Posted on November 4, 2011 by David Oxenford

A Host of FCC Fines of Over $20,000 for Technical and Tower Issues - And a Presentation on How to Avoid FCC Problems to the Kansas Broadcasters

Last week, I did a presentation on the issues facing broadcasters at the Kansas Association of Broadcasters annual convention (a copy of the slides from my presentation is available here).  I spoke about some of the day-to-day issues that can get broadcasters into trouble, as well as some of the big policy issues that broadcasters need to consider.  My presentation was preceded by a session conducted by the agent in charge of the Kansas City field office of the FCC, who emphasized the many issues that the field agents discover at broadcast stations that can lead to fines.  In the week since I returned from Kansas, it seems like the FCC has wanted to demonstrate the examples given by their agent, as there have been a large number of fines demonstrating the breadth of technical issues that broadcasters can face.  Fines (or "forfeitures", as the FCC calls them) were issued or proposed for issues ranging from faded tower paint, tower light outages, EAS problems, operations with excess power, and the ubiquitous (and very costly) public file violations.  Fines of up to $25,000 were issued for these violations - demonstrating how important it is not to overlook the day-to-day compliance matters highlighted in my presentation.

The largest of these fines was for $25,000.  This fine was imposed on a station for failing to have operational EAS equipment, not having an enclosed fence around the antenna site, and a missing public file.  The fine was originally proposed in a Notice of Apparent Liability (the first step in imposing an FCC fine, when the FCC spells out the apparent violation and the fine proposed, and the licensee is given time to respond to the allegations), released in July (see our post here).  The licensee failed to respond to the Notice of Apparent Liability, thus the fine is now being officially imposed.

In another case, a tower owner was fined $3750 for failing to have operating lights on a tower, and failing to notify the FAA that the lights were not working.  The fine was imposed even though the tower no longer had any communications antennas mounted on it, the tower was scheduled for demolition, and the owners were elderly and in poor health.  The FCC reminded tower owners that they must observe all lighting requirements even if no licensees were using the tower for as long as the tower is standing.  A $10,000 fine was proposed in another case for a North Carolina station that did not have operating tower lights, and did not have a system in place to monitor the lights.  In both cases, the FAA was apparently not notified immediately upon the tower lights failing.

These tower owners were not the only tower owners to get into trouble.  The Commission issued a Notice of Apparent Liability for $20,000 to another tower owner in Atlantic City NJ who had a tower that had faded paint, lights that were not operational, and an open gate in the fence surrounding the base of the tower.  The FCC inspected the tower several times, notified the owner of the issues, and was promised that the lights would be fixed by a given date.  But, upon revisiting the site well after the promised date, the lights were still out and the paint was still faded. Thus, the fine was upped from the $17,000 that would be suggested by the FCC's schedule of routine amounts for fines, to the announced amount of $20,000.  Obviously, if you make a promise to the FCC that you are going to fix a problem, keep it.

But keeping track of who owns a tower is also important, as a $3000 fine was proposed for a tower owner in California.  The FCC visited the tower, and contacted the owner listed in the FCC tower registration records (when registering, tower owners are given an Antenna Structure Registration of ASR number).  That owner told the Commission that the tower had been sold years before - with the Buyer apparently never bothering to update the tower registration at the FCC.  As we have warned before, the FCC tower registration is not automatically updated when the sale of a broadcast station is approved by the FCC.  A buyer must proactively go to the FCC and file a separate form to change the owner in the FCC tower registration database.  If you don't update the tower registration, and a problem arises at your site where the FCC needs to find the tower owner, you may be looking at a fine.

While operating your tower in compliance with the rules is important, so is operating at the right power.  Fines for overpower operations, especially on AM stations that have to switch power levels or directional patterns at sundown, seem common, including fines of $4000 in cases reported here and here.  Especially at this time of year, on Friday nights with high school football games going on after dark, and sundown coming earlier and earlier, stations may be inclined to cheat.  But if you get caught, you are looking at fines - and you have built in enforcers in competing stations who don't want you to get the competitive advantage of an overpower operation.

Moving a station without approval can also be costly - as shown by the case here.  The Commission is proposing a $22,000 fine for a station operating from a site not authorized in its license (even small moves require FCC approval), and not having an operating EAS system or a complete public file. 

