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Posted on February 7, 2012 by David Oxenford

Three $10,000 FCC Broadcast Fines, All Involving the Public File, Show Differences in Enforcement

In the last few days, the FCC proposed three fines - all involving violations of the public inspection file rule, and all amounting to $10,000. But the facts of the three cases are radically different, and one wonders about why all ended up with the same fine. But more importantly, the cases again raise the issue of why the penalty for public file violations is so high in relation to other fines for what would seemingly be more important issues - ones involving interference to other stations and, potentially, public safety. We've raised the question before as to whether public file violations, which have a $10,000 base fine adopted in the FCC's Forfeiture Policy Statement (which includes a schedule of base fines for various different types of violations), is really appropriate given the lower fines for what would seem to be more crucial issues - like stations operating in some way that is technically different than they are licensed, or where they don't have operating EAS systems that can pass along crucial emergency information - offenses with lower suggested fines. Looking at the facts in each of this week's cases show that, even among public file offenses, the fine may be the same, yet the offenses seem very different.

In one case, an FCC inspection discovered an AM/FM combination operating with a tower with some of its required lights that did not work, an EAS system that wasn't working and which had not been working apparently for years, an FM station that was operating overpower, and a single public file for the two stations, one that was lacking any Quarterly Issues Programs lists. With all of these violations over 2 stations, the FCC could have fined these stations as much as $42,000, but the FCC reduced the fine to $10,000 based on the licensee's demonstrated inability to pay the higher fine. But more interesting for this analysis was the comparative cost of each of the violations. Under the FCC's analysis, the public file violation was worth $10,000, while the base fine for the EAS violation was only $8000, and the fine for the tower lights was the same as that for the missing documents in the public file. The overpower operation drew only a $4000 fine. Why is a public file violation, which probably no one ever asked to see, a violation with a penalty as severe as those for matters that could affect public safety - tower lights and EAS? And why is it more than double the fine for overpower operation, which could cause interference - an issue as the heart of the FCC's reason for being?

Two other pure public file violations also drew fines of $10,000, but the facts and circumstances were quite different. In one case, the violation was discovered by a station inspection by the FCC, and the FCC found no public file whatsoever. In the second case, the licensee voluntarily disclosed to the FCC, in its license renewal application, that it was missing 2 1/2 years worth of quarterly issues programs lists from an 8 year license renewal period. So it was missing just one element of the public file. So despite voluntarily reporting the violation, and having that violation affecting just one element of the public file, and just a portion of that element, the fine is the same as that for a station that didn't keep a file at all, and got caught by the FCC. Shouldn't the FCC recognize the difference in circumstances, and lessen the penalty for a party that was missing only part of its file, and voluntarily reported that violation?

Perhaps at some time the FCC will offer the public the opportunity to comment on the relative value of FCC fines, and perhaps do something to make the fine schedule more rational. Broadcasters have, from time to time, argued that the public file rule was archaic and should be abolished, though the FCC now seems to be taking the opposite tack - looking to put the file online (see our summary of the FCC proceeding to do so here). In any event, for the foreseeable future, the public file remains a big deal for the FCC, so be sure the yours is in good order. For more information on doing that, see our most recent Advisory on the Quarterly Issues Programs Lists and our Advisory on the Basics of the Public Inspection File for Commercial Broadcasters.

Tags: FCC Fines, FCC forfeiture schedule, public inspection file, quarterly issues programs lists

Posted on December 7, 2011 by David Oxenford

What the NY Times Article on the Broadcast Public Inspection File Says About the FCC's Public File Requirements

While the FCC is entertaining comments on its proposal to move the public inspection file for broadcast television stations online (see our article here), the existing physical public files of several New York area broadcasters came under examination by the New York Times, according to an article in Sunday’s paper. The article seemed to both make fun of the contents of the required public file, while at the same time noting that the people at several stations contacted by the reporter seemed to be unaware of the Commission’s requirements that the file be made available immediately to anyone who visits a station and asks to see it, and that requiring appointments is not an option. We've written in the past about stations that received substantial fines for requiring a visitor to make an appointment to see a station’s files (see, one case where a commercial TV station was fined $10,000, and another where a noncommercial FM was fined $8000 for a similar violation). If the NY Times article is accurate, stations need to reexamine their policies and be sure that those dealing with the public know of the location of the file and the fact that it must be made available upon request – no questions asked. For more information about the public file requirements, see our Guide to the Basics of the Public Inspection File for Commercial Stations, here.

The second aspect of the report, poking some fun at some of the weird comments from the public found in the file, reinforces some of what I have been told by broadcasters. At a broadcaster meeting last week, I was told stories of station public files that have expanded exponentially since the FCC added a requirement that the file contain emails from the public, as well as letters. Broadcasters report that the letters from the public can now often take up several drawers of a file cabinet, while the remainder of the file fits in a single drawer. While the Commission has tentatively concluded that these letters would not be required to be included in the electronic online file, the recent rulemaking proposal did suggest that the letters be retained at the station, and that perhaps summaries of the written comments be made part of the online file. In addition, comments were requested as to whether social media posts about station operations be kept in some fashion – even though sites like Facebook and Twitter, by their very nature, keep most of what it posted on their sites for the public to view (see our summary of the proposals here). Broadcasters at my meeting last week were very concerned about the volume of paper that would generate, and the need for manpower to review Twitter feeds and Facebook posts almost around the clock to see if any needed to be placed into the file as they related to the station operations.

The fact that many major-market stations were unprepared for a request to view the public file seems, at first glance, incredible to those of us who deal with legal issues all the time. But what it instead may show is the utter lack of public interest in the contents of those files. Around the country, broadcasters tell me that their files are never visited – except for the political file at bigger stations in major markets. If a file is never visited, procedures may become lax or unfamiliar through lack of practice by the staff in dealing with requests. Broadcasters need to let the FCC know what they think about the proposal for an online file and the various new additions to that file proposed by the Commission, by the December 22 deadline. No doubt the Times story will figure in someone’s filing, so be sure to have your voice heard on these proposals by that deadline.

