Broadcast Law Blog

We've written about the FCC rules against broadcasting phone calls without permission of the person at the other end of the line.  Specifically, we've written about the FCC's decision that held that these rules prevent the broadcast of people's voicemail messages without their permission, and about the FCC's decision to fine a station even though the owners did not know that the station announcer was broadcasting a phone call without permission and was doing so without the knowledge of the station owners.  Today, the FCC released another order on this rule, fining a station $12,000 for broadcasting a message left on the private cell phone of a station employee.  Even though the caller had called the radio station employee, the FCC found that there was an expectation that the call would not be made public without the specific permission for the broadcast of the recording from the caller.  As the station broadcast the call more than once, and the program on which it was broadcast was carried on multiple stations, the fine was increased to $12,000.  This decision makes it very clear that a call - incoming, outgoing, from a voicemail or live - should not be broadcast on a station unless the station is certain that the caller knows or should have known that the call will end up on the air.

 Another interesting aspect to the case was the fact that the licensee who was fined, a subsidiary of Clear Channel, had sold the station before the fine was levied, and there was apparently no "tolling agreement" required by the Commission by which the seller would waive any rights to contest a fine after the sale.  Nevertheless, the former licensee was still held liable for the events that occurred on its watch.  This again makes clear, as in another recent case about which we wrote, that the sale of a station does not cut off the Seller's liability for FCC rule violations that occurred on its watch.  So broadcasters have to take care, as the FCC will seek its due for rule violations. 

Posted By David Oxenford In FCC Fines | Permalink | 0 Comments | Email entry

In two recent FCC decisions, one dealing with a commercial operator and that other with a noncommercial licensee, the Commission's staff addressed the issue of how large an FCC fine could be imposed on a broadcaster without that fine being subject to reduction because of the licensee's inability to pay.  In the first case, a commercial station was fined for violations of the EAS rules.  As we've written before, EAS seems to be the most common violation found at broadcast stations by FCC inspectors.  However, what is most notable about this decision is not the violation, but the Commission's discussion of the penalty for that violation.  As in many cases, the licensee argued that, as it had experienced several years of financial losses, the amount of its fine should be reduced as the payment of that fine would impose a financial burden on it.  The FCC rejected the argument, finding that as the fine was less than 2% of the licensee's gross revenues, it was not excessive.  The Commission stated that, while profits and losses may be important in determining whether a licensee can pay a fine, in most cases, if the fine is less than 2% of gross revenues, it will not be considered excessive even if the licensee has not been making a profit as it it not a significant overall expense.  Therefore, the Commission refused to reduce the fine because of financial hardship argument.

In the noncommercial case, the applicant claimed that a fine that it was issued for not having any quarterly programs issues lists in it public file should have been reduced because that fine would significantly deplete the station's budget that had been allocated to it by the School District with which it was associated.  However, the licensee only provided the FCC with information concerning the budget allotted to the radio station, and it did not provide any financial information about finances of the licensee school district.  Without that information, the Commission stated that it could not determine that the fine was excessive, so it did not reduce the fine on the basis of financial hardship.  Clearly, the Commission is not anxious to reduce a fine based on the licensees financial inability to pay, so a licensee looking for such a reduction must carefully document its request showing that the fine would impose a financial hardship.

Posted By David Oxenford In Emergency Communications , FCC Fines , Noncommercial Broadcasting | Permalink | 0 Comments | Email entry

Watch what your employees are up to. That’s the message of a recent decision by the FCC, fining a broadcaster $4000 for airing a telephone call that was taped and broadcast without the consent of the caller. In the case released earlier this week, the licensee asked for forgiveness based on the fact that the employee had already left the employment of the station, and because the licensee did not know of the conduct, could not even confirm that it occurred, and did not condone that conduct if it had in fact taken place. Essentially, the FCC found that the evidence provided by the caller who complained to the FCC was so convincing that the Commission could conclude that the call had in fact been aired without the caller’s consent even though the licensee could not confirm it, and the licensee was responsible for the actions of its employees. This sends the clear message to licensees that they must carefully supervise their employees, and think twice about putting that “wild and crazy” disc jockey on the air if the licensee thinks that he won’t be restrained by the Commission’s rules.

