[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Notices]
[Pages 94371-94374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30898]
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FEDERAL COMMUNICATIONS COMMISSION
[MB Docket No. 16-357; FCC 16-153]
Entercom License, LLC, Applications for Renewal of License for
Station KDND(FM), Sacramento, California
AGENCY: Federal Communications Commission.
[[Page 94372]]
ACTION: Notice.
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SUMMARY: This document commences a hearing to determine whether the
applications (FCC File Nos. BRH-20050728AUU and BRH-20130730ANM)
(Applications) of Entercom License, LLC (Entercom), for renewal of FM
Station KDND, Sacramento, California (Station) should be granted. The
hearing will include issues regarding whether Entercom operated the
Station in the public interest during the relevant license term, in
light of record evidence that Entercom formulated, promoted, conducted,
and aired over the Station an inherently dangerous contest in which one
listener-contestant died of water intoxication and others suffered
serious physical distress.
DATES: Persons desiring to participate as parties in the hearing shall
file a petition for leave to intervene not later than January 23, 2017.
ADDRESSES: Please file documents with the Office of the Secretary,
Federal Communications Commission, 445 12th Street SW., Washington, DC
20554. Each document that is filed in this proceeding must display on
the front page the document number of this hearing, ``MB Docket No. 16-
357.''
FOR FURTHER INFORMATION CONTACT: Pamela Kane, Special Counsel,
Enforcement Bureau, (202) 418-2393.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Hearing Designation Order (Order), FCC 16-153, adopted October 26,
2016, and released October 27, 2016. The full text of the Order is
available for inspection and copying during regular business hours in
the FCC Reference Center, 445 12th Street SW., Room CY-A257, Portals
II, Washington, DC 20554, and may also be purchased from the
Commission's copy contractor, Portals II, 445 12th Street SW., Room CY-
B402, Washington, DC 20554. This document is available in alternative
formats (computer diskette, large print, audio record, and Braille).
Persons with disabilities who need documents in these formats may
contact the FCC by email: [email protected] or phone: 202-418-0530 or TTY:
202-418-0432.
Synopsis
1. This Order commences a hearing proceeding before an
Administrative Law Judge to determine whether the Applications of
Entercom for renewal of FM Station KDND, Sacramento, California, should
be granted. During the relevant license term, on January 12, 2007,
Entercom conducted and aired a contest (Contest) that resulted in the
death of one of its listener-contestants, Jennifer Lea Strange (Ms.
Strange), and endangered others. At a civil trial (Trial), Entercom was
found liable for the wrongful death of Ms. Strange.\1\
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\1\ William A. Strange et al. v. Entercom Sacramento LLC et al.,
Superior Court of California, County of Sacramento (Dept. 44), Case
No. 07AS00377.
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2. Section 309(k) of the Communications Act of 1934, as amended, 47
U.S.C. 309(k), requires the Commission to determine whether the
``public interest, convenience, and necessity'' will be served by the
granting of each renewal application. If the Commission, upon
examination of such application and upon consideration of such other
matters as the Commission may officially notice, shall find that public
interest, convenience and convenience would be served by the granting
thereof, it shall grant the application. If a substantial and material
question of fact is presented or the Commission for any reason is
unable to make the finding that the station has, inter alia, served the
public interest, it shall formally designate the application for
hearing. If the Commission determines, after notice and opportunity for
a hearing, that a licensee has failed to meet the requirements for
renewal and that no mitigating factors justify the imposition of lesser
sanctions, the Commission shall issue an order denying the renewal
application.
3. In this case, significant and material questions exist as to
whether Entercom: (i) Designed and conducted a contest that was
inherently dangerous; (ii) increased the danger to the contestants by
changing the announced Contest terms; (iii) was aware of the potential
dangers of the Contest and water intoxication; (iv) failed to protect
the contestants from the potential dangers of the Contest; (v) failed
to warn the contestants of the Contest's potential dangers; (vi)
prioritized entertainment value over the welfare of the contestants;
and (vii) failed to conduct adequate training and exercise appropriate
supervision of Station KDND employees and the Contest to ensure the
safety of the contestants. Because the Commission is unable to make a
determination on the record currently before it that grant of the
Applications would serve the public interest, convenience and
necessity, it designates the Applications for hearing.
