FCC Designates KDND Renewal for ALJ Hearing Over 2007 Contest Death
An FCC proceeding on Entercom's KDND(FM) Sacramento license renewal application likely will take years and is seen as unlikely to result in the station losing its license, despite a 2007 radio contest that led to the death of a listener, attorneys told us. Though hearing designation orders such as that issued against KDND are exceedingly rare, larger companies such as Entercom generally are able to handle the burden of the expensive litigation required and reach some sort of resolution with the commission that allows them to keep the license, said Fletcher Heald broadcast attorney Peter Tannenwald. But Tannenwald, who has defended clients in such proceedings, said the process probably will be difficult, comparing the hearing process to a “death ray.” Such hearing proceedings are rare, Tannenwald said, but when the FCC “gets really mad” at a licensee, it “lets them have it,” he said. The order directs the ALJ to commence the hearing within nine months.
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KDND's license renewal applications for 2005 and 2013 are before the FCC in the proceeding, along with petitions to deny based on the 2007 incident filed by the family of victim Jennifer Strange and public interest entity the Media Action Center. Other petitions to deny were filed against KDND and several other Entercom stations by mother and son Irene and Edward Stolz over alleged ownership violations, but the FCC threw out the Stolz petition, the order said.
The FCC is questioning whether KDND was operated in the public interest because of a 2007 radio contest on KDND's Morning Wave Show that led to a 28-year-old mother dying of water intoxication in an attempt to win a video game console, said the order. The order said KDND didn't properly announce the contest rules, changed them in the middle of the contest, repeatedly ignored medical professionals calling the station to warn that drinking too much water could be dangerous, and didn't inform other contestants of possible dangers after second-place contestant Jennifer Strange died. The Strange family's civil suit against Entercom ended with a 2009 $16.9 million verdict against the broadcaster. “We believe that Entercom’s apparent conduct of the Contest so imperiled members of the Station’s community and constituted such a misuse of its licensed facilities that it would call into question whether the Station served the public interest, warranting renewal of its license,” said the order.
“What happened was the result of unauthorized and appalling actions by certain station employees who violated corporate procedures,” said Entercom CEO David Field in an emailed statement Friday. “None of that diminishes our sadness and we remain committed to continuous improvement in our efforts to serve the public.”
Numerous attorneys noted that hearing designation orders for license renewals are extremely rare, and some suggested this one likely indicates negotiations with the FCC over a forfeiture or consent decree were unsuccessful. Entercom wouldn't comment. Asked why the FCC is designating this station for a hearing now, a Media Bureau spokeswoman said, “The statute tells us that when we can’t conclude that the station has served the public interest, we must designate it for hearing.”
Since the hearing process is onerous and lasts years, few broadcasters have the resources to weather it, Tannenwald said. Entercom is likely large enough to sustain its defense during the administrative law process and possible subsequent litigation, Tannenwald said. That likely means the proceeding will be resolved with Entercom enduring some other form of punishment than having its license pulled, such as a forfeiture, Tannenwald said. Smaller broadcasters eventually would be unable to sustain the cost of litigation, and might have to voluntarily turn in their licenses or sell their stations, attorneys said.
The rarity of such proceedings is a result of Media Bureau inaction, Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman told us. “What infuriates me is that meritorious or no, it would take nine years for the commission to get around to designate a hearing,” he said. It will take years to resolve the process, and if it concludes that KDND wasn't operating in the public interest those are years it would be still broadcasting, he said, calling the situation “disgraceful.” FCC Chairman Tom Wheeler should force the Media Bureau to act on pending license proceedings promptly, he said. “This is hardly the only example of the fact that the Media Bureau treats license renewals as its very last priority.”