This case is another example of the FCC’s rules against airing phone calls without the consent of the caller (or taping those calls for airing without consent), except in the limited circumstances where a caller should know from the context of the program that, by calling the station, he will be put on the air. For instance, if the caller calls on a call-in line to an on-air show where the stations employees are regularly putting callers on the air, then the station should not have problems under the rules. But broadcasters are safest if they are cautious with such phone calls – warning callers with a taped or live message that there call may be taped or put on the air before the taping or airing occurs

Posted By David Oxenford In FCC Fines | Permalink | 0 Comments | Email entry

In a case just released by the FCC, a broadcaster was fined for enforcing a non-compete agreement that was entered into when a broadcaster sold one of its stations in a market in and agreed that it would not compete in the same format if it ever acquired another station in the same market.  The agreement had prohibited the Seller from competing with the Buyer in a news-talk format.  After the closing of the sale of the station, the Seller acquired another station in the market and adopted a format that a local court found was covered by the non-compete clause in the contract.  The local court issued an injunction against the continuation of the news-talk format.  At that point, the Seller filed a complaint with the FCC, arguing that, by obtaining the injunction, the Buyer had engaged in an unauthorized assumption of control of the station covered by the injunction, without FCC approval.  The FCC agreed with the Seller, and fined the Buyer $8000 for exercising control over the station that Seller had bought.

The FCC's reasoning in this case, citing a similar letter decision from 2006, is that the restriction on format impedes a licensee's control over its own programming, and restricts its ability to adjust its operations to account for changing market conditions.  The Commission concluded that, barring the licensee from utilizing a particular format, even for the limited period of the non-compete agreement, was contrary to the public interest.  By obtaining the injunction to prevent the Seller from using the news-talk format, the Buyer had impermissibly exercised control over the station that it had already sold.  In fact, the Commission went further, and found that the exercise of control over the programming, personnel or finances of the station would be a violation of the rules. 

Posted By David Oxenford In FCC Fines | Permalink | 0 Comments | Email entry

In a decision released last week, the FCC imposed a fine of $4000 on a broadcaster licensed to a community in the state of Arkansas for airing an advertisement for the Missouri State Lottery.  In this case, a station licensed to Arkansas ran a remote broadcast from a store in Missouri.  During the course of the remote, the on-air announcer invited listeners to come to the store and made some not-too-subtle remarks implying that, when they did, they could buy Missouri lottery tickets.  As there is a statutory provision prohibiting a station located in one state from running an ad for a lottery in another state if its own state does not have a lottery, the Commission issued this fine.

This ban is based on a statute passed  by Congress, and approved by a Supreme Court decision 15 years ago - finding a compelling state interest in protecting the citizens of states that ban gambling from allowing stations in their states from advertising that prohibited activity.  Of course, in many cases, a station licensed to one state may be heard (and may in fact be physically located) in another state.  Even so, the city of license is what counts - so a station has to observe the laws of that state.  In some cases, that can mean that there are different rules that apply to different stations in the same cluster (and possibly located in the same building, with advertising being sold by the same sales people).

Posted By David Oxenford In Advertising Issues , FCC Fines | Permalink | 1 Comments | Email entry

In a Consent Decree released this week, the Commission agreed to accept a "voluntary contribution" of $16,500 to the government from a tower owner, instead of a fine, for its failure to conduct an Historical Review of the locations of three towers prior to their construction.  Under the Nationwide Programmatic Agreement which implements the National Historic Preservation Act, the construction of most new towers (essentially unless they are in Industrial zones, areas already cleared by a review, in a utility corridor or replace existing towers), require that the owners coordinate with State or Tribal Historical Preservation Officers ("SHPO" or "THPO") to assure that the new construction will not have an adverse effect on any historic site listed on or eligible for listing on the National Register of Historic Places.  The burden is on the tower owner to make sure that the rules for such a review are followed, with the FCC having the power to take action against any applicant who does not conduct such a review.  A full description of the requirements of the Programmatic Agreement can be found on the FCC's website, here.

This decision demonstrates how seriously the Commission takes these requirements.  In this case, the tower owner realized that it had constructed the tower without having done the proper review, conducted that review, found that there was no impact on any historic location, and voluntarily reported its failure to the FCC.  Nevertheless, the Commission agreed to the fine, plus a requirement that the tower owner appoint a compliance officer and submit reports to the FCC of its compliance with the environmental laws for a period of two years.  Constructing a tower?  Make sure that you conduct the proper studies.

