construction permit expiration

In the last month, the FCC has released two decisions dealing with efforts by holders of expiring FM construction permits to retain the rights to construct the technical facilities authorized by that permit beyond the expiration date of the permit. In one case, the FCC announced a policy that, from now on, the construction of temporary facilities will be insufficient to warrant the grant of a license application for a new station. In another case, the FCC decided that a station that had an expiring construction permit for modified facilities to upgrade its station from a Class C1 to a Class C0 station, which had twice expired before and been replaced by a new CP each time, was subject to a competing applications filed the day after the expiration of the most recent CP. It is clear from these cases that the FCC’s Audio Division is taking a hard line on the three year deadline on the construction of new facilities for FM stations, and is reluctant to preserve expiring permits, especially if the permit blocks opportunities for the use of the frequency elsewhere.

The first case involved a permittee of a new station who, immediately before the expiration of the three years that it was given by its construction permit to build the station, turned it on and filed a license application that was quickly granted by the FCC. About 10 days later, the new licensee requested authority to go silent while it sought approval of its construction plans for a permanent facility. The station remained silent for almost a year, before recommencing temporary operations from a different transmitter site pursuant to an STA. When the licensee filed for the renewal of its license and another application to move to a different transmitter site and to change city of license, a competitor objected, arguing that the licensee had misrepresented facts to the FCC about whether its station was ready for its initial operations from its original site and contending that the original license should never have been granted.
Continue Reading FCC Takes Hard Line on Efforts to Keep Alive Expiring Construction Permits for Both New FM Stations and Modifications of Existing Stations

A $4000 fine was levied by the FCC on an FM station owner who failed to file an application for license after completing construction of changes authorized by a construction permit, finally submitting the license applicaiton about 4 years after that permit had expired. When a broadcaster receives a construction permit authorizing technical changes in a station’s facilities, in most cases, it has three years to complete construction. Upon the completion of construction, the licensee must file an application for a license (on FCC Form 302 for commercial stations) certifying that the station was constructed as authorized. In this case, when the license application was finally submitted long after the permit expired, the application stated that construction had in fact been completed within the three year period set out in the construction permit.  So the applicant requested retroactive approval of that license, relying on past FCC cases where license applications filed after the end of the construction period were nevertheless granted where the applicant could show that construction had been completed during the period set out in the construction permit.

The FCC decided in this case that a waiver was not appropriate given the time that expired between the expiration of the permit and the filing of the license application. While gaps of a few days or even a few weeks between the expiration of the permit and the filing of the license application are excusable, the Commission concluded that a four year gap was just too much to excuse – not the minor error that can be forgiven without a fine. Waiting four years to file a license application was deemed to be too much to forgive – so the question was whether a fine was appropriate and, if so, how much.Continue Reading $4000 Fine for Station That Forgets to File License Application After Completing Construction of Modified Facilities

When building a new radio station, the FCC gives broadcasters three years in which to construct.  The deadline for construction can only be extended for limited reasons (referred to as circumstances that justify "tolling" of the permit) – for a short term equal to the period that an Act of God (e.g. a hurricane, blizzard or flood

An FCC decision released today reminds broadcasters of the need to notify the FCC of the completion of construction of a new broadcast auxiliary stationStudio Transmitter Links (STL) and Remote Pickups (RPU) have for several years been licensed through the FCC’s Wireless Bureau, rather than through the Media Bureau.  Unlike a grant of authority

In a Further Notice of Proposed Rulemaking, the FCC last week asked for public comment on a series of initiatives to promote the ownership of broadcast stations by minorities and other Socially Disadvantaged Businesses ("SDBs").  These proposals, which include the potential for the sale without requiring any divestitures of clusters of radio stations which exceed the multiple ownership rules now in effect, and the potential for investors to invest in stations controlled by SDBs, even if such investment would otherwise violate the existing multiple ownership rules.  The Further Notice was issued in response to a petition filed over a year ago by the Minority Media Telecommunications Council, which asked for a withdrawal of the FCC’s Notice of Proposed Rulemaking on the Multiple Ownership Rules (which we summarized here) because that Notice did not address the promotion of minority ownership of broadcast stations.  MMTC claimed that the Third Circuit’s remand of the 2003 Multiple Ownership decision mandated that consideration.  Comments on the Further Notice, which will be resolved as part of the current multiple ownership proceeding, are due on October 1, and replies on October 15

The Notice raises a number of suggestions for regulatory changes to foster the ownership of broadcast stations by minority owners and other SDBs.  In addition to allowing the transfer of grandfathered radio clusters that no longer comply with the multiple ownership rules, these include specific proposals that would accomplish the following:

  • Allowing investment by exiting broadcasters and others with attributable media interests into companies controlled by minorities without the investment being counted against the ownership holdings of the investing company
  • Allowing minority groups to purchase unbuilt construction permits, and get sufficient time to construct those stations, even if the construction permit is otherwise to expire as it has been outstanding and unbuilt for over three years
  • Granting some non-minority owned companies waivers to exceed the multiple ownership limits if they sell stations to SDBs (including a proposal to create tradable credits for creating minority-owned stations)
  • Allowing for the waiver of the alien ownership limits if the investment by foreign companies would assist a minority-owned company in getting into the broadcast business.
  • Revival of the policies permitting minority distress sales (where a broadcaster against whom there were issues pending which could lead to a revocation of a license could sell their station to a minority group and avoid the revocation proceeding) and minority tax credits  (where a broadcaster who sells to a minority group could defer gains on sale if the money was reinvested into any broadcast company in the future)

Continue Reading FCC Proposes Multiple Ownership Exceptions to Foster Minority Ownership