucinich access to the Nevada Presidential debate.  As we set out in that post, to encourage political debates, the FCC has determined that debates are on-the-spot coverage of news events as long as more than one candidate is included, and the decision as to which candidates to invite is made based on some rational criteria that is not exercised in some discriminatory, partisan fashion.  In this case, the Commission found that CNN's criteria - that a candidate had to have finished in the top 4 in a previous primary and be polling over 5% in an established national Presidential preference poll were not standards that were being applied arbitrarily for partisan reasons. The Commission concluded that the mere fact that Kucinich was receiving Federal funds and had unique positions on the issues was not enough to conclude that CNN was required to either include him in the debate or provide him equal time.

One other interesting aspect of this case was the fact that the Commission went through the entire equal opportunities analysis for a cable network program.  As we have written before, in connection with the now-ended candidacy of Fred Thompson (and that of Stephen Colbert), the Commission has never explicitly decided if equal opportunities applies to programming supplied to local cable systems by national cable programmers.  In this case, the FCC went out of its way to decide that Kucinich had no claim to equal opportunities, noting in a footnote that, as there was no claim of equal opportunities, the Commission did not have to address the question of whether the doctrine even applies to cable networks.  Thus, it remains an issue to be addressed another day and, with Fred Thompson withdrawing from the race, it most likely now will be an issue addressed in another election.
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