Posted By David Oxenford In FCC Fines , Tower Issues | Permalink | 0 Comments | Email entry

In two decisions released this week by the FCC, here and here, two large broadcast group owners were admonished for failures to comply with the FCC’s EEO rules. In both cases, failures to widely disseminate information about job openings in one market were discovered by the FCC in the course of random EEO audits that selected these stations for review. In both cases, the Commission determined that the violations were serious, and imposed reporting conditions (essentially subjecting the stations to an FCC audit of their EEO annual public file reports every year for the next 3 years). And in each case, the FCC would have fined the stations for their violations, but the Commission moved too slow, as in both cases, license renewals were granted between the time of the violations and the EEO audit.  Under provisions of the Communications Act, the Commission cannot fine a station for action that occurred during a prior renewal term - so the grant of the renewals cut off the possibility of a fine in these cases.

These actions highlight the importance of complying with the Commission’s EEO rules, which we have summarized in our EEO Guide, here. In particular, in both cases, the station groups had not widely disseminated information about job openings, as required by the rules. Wide dissemination requires the use of recruitment sources designed to reach all groups within a community to allow their members to learn about the job openings at the station. The Commission's aim is to bring into the broadcast workforce employees representing diverse groups within a community rather than hiring all their employees from traditional broadcast sources.  In these cases, the stations had used only corporate websites, on-air announcements, and word of mouth recruiting. No outside sources, or sources reasonably likely to reach the entire community, were used by the broadcasters, hence the admonition and the reporting conditions. 

Posted By David Oxenford In EEO Compliance , FCC Fines | Permalink | 0 Comments | Email entry

In two decisions (here and here) released last week, the FCC fined broadcasters $3200 and $2400 after inspections of the stations revealed that the licenses for their Studio Transmitter Link ("STL") did not list the proper location for these stations.  In both cases, it appeared that the stations had changed their studio locations, and had not bothered to file an application with the FCC to get authorization to move their auxiliary licenses to the new location.  So, if you are contemplating a change in your studio location and use a Studio Transmitter Link to get your programming from your studio to your transmitter, don't forget to file the appropriate application on FCC Form 601 to update that authorization before the move.

As Form 601 requires prior coordination with a local frequency coordinator ( to make sure that the relocation does not create interference issues for other stations) before the Form 601 can be processed.  In one case, it appeared that the process had begun, but was not completed at the time of the inspection, even though the studio had been relocated for several months.  In the other case, the fine was higher as the process to re-license the STL authorization was not begun until after the FCC inspection.  Thus, in connection with any studio move, be sure to begin the process of getting authorization for the move early enough to have it in hand before the move, to avoid potential FCC issues.

Posted By David Oxenford In FCC Fines | Permalink | 0 Comments | Email entry

A recent decision of the FCC emphasizes that tower owners must remember to change the tower registration for any communications towers after a change in ownership, or risk a fine.  In the recent decision, the FCC canceled a $3000 fine that was imposed after an FCC inspection when it appeared a change in the ownership had not been reported - but the cancellation was not because the fine was not proper, but because the tower was in fact owned by the party who the FCC records said owned it.  All towers which must be registered with the FCC so that the FCC can notify the appropriate owner of any issues that may arise - and owners are subject to fines if it is discovered that the tower owner is not properly reported in FCC records.  In sales of broadcast stations and other communications licenses, towers are often included assets.  However, when the focus of the transaction is the sale of a radio or TV station, for which prior FCC approval is necessary, the transfer of the tower in the FCC records may well be overlooked.  No prior FCC approval for the sale of the tower is needed, and the tower is not included in the FCC authorizations reported on the applications for the sale of the broadcast licenses.  Thus, the parties must remember that the tower registration must be amended to report the new owner after the closing of the sale of the station.  Don't forget - or a fine may result if the FCC discovers that the ownership change was not reported.

Posted By David Oxenford In FCC Fines , Tower Issues | Permalink | 0 Comments | Email entry

In a decision last week, the FCC fined a radio station $4000 for broadcasting the message from someone's telephone answering machine without permission.  The FCC's rules forbid the broadcast of a telephone call without permission (and the recording of a phone call for broadcast without permission).  So, a station violates the rule when a caller says "hello" before giving permission for the call is broadcast (except in cases where the caller is presumed to know that they may be put on the air, e.g. if they call into a call-in show where callers are regularly put on the air).  Here, the Commission made clear that the airing of even a voicemail or answering machine message without permission violates the rule.

