Posted on October 27, 2010 by David Oxenford

Non-Functioning EAS, An Unavailable Public File and Open Tower Site Gates Result in FCC Fines of $5500 and $3500

Earlier this week, I posted a Top Ten list of legal issues that should keep a broadcast station operator up at night.  In two orders released today, the FCC found stations where these issues apparently had not been keeping their operators awake, as the FCC issued fines for numerous violations.  At one station, the FCC found that the EAS monitor was not working, the fence around the AM tower site was unlocked, and the station had no public inspection file, resulting in a $5500 fine (see the FCC's Enforcement Bureau order here).  At another station, the FCC inspectors were told that the station had no public file, and they also found the AM tower site fence unlocked, resulting in a $3500 fine (see the order here).  These cases are one more example that, while broadcasters have plenty of big-picture legal and policy issues that they need to be concerned about, they also need to worry about the nuts and bolts, as the failure to observe basic regulatory requirements like tower fencing, EAS, and public file requirements can bring immediate financial penalties to a station. 

The tower fencing issue is one that we have written about before.  FCC rules require that public access be restricted to areas of high RF radiation, which are likely to occur at ground levels near AM stations.  The FCC has many times issued fines for fences with unlocked gates, holes, or areas where there are gullies where a child could climb under the fence into the tower area.  The FCC has been  unwilling to accept excuses that the fence was locked "yesterday" or "last week" or at some other less defined time in the absence of proof, as they've heard that excuse many time.  If the fence is open when they arrive, expect a fine.

EAS is another area where many stations have had issues.  In this case, it appeared that the station operators were unfamiliar with the EAS system and how it worked, or why it hadn't received the required EAS alerts.  I've heard from many engineers who work with the Alternate Broadcast Inspection Program ("ABIP") that this is a frequent problem at stations around the country.  ABIP is a program that many state broadcast associations run, where they hire private inspectors to visit stations to assess their FCC compliance.  If stations pass the ABIP program, they are exempt from a random FCC technical inspection for three years (though the FCC can still inspect a station which has passed the ABIP inspection where there are complaints or violations that are a threat to safety).  These inspections can identify problems early, so that you can avoid fines later.  All stations should consider such an inspection to avoid issues such as a non-functioning EAS receiver.

An ABIP inspection would also discover a problem that one of these stations had - no public file. Obviously, all full-power stations are supposed to have public inspection files.  See our memo on the contents of the file for commercial stations.  And all employees who could possibly be called on to greet an FCC inspector who arrives at a station should know where the file is kept.  No file, or employees who don't know about the file, expect a fine.

Careful planning now, and undergoing an ABIP inspection can avoid fines later.  In this case, a little prevention would have provided a cure from thousands of dollars of liabilities.  

[Additional thoughts - 10/28/10 - note that, in both of these cases, the FCC initially fined the stations much higher amounts, but reduced the fines to the levels reported above after the stations showed that they would be unable to pay the higher fines.  The initial fines were $25,000 - reduced to $5,500 - and $17,000 - reduced to $3,500.  These amount show just how much violations of the sort found here could cost a successful radio station.]
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Posted on April 1, 2010 by David Oxenford

$1250 FCC Fine for Not Having Licensee's Articles of Incorporation in Station's Public File

In a decision by the FCC's Enforcement Bureau, the Commission issued a $1250 fine to a station that did not have its licensee's Articles of Incorporation and By-Laws in its public file when a listener came to check the file.  While the rules allow such documents to be left out of the file if there is a list of ownership-related documents in the file and the documents themselves are provided within 7 days of a request, here the licensee did not provide the missing documents for over a month of the request.  After investigating the complaint from the person who had looked at the file, the Commission arrived at the $1250 fine.  But there is another troubling aspect to this case, and that deals with the decisions references to the Alternate Broadcast Inspection Program ("ABIP").

The Alternate Broadcast Inspection Program is run by state broadcast associations, in cooperation with the FCC.  These plans are meant to encourage broadcasters to voluntarily police themselves, by having private inspectors hire by the state associations, inspect their stations.  If violations are found and corrected, the FCC will often be lenient or give the station a pass altogether (as in many reporting violations found in renewal applications).  In addition, the FCC's own inspectors are supposed to not single out a station that has had an ABIP inspection for a random FCC field inspection.  Here, the station had participated in several ABIP inspections, and the inspector had not found the public file violation.  Nevertheless, the Commission stated that a station is responsible for compliance with the FCC Rules, and it cannot delegate that responsibility to anyone else.  So, even though the inspector had not seen the problem, the station was still liable.  The ABIP program does not give a station immunity from an FCC action in response to a complaint, or from stepping in where there is a threat to safety or other immediate danger.  Even though this action by the FCC, taken in response to a complaint, may not technically be prohibited from the terms of the alternate inspection program, one wonders if the Commission, in this circumstance, is not being a little harsh.  The document missing from the public file was not one fundamental to station operations, or even to the mission of the FCC.  The failure to have it in the file did not cause interference between broadcast stations, nor likely did it have any discernible impact on the content of the broadcasts from the station.  Yes, its absence may have technically been against the FCC's rules, but wouldn't an admonition have gotten the message across just as well as a fine in this case, particularly where the participation in several ABIP inspections made clear that the licensee was operating in good faith - trying to comply with the FCC's rules?

The alternate inspection programs should be encouraged by the FCC, as the FCC itself simply does not have the resources to visit most stations on any regular basis.  The voluntary ABIP program is thus the best way for the FCC to ensure that stations are complying with the Commission's rules.  The Commission should be giving stations an incentive to participate in the program by showing some understanding to those stations that have voluntarily gone through the program and, in good faith, thought that they were operating in compliance with the rules.  To dismiss the participation in the manner that was done in this case seems to provide the wrong motivation to stations with respect to these programs.

As to the violation itself, corporate entities are supposed to have their articles of incorporation in their files.  Licensees are also supposed to have in their public file other documents reflecting any future ownership rights in the station (options, pledges, warrants, etc) and any documents that significantly restrict the actions of the licensee (e.g. many security agreements).  All must either be in the file or otherwise listed in the file and available for inspection within a week.  For more information about public inspection file obligations, see our Guide to the Basics of the Public File Rules for Commercial Broadcast Stations.  Check it out to avoid issues like this one, and look for future clarifications on the ABIP issue as this case makes its way through the halls of the FCC. 
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