CANADIAN BROADCAST STANDARDS COUNCIL

atlantic regional Panel

CKIX-FM re the Missing 9 Contest

(CBSC Decision 08/09-0227 & -0229)

Decided January 12, 2009

R. Cohen (Chair, ad hoc), B. A. Jones (Vice-Chair), B. MacEachern, R. McKeen,
R. Morrison, T.-M. Wiseman

 

THE FACTS

From September 8 to October 6, 2008, CKIX-FM (99.1 Hits FM, St. John’s, Newfoundland) conducted a contest for listeners called the Missing 9 Contest.  The premise of the contest was that a mysterious “abductor” had kidnapped one of the numbers from the station’s popular name (which was based on its frequency on the radio dial).  Listeners were supposed to listen each day for clues and then guess where the missing 9 was.  The object of the mini-scavenger hunt was an actual physical object in the shape of the digit, which the station announced was hidden somewhere in the area, and listeners were encouraged to travel around the city hunting for it.  The person who found the physical 9 and brought it to the station would be declared the winner of the prize, which was $10,000 in cash.

For the duration of the contest, the station referred to itself as the abridged “9.1 Hits FM”.  In furtherance of the premise, each day, at five separate times, the “abductor” would apparently “hack into” the station’s signal and “interrupt” regular programming for a few minutes to announce his clues.  The clues were then also posted on the station’s website (the written clues which the CBSC has received from one of the complainants can be found in Appendix A).

The following example is one of the abductor’s broadcast announcements from October 3 (the transcript of the four other clue announcements from that day, together with all other relevant transcripts, can be found in Appendix B):

Well, well, well.  My listeners, still coming back.  Another week is here and gone.  And you’re still none the wiser.  My patience is wearing thin, so get ready because the 9 is coming out of hiding.  Let’s hope you’ve been paying attention to me because everything I’ve told you is so very important.  You’ll see.  You’ll all see soon.  If you can’t find it soon, well [cackles], I won’t play this game forever, so you’d better hope you find it real soon.  In the meantime, chew on this for the weekend.  Move in real close to your radio and listen carefully.  The 9 is not lucky.  Neither are any of you.  I’ll be in touch.

In addition to the abductor’s announcements, Hits FM hosts also did promotional spots reminding listeners about the contest, mentioned the contest in their talk sets throughout the day, and occasionally spoke with listeners who phoned in to talk about their progress tracking down the 9.

The contest concluded on October 6 when a man found the missing 9 in a box sitting on the bed of a pick-up truck that was parked outside the gate of a self-storage facility.

The CBSC received five complaints about this contest.  Only two of the complainants provided details about specific broadcast dates, which allowed the CBSC to proceed with its examination (the full text of their correspondence can be found in Appendix C).  The complainants expressed their view that this contest was unfair and they elaborated on their concerns about a number of aspects of the contest.  Their primary concern was that the 9 had been found on a pick-up truck that had only appeared near the self-storage facility on the day that the missing object was found.  Although some of the clues had led listeners to search the area near the storage facility on previous days, the truck on which the 9 was found had not previously been there; consequently, they concluded that those people had been unfairly denied the chance of winning.  They were also concerned that the 9 had been hidden on a vehicle, which was private property; consequently, they concluded that searching the truck required one to touch or tamper with someone else’s property.  The complainants pointed out that, throughout the contest, the mayors of St. John’s and neighbouring Mount Pearl had made public statements reminding people not to trespass on or otherwise violate private property.

The complainants also expressed their view that some of the clues were vague, misleading, repetitive and contradictory.  For example, one complainant provided the example of “The 9 cannot be seen” and suggested that “This clue was totally useless ... It’s the premise of the contest.”  Both complainants also mentioned the clue “The 9 is in the book” as an example.  That clue was later explained to mean that the location of the 9 was in the local telephone book, but the complainants argued that that was unhelpful because nearly all businesses are listed in the telephone book.

With respect to the clues, perhaps the most contentious one was “The 9 is not in the vehicle.”  The complainants argued that the 9 definitely was in a vehicle because it was in a box on the bed of a pick-up truck with its sides up.  The station argued that that clue meant that the 9 was not in the cab of truck; rather it was on the bed.

