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    Radio Station Behind “Hold Your Wee For A Wii” Promotion Shuts Down

    This lesson provides a sober reminder of how important it is to not ask people to do stupid things for promotions.

    In early February 2017, Entercom License LLC, the owner of Sacramento, CA, radio station KDND, asked the Federal Communications Commission to dismiss its license renewal application. This request came as a result of the FCC questioning whether the station’s actions in its previous license term failed to serve the public interest, which, if found, would have led to a denial of its license renewal.
    You may recall KDND as the radio station behind the now infamous “Hold Your Wee for a Wii” contest broadcast live during the station’s Morning Rave Show in 2007. The winner of the contest, and a Nintendo Wii, was to be the person who was able to drink eight ounces of water every 10 minutes for the longest period of time without urinating or vomiting. As a result of the dubious contest, one of the participants, Jennifer Lea Strange, died of hyponatremia—water intoxication—leaving behind a husband and three children. Ms. Strange’s death led to a civil action for wrongful death, which settled after a jury entered a $16.5 million judgment against KDND.

    This 10-year journey to the loss of a valuable broadcasting license in such a prominent market is not surprising, given the facts. The FCC reiterated, in its Hearing Designation Order and Notice of Opportunity for Hearing, issued in the fall of 2016, all of the mistakes the station made in conducting the contest, including:

    • The station’s awareness of the dangers in conducting the contest and its callous disregard for them

    • Failure to warn participants of the dangers of water intoxication

    • A failure to protect participants from those dangers

    • The changing of the rules after the contest had begun.

    These factors led the FCC to conclude that KDND conducted an inherently dangerous contest. In any event, the ultimate outcome serves as a critically important reminder for any marketer that wants to conduct a contest involving or impacting the physical or medical well-being of participants.

    As an attorney in the field of promotions law for over 20 years, I’ve seen my fair share of wacky (and dangerous) contest ideas. Among them: UGC contests involving parkour, or free running (where participants jump off of buildings); eating contests of all stripes; various formulations of scavenger hunts; and contests involving multiple physical challenges designed to mimic life in elite military units. Some of these actually took place. Others (rightfully) were rejected before they saw the light of day. The fact of the matter is that marketers can ask consumers to do things to enter a promotion that might harm them, as long as they aren’t being asked to do something that is inherently dangerous, appropriate precautions are taken given the nature and degree of the risk involved, and the marketer understands the extent of, and is prepared to take, the legal and practical risks that cannot be mitigated.

    The law that applies here is based in torts (civil wrongs that cause injuries and damages) and not promotions or advertising. The general legal standard to consider is one of negligence. For there to be negligence, the person bringing the claim must prove that the person or entity acting negligently owed a duty of care to the person injured, that such duty was breached, and that such breach was the cause of the damages. Critical to the question of the duty of care is whether the risk to the injured party, and therefore the harm, was foreseeable. If the risk was foreseeable, then the sponsor of the promotion may be liable for the harm to the entrant(s). In any event, everyone is required to use at least ordinary care to prevent others from being injured as the result of their conduct.

    One case that I often refer to in advising my own clients dates back to 1975 in California—Weirum v. RKO General, Inc. In Weirum, the defendant radio station sponsored a contest in which a DJ drove around to different locations in Los Angeles and offered a prize to the first listener to find him at each location in the city. A lawsuit arose when two teenage listeners caused a car accident in which a man was killed while they were speeding to a location to win the contest. The California Supreme Court affirmed the trial court’s ruling in favor of the man who was killed. The court found that the contest did create an unreasonable risk of harm to the motoring public, including the victim, by encouraging high speed automobile driving in a metropolitan area, and that the risk was foreseeable by the radio station. The station was therefore found negligent and a judgment in favor of the victim was upheld.

    With such a legal standard, it may seem impossible, or at least imprudent, to conduct any promotion that has the possibility of causing harm to the participants. After all, aren’t most potential harms in these instances foreseeable? Choking on a hot dog in an attempt to eat the most in 10 minutes; getting hit by a car during a scavenger hunt in New York City; or cutting your finger in a timed cooking competition—all of these are foreseeable harms. But there are defenses to a claim of negligence in these situations, most notably the defense of consent, assumption of the risk and waiver. In general, if participants have been adequately informed of the risk they may encounter, and explicitly (or implicitly) accept the risk, the sponsor should not be found liable. The primary vehicle for such consent is usually a document like a Waiver of Liability or a Dangerous Activity Release.

