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In Re Application by HENKIN, INC., RICHMOND, KY. For Renewal of License BR-2945




29 F.C.C.2d 40




MARCH 10, 1971


Commissioner Johnson dissenting and issuing a statement.



 [*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.





Car Keys

[In re Letter to Henkin, Inc....]


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.

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