In Re Application by
HENKIN, INC., RICHMOND, KY. For Renewal of License BR-2945
FEDERAL
COMMUNICATIONS COMMISSION
29 F.C.C.2d 40
RELEASE-NUMBER: FCC 71-262
MARCH 10, 1971
Commissioner Johnson dissenting and issuing a statement.
OPINION:
[*40] HENKIN, INC.,
Radio Station WEKY, Richmond, Ky.
GENTLEMEN: The Commission has under
consideration (1) your application for renewal of license (BR-2945), (2) the
Commission's letter of August 27, 1970, to Henkin, Inc., concerning the
broadcast of false, misleading or deceptive advertising by Radio Station WEKY,
and (3) your responses to the Commission's letter of August 27, 1970, and a
subsequent Commission letter of November 6, 1970.
In our letter of August 27, we
stated that advertising used to promote the "Snow Fall Contest"
during the Fall of 1969, and the context in which it was employed would lead a
reasonable person to the conclusion that a new 1970 Chevrolet Impala automobile
was being offered to the winner of the contest. We also stated that this
is the notion which Mr. Morris, an announcer at WEKY, sought to convey to his
audience and that your conduct fell short of a licensee's obligation to protect
the public from false, misleading or deceptive advertising as set forth in our
Public Notice of November 7, 1971, entitled, "Licensee Responsibility with
Respect to the Broadcast of False, Misleading or Deceptive Advertising."
(FCC 61-1316) We requested that you submit a statement of your intentions as to
honoring the representations broadcast by WEKY that the winner of the contest
would receive a new car and stated that further consideration would be given to
your application for renewal after we received your statement.
In your response, dated September
29, 1970, you stated that a new Chevrolet Impala would cost approximately
$3,000 and that even assuming that Mr. Wall did expect a new Impala, the penalty
was "out of line," that a mistake on Mr. Morris' part should not
entitle Mr. Wall to such a substantial gift; that members of the WEKY staff had
personally interviewed 46 people who heard Mr. Morris' broadcasts and they did
not think that a new car was to be given away; and that the station's expenses
have increased without a corresponding increase in revenue.
On November 6, 1970, the
Commission's staff sent a letter to the licensee stating that it had received a
signed statement from Mr. W. R. Ramey of Richmond, Kentucky to the effect that
he also had heard [*41] Morris' statements and had received the
impression that a 1970 Impala would be awarded to the winner of the
contest. You also were informed in the letter of November 6 that the
Commission had received an additional letter from Mr. Wall stating that Mr.
Morris had failed to keep a scheduled appointment with Wall and that Morris had
subsequently left Station WEKY. You were asked to submit any additional comments
which you wished to make in light of this information. You responded to
this letter on November 13, and stated that it was Wall, not Morris, who failed
to keep the appointment and that Morris had tried to reach Wall several other
times by telephone but was unsuccessful. At the present time, Mr. Wall
has received a new radio as his prize in the contest, but has not received a
new 1970 Impala automobile.
You have stated that, "The
officers, directors and managers of Henkin, Inc. have... put forth every
effort... to protect the public against false, misleading or deceptive
advertising..." in the future. However, we are of the opinion that
you have not submitted sufficient information to alter our determination of
August 27, that WEKY broadcast false, misleading or deceptive advertising
during the contest; nor have you complied with the Commission's request by
clearly indicating your intentions "as to honoring the representations
broadcast by WEKY that the winner of the contest would receive a new 1970
Chevrolet Impala if the name of one of your employees appeared on the winning
entry." As we stated in our letter of August 27, "a licensee cannot
be permitted to avoid the consequences of its false or misleading advertising
on the grounds that it did not intend the advertising to be taken seriously,
where, as here, the advertising indicated that it was to be taken
seriously." It appears that you have failed to realize the seriousness of
broadcasting false, misleading or deceptive advertising. In this regard,
not only have you failed to indicate how you would honor the representations
broadcast during the "Snow Fall Contest" but you also have failed to
demonstrate that you have made any good faith effort to reach a reasonable
compromise with Mr. Wall concerning the contest prize, other than to state that
efforts of your announcer, Morris, to reach Wall by telephone were without
results.
In view of your failure to assume
your responsibilities as set forth in the Commission's Public Notice referred
to above, we are unable to make an affirmative finding that the public
interest, convenience and necessity would be served by the renewal of your
license for the remainder of the license period. Instead, in order that
we may have an earlier opportunity to review the operation of Radio Station
WEKY, we are granting a short term renewal for the period ending April 1, 1972.
BY
DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
APPENDIX:
Car Keys
[In re Letter to Henkin, Inc....]
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
I suppose we shouldn't
surprised. I mean, if the Commission can find $41,000 worth of fraud of
advertisers consistent with a license renewal, WKKO, Inc., 21 F.C.C. 2d 889,
890 (1970), there's no reason to suspect it would apply a higher standard when
fraud of the audience is involved.
WEKY in Richmond, Kentucky ran a
"snowfall contest." Whoever guessed the date when the first snowfall
would occur would win "the keys to a new Impala." Well, the winner
got just that: the keys, but no Impala.
The offer of "car keys"
was made by an announcer of the station. Apparently it was made with the
knowledge of management, which made no effort to stop its broadcast. The
contest was conducted in conjunction with another where an old Cadillac was the
prize. An offer was also made of a toy car with a twenty dollar bill
inside in an effort to quiet the complainant who believed he was entitled to
receive a new car with the "car keys." The Commission concluded in
August 1970 that the licensee could not escape the consequences of his
misleading advertising because he believed that it was not misleading.
The Commission asked what the licensee was going to do about the representation
that the winner of the "snowfall" contest was to receive a new
car. The licensee has responded that it would be an unfair penalty to
require him to provide a car. He has not yet made good on the
prize. The majority's acquiescence, in its decision to renew WEKY's
license for one year, now follows.
It's actions like this by American
business (and the acquiescence of silence by trade press and trade
associations) that are turning young people -- and their elders to attitudes of
bitter cynicism about everything they hear on radio and television. For
example, 56% of a southern high school student body responded to a poll with
disbelief that the U.S. has ever put a capsule on the moon. New Republic,
March 13, 1971,p. 30.
It's actions like this by government
that are creating equivalent cynicism about the responsiveness of government
and its capacity to serve public needs.
One school of revolutionary thought
holds that such actions should not be opposed, because their existence will
only serve to radicalize people faster. I do not agree. I think we
ought to do what we can to make the present institutions work better, at the
same time we search for alternatives.
Accordingly, I dissent.