    While I would never tell a client not to have participants sign a Waiver of Liability in situations like these, it’s important to note that the waiver may not always be a silver bullet. First of all, the enforceability of these types of documents varies from state to state, so be sure to check applicable state laws before relying on this defense. Some states disfavor such documents for public policy reasons (where the good of the community overrides contract concerns, and such a contract may not be enforceable). Second, in general, even if the waiver is enforceable in the state where a participant was injured, it must meet certain requirements. For example, without being specific as to any particular state law, a waiver should: be as specific as possible to the potential dangers and harm involved; avoid legalese and use plain language that is easy to read and understand; include any specific language or font size required by state laws; not be commingled with other documents such as registration forms or official rules; and not disclaim liability for gross negligence.

    With that as a backdrop, should promotion sponsors avoid these types of promotions altogether? The answer is no, but there are some important things to consider:

    1. How dangerous is the activity you’re asking participants to engage in? The more dangerous, the higher the risk. A simple scavenger hunt is likely on the lower end of the spectrum, while a contest that lets participants live out their secret spy fantasies with live ammunition is definitely on the higher end of the scale.

    2. Can the risks associated with the activity be lessened? If they can, you should take steps to do so. For example, can the competition be held in a closed area to avoid interaction with the public? Can you have one or more doctors or EMTs available in the case of an emergency? Can participants be given training and/or appropriate safety gear to help minimize physical harm? Consider all of the possible options to make the activity as safe as possible.

    3. Even if the risks can be controlled, might there still be brand or reputational damage if participants were injured? As a marketing lawyer, one of the most important things I can do is warn my clients of potential bad PR or reputational damage. Even if the legal risks can be minimized, a publicity hit may not be good for the bottom line.

    4. Can you get participants to sign a Waiver of Liability? If you can, you should. This might foreclose certain social media-based promotions that allow participants to enter by merely responding to a call to action without completing an entry form or signing a waiver.

    5. Can you limit the activities in question to one state or to a limited group of states? This will give you the more effective ability to ensure that any waiver or liability documents comply with state law(s). This doesn’t suggest that you should be precluded from conducting a nationwide contest, but the cost of ensuring legal compliance and limiting risk may be higher to do so.

    It is possible to avoid a fate similar to radio station KDND when engaging in promotions that might put participants in harm’s way. They key is to be smart about what you are asking consumers to do, consider worst case scenarios (no matter how remote), ensure that you are taking appropriate safety precautions, and engage your legal counsel to help minimize legal risks.

  • Profile picture of Airchecker Airchecker

    Radio is nothing without promotions. If you want drive revenue, create buzz and increase awareness, you simply can’t go past contests, promos and stunts.

    The best thing about promotions is that a cleverly thought out idea doesn’t necessarily have to cost much, so it’s a perfect way for small stations on a budget to make a splash amongst its liste…[Read more]

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    Pitbull Radio Promotions is a full service Canadian radio promotion company targeting Top 40, Hot AC, Rock, Alternative Rock, Adult Contemporary, Country & College radio formats.

    Radio is the number one medium for music discovery in North America.

    Our approach is aggressive and strategic… innovation mixed with…[Read more]

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    Greetings

  • Profile picture of Christina Szeman Christina Szeman

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    EXCLUSIVE: How to STEAL a Hit Song - Celebrity TV Show Uncovers Fraud

    Imagine being a finalist in a contest you never entered; former Nashville Star contestant Dani Strong never submitted for the competition to be on the new TV show “Do I Have a Hit Song” (which features ​hosts​ like Drew Copeland from Sister Hazel, Eliot Sloan from Bles​s​id Union of Souls, Tommy Tutone, ​and ​Ryan Star from Rockstar Supernova) – but her song “Time to Breathe” certainly did; and now she has unwittingly, albeit excitedly, become a finalist on the show due to the power of the song and the fraud and plagiarism perpetrated by Croatian national and fellow Canadian resident Ivana Nosi​c​.​ Ivana entered a recording of Dani Strong’s, Time to Breathe, winning a chance to perform on ​the show. Ivana traveled from Canada to Florida to sing on Do I Have A Hit Song, which only features original music – fully knowing she did not – and COULD NOT write or perform the song!