This host of fines demonstrates that the FCC is very serious about the technical operations of broadcast stations.  Seemingly little issues can result in big fines - so pay attention to details and save yourself a few dollars. 
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Posted on June 15, 2011 by David Oxenford

Buy a Station Recently? Make Sure Your Tower Registration is Updated - FCC Fines Broadcaster $3000 For Not Doing So

Among the many things that broadcasters need to remember when they buy a broadcast station is making sure that the tower registration (the "Antenna Structure Registration" or "ASR") for that station is transferred along with the rest of the station assets.  Unlike most registrations and filings done at the time of the Closing of a sale of a broadcast station, the issue is not one of establishing the rights or title to any tower assets that are transferred with the station.  Instead, the registration is to let the FCC know who is responsible for that tower in the event the FCC needs to get in touch with the owner to deal with tower lighting or fencing issues or similar matters.  Many broadcasters may think that this transfer of the tower registration is automatically done when a station is sold, in connection with the FCC approval of the assignment of license or transfer of control.  It is not - a separate filing on FCC Form 854 is necessary.  In a decision just released by the FCC, a fine of $3000 was levied against a broadcaster whose tower was registered in the old owner's name, 3 years after the tower and the stations that broadcast from that tower were sold to the current owner.

The base fine for an inaccurate tower registration is $3000.  In this case, the FCC reduced a $6000 fine issued because two towers were not registered.  As the two towers were part of a single AM station array, were physically adjacent to each other, and as the current owner was found easily when the station was called, the FCC reduced the fine to $3000.  However, it noted that it could impose a higher fine if there was a more dangerous situation, or if a case arises where it is more difficult to find the real tower owner.  We've written about similar fines before.  The FCC views tower registration as very important.  So make sure that the owner of your tower is accurately registered with the FCC - and don't forget to update the sign at the tower site identifying the ASR, and make sure that the sign is kept in good repair and is visible from a publicly accessible location so that FCC inspectors or others can identify the tower they are looking at, as incorrect signage can increase the amount of any fine for tower site issues.  Note that Section 17.4 of the Commission's rules, which sets out the tower registration requirements, also requires that tower owners provide all tenants with the tower registration number.  Observe these details, or risk an FCC fine. 

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Posted on March 28, 2011 by David Oxenford

FCC Requests Comments on Draft Requirements for Environmental Assessments of the Impact of Tower Construction - Including The Effect on Migratory Birds

The question of the environmental impact of the construction or significant alteration of a communications tower has been a matter of controversy for quite some time.  Three years ago, when conservation groups challenged the FCC's procedures on the approval of towers and the consideration of the impact that such towers have on migratory birds, the US Court of Appeals ordered the FCC to include more public participation in the determination of whether those towers required detailed environmental studies ( an "environmental assessment" or an "EA") before they could be built.  This week, the FCC sought comments on their Draft Environmental Notice Requirements and Interim Procedures for its Antenna Registration Program.  These rules propose:

  • That, before an Antenna Structure Registration ("ASR") is issued by the FCC, any applicant must first give public notice of the construction in a local newspaper or other local media source.  The proposal will also be listed on the FCC's website.  These notices are to allow the public to comment on the proposal.   
  •  If an EA is required, the FCC will process that assessment before the filing of the ASR
  • An EA will preliminarily be required for all requests for an ASR for towers of more than 450 feet to determine its impact on migratory birds, though the FCC may modify this requirement after further study.

This proposal is somewhat tracks the proposed requirements for an EA that were set out in a settlement agreement between many affected parties, including conservation groups, the NAB and CTIA - an agreement about which we wrote here.  That agreement, while conclusively requiring an EA for towers of over 450 feet, stated that towers between 351 and 450 feet would be dealt with on a case-by-case basis, and left open the question of whether an EA would be required for towers of 350 feet or less. 

These requirements will apply not only to new tower construction, but also to construction that makes a "substantial increase in size" of the structure, which is defined in the FCC's rules to look at not only height, but also a substantial increase in the width of the tower, or the area excavated around the base of the tower.  Substantial changes in lighting of the tower - to lights that are "less preferred" under FAA guidelines, can also trigger these requirements. 

The EA is a document that must be carefully prepared, providing information about the structure proposed, and its likely impact on the surrounding area.  In connection with any impact on critical habitats, the analysis must rely on the best commercial and scientific information available to detail the potential impact of the project. This is routinely not something that an applicant can dash off on their own, but instead a study that requires expert assistance to prepare. 