This case is also interesting in that the licensee tried to avoid liability by saying that the infraction occurred during a program that was under the control of an independent contractor who had bought a block of time from the station in which the contractor aired programming that he produced.  The FCC reiterated the importance of a licensee maintaining control over all programming that is aired on a station, even if it is provided by a contractor.  Years ago, the FCC even revoked the license of stations that were broadcasting lottery information during brokered programming, in a foreign language that the licensee did not understand.  In those cases, the FCC made clear that a licensee had to take steps to understand what was being broadcast on its airwaves.  This most recent case should remind stations that sell blocks of time that they need to monitor those blocks to make sure that all broadcasts comply with FCC rules. 

Posted By David Oxenford In FCC Fines | Permalink | 0 Comments | Email entry

The FCC today issued three orders imposing fines on broadcasters - cutting no slack to anyone.  These cases demonstrate how important strict compliance with all FCC rules is to avoid fines before the current Commission.  The first decision imposed a fine of $2800 on a broadcaster for having an unfenced tower - where the broadcaster claimed that the fence was temporarily removed to facilitate the clearing of brush as required by local authorities to remove a potential fire hazard.  While the FCC seemed to recognize that the fence removal was temporary, and that it was missing for only a few weeks while weed killer was being applied at the site, the Commission still imposed the fine - requiring that access to an AM tower always be restricted, prohibiting open access even for a short period.

The second case was a decision which imposed a fine of $2000 on a broadcaster for operating from an unauthorized transmitter site.  While the broadcaster had received Special Temporary Authority (an "STA")  to operate from the site, the STA expired.  The broadcaster filed an extension request, but forgot to include the filing fee check.  The broadcaster claims that he re-filed the request, and had a canceled check to prove it, although the Commission had no record of the re-filed STA (though the FCC did acknowledge having received the check).  Finding that it had no record of the re-filed STA, and further finding that the applicant should have inquired about the failure to receive an STA extension after 180 days (the length of an STA), the Commission imposed the fine on the broadcaster.  While this case is certainly complicated by the missing extension request, given the canceled check one would assume that broadcaster must have filed something, and the FCC's usual rule is that if an STA extension is on file, the station can continue to operate.  Of course, with an extension that was pending for 2 years, probably some inquiry was warranted.  But whether it was a $2000 mistake is a different question.

Posted By David Oxenford In FCC Fines , Tower Issues | Permalink | 1 Comments | Email entry

As we're approaching the anniversary of September 11, it may be appropriate that the FCC issued an order on Friday upholding a fine imposed on a radio station that did not have an operating EAS system.  The station, while it had a system in place that was capable of transmitting the required EAS tones, had not received any EAS alerts for about a year, and had not entered any reasons for that failure in its station log at any time during the period.  The FCC initially issued an $8000 fine, but reduced the fine to $6400 based on a showing that the station did not have any history of past violations.  However, even though the station was operating at reduced power for a significant period of time due to towers damaged by a storm, the FCC refused to reduce the fine further based on financial hardship as the fine did not exceed 2% of the station's average gross revenue during the previous three years.

The FCC will reduce fines for a variety of reasons - the most common being the past good record of the station.  In most cases, as here, a showing that the station has not previously been fined will be sufficient to demonstrate the past compliance of the station and justify some reduction in the amount of the fine.  Stations also often plead that they cannot afford to pay a fine.  The 2% of gross revenue standard announced by the Commission in this case seems to set the threshold at which the Commission will consider that plea.  To prove that a reduction of a fine is in order, according to this case, a station needs to submit financial statements showing the past three years performance, and demonstrating that the proposed fine will exceed 2% of the station's average gross revenues.

Posted By David Oxenford In Emergency Communications , FCC Fines | Permalink | 0 Comments | Email entry

The FCC released an order today, fining a broadcaster $20,000 for misrepresentations made in its license renewal application about the completeness of its public inspection file.  The fine issued in this case was not a fine for the fact that the file was incomplete (two stations in the cluster had each already been fined $4000 for the actual public file violations), but instead the fine was issued because the licensee had certified in its renewal application that the public file had been complete and accurate at all points during the course of the license term.  This case highlights both the need to keep an accurate public inspection file, and the need to carefully consider all certifications made in FCC applications.  Incorrect certifications can lead to fines and potentially even more severe sanctions if the FCC finds an intentional misrepresentation or lack of candor - the potential loss of a license.  Admitting a minor paperwork transgression like an incomplete public file will result in a fine - an inaccurate certification which appears to try to hide a problem can lead to far more severe consequences. 