Tags: General FCC, Programming Regulations, Public Interest Obligations/Localism, Television, online public file, political file, public inspection file

Posted on July 21, 2011 by David Oxenford

$25,000 Fine for Unlocked Tower Fence and Missing EAS Receiver and Public File

If a broadcaster is looking to maximize the fine that they receive for FCC violations, one would be hard pressed to pick three violations more likely to draw the ire of the FCC than those that were found after a field inspection of a North Carolina AM station, leading to a Notice of Apparent Liability proposing to fine the station $25,000. The inspection found a tower site with an unlocked fence (a fence which was also observed to be in disrepair) around areas of high RF radiation, and no evidence of either an EAS receiver or a public file at the station's main studio. In the FCC's estimation, that public file violation was the most serious, warranting a $10,000 fine. Those pesky violations that could lead to actual harm to real people if someone wandered onto the tower site or if an emergency message did not reach its intended audience - drew fines of $7000 (for the unlocked fence) and $8000 (for the missing EAS receiver).

A number of excuses were provided by the licensee, and rejected by the Commission. The fact that subsequent remedial actions were taken did not reduce the severity of the violations found during the inspection. An excuse offered after the inspection, that the studio was in the process of being moved to another location at the time of the inspection, meaning that the public file and EAS system were in transit, was also rejected - as the move was not mentioned to the FCC inspectors as a reason for the violation at the time of the inspection, and as the fact was that the station was in violation at the time of the inspection - during normal business hours, no public file or EAS equipment was at what was then the main studio. The fact that no EAS outage were noted on any station log was also taken into account by the FCC.

One of the most striking aspects of the Commission's summary of the inspection was the reported inability of the station's manager to explain the violations. The manager reportedly did not know where the public file or the EAS receiver were, or how long they were missing. When the excuse that they were in transit to the new studio was later advanced, the FCC was perhaps understandably suspicious. If nothing else, this case should serve as a warning to managers to be aware of FCC compliance issues or, in the event of an inspection, have someone meet with the inspectors who can answer their questions.

The case also highlights the absurdity of the importance that the FCC places on the public file rule. Here, there were two violations that could have posed real threats to real people. Yet these violations drew fines less than those imposed for a public file violation - a violation that, at most stations, harms no one, as public files are rarely if ever visited by the public. As we have written, the government is doing a review of its rules - including specifically the public file rule - to determine if their costs of compliance outweigh any public benefit received. Let's hope that this review places some rationality into the assessment of the importance of the enforcement of these rules.

Tags: EAS receivers, FCC Fines, public inspection file, tower fencing requirements

Posted on June 29, 2011 by David Silverman

College Station Fined $10,000 for Public File Violation

As an FCC Forfeiture Order issued today proves, even noncommercial educational college radio stations need to comply with FCC rules to avoid big fines. The Commission confirmed a $10,000 forfeiture against Colby-Sawyer College in New Hampshire originally proposed in 2007. The college argued that the forfeiture should be reduced based on the station's noncommercial educational status, but the FCC said there is no policy justifying reduction on that basis.

We have previously noted Commission forfeitures in the range of $10,000 to $14,000 for public file violations. Today's decision confirms that the commercial or noncommercial status of the station is not a factor when it comes to compliance issues. In this case, the station was missing 14 quarterly issues/programs lists from its public inspection file.

The Commission has become quite vigilant lately, issuing fines and forfeitures for numerous rule violations. The bottom line is that all FCC rules must be followed to avoid monetary penalties, commercial or noncommercial status notwithstanding.

Tags: FCC Fines, NCE, NCE radio, fines, fines for noncommercial radio, forfeiture, public inspection file

Posted on June 8, 2011 by David Oxenford

What Do The FCC Main Studio Rules Require? - Recent $21,000 Fine Offers Some Clarification

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.

Obviously, stations should have a public file at their main studio. The studio is also supposed to be open and staffed during normal business hours (normally something like 9 to 5). At least two employees must report to the main studio as their principal place of business on a daily basis, and at least one of those employees should be physically present during business hours. I like to tell clients that the studio is where these two employees have their desks with the pictures of their families, and where they sit and do their work when they are not on sales calls, or collecting the news or whatever else they may be doing. At least one of these two employees must also be a management employee.

The main studio must also be capable of originating programming and controlling the station. Just what does that mean? The recent case provides guidance on that issue. In that case, the licensee pointed to two locations as possible main studios. One was the station's transmitter site, but there were no production studios there, nor where there any people regularly there. The second was a private home. The home did house portions of the public file, and the station's sound board and microphone were at the house. Why did that not qualify as a main studio? The FCC found that there were no station employees there (presumably no one on the licensee's payroll), the site was not open to the public and it did not have continuous program transmission capability as it only had one telephone line - presumably for the resident's use, not for transmitting programming. This decision seems to imply that, to qualify as a main studio, the location needs to have a means to continuously broadcast - presumably either a dedicated phone line or an STL.

In this case, the $21,000 fine was broken down $7000 for the main studio violation, $10,000 for the public file violation, and $4000 for operating post-sunset at a power higher than permitted by the station license. Some might suggest that, in a ranking of real importance to the FCC's mission and service to the public, the amounts of those fines are backwards - shouldn't potential interference from overpower operation violating the terms of the station license be a more egregious violation than the failure to have a public file that no one ever visits?

In any event, the main studio remains an important part of FCC enforcement, and stations need to make sure that they are in compliance with the rules. Watch for more on tomorrow's meeting discussing the Future of Media report - now being called the report on the impact of technology on the information needs of communities - where more may be said about the rules relating to the main studio and public file.

