water glassIt has been almost a decade since a water-drinking contest held by an Entercom’s Sacramento radio station resulted in the death of a contestant, but the Federal Communications Commission (FCC) has a long memory.  Last week, the FCC issued a Hearing Designation Order (it can be found here) to determine whether the license held by Entercom – one of the largest station owners in the country – should not be renewed based on new information about the “Hold Your Wee for a Wii” contest.

The 2007 contest challenged participants to compete for a prize by drinking water at regular intervals. To win, a contestant would have to be “the last one standing” (or holding it) – the competitor could not use the bathroom until the competition was over.  The radio station at no point, either before or during the contest, announced the risks associated with the contest in general or water intoxication.  Ultimately, the contest led to the fatal water intoxication of contestant Jennifer L. Strange.  Civil claims for wrongful death were filed against the radio station, which was ultimately found to have been negligent.

The FCC did not question whether the contest was lawful under the rules governing sweepstakes. It does not appear that that participants were required to pay a fee to enter and, in any event – though it’s a topic for another blog – the contest was at least arguably a game of skill and therefore not a lottery. Rather, what the FCC said is that the Licensee knew or should have known that the water drinking contest was dangerous to contestants’ health, and that it generally conducted itself in an unsafe and callous way in running the contest. Under section 309(k)(1) of the Communications Act of 1934, the FCC is required to determine whether the “public interest, convenience, and necessity” is served when granting a license renewal application.  The order specifically focuses its inquiry on whether Entercom designed and conducted a contest that was inherently dangerous and not in the public interest.  The FCC will also look at the radio station’s actions when it failed to warn contestants of the potential dangers of the contest and when it prioritized entertainment value over the contestants’ health.

This is the first time in decades that the FCC has focused a license renewal on risky behavior; most cases that involve negligence or a dangerous activity are resolved in civil courts.  More broadly, the designation order is another indication that the FCC has decided to be considerably more active than in the past in enforcing what it perceives to be consumer protection standards.  Advertisers and the media should heed the Commission’s warning when considering proposals to conduct promotions that involve risky behavior, lest the “next big idea” come back to haunt you when your license is up for renewal.