In this case, the FCC found that the licensee had not maintained Quarterly Issues Programs lists.  The licensee claimed that its obligations had been met through a listing of public service announcements that the stations had put in their files.  The FCC rejected that argument, citing the requirement in its rules requiring that Quarterly Issues Programs lists contain "a narrative description of what issues were given substantial treatment" by the licensee as well as the programs that treated each issue.  In addition, the time and date of broadcast of each program, as well as its title and duration, is to be provided.  A simple list of PSAs does not meet these requirements - as it does not list the issues addressed, much less provide the detailed program information required by the rule.  For a summary of the Quarterly Issues Programs list obligations, and a model form to be used to meet the obligations, see our most recent memo on the subject, here.   Remember, the Quarterly Issues Programs Lists are a broadcast station's only official record of how they have served the public interest needs of its community, so be sure that adequate attention is paid to the completion of these forms.

Posted By David Oxenford In FCC Fines , Public Interest Obligations/Localism | Permalink | 1 Comments | Email entry

As we reported earlier, even though it has been almost a year since President Bush signed legislation raising the fines for broadcast indecency to $325,000 per occurrence, the FCC only recently adopted rules to officially implement the increased fines.  The rule to implement the statutory mandate was published in the Federal Register today, setting July 20th as the effective date for the new higher fines.   A copy of the Federal Register publice notice is available here (just below the list of millet and soybeans).  Once the increased fines become effective, the Commission's stick for discouraging speech that it might deem to be indecent will be a whole lot bigger.  It will be interesting to see if the Commission elects to impose a substantial forfeiture using the larger fines while various aspects of its indecency regime remain under review. 

Posted By Brendan Holland In FCC Fines , Indecency , Programming Regulations | Permalink | 0 Comments | Email entry

It's been almost a year since President Bush signed legislation raising the fines for broadcast indecency to $325,000 per occurrence.  Even though the legislation was effective on June 15, 2006, the higher fines have not yet gone into effect as the FCC had never adopted rules to officially implement them - until today.  Today, the FCC issued an order adopting a rule to implement the statutory mandate - and the new higher fines will go into effect 30 days after this order is published in the Federal Register, which will presumably be quite soon.

There was no explanation for the Commission's delay in adopting the new rule.  As the change was mandated by statute, the adoption of the new rule did not require public notice and comment.  All the Commission needed to do was to put out the Order that was released today.  Perhaps the Commission was concerned about the pending Court cases to resolve whether their enforcement of the rules is constitutional (see our comment here).  In fact, in opposing the expedited consideration of one of the appeals of a Commission indecency fine, the Commission specifically made the point that there was no need to for prompt consideration as the chilling effect of the Commission policies was limited as the new fines had not yet gone in to effect.  But, for whatever reason, the Commission has finally decided to act, and the new fines will soon be effective.  Now we just need to watch for the Court decisions to see if the enforcement of those fines will be permitted.

Posted By David Oxenford In FCC Fines , Indecency , Programming Regulations | Permalink | 0 Comments | Email entry

The FCC last week considered two requests for reconsideration of fines issued to broadcasters for violations of FCC rules relating to their broadcast towers.  While the FCC reduced one fine because of the licensee's inability to pay the amount originally specified, both broadcasters will have to make payments to the Commission because of their failures to meet the FCC's rules regarding the ownership of broadcast towers.  These cases remind broadcasters of their obligations to meet the Commission's tower rules, and should cause all broadcasters to check their compliance. 

In the first case, the FCC reduced the fine of a licensee who had failed to fence its AM station's tower, but only because the licensee proved that it could not pay a higher fine.  But a $500 fine was still imposed as the owner had no fence around a series-fed AM tower.  The FCC pointed out that its rules require that any AM tower that has the potential for an RF radiation hazard at the base of the tower must be fenced. This station had violated that rule.

Posted By David Oxenford In FCC Fines , Tower Issues | Permalink | 0 Comments | Email entry

The Sacramento radio contest gone wrong, which led to the death of a contestant, will apparently not lead to any criminal liability for the station or its employees, according to press reports including one in the San Francisco Chronicle, here.  However, as the standards for a criminal prosecution are higher than those for a finding of civil liability, this may not be the last that we hear about this contest.  A complaint is also pending before the FCC about the matter.