Tags: FCC Fines, Public Interest Obligations/Localism, Section 73.1125, main studio rules, main studio staffing requirements, overpower operations, public inspection file

Posted on May 26, 2011 by David Oxenford

FCC Fines Of $10,000 to $14,000 for Broadcast Public File Violations - Discovered By FCC Inspections

In several recent cases, the FCC issued big fines to stations that had significant gaps in their public inspection files - fines of between $10,000 and $14,000. Unlike many other recent public inspection file fines, these fines did not arise from self-reporting of violations in a license renewal application, nor were they discovered as a result of a complaint from a disgruntled listener or competitor. These fines also did not arise in connection with the discovery of other violations at the stations. Instead, these fines were the result of FCC inspections - inspections that seemingly did not turn up other significant violations. Thus, these cases serve as a warning that broadcasters need to ensure that their file is complete and up-to-date at all times. Curiously, these large fines come at the same time that the FCC is about to consider comments on whether the public file paperwork burden is justifiable.

These fines were large - demonstrating a seeming trend to ever-higher fines for public file violations. The $14,000 fine issued today went to a Class A TV station that had no quarterly programs issues lists in its public file for the entire license renewal term - 34 reports were missing at the time of the inspection. Based on this egregious violation, the FCC decided that an increase over the base $10,000 fine was in order. Two AM stations, which had pretty much the same violation as the Class A station - no QPIs for the same period of time - received $10,000 fines (see decisions here and here). A third AM station received a $10,000 fine for having no new information in its public file since 2006.

A couple of observations on these fines. First, as the FCC has solicited comments as to whether the paperwork burden of the public file is worth the benefit that it provides, broadcasters may well want to consider providing their input on that question. From what I hear from broadcasters around the country, few broadcasters ever have had anyone view that file (perhaps with the exception of the political file). Is keeping a voluminous set of documents that no one ever looks at a justifiable mandated use of broadcaster resources? Comment are due on June 17.

Second, the inspections that led to these fines demonstrate the benefit of Alternate Broadcast Inspection Programs ("ABIP") offered by State Broadcast Associations. These programs send a private inspector to review a station's operations and, if any problems are fixed within a reasonable period of time, the violations are not reported to the Commission, no penalty is assessed, and the FCC cannot itself inspect the station unless there is a specific complaint or a potentially dangerous situation at the station (e.g. tower lights that are out). These inspections are essentially insurance against the kinds of random inspections that led to the fines in these cases. Given the amount of these fines, and other significant fine that we reported on recently, that insurance sure seems to be worthwhile. Check out your local ABIP program.

Tags: FCC Fines, FCC inspection, alternate broadcast inspection program, public inspection file, quarterly programs issues lists

Posted on April 18, 2011 by David Oxenford

Fines of $9000 for Public File Violations Upheld, But FCC Asks if the Paperwork Burden of the Public File is Justified

Last week, in a frenzy of cleaning up issues left from old license renewal applications, the FCC upheld several $9000 fines for public file violations - most in connection with the failure of licensees to have a complete set of Quarterly Programs Issues lists ("QPIs") in those files. The broadcasters who were fined came up with a variety of arguments as to why those fines should be reduced or eliminated - which were uniformly rejected by the Commission. What we find interesting is that, while these large fines were levied against a number of broadcasters, the FCC is at the same time asking whether retention of the public file can be justified under the provisions of the Paperwork Reduction Act. So which is it - an important tool to keep the public informed about the ways that stations serve their public, or an unreasonable burden on those who are regulated by the FCC?

While this request for comments on the paperwork burden imposed by the public file may be nothing more than a routine review of Commission rules to justify their continuing existence under the provisions of the Paperwork Reduction Act, it is interesting that this rule - long the source of wrath from broadcasters who complain that the file is never visited except by the occasional college broadcasting student who has to do so as a class project, or by the competitor in the market looking for something to complain about (and even those visits are extremely rare for most stations) - is now up for review and comment. Why was this rule selected for review? Will there be other rules about which the FCC asks for comment? Is there any justification for the burden imposed on broadcasters (which the FCC estimates at a cumulative 1,831,706 hours of work annually, but to which it curiously assigns no associated cost burden with the required tasks) when it is routine for the file to be never visited? You have your chance to voice your comments - with the filing deadline for such comments being June 17, 2011.

The cases issued last week all contained arguments from the licensees as to why the fines issued by the FCC should be reduced. One applicant, who was fined $9000, contended that its violations were not "willful and repeated violations" worthy of the high fine. The licensee submitted that they were instead isolated and inadvertent. The Commission rejected that contention - essentially holding that any failure to follow a rule is willful, and the fact that the failure went on for years made it repeated. That applicant also contended that the fines were higher than levied on other applicants (as the FCC's fines for public file violations did seem to rise from $3000 to $9000 during the course of the last renewal term), but the FCC rejected that argument, contending that there were factual differences in the cases that merited the lower fines - one station getting the lower fine did not have QPIs, but did keep letters from the public commending certain station programs, and another got the lower fine because the violations in that other case "were for an indiscernible period of time" (if the period was not discerned by the FCC, shouldn't the fine have been higher?). Even an argument that legal provisions protecting small businesses should protect the station was rejected - the Commission finding that it can protect small businesses by reducing the fines if necessary (which it did not do in this case). Similar arguments were rejected in connection with another $9000 fine, and in connection with yet another station that only received a $3000 fine (the decision does not explain why this fine was lower than the others). Another fine was reduced from $9000 to $7200 because of a prior record of compliance by the applicant. A noncommercial station received a similar "reduced" fine of $7200. Another University received an $8000 fine, the FCC rejecting arguments of financial hardship even though the University showed that it operated at a loss of over $200 million (as the fine constituted a small portion of the $250 million operating budget of the school).

Given this raft of fines, it is clear that the FCC will continue to take enforcement of the rules regarding the public file to be very important - perhaps right up to the time that they abolish the rule for not justifying the paperwork burden that it places on licensees. For more information about the requirements, see our most recent advisory on the requirements of the Quarterly Programs Issues lists, here.