4. Inherent dangers of the Contest. Entercom's Station KDND held
the Contest, called ``Hold Your Wee for a Wii,'' live on its January
12, 2007, 5:30-10:00 a.m. Morning Rave Show (Show). The premise of the
Contest was that the contestant who was able to drink water at regular
intervals for the longest time without urinating or vomiting would win
a Nintendo Wii video game console. At the Trial, a medical expert
testified that such over-consumption of water may cause pressure in the
brain leading to confusion, disorientation, impaired judgment, and
ultimately risk of death. In this case, Ms. Strange returned home after
participating in the Contest, slipped into a coma, and died, leaving a
husband and three children. The autopsy revealed that she had died of
water intoxication. Accordingly, the Commission designates for hearing
the issue of whether Entercom designed and conducted a contest that was
inherently dangerous.
5. Increased danger to participants by changing the Contest terms.
In a number of over-the-air announcements prior to the Contest,
Entercom staff stated that contestants would be drinking water every
fifteen minutes from eight- or 16-ounce glasses of water. These
promotional announcements did not mention any risks associated with the
Contest in general or with water intoxication (also known as
hyponatremia) specifically. When the contestants arrived at the
Station, they were informed for the first time by Entercom staff--
acting throughout in the course of their employment for Entercom--that
they would be drinking eight ounces of water every ten minutes rather
than at the fifteen minute intervals previously announced on air, again
without mention of any specific risk. No medical personnel were present
at the Contest. About 90 minutes into the Contest, apparently concerned
that the Contest would not be concluded before the end of the Show, the
hosts increased the required water consumption to 16.9-ounce bottles of
water every 10 minutes. A medical expert at the Trial testified that
these modifications to the Contest heightened the risk of death for the
contestants, including Ms. Strange. Accordingly, the Commission
designates for hearing the issue of whether Entercom increased the
danger to Contest participants by changing the Contest terms from those
announced previously on air.
6. Entercom's awareness of the potential dangers of the Contest and
water intoxication. The record suggests that, prior to and during the
Contest, Entercom was aware that water intoxication could cause severe
health consequences, and even death. Specifically, during at least two
Shows broadcast before the Contest, Entercom staff had discussed on air
the fraternity hazing death of a college student by water intoxication,
and even attempted
[[Page 94373]]
a humorous reenactment of that event, during which an Entercom employee
drank a large quantity of water and suffered water intoxication
symptoms. During the Contest, the hosts of the Show again referred on
air to the possibility of ``water poisoning'' like ``that poor kid in
college.'' In addition, during the Show, the producer and hosts
received several phone calls from concerned listeners--including
medical professionals--specifically warning that the Contest was
dangerous and even potentially lethal. Entercom employees responded
dismissively to these calls, simply telling callers that the
contestants had signed releases. Finally, Entercom employees ignored or
joked about the symptoms displayed by contestants, including Ms.
Strange, who had a visibly extended abdomen, difficulty walking, and
stated on air that her head hurt. Accordingly, the Commission
designates for hearing the issue of whether Entercom was aware of the
potential dangers to the contestants associated with the Contest.
7. Failure to protect contestants. At the Trial, a medical expert
testified that Jennifer Strange could have been saved if she were
provided with medical assistance at any time prior to her having a
convulsion or losing consciousness. However, Entercom did not provide
medical assistance even after contestants began to complain of extreme
discomfort. Therefore, the Commission designates for hearing the issue
of whether Entercom failed to take appropriate steps to ensure the
contestants' safety and to protect them from the dangers of the
Contest.
