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A decision released by the FCC's Media Bureau staff this week makes clear that the permittee of a noncommercial station, who was awarded the permit based on a 307(b) preference, cannot change transmitter sites so as to abandon service to the area that it promised to cover in order to get the preference - even if it proposes to cover an equivalent amount of underserved area from its new transmitter site.  In addition, the decision held that the change in transmitter site was not justified even though the underserved area that had existed at the time the construction permit was granted no longer existed.  Other stations had changed their facilities since the date of the construction permit's grant, and now provided coverage to the area that had been underserved at the time of the grant. The Commission said that the coverage promises made by an applicant, and on which the permit was conditioned, were a snapshot in time that could not be changed even after the grant.  The decision should serve as a reminder to all the noncommercial applicants with applications that are now pending or to be filed in the next noncommercial window (whenever that may be) that they should not propose a technical facility in order to win a construction permit on 307(b) grounds if they can't really construct the station at the site they propose, as they may well be stuck with it - and forfeit the permit if they can't build the station in the way that they promised.

One wonders if a decision like this one will be appealed.  While there is no question that an applicant who makes promises that lead to the award of a permit should be held to those promises (to do otherwise would undermine the system), is it really in the public interest to hold the applicant to these promises in such a way so as to ignore reality?  If the underserved area that the applicant had promised to serve is no longer underserved, and some new underserved area that would have resulted in the applicant receiving the same preference is to be served by the modified proposal, isn't the public better off getting service to these truly underserved areas?  We will have to watch this case to see what develops.

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In a decision fining a noncommercial radio station $7200 for failure to have several year's worth of quarterly issues programs lists in its public inspection file, the FCC specifically stated that it does not have a reduced scale for fines for noncommercial broadcasters.  Instead, noncommercial station licensees, like the college that was involved in this case, have to justify a reduction in the amount of a fine based on financial hardship by providing a financial statement for the licensee itself - not just a showing of the budget for the radio station.  Thus, a college or university station that is in violation of an FCC rule, and which is issued a Notice of Apparent Liability, cannot justify a reduction in the fine merely by saying that the station cannot afford the fine - they will have to show that the institution itself is unable to pay the fine that the FCC imposes. 

This case is but one of a number of noncommercial stations that have received fines in recent days.  Just yesterday, another noncommercial station owned by a college was fined $7000 for not having timely filed its license renewal application.  The college's explanation that the regulatory failure was due to "poor administration" of the station didn't fly - as the FCC is clearly not going to reduce a fine because the licensee was not paying attention to the actions of its agents.  These cases and others like it demonstrate that the FCC is going to hold noncommercial stations to the same level of scrutiny as commercial operators.  The days when noncommercial broadcasters could count on being treated by the FCC with a lighter regulatory touch are over.  And many college, universities and other nonprofits that had not paid attention to the actions of their broadcast stations need to pay attention now, as in these days of tightened budgets, nonprofit groups can hardly afford the costs of paying an unexpected FCC fine. 

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In an Order released today, the FCC affirmed its tentative decision limiting the number of noncommercial FM applications that can be filed by one party in the upcoming window for new reserved educational band stations.  Applications for these stations can be submitted starting on Friday.  See our post, here, for details on the filing requirements.  The Commission upheld its tentative decision to retain a limit of 10 applications, despite requests by NPR, Minnesota Public Radio, and many religious broadcasters for higher limits.  The Commission cited thousands of individual comments in support of the 10 station limit, as well as those of a number of "public interest" groups.  Apparently, the flood of thousands of almost identical individual comments helped convince the Commission that the weight of the comments (perhaps literally) supported its decision.

The Commission did recognize some exceptions to the 10 station limit, exempting major change applications and applications that were originally filed under the old rules for FM educational processing (many of which have been languishing for almost 10 years) which must be refiled in the upcoming window.  In response to concerns that there might be sham applications that are filed to evade the limits, the Commission warned applicants that it retained the ability to investigate any application to make sure that the representations are true.  See our post on a recent case where the FCC rejected an applicant's claim to credit as a local applicant.  We will see if these efforts by the FCC in fact reduce the number of applications to a manageable number that can be quickly processed by the Commission.

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