Tags: FCC Fines, Paperwork reduction act, QPIs, public inspection file, quarterly programs issues lists, willful and repeated violation

Posted on February 10, 2011 by David Oxenford

Big FCC Fines for Public File Violations for Commercial and Noncommercial Stations

The FCC today issued fines of as much as $12,000 for public file violations. Together with the fine issued earlier this week for a station that did not allow unrestricted access to its public file, these actions make clear how seriously the FCC takes the obligations of broadcast stations to maintain and make available their public inspection files. The fines issued today went to both commercial and noncommercial stations, with two noncommercial stations each receiving fines of $8000 for not having complete public files. Violations are expensive - even if your station is owned by a noncommercial entity.

The largest fine, $12,000, went to a commercial station that, when inspected by FCC Field Inspectors in March 2010, could not produce anything in its public file more recent than 2006. While the licensee claimed that the documents were kept at the office of the station owner several hundred miles away, the FCC found that the violation of having nothing from more than 3 years of operation was so egregious that an upward adjustment from the standard $10,000 public file fine was warranted. The two fines issued to noncommercial stations were not as egregious, but still resulted in significant fines. A review of the details of those cases are instructive as to the excuses and mitigating circumstance that the FCC rejected when the licensees tried to argue for a significant reduction or elimination of the fine.

In one case, the fine was issued against Drexel University in connection with its radio station. The fine arose from the station's 2006 license renewal application, where it admitted that its public file was missing quarterly issues programs lists from eight quarters in the first three years of its renewal period - 1998-2001. Based on those old, admitted violations, the FCC issued a $10000 fine (reduced to $8000 as set forth below). The University asked for a reduction in that fine for several reasons. First, the licensee argued that the public was not harmed, as no one asked to view the FCC file during the license term. The FCC rejected that argument - which has been raised before - stating that the the omission of even a single item from the public file is serious as "it diminishes the public's ability to determine and comment at renewal time on whether the station is serving its community." The FCC said that this was true whether or not anyone actually visited the file (without addressing how the public's ability to assess a renewal is harmed if no one ever even asks to review the file).

The University also argued that the station could not afford the fine, as the University only budgeted a set amount (at most $15,904 per year) to the station. The fine would eat up that budget, and payment of the fine from other University funds would reduce non-radio services and activities. The FCC also rejected that argument - finding that it did not show that the licensee could not pay the fine. As in prior cases, the FCC looks to the entire licensee, not just its budget for radio, to determine if a fine can be paid.

Finally, the Licensee suggested that the fine violated the Small Business Regulatory Enforcement Fairness Act of 1996, as the same fine would apply to this small college station as would apply to a large commercial television station guilty of the same violation. Again, the FCC rejected the argument - finding that the FCC considered the SBREFA when it adopted its fine schedule and, because the FCC provides for reductions in cases where a small entity can't afford to pay, there is no violation of this Act. The only reduction was based on the licensee's past record of compliance, resulting is a reduction of $2000 from $10,000 to $8,000.

The other noncommercial case involved a religious broadcaster, who also admitted in its renewal application that it did not have all of its quarterly issues programs lists in its files, for 11 of 17 quarters since the station came on the air. It also did not timely file one required Ownership Report. Here, too the licensee claimed financial hardship but the FCC found that the fine would constitute only 3.6% of annual revenue, so it was not excessive (citing cases that say that a fine of as much as 5% of revenue are reasonable).

While many broadcasters question the value of the public file, as it is seldom if ever visited by the public, compliance with this rule is obviously a high priority of the FCC. Public inspection file fines are quite expensive and, with license renewal coming up, it's important for all stations to be able to certify that the file is complete. Our advisory on the required contents of the commercial public inspection file is here. Our latest advisory on the requirements for the quarterly issues programs lists is here. Check your station's compliance today.

Tags: FCC Fines, Noncommercial Broadcasting, financial hardship for FCC fine, public inspection file, quarterly issues programs lists, when is an FCC fine too big

Posted on February 8, 2011 by David Silverman

FCC Fines TV Station $10,000 for Requring Appointment to View Public Inspection File

The FCC released a Notice of Apparent Liability for Forfeiture today, proposing a $10,000 fine against a public TV station in Los Angeles for requiring an appointment to view the station's public inspection file. This case shows how seriously the FCC takes the requirement of open and unfettered access to a broadcast station's public file. An FCC agent visited the station's main studio twice without identifying himself as an FCC employee. Both times, the station's security guard refused to let him see the station's public inspection file or speak with the station manager without an appointment.

On the third visit, the FCC agent identified himself as such and was allowed to view the station's public inspection file "after a thorough examination of the agent's badge and several phone calls to [station] personnel."

The public inspection file was found to be complete. However, the station was fined $10,000 for "willfully and repeatedly" failing to make the public inspection file available. The FCC stressed that "stations cannot require members of the public to make appointments to access a station's public inspection file."

Note that the FCC had no issues with the contents or completeness of the public inspection file. The only issue was access to the public file. Although the station may appeal this fine, this should be a lesson to all stations to make the public inspection file to all members of the public during regular business hours....no appointments required.

Tags: FCC Fines, access to public file, fine for public file violation, forfeiture, public file, public inspection file

Posted on January 21, 2011 by David Oxenford

EEO Public File Reports Due By February 1 For Broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma - David Oxenford Conducts Webinar to Refresh Kansas Broadcasters on Their EEO Obligations

February 1 is the deadline by which broadcast stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must place into their Public Inspection files their Annual EEO Public Inspection File Report. The report must also be available on these stations' websites, if they have such sites. The Annual EEO Public Inspection File Report provides information about the full-time jobs filled at the station in the previous year; the sources used by the station to recruit potential employees to fill the open positions; and the additional "supplemental efforts" conducted by the station, whether or not they had any employment openings, to educate and inform their communities about broadcast employment. This obligation extends to all "station employment units" (groups of commonly controlled stations, serving a common geographical area, with at least one common employee) with 5 or more full-time employees (a full-time employee, for FCC purposes, being one working 30 or more hours per week). Our firm's Advisory detailing the requirements for this report can be found here, with a model for the report at Appendix A of that advisory. More information about Broadcasters' EEO obligations generally can be found in our Primer on the FCC's EEO Rules, here.