8. Failure to warn contestants of the potential danger posed by the
Contest. The record reflects that, in promotional announcements and on
the day of the Contest, Entercom did not inform participants of risks
associated with the Contest in general or water intoxication
specifically, even after Station staff were specifically notified of
the danger by callers. Rather, the hosts of the Show made jocular
statements to the contestants that dismissed or otherwise minimized the
risks or the severity of the symptoms they were experiencing. Even
after learning of Ms. Strange's death, Entercom did not contact the
other participants to inform them of her death or suggest that they
seek medical attention. Accordingly, the Commission designates for
hearing the issue of whether Entercom failed to warn the Contest
contestants about the possible dangers associated with water
intoxication.
9. Prioritization of entertainment value over welfare of
contestants. The record suggests that Entercom ran the Contest in a way
to maximize its entertainment value to listeners at the expense of the
dignity and well-being of the contestants. For example, Show staff
induced themselves to vomit near the contestants to get them to do so,
photographed the contestants in various states of physical distress,
including emerging from the bathroom, and otherwise heckled contestants
to create a theatrical atmosphere that may have fostered the discomfort
and degradation of the contestants for entertainment value.
Accordingly, the Commission designates for hearing the issue of whether
Entercom may have prioritized the entertainment value of the Contest
over the welfare of the contestants.
10. Failure to train and supervise Station staff. It appears from
the record that Station staff largely conceived and ran the Contest
without adequate supervision or guidance from Station management and
Entercom's corporate parent, Entercom Corp. In apparent violation of
corporate rules and procedures, the Contest was not presented to
Entercom Corp.'s legal department for vetting. Nor did Station staff
independently research or otherwise make an objective determination on
the Contest's safety or compliance with corporate contest guidelines.
The facts on record indicate that there may have been systemic problems
with Entercom's training and contest review and oversight process. It
appears that Station management had minimal involvement in the
conception or conduct of the Contest, perhaps in light of the Show's
high ratings and resulting contribution to the licensee's financial
bottom line. No individual, at either the Station or corporate level,
had clear responsibility for compliance with contest policy, and
guidelines formulated at a corporate level were not necessarily
communicated to the Station staff who would be actually conducting
contests. For these reasons, among others, the record suggests that
although the hosts of the Show may have exercised poor judgment during
the course of the Contest, they were also not adequately trained or
supervised by Entercom with respect to contests. Accordingly, the
Commission designates for hearing the issue of whether Entercom
conducted adequate training and exercised appropriate supervision over
the contest-related activities of KDND personnel, including, in
particular, the Contest.
11. Accordingly, it is ordered that, pursuant to section 309(e) of
the Communications Act of 1934, as amended, 47 U.S.C. 309(e), the
Applications, File Nos. BRH-20050728AUU and BRH-20130730ANM, are
designated for hearing in a proceeding before an FCC Administrative Law
Judge, at a time and place to be specified in a subsequent Order, upon
the following issues: (a) To determine whether Entercom designed and
conducted a contest that was inherently dangerous; (b) To determine
whether Entercom increased the danger to the contestants in the ``Hold
Your Wee for a Wii'' contest by changing the contest terms; (c) To
determine whether Entercom was aware of the potential dangers of the
``Hold Your Wee for a Wii'' contest and water intoxication; (d) To
determine whether Entercom failed to protect the contestants of the
``Hold Your Wee for a Wii'' contest from its potential dangers; (e) To
determine whether Entercom failed to warn the contestants of the ``Hold
Your Wee for a Wii'' contest of the contest's potential dangers; (f) To
determine whether Entercom prioritized entertainment value over the
welfare of contestants of the ``Hold Your Wee for a Wii'' contest; (g)
To determine whether Entercom failed to properly train and exercise
appropriate supervision of Station KDND(FM) staff and the ``Hold Your
Wee for a Wii'' contest to ensure the safety of the contestants; (h) To
determine, in light of the evidence adduced under the foregoing issues
and the totality of circumstances, whether Entercom License, LLC
operated Station KDND(FM) in the public interest during the most recent
license term; and (i) To determine, in light of the evidence adduced
under the foregoing issues and the totality of circumstances, whether
Entercom's Applications for Renewal of License for KDND(FM), File Nos.
