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The FCC has continued this week on its recent tear of fining broadcast stations and other regulated entities for violations of FCC rules - in the last week proposing fines or reaching consent decrees relating to issues including incomplete public files, EAS violations, unauthorized transfers of FM translators, and tower lighting issues, among others.  But a fine issued to a station a few weeks ago merits further review as it provides some more clarity as to what the FCC requires from a broadcast station's "main studio."  In this recent case, the FCC proposed a $21,000 fine to this broadcaster who allegedly did not have an adequate main studio or public file, and for operating its AM station after sunset with its daytime facilities.

What do the FCC main studio rules require?  Currently, all full-power broadcasters (including Class A TV stations, with the limited exception of satellite television stations and some noncommercial radio satellite stations who may operate with main studio waivers) must maintain a studio either within its city of license, or at another site either within 25 miles of its city of license or within the city-grade contour of any station licensed to the same city of license as the station.  As set out in Section 73.1125 of the FCC rules, no matter where the studio is located, local residents must be able to reach the station by a toll-free telephone call.  The rule, however, does not specifically state what must be at the main studio - those rules are either found elsewhere in the FCC rules or have been developed by caselaw.

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A recent FCC decision fining a station $10,000 for having an unattended main studio provides a good explanation of the staffing requirements for the main studio of broadcast stations.  While the fine in this case was evident - FCC inspectors having twice visited the main studio of a station to find no one there, and a representative of the licensee admitting to the FCC that the studio was not regularly manned as the licensee did not know that there was such a requirement - the decision explains the requirements of the FCC's policies as to main studio staffing.   The Commission explains that the FCC requires "meaningful management and staff presence" at the main studio.  There must be both management and staff employees at the studio on a regular basis.  The decision reminds broadcasters that the management and staff employees need to report to the main studio on a daily basis, use it as their "home base", and spend substantial amounts of time there.  While the employees are not "chained to their desks", they must be at the studio regularly.  

While the decision does not specifically say so, the Commission has, in the past, said that there should be at least one management and one staff employee who use the studio as their principal place of business.  I like to think of it as the place where these employees have their desks, where they stop in every day to look at the pictures of their family that they keep there.  While the employees can go out and sell ads, produce programs, or go to Rotary meetings, while one employee is out of the office, another should be in the office, so that there is always a station employee present during normal business hours. So don't leave that studio unattended, or you'll risk the kind of punishment that the FCC issued here. 

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An FCC Enforcement Bureau District Office today issued a Notice of Apparent Liability, proposing to fine an AM licensee $25,000 for not having a meaningful staff presence at the station's main studio, and for not being able to produce a public inspection file when the FCC inspectors visited the station.   The station was being operated by another party pursuant to a Local Marketing Agreement ("LMA") and, when the FCC inspector showed up, none of the employees at the main studio identified themselves as an employee of the licensee.  Not having any employees at the main studio, and the additional inability to locate a public file for the station, resulted in the FCC proposing a $25,000 fine ($7000 for the lack of employees at the main studio, $10,000 for the lack of a public file, and an upward adjustment to reach the $25,000 total as the licensee had a series of prior violations).

The fact that this station, like so many others in this time of economic upheaval, was operating under an LMA highlights what the FCC has said so many times in the past about the staffing of such stations.  A station licensee cannot just sign an LMA, and leave the station to the control of the program provider.  Instead, the licensee must oversee the operations of the station, and have its own employees physically present at the station on a day to day basis to do so.  The decision today cites a 20 year old case for the proposition that the licensee must have both management and staff presence at the station on a full-time basis to be considered meaningful.  In other cases, the Commission has said that the there need to be a manager and a staff employee of the licensee who report to the studio as their principal place of business on a daily basis, and at least one of these employees must be physically present at the station's main studio during normal business hours.  Here, where there was no one employed by the licensee at the station when the FCC inspected it, the fine was issued.  So, if you are operating under an LMA, make sure to observe these staffing requirements, or risk a fine from the FCC.