Yesterday, I conducted a webinar for the Kansas Association of Broadcasters to provide a refresher on broadcasters' EEO obligations under FCC rules, regulations and policies. The slides used in that presentation can be viewed here. With the next cycle of license renewal applications beginning later this year, stations need to be especially vigilant about EEO obligations to avoid scrutiny at renewal time, which could delay the processing of renewal applications (and potentially of any sale that might be underway at that time, see our post here) and possibly lead to fines or other penalties. Radio stations in Arkansas, Louisiana and Mississippi will file renewals on February 1, 2012; radio stations in Kansas, Oklahoma and Nebraska will file their renewals on February 1, 2013; and those in New York and New Jersey will file by February 1, 2014. TV stations will file one year later than radio stations located in their states. As two years worth of public inspection file reports must be submitted with the license renewal applications, the hiring process used this year will be scrutinized by the FCC during the renewal process for stations in most of these states. So make sure that you are following the rules, and documenting your EEO efforts for the FCC to avoid renewal-time problems.

Tags: EEO Compliance/Diversity, EEO public file report, FCC EEO obligations, Kansas Association of broadcasters, License Renewal, broadcast, employment, equal, license renewal processing delay, opportunity, program", public inspection file, station employment unit

Posted on November 16, 2010 by David Oxenford

Failures of Former Employees No Excuse for Public File Violation - Results in $10,000 Fine

In another of a series of recent decisions, a regional field office of the FCC issued a Notice of Apparent Liability, proposing to fine a licensee $10,000 for missing seven Quarterly Programs Issues lists in its public file. As there have been so many recent cases raising the same issue, why mention this case? We highlight it here because of the excuse used by the licensee to try to get out of the fine - the licensee claimed that it was fault of a former employee who was responsible for the file, and that person must have messed up (lost the reports, not prepared them or something along those lines). The FCC rejected that argument (not for the first time), finding that the licensee, not any particular employee, is ultimately responsible for FCC rule compliance. Thus, owners need to make sure not only that they have given FCC compliance responsibility for specific FCC obligations to a specific employee, but they also need to be responsible for ensuring that the assigned employee is in fact doing his or her job. If there is a failure to meet an FCC obligation, the responsibility (in terms of the FCC fine) will almost always land on the shoulders of the FCC licensee. So delegate - but do so responsibly, and remember to check to make sure that the employees are doing correctly the tasks which they have been assigned.

The FCC also refused to make any adjustment in the amount of the fine, given that the licensee had admitted public file deficiencies in its last license renewal application. Given a previous history of noncompliance, the FCC was not willing to adjust the fine. With the upcoming license renewal cycle, licensees who have previous problems with FCC compliance should be particularly attuned to this admonition - as the FCC seems unwilling to show any leniency to repeat offenders (see our summary of another recent case where the FCC actually adjusted a fine upwards from the amount suggested in the FCC's schedule of base fines, based on a 13 year old violation for a similar offense).

Tags: FCC Fines, FCC inspection, calculation of FCC fines, public inspection file, quarterly issues programs lists

Posted on November 3, 2010 by David Oxenford

$25,000 Fine for Station in an LMA Not Having Staff and a Public File at the Main Studio

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.

Tags: FCC Fines, LMA, local marketing agreement, main studio staffing requirements, public inspection file, required station employees

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.]

Tags: ABIP, EAS receivers, Emergency Communications, FCC Fines, Tower Issues, alternate broadcast inspection program, public file, public inspection file, tower fencing requirements

Posted on October 24, 2010 by David Oxenford

Top Ten Legal Issues to Keep Broadcasters Awake At Night - Presentations to Connecticut and Kansas Broadcasters Associations

So what Washington issues should be keeping broadcasters up at night? At the Connecticut Broadcasters Association Annual Convention in Hartford on October 14, and the Kansas Association of Broadcasters Annual Convention in Wichita on October 18, I presented my Top 10 list of issues for broadcasters – dealing with issues both practical and policy-based. The PowerPoint presentation from Connecticut is available here, and that from Kansas is available here. At these sessions, we discussed a variety of legal issues of importance to the industry, including the need for broadcasters to consider the upcoming license renewal cycle. As we wrote a few weeks ago, that cycle begins with stations in Virginia, Maryland, DC and West Virginia in June 2011, and will continue across the country for the next few years, with radio stations in Kansas filing renewals in February 2013, and radio stations in Connecticut filing on December 1, 2013. Television stations in each state will have applications due a year later. To be sure that stations are prepared for the renewal, they should be checking their public inspection files to make sure that they are complete, and should be preparing quarterly programs-issues lists detailing the programming that they broadcast to serve the public interest. A copy of Davis Wright Tremaine’s most recent advisory on the Quarterly issues programs list is available here. The most recent Quarterly Programs Issues List should have, by October 10, have been placed in the public files of all stations around the country, covering issue-responsive programming that was broadcast in the last quarter. The DWT Advisory covering all of the other materials that should be in the public inspection file, and the retention period for that content, is availablehere.

We also discussed compliance with the FCC’s EEO rules, and how important such compliance is – and how each station’s EEO performance will be evaluated at license renewal time or if the station is randomly audited in the FCC’s EEO random audit process. We wrote about some of the complaints of certain public interest organizations about how they felt that the FCC had not been aggressive enough in EEO enforcement, here. With the scrutiny given to this issue, broadcasters should be observing their obligations carefully. DWT’s advisory on EEO compliance is available here, and our most recent reminder on the annual public inspection file reports for broadcasters is available here. A PowerPoint presentation from a seminar that I just completed for the Washington and Oregon Broadcasters Associations will be posted on our blog shortly, which will highlight some of these EEO obligations.