BRH-20130730ANM and BRH-20050728AUU, should be granted.
12. It is further ordered that, irrespective of the resolution of
the foregoing issues, the Petition to Deny filed by Irene M. Stolz, on
November 1, 2005, is dismissed as moot in part and denied in part.
13. It is further ordered that the Petition to Deny filed by Media
Action Center and Sue Wilson on October 31, 2013, and the Petition to
Deny filed by Edward R. Stolz II on November 1, 2013, considered as an
informal objection, are granted in part, to the extent that they seek
designation for hearing of the subject Entercom license renewal
applications on issues (a) through (g) above, and are otherwise denied.
14. It is further ordered that the Informal Objection filed by
Roger D. Smith on October 22, 2013, is granted.
15. It is further ordered that the Chief, Enforcement Bureau, shall
be made a party to this proceeding without the need to file a written
appearance.
[[Page 94374]]
16. It is further ordered that Media Action Center and Sue Wilson
shall be made parties to this hearing in their capacity as a petitioner
to the captioned applications.
17. It is further ordered that pursuant to Section 309(e) of the
Act and Section 1.221(c) of the Commission's Rules, to avail itself of
the opportunity to be heard and to present evidence at a hearing in
this proceeding, Entercom, in person or by its attorneys, shall file
with the Commission, within 20 calendar days of the release of this
Order, a written appearance stating that it will appear at the hearing
and present evidence on the issues specified above.
18. It is further ordered that, pursuant to Section 1.221(c) of the
Commission's Rules, if Entercom fails to file a timely written
appearance, or has not filed prior to the expiration of that time a
petition to dismiss the captioned Applications without prejudice, or a
petition to accept, for good cause shown, such written appearance
beyond expiration of said 20 calendar days, the Applications shall be
dismissed with prejudice for failure to prosecute.
19. It is further ordered that to avail themselves of the
opportunity to be heard and the right to present evidence at a hearing
in these proceedings, pursuant to Section 1.221(e) of the Commission's
Rules, Media Action Center and Sue Wilson, shall file within 20
calendar days of the release of this Order, a written appearance
stating their intention to appear at the hearing and present evidence
on the issues specified above. Any entity or person so named above who
fails to file this written statement within the time specified, shall,
unless good cause for such failure is shown, forfeit its hearing
rights.
20. It is further ordered, in accordance with Section 309(e) of the
Communications Act of 1934, as amended, the burden of proceeding with
the introduction of evidence and the burden of proof, with respect to
all issues designated herein, shall be upon Entercom.
21. It is further ordered, that Entercom herein shall, pursuant to
Section 311(a)(2) of the Communications Act of 1934, as amended, and
Section 73.3594 of the Commission's Rules, give notice of the hearing
within the time and in the manner prescribed in such Rule, and shall
advise the Commission of the publication of such notice as required by
Section 73.3594(g) of the Commission's Rules.
22. It is further ordered that copies of this document shall be
sent via Certified Mail, Return Receipt Requested, and by regular first
class mail to the following: Carrie A. Ward, Esq., Entercom License,
LLC, 401 City Avenue, Suite 809, Bala Cynwyd, PA 65483; Dennis P.
Corbett, Esq., Lerman Senter PLLC, 2000 K Street NW., Suite 600,
Washington, DC 20006-1809; Media Action Center and Sue Wilson, 18125
Tyler Road, Fiddletown, CA 95629; Edward R. Stolz, II, c/o Dennis J.
Kelly, Esq., Law Office of Dennis J. Kelly, P.O. Box 41177, Washington,
DC 20018; Roger D. Smith, 6755 Wells Avenue, Loomis, CA 95650.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2016-30898 Filed 12-22-16; 8:45 am]
BILLING CODE 6712-01-P