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The FCC recently fined a station $8500 for not having an operational EAS system for almost two years, and for not having a main studio that was manned during normal business hours. The EAS fine was evident, as the station did not dispute that it did not have an operational EAS system in place.  It did, however, challenge the conclusion that it should be fined for having a main studio  that was not manned during normal business hours.  The licensee argued that the studio was not manned because of the precarious financial state of the station following the termination of an LMA. It said that, when faced with the choice of taking the station off the air because it could not afford to pay a staff to man the main studio or violating the staffing requirements, it decided to violate the rules.  The FCC said that the lack of financial resources was not an excuse for operating within the rules, and thus issued the fine (though reducing the cumulative amount of the fine based on the station's inability to pay more).

The Commission did suggest that the station could have asked for a waiver of the main studio staffing requirements based on its financial distress (though it did not say if it would have granted such a request).  But making the choice to violate the FCC's rules without even trying to ask for permission was essentially asking for trouble.  The FCC's policies require that stations have main studios manned during normal business hours,  Two employees are supposed to be based out of that studio, using it as their principal place of business, and at least one of them must be physically present and available at the studio during the business day.  Observe those rules, or risk an FCC fine. 

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Last week, the FCC issued fines to Class A TV stations which seem to have forgotten the requirements for such stations. Class A TV stations were low power television stations on which, early in the decade, Congress decided to confer "protected" status, meaning that they could not be knocked off the air by a new full-power TV station or by a change in the facilities of a full-power station.  LPTV stations, by contrast, are "secondary services," meaning that they can be knocked off the air by changes in primary stations.  Class A stations were given this protection if they could show that they were providing local programming, had a local studio, and otherwise complied with all the operating requirements that a full-power station station has to meet - including a manned main studio, children's television obligations, EEO reporting, and public file requirements.  Cases released last week remind these stations that they must still meet all requirements for full power stations, as the FCC fined Class A stations for main studio, public file and children's television violations.

In one case, the FCC fined a station $1000 for violations of the main studio, main studio staffing and public file rules.  The fine was originally set at $24,000 but, as the licensee demonstrated that it had no ability to pay the higher fine, the penalty was reduced to $1000.  The FCC had tried to inspect the station, and was unable to obtain access to the transmitter site.  The Commission staff then tried to find the station's main studio, and found that no one answered the phone number listed for the station, there did not appear to be anyone at the address on file for the main studio location, and there was of course no access to the public file.  As Commission rules require that stations have main studios in their principal service areas that are manned during normal business hours, and that stations have their public file at this location, the fine was issued.

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$15,000 per station was the cost of a broadcast licensee’s failure to adequately supervise two stations of which he was the licensee, but which were operated pursuant to time brokerage agreements or LMAs. Like many stations in these tough economic times, this licensee decided to allow a third party to provide the bulk of the programming and retain the bulk of the sales revenues, in exchange for a payment. However, as the licensee remained the licensee, he was required to maintain and exercise control over the station’s operations, and maintain a meaningful staff presence at the station. In reviewing the operations of these stations, the FCC’s Enforcement Bureau in recent decisions (here and here) concluded that the adequacy of that control was insufficient – providing a warning to other station licensees operating under LMA agreements that they must maintain operational control over the stations that they own.

The FCC has long said that a licensee must maintain a meaningful staff presence at a station, even if the station receives the vast majority of its programming from some other source – whether that is a network or programming provided under an LMA. Meaningful presence has required that at least two employees at the station be employed by the licensee, one of whom must be managerial and perform no services for the broker providing the programming under the LMA. This case makes clear that these required licensee employees must be physically present at the station’s main studio on a regular day to day basis – they cannot be located at some distant location supervising the station remotely or only periodically present at the main studio. Failure to have the station’s main studio manned by the required personnel in and of itself accounted for $7000 of the fine in this case.

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