One of the complainants also had a number of concerns about some of the off-air elements of the contest.  He expressed his suspicion that the eventual winner of the contest had known the location of the 9 and was part of the “scam” because he worked at the business next to the self-storage facility and had not appeared excited when he found the 9.  He also questioned why, in an interview after winning the contest, the man had first referred to the truck as an “abandoned truck” but then later called it simply a “small, grey truck”.  The complainant wrote that “I believe the Missing 9 was located at the VOCM [CKIX-FM] studio from the day the contest started until the morning of October 6, and all employees of Hits FM, [the storage facility], Steele Communications [which is the station’s parent company] and [the contest winner] knew where it was and where it was going to be.”

That same complainant also argued that a video clip posted on the station’s website of the man finding the 9 misrepresented events because it was edited to look as though the man was alone at the material moment of success, when in fact many people were milling about looking for the 9.  The fact that the retrieval of the 9 was filmed by a station employee further contributed to that complainant’s suspicion that all Hits FM employees knew the location of the 9 in advance.

CKIX-FM recounted what had happened with the contest in a letter of November 19 to complainants and in a separate letter of December 18 to the CBSC (the full text of those letters can also be found in Appendix C).  The Panel understands that the self-storage facility permitted any member of the public to rent a storage locker and that, to ensure security, access to the premises was limited to those with the electronic passcode.  CKIX-FM explained that it had put the 9 in a storage locker without telling the management or any other employees of the storage facility in order to ensure that the location of the 9 would not be leaked.  At CKIX-FM itself, only station management and a few staff members with a “need to know” were informed of the 9’s whereabouts.  The address of the storage facility, the locker number and the passcode were communicated to listeners via the clues, though obviously not in a direct manner; listeners would have had to piece together all of this information to deduce the 9’s location.

At some point during the contest, a number of listeners began to suspect that the self-storage facility was a likely candidate and they travelled to the premises to search for the 9 in the vicinity.  This caused the storage facility’s manager to become concerned about the security and privacy of his business and its customers, so he posted a “No Trespassing” sign at the gate indicating that the facility had no affiliation with the Missing 9 contest.  As indicated above, he had no idea that CKIX-FM had hidden the 9 in one of the facility’s lockers.

As CKIX-FM explained, this development “posed unexpected challenges” for the administration of the contest.  The station now had to “present the ‘9’ at the location to which the clues already pointed” while, at the same time, ensuring that listeners respected the storage facility’s “no trespassing” edict.  The solution management devised was to relocate the 9 to just outside the fence of the storage facility.

Starting on October 3, the “abductor” indicated in his on-air announcements that the 9 would be “coming out of hiding”.  The station was faced with a daunting task, namely, alerting listeners to the 9’s slightly altered location in its new clues, without invalidating the previous clues, on which listeners had already invested considerable time, effort and loyalty.  The station wrote that it chose to put the 9 in the open bed of a parked truck “to ensure that no issues arose as to vandalism or damage to the vehicle, which, in any event, belonged to an employee of the Station.”  The truck was parked outside the storage facility premises at 6:00 am on October 6 and the winner found the 9 around 7:00 am.

CKIX-FM also flatly denied that the winner had had any prior knowledge of the 9’s location; he had found it using only the information that had been provided to all listeners via the broadcast of the clues.

With respect to the video clip, the station explained that, on October 6, some staff believed that enough clues had been provided such that there was a high likelihood that the 9 would be uncovered that day.  A staff member was therefore despatched to a location across the street from the storage facility to capture the event on video if that was what eventuated.

Following receipt of the broadcaster’s letter, the two complainants requested that the CBSC investigate the matter further.  They remained concerned about the fairness of the contest, including the clues which they alleged were misleading, and they were newly troubled by the station’s claim that the storage facility had not been aware that the 9 had been on its premises.

 

THE DECISION

The Atlantic Regional Panel examined the matter under Clause 12 (Contests and Promotions) of the Canadian Association of Broadcasters’ (CAB) Code of Ethics, which reads as follows:

All on-air contests and promotions shall be conceived and conducted fairly and legitimately and particular care shall be taken to ensure that they are not misleading, potentially dangerous or likely to give rise to a public inconvenience or disturbance and that any prizes offered or promises made are what they are represented to be.

The Panel Adjudicators read all of the correspondence and listened to the broadcast clips relating to the Missing 9 contest.  The Panel concludes that CKIX-FM violated Clause 12.