    See the full story in a youtube video here:

    www.youtube.com/watch?v=uk59T30PHpU

    Dani Strong and Do I Have a Hit Song/Musik and Film Founders Rhonda Houston and Stephen Wrench – as well as producers, Drew Copeland and Eric Charlton, who uncovered the deception and the gem of a tune – are available for on camera comment immediately​,

    The show complete with 9 indie artists featuring original music – which features these wild turn of events taped in Jacksonville Florida on January 6th on camera – wi​ll be broadcast on www.Indimusic.tv and Roku on January 20th.​

    For ​more information on the contestants and​ Do I have a Hit Song, visit www.doihaveahitsong.com

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    DOLERN Media Launches “Makin’ It Happen” Radio Promotion Service

    “Makin’ It Happen” Radio Promotions is a new radio promotions service for independent Christian and Gospel artists.

    Kansas City, MO, May 05, 2014 –(PR.com)– DOLERN Media (Dreamin’ Out Loud Entertainment Radio Network) is proud to announce the launching of “Makin’ It Happen” Radio Promotions, a radio promotions service for independent Christian and Gospel artists. By becoming a partner affiliate with a well established New York based radio promotions company, DOLERN Media and “Makin’ It Happen” Radio Promotions will now be able to offer a very affordable alternative for indie Christian and Gospel artists to acquire radio play for their songs and will feature three 4 week radio campaign options. “All campaigns are guaranteed to secure airplay within 48 hours through the efforts of our partner affiliate,” says Arthur Payne of DOLERN Media. “It is our hope that this service will be a benefit to the many talented independent Christian and Gospel artists across the country and around the world as well.”

    All three radio campaigns service countless internet radio stations as well as several terrestrial stations.

    For more information visit…makinithappenradiopromotions.jigsy.com

    DOLERN Media is a division of Dreamin’ Out Loud, LL

    Dreamin’ Out Loud Entertainment
    Arthur E. Payne III
    816-343-8404
    Contact
    dreaminoutloudent.com
    info@dreaminoutloudent.com

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    Six Corporate Contest Fails

    This from 2010 always a good read.

    Corporations love contests. Done right they bring the company good publicity which leads to more business and extra profits. Done wrong and they lead to angry customers, protests, lawsuits and deaths. All of these are bad for business, especially the deaths. Here are some contests that failed big time.

    6
    Make the Customer Look Stupid

    DJ Slick was a 23 year old radio jockey trying to make a name for himself in the business by trying to be clever. Instead he managed to get his station sued by one pissed off listener and got himself fired from from his job.

    It seems one day Slick thought it would be a great idea to run a contest where he would give away “100 grand” to a lucky caller if they listened to him instead of watching American Idol. This was a godsend to Norreasha Gill who was a pregnant mother of three when she managed to become the tenth caller and won the contest. Slick told Norreasha to come down to the station to pick up her prize. When she got there they told her she would have to come back another day.

    After making a pregnant woman travel back and forth the station finally revealed that the “100 grand” prize was actually a candy bar of the same name and not actual cash money. You can guess how funny this was to the winner who had promised her kids a car and a new house with a backyard. The station offered her $5000 but Norreasha countered offered with a fat lawsuit. The station then found itself at risk of an FCC investigation. Hilarity ensues all around.

    Sex and religion don’t mix…with some exceptions.

    To no one’s surprise, except maybe the two DJs involved, the stunt caused a public uproar and the station cancelled the nationally syndicated show soon after. Church groups called for the FCC to revoke the station’s license and the two contestants were charged in New York for public lewdness.

    Amazingly this was just the latest entry in what was a regular contest on the show. Apparently the station did not think a contest asking people to have sex in public places might lead to problems.