We wrote about some of the problems that can arise with contests, here.  Stations should be careful planning and executing any contest.  A company planning a contest should research state law, to be sure that everything is being done is in compliance with all local requirements, and any necessary registrations are filed or local permits obtained.  The rules of the contest must be spelled out, anticipating every eventuality to the extent possible, carefully followed, and publicized (including the requirement for FCC licensees that the principal rules be broadcast on air - see our post here).  And, of course, try to anticipate the participants' possible actions while trying to participate, and avoid situations where the contest could create any dangerous situations.  In this day and age, there is much to consider in planning a simple contest in a manner that avoids potential liability.

Posted By David Oxenford In Advertising Issues , FCC Fines | Permalink | 0 Comments | Email entry

In the agenda for next week's FCC meeting, one of the items to be discussed is the proposed acquisition by Citadel Communications of the radio stations currently owned by ABC Radio, a subsidiary of the Disney Company.  As Citadel is one of the broadcasters against which payola issues have reportedly been raised, certain parties objected to this transaction based on these and other issues.  As we have reported, there have been rumors of a large payola settlement between the FCC and broadcast companies including Citadel involving millions of dollars in fines.  As the agenda item for next week's meeting indicates that the Commission will consider not only the proposed acquisition of the stations, but also a Notice of Apparent Liability, will this be the first case to actually impose the rumored fines for payola?  Watch the FCC meeting next week to see if payola issues are in fact resolved.  We'll also see if the FCC provides any guidance on payola issues, and what kinds of conduct it sees as being prohibited by the payola rules.

Posted By David Oxenford In FCC Fines , Payola and Sponsorship Identification | Permalink | 0 Comments | Email entry

The Commission recently issued an Order fining a Kansas broadcaster $4000 in connection with a station contest - "Guess What is in the Santa Sack."  The licensee was faulted for not giving away the prize to someone who correctly guessed what was in the sack, and for also for not broadcasting the rules of the content on the air.  Obviously, a broadcaster must comply with its contest rules and give away a prize as promised.  In fact, as the winner had to complain to the FCC in order to get her prize, broadcasters should know that, when a listener complains, they should investigate immediately, give away the prize if warranted, and avoid the FCC fine that might result if the listener does not get satisfaction and has to ask for the FCC's involvement.  This case also reminds broadcasters that the material terms of any contest must be announced on the air on a periodic basis.

According to the FCC rules, "material terms" include those factors which define the operation of the contest and which how a listener can participate in the contest. Although the material terms may vary  depending upon the exact nature of the contest, they will generally include: how to enter or participate; eligibility restrictions; entry deadline dates; whether prizes can be won; when prizes can be won; the extent, nature and value of prizes; the basis for valuation of prizes; time and means of selection of winners; and/or tie-breaking procedures.   The broadcaster can make a good faith judgment as to how often the terms need to be broadcast .  They do not need to be broadcast every time the contest is mentioned, but should be aired often enough so that listeners can become familiar with the rules.  The complete rules should also be readily available to listeners.  We suggest that they be on the station's website, and hard copies should also be available at the main studio and at the business locations of any principal sponsors where contest entries can be made.  As we've written before, this is the year of the contest gone wrong, so broadcasters must be vigilant to avoid legal problems. 

Posted By David Oxenford In Advertising Issues , FCC Fines | Permalink | 0 Comments | Email entry

Today, the FCC entered into a consent decree with a San Diego Television station, agreeing to an $18,000 "voluntary contribution" to the US Treasury to settle a complaint against the station for its alleged failure to provide a visual presentation of emergency information to persons with hearing disabilities during local wildfires in October 2003.  The FCC rules require TV stations to provide a visual presentation of emergency information that is being aurally provided, for the benefit of hearing impaired viewers. The presentation can be closed captioning, or presented through any other visual means that conveys to the hearing impaired important details about a current emergency and how to deal with it.  We wrote about this issue last summer, when the FCC released a public notice setting out details of licensees' responsibilities in this area. 