 

Off-Air Issues

The CBSC generally deals only with complaints about on-air content.  In the matter at hand, as mentioned above, some of the concerns raised by one complainant did focus in part on off-air issues.  One of these was the matter of the accuracy of the content of the video clip that was posted on the station’s website of the winner finding the 9 (was he alone or one among many scavengers?).  Another related to who knew about the 9’s location.  On this latter point, the Panel only observes that there was nothing to suggest that the contest winner had any “inside information” as to the location of the 9.  There was no agreement between the complainants and the broadcaster on these facts and they were not central to the on-air components of the contest which, in this case, include the broadcast of the clues, promotions for the contest and other conversations about the contest.  Consequently, in this instance, these matters fall outside the CBSC’s jurisdiction.

 

The Conceptualization of the Contest

The CBSC understands that the purpose of broadcast contests is to generate interest in the station, both for audiences and advertisers.  Broadcasters are fully entitled to make their contests as creative, ingenious and outrageous as they please, as long as they respect the requirements of Clause 12 of the CAB Code of Ethics relating to fairness, legitimacy and public safety.  Not surprisingly, there is no prohibition against the type of “scavenger hunt” contest that CKIX-FM employed in this case.  Indeed, this type of contest has been conducted by numerous stations in various cities across Canada.  While admittedly, having large numbers of people searching around a city for a hidden object does have the potential to create problems relating to trespassing, privacy and safety, as long as participants behave in a responsible, civil and law-abiding manner, the probability of danger or disturbance is low.  There is nothing in the Code to prevent stations from organizing this type of contest.

The Atlantic Panel, therefore, finds no Code violation with respect to the nature or conceptualization of CKIX-FM’s Missing 9 contest.  Even one of the complainants acknowledged that “this was a brilliant idea for a contest, but [his concern was that] it was not executed fairly.”  At the end of the day, the problems with the contest may well have flowed from the station’s original decision to hide the 9 in an inaccessible locker of a privately-owned storage facility, which the Panel considers was ill-conceived.  Indeed, it was that choice that led to the circumstances that rendered the contest unfair.  This point is discussed at greater length in the section entitled “The Contest’s Execution”.

 

The Clues

Both complainants were quite concerned that many of the clues were vague and/or misleading.  That should not, in the view of the Panel, be surprising.  After all, it is the essence of contests of this type that the clues will be cryptic and, if cleverly crafted, susceptible of more than one interpretation.  Indeed, it is precisely the purpose of the clues in such a contest that they have the potential to lead listeners in a variety of directions in the hunt for the hidden object.  This is not, after all, a simple question and answer.  Who was the first Prime Minister of Canada?  Which hockey team has won more Stanley Cups than any other? And so on.  A prolonged contest is one that builds over time to a crescendo.  As audience members are drawn along the contest route, the broadcaster will likely provide more and more focussed information until someone ends the suspense and finds the object.

It is not unnatural that contestants may become frustrated.  They may, as in the matter at hand, find many of the clues were vague and/or misleading.  For example, one complainant objected to the clue “Four strokes to find the 9”.  He stated that it led most listeners to believe it referred to a golf course, but the station explained that it actually referred to the fact that the street address of the storage facility was “1111” (each 1 being a stroke of a pen).  It is also understandable that some clues would be more helpful than others.  Moreover, as would be expected, the clues become gradually less obscure as any contest of this type progresses.

The one clue that was most troublesome and most highlighted by the complainants was “The 9 is not in the vehicle”, because the 9 was in fact found in a box under a broken table situated on the bed of a pick-up truck with its sides up.  The station explained that it had said that the 9 was “not in” the vehicle because it was “on” the bed rather than inside the cab.  The station wanted to emphasize that the 9 was in a more open, accessible location than the cab of the truck, since that would have required a key to open.  While the Panel understands the complainants’ position that one often uses the preposition in to refer to something located on the bed of a truck, it also understands the station’s argument that the 9 was not in the vehicle.  Since the point is such a fine and debatable one, the Panel is not of the view that any conclusion it could reach about the “proper” interpretation would amount to a Code breach.  To adapt an old analogy, the Panel considers the debate regarding that clue as no more conclusive than the determination of how many angels can dance on the head of a pin.  It has no further comment to make on that or the other clues.

 

The Execution of the Contest

The Panel has some sympathy for the broadcaster.  It believes that CKIX-FM set out to create an appealing contest that would attract considerable community interest.  In this respect, it probably succeeded; however, that was not the end of the matter.  Difficulties, perhaps of the station’s own creation, intervened, and the question for the Panel is how well (or badly) the station responded to those.  As noted above, one of the complainants suggested that “this was a brilliant idea for a contest, but it was not executed fairly.”