Many other issues, from the performance royalty to spectrum battles, to the kinds of day-to-day enforcement issues that can lead to fines are also covered in the PowerPoints, and more information on many of these issues can be found in the pages of this blog. Look to the Topic headings to the right of this article, and click on the relevant to topic to see some of the recent issues that we have identified in connection with those matters.

At the Connecticut Broadcasters meeting, I also conducted a seminar on Digital Issues for Broadcasters. The PowerPoint for that seminar, along with links to other related material, can be found in our recent article on a similar presentation that I did for 11 state broadcast associations, available here.

Tags: Connecticut Broadcasters Association, FCC EEO enforcement, General FCC, Kansas Association of broadcasters, issues for broadcasters, license renewal, public inspection file, quarterly programs issues lists

Posted on August 24, 2010 by David Oxenford

FCC License Renewal Application Cycle Begins in Less Than A Year - What Stations Should Be Doing to Get Ready

Are you ready to file your next license renewal application? It seems like the last license renewal cycle just ended (in fact, the last cycle is not over, as evidenced by the fact that the FCC in the last week has released several decisions dealing with late-filed renewals from the last cycle, and many TV stations still have license renewals that have not been granted due to pending indecency issues). Nevertheless, a whole new cycle of Form 303 license renewal applications will soon be upon us - beginning in less than a year. The cycle begins with radio stations in Virginia, West Virginia, Maryland and the District of Columbia, who are due to file their license renewal applications on June 1, 2011. Then, every two months thereafter, stations in another group of states files applications, until April 1, 2014 when radio stations in Pennsylvania and Delaware bring the radio renewal cycle to a close. Television station renewal applications will be due on a state-by-state basis beginning one year later - starting with TVs in DC and the same three states in 2012. A schedule for the radio renewal filings is available here. With these deadlines almost upon us, what should stations be doing now to get ready?

In the last renewal cycle, the biggest source of problems dealt with public file issues. Remember, stations need to certify in their renewal applications that their public file is complete and accurate and, if it is not, to specify areas where there are deficiencies. In the last cycle, many stations in particular had issues with Quarterly Programs Issues Lists that were missing from the files, in many cases incurring fines of $10,000 or more where there were many such reports missing from the files. These reports are also very important, as they are the only required official records to demonstrate the programming that a station broadcast to serve the public interest needs of its service area. If that service is ever challenged, you will need the reports to demonstrate how your station's programming met the needs and interests of your city of license and the surrounding area. Check out our last advisory on the Quarterly Programs Issues Lists, here.

Mandatory EEO filings are another source of documentation that can cause issues for stations. Stations should have their EEO Annual Public File Reports in their public inspection file for every year of this renewal term, and should have their most recent Annual Report posted on their website (if they have a site). For television stations with 5 or more employees, and for radio employment units with more than 10 employees, you should have also filed a Form 397 Mid-Term EEO Report with the FCC at the mid-point of your license term (all but TV stations in the last few renewal windows should have already filed that report). Details of your EEO obligations (including the slides from a recent presentation summarizing the EEO rules), and links to various EEO advisories that our firm has published, are available here.

Recent FCC Form 323 ownership reports should also be in the public file. Our reminder on the ownership reports that all commercial stations should have filed at the beginning of July can be found here. Noncommercial stations need to remain alert to their mandatory biennial reports, which are due every two years, computed from the date on which your state's license renewal application should have been filed.

There are other issues that come up in connection with the broadcast public inspection file. For our Davis Wright Tremaine advisory on the Basics of the Public Inspection file for Commercial Broadcasters, setting out all of the documents that are required for inclusion in the public file, you can go here.

Now is the time for stations to review other compliance issues. RF radiation issues are considered at renewal time so, especially if there have been changes at your transmitter site since the last renewal, check to be sure that you are in compliance with all limits there.

Check your licenses to make sure that all of your operating facilities are authorized. Make sure that stations have licenses for all STLs, remote pick-ups and other auxiliary facilities, and that (especially if there has been a recent sale of your station) all such licenses are now listed in the current licensee's name. Make sure that the FCC has the correct mailing address for your station on file, so that any notices go to the correct place.

Also remember that, for the first time this year, the license renewal application is supposed to have a certification that stations are not discriminating in the sale of advertising time. We have written about this requirement before (see our posts here and here). This requirement is one on which the FCC has never provided much guidance. The Commission has said that station advertising contracts should have certifications that state that advertisers are not making their buying decisions for discriminatory purposes, an example of such a certification we provided here. But consult with your attorneys to make sure that you are ready for this new license renewal question.

This is a good time for stations to make sure that their operations are in good order in all respects. Correct issues that might exist, so that you don't need to scramble to do so when the license renewal is due. And make sure that your stations are serving their communities, and doing their best to address any criticisms that may be coming their way from their listeners. At renewal time, you want friends who will verify how well your station serves your community, not enemies who may be ready to complain to the FCC about your performance. Stations should obviously be doing this at all times but, with the renewal season soon to be upon us, be sure that these efforts are not put in the "to do" pile, but are instead action items for immediate attention. Your license renewal application will be due sooner than you think, no matter whether your station is in Virginia and filing next year, or in Pennsylvania where that four year delay can pass very quickly. Be ready.

Tags: EEO Compliance/Diversity, EEO mid term report, EEO public file report, FCC, FCC Form 397 Mid-Term EEO Report, Form 303, Form 323, General FCC, License Renewal, Public Interest Obligations/Localism, RF radiation, advertising discrimination, ownership report, public inspection file, quarterly issues programs lists

Posted on May 9, 2010 by David Oxenford

Class A TV Stations Need to Remember They Are Subject to Full-Power Rules - Fines for Kids TV and Main Studio Violations

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.