Comments on the draft proposal can be filed with the FCC for 30 days after this proposal is published in the Federal Register. 
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Posted on November 12, 2010 by David Oxenford

FCC Plans Hearings on Environmental Impact of Tower Registration Program - Follow Up to Court Case on Impact of Communications Towers on Birds

The FCC today announced that it will be holding a series of three hearings to assess the environmental impact of its Antenna Structure Registration (ASR) program.  The FCC is required by the National Environmental Policy Act ("NEPA") to determine if its programs have any adverse environmental impact.  In a Court decision in 2008, the US Court of Appeals determined that the FCC had not adequately assessed its obligations under NEPA with respect to the impact of communications towers on birds after there were claims that towers killed millions of birds each year.  The hearings are to review the Commission's ASR process to gather evidence to determine whether a more extensive analysis of the potential environmental impact of tower construction is necessary when towers are constructed or modified.  In addition to the hearing, the FCC is soliciting written public comment on these proceedings. 

After the Court decision, American Bird Conservancy v. FCC, parties representing those involved in tower construction and conservation groups engaged in a series of discussions to attempt to resolve issues raised in the case.  The parties included the NAB, CTIA, PCIA, and the National Association of Tower Erectors.  Conservation groups included the American Bird Conservancy, Defenders of Wildlife, and The National Audubon Society.  These parties reached an agreement that was submitted to the FCC, setting out three levels of environmental review of tower construction, based on the height of the tower proposed.  As summarized below, the height of a proposed tower would determine if the proposal for construction had to be placed on a Public Notice by the FCC, soliciting public comment about the proposed construction, and whether the tower would need to have an Environmental Assessment ("EA") completed before it was constructed (an EA is a more extensive analysis of the environmental impact of planned construction than the Environmental Impact Statements that most broadcasters include with their current FCC applications).  The parties suggested the following:

  • For New Towers above 450 feet above ground, an Environmental Assessment would need to be conducted, and any proposal would be put on a public notice to solicit public comment
  • For New Towers between 351 and 450 feet, the proposal would be put on a public notice by the FCC and, after comments are filed, the FCC would decide on a case-by-case basis if an Environmental Assessment is necessary
  • For New Towers 350 or less, the parties could not agree as to whether Public Notice would be required.  Resolution of whether Public Notice was required was left to the FCC. 

This proposal has not been adopted by the FCC, so it will no doubt be addressed as part of these hearings. 

The hearings will be held in Washington on December 6, in Chula Vista, California on December 13, and in Tampa, Florida on December 15.  Information about the proceedings is available in the FCC's Public Notice.  The deadline for comments on the Commission's evaluation of its ASR program are due by January 14, 2011.  The FCC has set up a webpage for more information on this review, which can be found here.   
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Posted on April 16, 2010 by David Silverman

FCC Fines for No EAS Equipment, Unreported Tower Light Outage, and No Posting of ASR

In two separate Orders today, the FCC issued monetary forfeitures against a cable operator for failure to install Emergency Alert System (EAS) equipment and for various tower violations.  These same violations could have been cited against a broadcaster, so these cases are instructive to both broadcasters and cable operators.  The FCC issued monetary forfeitures of $20,000 and $18,000 against two Texas cable systems owned by the same company.  In both cases, the cable operator failed to install EAS equipment, failed to notify the FAA of a tower lighting outage and failed to exhibit red obstruction tower lighting from sunset to sunrise.   The higher fine related to a system's failure to display a tower's Antenna Structure Registration (ASR) number "in a conspicuous place so that it is readily visible near the base of the antenna structure."  

These same requirements apply equally to broadcast stations that have their own towers.   While most broadcasters are aware of the requirement to maintain working EAS equipment, many may not know that  FCC rules require a tower's ASR to be conspicuously displayed at the base of the tower.  To be compliant, the ASR must be displayed on a weather-resistant surface and of sufficient size to be easily seen at the base of the tower.

Similarly, if tower lighting is required, FCC rules require that any outage be reported "immediately" to the FAA if it cannot be fixed within 30 minutes.  Red obstruction lighting is required to be operational from sunset to sunrise, while high and medium intensity obstruction lighting is required to be operational 24 hours a day.

These are important issues to which both broadcasters and cable operators need to stay alert to avoid big fines like those imposed here.  As they potentially involve matters of public safety, the FCC is not likely to be forgiving in the event of violations.   
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