The Panel considers that the principle underlying such a contest is that the object sought must, in principle, be findable from the time that the first clue is broadcast, however unlikely it may be that searchers will succeed on day one.  After all, it would be fair to expect that the contest-holder will only gradually reveal more information via the clues while the contest rolls out.  The bottom line is that, in order for such a contest to be fairly conceived and executed, a) the clues must lead the contestants to the object, even if slowly, and b) they must not be inconsistent with the location of the object.  This is where the challenged contest went awry.

To begin, the Panel considers that the station’s decision to hide the 9 in a locked storage room at a privately-owned facility was ill-conceived (although not ill-intentioned), as CKIX-FM itself learned the hard way when the storage facility put up its No Trespassing sign.  (Parenthetically, the Panel has full confidence in the station’s explanation that the storage facility’s management had no knowledge of the location of the missing 9.)

Since clues were obviously leading members of the public to that location, its owners, who were unfamiliar with the then location of the 9, must have felt pressure to lead CKIX-FM listeners away from their closed-to-the-general-public facility.  Consequently, their sign also specifically indicated that the facility had no affiliation with the CKIX-FM contest, thus inducing participants to believe that the 9 was not there.  The station was then forced to hastily alter its plans, moving the 9 from the locker within the facility to a location outside its locked gate.  That was, of course, unfair to those who had already laboured over the clues. The unfairness of the situation was further exacerbated by the fact that the 9 did not arrive at its final hiding place, where it had never before been located, until the morning of October 6.  Effectively, in that location, the 9 had not been generally accessible to the public until the truck arrived at the spot, meaning that, even if listeners had been attentive to the clues, they did not have the opportunity to win the month-long contest before that moment.

It follows that one of the complainants succinctly posed a, perhaps the, pertinent question:  “They claim that anyone could have found this 9.  How could we if it was not accessible to us to find until the last day they moved it to a private vehicle?”  The Panel agrees.  The simple bottom line was that the 9 was not readily accessible to the public during almost the full duration of the contest.  Without attributing even a smidgeon of ill will or inappropriate purpose to the broadcaster, the Panel concludes that CKIX’s ultimate execution of the contest was faulty.  Did it have other choices?  Should it have apologized and rebegun?  Were there other creative prospects?  That is not for the Panel to determine.  That was for the station to sort out at the time.

The Panel considers that the broadcaster made good faith efforts, but that is not the test established in Clause 12.  It is the requirement to conceive and conduct the contest fairly that the station must meet, not merely a good faith effort to achieve that result.  The Panel considers that CKIX-FM failed to attain that goal.  The Panel considers that, however assiduously the clues were pondered, the missing 9 could not have been located by the listeners until the final day; this rendered the contest unfair and thus in violation of Clause 12 of the CAB Code of Ethics.

 

Broadcaster Responsiveness

In all CBSC decisions, the Panels assess the broadcaster’s response to complainants.  The station is under no requirement to agree with the complainant(s), but their reply is expected to be thoughtful, thorough and respectful in its explanation of its side of the story.  In this case, CKIX-FM provided the complainants with some background information on the contest, including the cause of the challenging circumstances that led to a revision of the contest mid-way through the promotional period.  The station was extremely candid with the complainants, as it was with the CBSC as well, supplying more information than was, strictly speaking, required in order to be of help in the evaluation of the highly-publicized and high-profile contest.  Although the complainants remained dissatisfied with the development of the contest, the Panel finds that, with respect to the issue of broadcaster responsiveness, the station has clearly met and indeed surpassed its obligations.

 

Announcement of the Decision

CKIX-FM is required to:  1) announce the decision, in the following terms, once during peak listening hours within three days following the release of this decision and once more during peak listening hours within seven days following the release of this decision, but not on the same day as the first mandated announcement; 2) within the fourteen days following the broadcasts of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CKIX-FM.

The Canadian Broadcast Standards Council has found that CKIX-FM (99.1 Hits FM) has violated Clause 12 of the Canadian Association of Broadcasters’ Code of Ethics.  In its Missing 9 contest of September and October 2008, Hits FM felt obliged to change the location of the missing 9 from inside a private storage facility to the back of a truck on the street outside the facility.  Consequently, Hits FM did not ensure that the location of the missing 9 on the final day of the contest was accessible to listeners from the very beginning of the contest.  This violated Clause 12 of the CAB Code of Ethics, which requires that contests be conducted fairly.

 

This decision is a public document upon its release by the Canadian Broadcast Standards Council.