The consent decree also required that the licensee provide closed captioning and other accommodations, including newsroom reminders to contact captioning service during emergencies, a telephone speed-dial button to the captioning service, and distribution of the visual presentation policy to employees every six months.   This is the most recent example of the FCC's continued reliance on enforcement by consent decree.  Consent decrees conserve Commission resources and enforce FCC policy on a going-forward basis rather than merely issuing fines or forfeitures for past behavior.  Also, a licensee does not admit liability.  However, such decrees allow the Commission to impose penalties far in excess of those required by the rules.  For instance, in this case, the agreement to provide a speed dial number and closed captioning of on-the-spot news goes beyond any requirement of the rules.  We recently wrote about the use of consent decrees in connection with huge penalties imposed in connection with payola enforcement and children's television rule violations. 

Posted By David Silverman In Emergency Communications , FCC Fines , General FCC | Permalink | 0 Comments | Email entry

The FCC staff seems to be under orders to act on any long pending items sitting on their desks that they can, resulting in a flurry of radio and television license renewal grants, fines, application dismissals, and other decisions, all occurring in recent weeks.  Apparently taking the view that any action is better than inaction, the staff has been granting or dismissing pending items at an unprecedented clip, sometimes to ill effect.  We've never seen so many fines issued in one month - to many stations for filing late license renewal applications, for having inadequate public files, for failure to comply with the children's television requirements of the FCC's rules, and for  violations of the FCC's EEO rules (which we recently wrote about here and here).  The Commission last week also released a number of decisions on cable carriage issues - often dismissing applications as inadequate without asking for any sort of supplemental information which might have resolved the problems with the filings.  It also has been dealing with a number of long-pending requests for extensions of the Digital Television build-out deadlines.

It is not clear if this unprecedented flurry of action is the result of Chairman Martin pushing to make the Commission more efficient and encouraging the staff to work through older items, or if it is tied to the new Democratic-controlled Congress and the concerns over oversight hearings, or if it is just early spring cleaning, but clearly the Commission has been marching to a different drummer in recent weeks.  We’ll keep watching to see if the frenzied pace keeps up, and more importantly, to see if the effort to clean up some of the long pending matters is extended to the various pending rule makings affecting broadcasting.  See our Advisory on possible broadcast issues for 2007 for a summary of all the rulemaking matters that remain pending.

Posted By Brendan Holland In Cable Carriage , Digital Television , EEO Compliance , FCC Fines , General FCC | Permalink | 0 Comments | Email entry

The FCC has issued two significant forfeitures (fines) in recent days for violations of its Equal Employment Opportunity (“EEO”) rules and related record keeping requirements.  These fines serve as a reminder that stations must develop, implement and document their EEO programs, or face sanctions from the FCC.  Our primer on how to comply with the FCC's EEO rules can be found here.

Yesterday, the Commission issued a decision against the licensee of a cluster of radio stations for failing to comply with the Commission’s EEO initiatives, including outreach, periodic self-assessment, record keeping, and public file requirements.  The decision was the result of a random EEO audit, and a copy of the complete decision is available here.  The licensee had owned the stations for only a few years and was not entirely sure when the cluster had crossed the threshold of having five full-time employees, and thus, when it was first required to conduct a full EEO program.  Because of the complete lack of records documenting the hires made during the applicable period (covering nearly a year and a half), the Commission had a hard time assessing the licensee’s vacancy specific recruitment efforts.  But in the end, the Commission issued a proposed fine in the amount of $13,000 for violations including:  1) failing to perform any EEO initiatives; 2) failing to prepare and place in the public inspection file the required annual EEO report; 3) failing to maintain and file EEO documentation and records required by the rules; and 4) failing to adequately analyze its recruitment program.  The FCC also imposed reporting conditions requiring the licensee to file periodic reports with the FCC through 2010 so that it can monitor the stations’ EEO efforts in the future. 

The Commission continued this momentum today, with an even larger fine – this one for $20,000 – issued to a broadcast television station in Texas for, among other things, failing to widely disseminate information regarding the vast majority of its job vacancies, failing to provide notification of job openings to organizations requesting such information, failing to analyze the station’s efforts, and failing to maintain proper documentation. This enforcement action was also the result of a random EEO audit, and a complete copy of the decision is available here.   

Posted By Brendan Holland In EEO Compliance , FCC Fines | Permalink | 0 Comments | Email entry

When was there ever a year where there was more controversy about contests and promotions?  This week, the stories were everywhere about how Boston was shut down by the promotion for a program on the Cartoon Network.  While all the facts are not in on that case, had this been conducted by a broadcaster, the FCC might well be investigating to determine if the promotion violates the Commission's hoax policies, which prohibit the airing of hoaxes that endanger the public by tying up emergency responders.