In two other cases, the FCC found Class A stations to be in violation of the Children's television rules. In one case, a group of Class A stations were initially fined $20,000 each because of their failure to file Children's Television Reports for the stations for several years, and because they failed to publicize the location of the location for public inspection of their children's television programming reports. Because these stations were financially unsuccessful, demonstrated through the filing of tax returns that showed that the stations could not pay any fine, the FCC dropped the fines entirely because of the licensee's demonstrated inability to pay. Otherwise, the steep fines would have been levied. In another case where the stations did not prove financial hardship, the failure to have a complete public inspection file, the late filing of two years worth of Children's Program Reports, and the failure to publicize the location of the children's television reports will cost the licensee $9600.

These cases remind Class A licensees to remember their obligations as primary stations. Pay attention - or fines may be coming your way.

Tags: Children's Programming and Advertising, Class A LPTV, FCC Fines, Low Power Television/Class A TV, children's programming reports, childrens television obligations, class A TV, main studio staffing requirements, public inspection file

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.

Tags: ABIP, FCC Fines, FCC inspection of broadcast stations, alternate broadcast inspection program, documents required to be in broadcast public file, public inspection file

Posted on March 28, 2010 by David Oxenford

Checklist for Commercial Broadcasters Public Inspection File - With License Renewals a Year Away, Make Sure that Your File is Complete

Incomplete public inspection files were the largest source of fines during the last license renewal cycle. We wrote last week about two noncommercial broadcasters whose renewal applications filed many years ago have just now led to consent decrees and voluntary contributions to the US treasury in lieu of fines. To help commercial broadcasters avoid these issues, we have prepared a Guide to the Basics of Public Inspection File Obligations for Commercial Radio and Television Broadcasters, discussing the rules that need to be followed with respect to the availability of the file to the public, its required contents, and the time period for the retention of documents kept in the file. The Guide also has links to some of our other advisories that deal in more detail with the obligations to keep specific types of documents in the file - including political broadcasting documents, quarterly issues programs lists, EEO reports and children's television reports. Read the guide, available here, review your operations and be prepared for the next renewal cycle.

Tags: FCC Fines, FCC document retention, General FCC, how long do broadcasters need to keep documents in public file, license renewal, public inspection file, radio law, television law, what documents need to be in a broadcasters public file

Posted on March 24, 2010 by David Oxenford

Fines For Public Inspection File Issues - Noncommercial Broadcasters Enter into Consent Decrees to Resolve Rule Violations

In two consent decrees released last week, the FCC's Enforcement Bureau agreed to significant "voluntary contributions" to the US Treasury to settle noncompliance issues reported in license renewal applications filed by noncommercial radio stations. Both stations had voluntarily reported public inspection file issues in their license renewals. One admitted to having no issues programs lists in its public file and having filed no biennial ownership reports for the license renewal period. The other admitted that it was missing several years worth of quarterly issues programs lists. In the first case, the FCC agreed to a $10,000 contribution in lieu of a fine (see the agreement here), in the other case a $1700 contribution (which was less than might normally be the case, as it was reduced by a financial hardship showing - see the order here and the agreement with the FCC here). These cases demonstrate the significance that the FCC places on public file issues - the biggest source of fines in the last license renewal cycle. With a new license renewal cycle beginning in June 2011, now is the time for all broadcasters - commercial and noncommercial - to make sure that they are ready for the beginning of this cycle by clearing up any outstanding regulatory issues.

The fines also once again demonstrate that the Commission no longer treats noncommercial broadcasters differently than commercial broadcasters - fining noncommercial stations for violations just as it does their commercial brethren (see a previous post on this subject, here). In these cases, the use of Consent Decrees also demonstrate the problems that issues arising at renewal time can cause. If a station's license renewal reports a problem, such as an incomplete public file, the application is pulled out of the routine processing pile for further scrutiny. Such scrutiny can often take a year, and sometimes several years, to resolve. While the renewal application is in this state of limbo, a sale of the station will not be approved, and sometimes other regulatory actions can be held up (in fact, in one of these cases, a transfer of control of the licensee company was delayed while this issue was being resolved). Thus, to avoid these lengthy delays, stations often decide to pursue the consent decree route to try to resolve the issue more quickly than would be the case if the application were just left with the FCC to run its course.

The Consent Decree route can speed the processing, but the process has its own costs. There is not only the cost of negotiating the agreement and making the voluntary contribution (which is usually about the same amount as a fine would be for the same offense), but the licensee typically must also agree to a compliance program to ensure that the violation does not occur again. Such a program often has the licensee making promises to routinely report to officers of the licensee and the station's outside counsel to make sure that the routine FCC obligations are being met. Come the next renewal time, not only does this confession invite scrutiny of the offense that originally got the station into trouble, but the promises made in the compliance plan can themselves be the subject of scrutiny, and perhaps even provide an independent basis for a fine should the plan not be followed.

And don't even think of not reporting in your license renewal application those violations in your public file that you may discover, as the failure to report a violation can cause its own problems - turning a mere rule violation into a misrepresentation issue (see our post here)

Obviously, each of these steps can have costs attached to them. So make sure that you don't have these problems to begin with - review your operations now to make sure that there are no significant problems to report when your renewal application is filed.

Tags: FCC Fines, FCC consent decree, Noncommercial Broadcasting, biennial ownership report, fines for noncommercial radio, fines reduced for financial hardship, license renewal, public inspection file, quarterly issues programs lists

Posted on February 1, 2010 by David Oxenford

$8000 FCC Fine for Noncommercial Station Not Making Public Inspection File Available Upon Request

In a decision just released, the FCC fined a noncommercial FM station $8000 for failing to make its public inspection file available when it was requested. The FCC made clear that past cases where a noncommercial station was given only an admonition for similar violations were no longer good law, finding that the public file was an important part of the station's obligations to the public and the failure to make it available was a serious violation. This case should serve as a warning to all stations, commercial and noncommercial, that they need to have people at the station at all times who know where the public file is located, and that all visitors who request access to the file need to be given such access.

