In re Application of EASTERN BROADCASTING CORP. For Renewal of License of Radio Station WCVS, Springfield, Ill.; EASTERN BROADCASTING CORP., 4115 Chesapeake Street, NW., Washington, D.C. 20016
File No. BR-159
FEDERAL COMMUNICATIONS COMMISSION
14 F.C.C.2d 228 (1968); 14 Rad. Reg. 2d (P & F) 331
RELEASE-NUMBER: FCC 68-768
July 24, 1968
[*228] GENTLEMEN: This refers to your pending application for the renewal of license of radio station WCVS, Springfield, Ill. (BR-159).
As part of the processing of the renewal application, the Commission has reviewed the information you have submitted in response to our queries concerning advertisements broadcast in connection with the "lucky bucks" contest sponsored by WCVS from June 19 through July 14, 1967. In brief, the contest was based entirely on reading over the air the serial numbers of 100 one-dollar bills, which had previously been distributed in the greater Springfield area (Sangamon County) by representatives of the radio station. All serial numbers on these bills were recorded on a master list. In addition, each serial number was individually written on small cards and these 100 cards were placed in separate envelopes and kept in a safe. On the outside of each envelope was written the last digit of each serial number. Each day of the contest, five of the envelopes were given to the announcer, one at a time. The last digit of the bill was announced over the air.
The rules of the contest provided that if a listener had a bill ending with the digit announced over the air he would be eligible to win $1,000 if he was one of the first five listeners to call the station on the telephone and if he had a serial number that matched all eight numbers in the possession of the station. Certain advertisements for this contest advised listeners that they could win as much as $1,000 each, and other promotional advertisements stated that $100,000 was being "offered" or "could be given away." The odds in favor of anyone winning $1,000 were infinitesimal and the chances of $100,000 (or any amount cominb close to that sum) being given away were virtually nonexistent. We have therefore concluded that these announcements were misleading and that their broadcast was contrary to the public interest.
The Commission has, in the past, stressed the duty of licensees to prevent the dissemination of improper types of advertising. See Public Notice of November 7, 1961, entitled "Licensee Responsibility with Respect to the Broadcast of False, Misleading or Deceptive Advertising" (FCC 61-1316). See also WCHS-AM-TV Corporation, 8 FCC 2d [*229] 608, 10 Pike & Fischer R.R. 2d 445, where the Commission admonished the licensee and granted the WCHS renewal for a short-term period because of the broadcast of misleading advertisements concerning a "lucky bucks" contest. The fact that, in addition to the aforementioned misleading announcements, you broadcast, at unspecified times, other advertisements regarding the contest which stated that there was a chance that WCVS might give away $100,000 and a good possibility that it might not, does not mitigate the misleading nature of the announcements in question.
In the analogous field of trade regulation, the important criterion in determining whether a product is falsely advertised is the net impression which the advertising makes upon the general public. Charles of the Ritz Distributors Corporation v. Federal Trade Commission, 143 F. 2d 676 (2d Cir. 1944). Deception may result from the use of statements which are not technically false or which may be literally true, since the only relevant consideration is the impact of the statements on the public. U.S. v. Ninety-Five Barrels of Vinegar, 265 U.S. 438, 443 (1924); Bennett v. Federal Trade Commission, 200 F.2d 362 (D.C. Cir. 1953). The Commission is of the view that the same criteria are valid with respect to broadcast advertising where a contest was so designed that the chances of anyone winning the claimed amounts were infinitesimal. If the net impression of the announcements has a tendency to mislead the public, that is enough.
Accordingly, we are renewing the license of WCVS for a short-term period ending 3 a.m. on August 1, 1969. This will provide us with the early opportunity to assure ourselves that there has been no recurrence of the broadcast of misleading advertisements by station WCVS.
The nature of the "lucky bucks" contest is outlined in the Commission's letter granting a short-term license renewal to station WCVS. In view of the blatantly misleading conduct of the entire promotion, I believe that the more appropriate sanction might have been to designate the station's pending renewal application for hearing.