    Read on humor.gunaxin.com/six-corporate-contest-fails/44653

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    Promo – HOT 103’s Money Man!

    Nothing puts a smile on a listener’s face like free money. So obviously the HOT 103 “Money Man” is quite a hit with the folks of Las Cruces, NM. Actually any of the HOT 103 DJs could visit you and hook you up with a free $50 bucks if you register on the station…[Read more]

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    Radio Personality Spills It | TOP 5 DIRTY RADIO STATION SECRETS

    OUR RADIO STATION MIGHT NOT BE THE FRIENDLY PLACE YOU THINK IT IS!

    So you think you know everything about your favorite radio station, or disc jockey? Think again. I spent the entire 90’s working in radio. Eight years of morning shows at 2 major radio stations in Providence, RI I learned the radio bizz inside and out. Here are the Top Five dirty and deceptive radio station secrets I’ve discovered.

    1.) Your request will not be played. Ever.

    Unless you’re calling in an “all request” show, (and your choice is popular in the first place) your song is not going to be played. You’ll usually get a patronizing “we’ll try and get that on for you in a little while”, but it will never appear. Jocks (who call themselves “air personalities”, or simply “the talent”) have very little slack when dealing with song playlists, put together by the station’s music director or in some cases, the program director. Music at major radio stations are now programmed into computers and play automatically. Rarely will you see a jock toss a CD into a player anymore. Save your breath and don’t bother calling. And no, they won’t write it down, either.

    2.) “Be Caller 97 to win right now!”

    Do you really think someone is going to sit through 97 callers when giving away two free meal coupons to a pizza joint? Nope. It’s not gonna happen. With 6 phone lines (and sometimes less) coming into the studio, no one in their right mind is going to sit there and answer phones. If you’re not one of the first six, you’re going to be buying your own pizza. Also, if you sound like death warmed over when the jock answers the telephone, you’re not going to win. Radio stations want happy, upbeat listeners who sound great on the radio to win their contests. If you sound like you woke up in a morgue, you lost. Even if you are caller 97.

    3.) If You’re a Prize Whore, You Probably Have a Nickname

    A prize whore is someone (male or female) who shows up at every radio-station sponsored event (such as furniture stores, auto dealerships and nightclubs), trying to snag free t-shirts, cds or other radio station freebees. Prize whores are not just loyal to one radio station, but whore themselves out to several. (Hence the name) The promotions department at one station I worked for had nicknames for their prize whores. “Dirty Sweater” was a woman who wore the same dirty sweater each time. “Pissy Shirt” was another who wore the same sweat stained radio station T-Shirt to EVERY appearance. There were several more, whose nicknames I can’t recall. So remember, if you show up at EVERY radio station event, chances are you have a nickname-and it’s never a good one.

    4.) Prizewhores Don’t Win Major Prizes

    That trip for two to Vegas or that brand new Toyota isn’t going to be won by prize whores. If it’s a drawing, your entry will disappear. Don’t let anyone tell you differently. I’ve seen it happen. If it’s a phone contest, you are “the wrong caller”. Everytime.

    5.) Your Jock is a Ghost

    Computers and a method called voicetracking have made it possible for your DJ to record his show in advance, saving several hours (and several dollars) to the radio station. Your jock will pre-record the show, as if he/she were in the studio and the computer will play it back, plugging in the music. To the non-professional, it’s difficult to tell which is a voice-tracked show and which is not

    Rockin’ Joe Hebert is a RI comedian, writer, musician and webmaster who spent the entire 1990’s working mornings at 2 legendary Providence radio stations, PRO-FM and B-101 FM.

    rockinjoe.hubpages.com/hub/5-DIRTY-RADIO-STATION-SECRETS

  • Profile picture of Airchecker Airchecker

    For the first time ever, the Bell Media Agency has been recognized with the prestigious Global Excellence Award for Marketing Team of the Year, given to the company with the highest number of Global Excellence Awards. The honour was bestowed at the 2013 PromaxBDA Awards held last Thursday in Los Angeles. Recognizing achievement in marketing,…[Read more]

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    What’s the best station radio promo going right now?

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