The FCC already seems to be investigating the contest gone wrong in Sacramento.  According to trade press reports, FCC Chairman Martin asked the Enforcement Branch of the FCC to review the contest that resulted in the death of a participant.  While the FCC may investigate any matter, what is it that they are looking for in connection with the Sacramento contest?  Certainly, the contest  was a tragic event.  And there is the possibility of civil liability from the lawsuit that was filed last week.  But not every action by a broadcaster can or should be the subject of FCC action.  The FCC has never become involved in libel or slander cases, leaving them to the jurisdiction of the civil courts.  Nor has the FCC become involved in cases of personal or property damage from accidents or injuries caused by broadcast vehicles or other equipment.  Again - those matters are left to the Courts.

Posted By David Oxenford In Advertising Issues , FCC Fines , General FCC | Permalink | 0 Comments | Email entry

In several recent actions, the FCC has imposed severe fines on broadcast licensees for operating auxiliary facilities without a license.  These actions highlight the importance of insuring that your broadcast stations have all of the licenses that they need to operate the technical facilities that they are using. 

In a decision issued today, the FCC fined a Regent radio station $7000 for failing to file a required form on a timely basis and for operating an FM translator station without authority.  According to the decision, Regent had inadvertently failed to include the translator on the renewal application for the main station.  Seven months later, it discovered the oversight, filed the renewal, and requested temporary authority to continue to operate the station.   The Commission imposed a fine of $3000 for failing to timely file the renewal, and $4000 for operating for the 7 months without authority.

Two weeks ago, the FCC released another Notice of Apparent Liability, proposing a $6600 fine for the late filing of two renewal applications for earth stations used by a public television licensee.  One renewal was filed about 2 months late, the second about 2 years late.  The FCC again imposed fines both for the late-filing, and for the operation without authorizations for the operation during the period after the licenses had expired and before the late renewals and STA requests were submitted.

Posted By David Oxenford In FCC Fines , General FCC | Permalink | 0 Comments | Email entry

In a decision released Friday, the FCC's Enforcement Bureau imposed a fine of $7000 on a station for violation of Section 73.49 of the Rules, requiring AM station towers with the potential for RF radiation at their base  to be completely enclosed within a fence or other secure enclosure.  What was notable about this decision is that the FCC rejected claims that the station should not be fined because it did not own the tower.

The Enforcement Bureau found that Section 73.49 imposed a duty on AM licensees, not on tower owners.  Thus, the duty to fence the tower is one that the licensee is responsible for meeting, even if some other party owns the tower.

The FCC noted that for all other towers, the primary duty for maintenance and repair of a tower is on the antenna structure owner, but even then the FCC imposes a secondary duty on the licensee to make sure that all legal obligations are being met.  While the FCC left for another day the issue of what would happen if a licensee did not meet that secondary duty in some case not involving an AM station, they made clear that, for AM stations, the licensee cannot delegate the responsibility for the fencing obligation.

Posted By David Oxenford In AM Radio , FCC Fines , Tower Issues | Permalink | 0 Comments | Email entry

Within 10 days of the end of each calender quarter, broadcasters (both commercial and noncommercial) need to place into their public inspection files their quarterly issues programs lists.  We recently published an advisory with details of this quarterly obligation, and a suggested form for the public file report.  Remember that these reports need to be in your file by October 10.

While most broadcasters have recently had their licenses renewed, stations shouldn't think that they don't have to worry about these reports so early in their next renewal cycle.  In fact, in the renewal cycle that is just reaching its end, a number of stations were fined as much as $10,000 for quarterly issues programs list violations that had occurred early in the last renewal cycle.  So what you do now will save you money down the road.

Posted By David Oxenford In FCC Fines | Permalink | 0 Comments | Email entry

Today, the FCC released an order fining a station over $16,000 for not having a local main studio, for operating over its authorized power at night, and for not maintaining a local public inspection fine.  Many might think that these violations are obvious ones.  Yet weekly, the FCC issues notices of fines for stations all over the country.  So not all stations are paying attention.  Back in April, we published a bulletin highlighting a number of problem areas where the FCC has been finding violations and fining stations.  These are worth another look, as today's fine makes clear that the FCC remains vigilant in enforcing its rules.

Posted By David Oxenford In FCC Fines | Permalink | 0 Comments | Email entry