A jury in Sacramento returned a $16.57 million verdict against Entercom Broadcasting’s local subsidiary in the case involving the death of a contestant in a radio station-sponsored contest. The contest – drinking water and waiting to see which contestant would win the Nintendo Wii by being the last to have to use the bathroom – led to the death of contestant Jennifer Strange by water intoxication. The station had argued that water intoxication was not a readily known risk of the contest that could have reasonably been anticipated. The plaintiff’s case, to refute this argument, included testimony of warnings from on-air station callers of the risks, and health complaints from contestants themselves, which were apparently ignored or minimized by the station employees who were involved in supervising the contest. This Blog does not purport to address negligence and personal liability questions, which we will leave to others. Instead, we’ll talk about the lesson to broadcasters and the FCC impact of this case.
First, the decision itself serves as a warning to broadcasters of the need to make employees aware of the ramifications of what goes on at a station. In a Radio Ink Column today, Publisher Eric Rhoads suggests that broadcasters must be careful in what they do, but also submits that owners and managers cannot take the fun out of radio. And while I wholeheartedly agree with the last sentiment, the fact that radio can be a fun business is all the more reason that owners and managers need to be careful about what goes on at a station. While we hate to be the lawyers who ruin all the fun, management does need to make employees aware of the nature of the broadcast medium, and the fact that real people are impacted by whatever is done on the station – whether it be a "joke" on the air which some people find offensive, a dangerous contest, or simply putting off compliance with some FCC rule. We are in a litigious time, and we have an FCC and a Congress with lots of pending matters that could determine the future of the industry. While it may seem amazing, a single contest gone wrong or wardrobe malfunction can set the tone for the regulation of an entire industry. So, while broadcast managers need to avoid being the heavies and playing it so safe that they take the fun out of broadcasting, they do need to impress on employees that they must be aware of the ramifications that their actions can have. Broadcasting is still a powerful medium, and because of that fact, actions taken by broadcasters can have an impact that is magnified far beyond what might be the case in other media or other industries. And because it is such a regulated industry, that impact can have huge consequences.