This case was perhaps a bit more egregious than most, as the visitor who requested access to the fine was known to the station, as the person was employed by a college that had tried unsuccessfully to buy the station. After its request to purchase the station was turned down, the prospective buyer had allegedly filed a number of pleadings at the FCC trying to force the licensee to sell the station. When the person appeared at the station to request access to the public file, the person was first told to return another day. After protesting that was illegal, an official of the College which is the station licensee, arrived at the scene and told the visitor that he had to leave, and could only view the public file after having made a prior appointment with the college's attorney. When reached by phone, the attorney allegedly told the visitor to leave the premises or he would be arrested. Only when he returned another day, after being initially turned down yet again, was the visitor eventually able to persuade the station employees that refusal to give him access to the file was illegal. When he was finally able to gain access to the file, he stated that he found it to be incomplete.

Obviously, this kind of action should never occur at any station - commercial or noncommercial. The public file is to be made available to visitors immediately upon request. Thus, station employees need to be trained as to where the file is located, and know that anyone can review it, without harassment or questioning as to their motivation for doing so.

The case is also important in the language about the importance of the public file. Most broadcasters would probably say that it is exceedingly rare that anyone ever visits the public file, and when someone does, it is usually either a student in a local broadcast journalism program making the inspection as a class project or it is someone who is not looking for information about the station, but instead already has formed an opinion about station operations and is looking for a "gotcha" - finding a shortcoming that can be reported to the FCC in an attempt to seek some sort of sanctions. Many have complained that the burden of maintaining the public file far outweighs the minimal benefit that those few legitimate visitors to a station may derive from its maintenance.

Because of these perceptions, some have suggested that the public file obligations be reduced or eliminated. However, in recent years, the FCC seems to be moving in the opposite direction, making the requirements more stringent. See, for example, the requirements of FCC Form 355 which has been adopted but not yet become effective for television broadcasters. This case seems to indicate that the Commission is not backing away from its enforcement of public file rules, so broadcasters need to take their obligations seriously.

Tags: FCC Fines, FCC public inspection file, NCE station, Noncommercial Broadcasting, access to public file, public inspection file, public interest obligation, public service obligations

Posted on January 28, 2010 by David Oxenford

Tim Tebow's Super Bowl Ad - Any Real FCC Legal Controversy Here?

Reading the trade press and the blogs, one would think that the Tim Tebow ad that will reportedly air during the Super Bowl presented novel, controversial legal issues. In fact, while we haven't seen the ad, from what we've read, there do not seem to be significant legal issues - most particularly ones that arise from an FCC perspective. The word is that this ad is pro-life, telling his mother's story of why she decided to have her child after a medical recommendation that she not, and how that child grew up to be a famous quarterback. Where are the FCC legal issues? Even were this ad to explicitly address a "controversial issue of public importance", like the abortion debate, and even were stations running the ad not willing to take ads from pro-choice groups (and there is no indication that this sort of rejection of opposing viewpoints has occurred), as the debates earlier this year on the airwaves and over cable channels made clear, there is no longer any Fairness Doctrine enforced by the FCC. Thus, there is no FCC requirement for stations having to give equal time to competing sides of any particular issue (even when the Fairness Doctrine existed, there was never an obligation for strict equal time - a broadcast station just needed to, in some manner, present both sides of an issue).

At most, were the ad to advocate some specific Federal action, there might trigger an FCC obligation for stations that carry the ad to place a note in their public file about the ad and the amount paid to run it (see our post here), but otherwise the issue seems to be a tempest in a teapot. Since the abolition of the Fairness Doctrine, broadcasters have been assumed to be able to exercise their own editorial discretion to decide what serves their audience and what doesn't. In the vast majority of cases, no one bats an eye. But combine celebrity, the Super Bowl and a reference to a political hot-button issue, and you have a media controversy - even though there is no legal one. So, unless the ad has some content that no one seems to be contemplating, the folks at the FCC should be able to relax and simply watch the game (assuming no clothing malfunctions or similar unexpected events - which we will leave to another post on another day...)

Tags: Fairness Doctrine, Programming Regulations, Tim Tebow Super Bowl Ad, advertising law, political file, public inspection file, return of the fairness doctrine, television law

Posted on September 9, 2009 by David Oxenford

FCC Inspections - Fines for Violations of Rules on Main Studio, EAS, and Public File

Last week, the FCC issued several fines to broadcasters for failure to observe some basic FCC rules. As there many FCC rules to observe, broadcasters should use the misfortune of others who have suffered from these fines as a way to check their own operations to make sure that they meet all of the required Commission standards. In the recent cases, fines were issued for a variety of violations, including the failure to have a manned main studio, the failure to have a working EAS system, incomplete public files, operations of an AM station at night with daytime power, and the failure to have a locked fence around an AM tower. This post deals with the issues discovered at the studios of stations - a separate post will deal with the issues at the transmitter sites.

The main studio rule violation was a case that, while seemingly obvious, also should remind broadcasters of their obligations under the requirement that a station have a manned main studio. In this case, when the FCC inspectors arrived at the station's main studio, they found it locked and abandoned. Once they were able to locate a station representative to let them into the studio, they found that there was some equipment in the facility, but it was not hooked up, nor was there any telephone or data line that would permit the station to be controlled from the site. The Commission's main studio rules require that there be at least two station employees for whom the studio is their principal place of business (I like to think of it as the place where these employees have their desks with the pictures of their kids or their dog, as the case may be, and where they show up in the morning to drink their morning cup of coffee before heading out to do sales, news or whatever their job may be). At least one of the two employees who report to the studio as their principal place of business must be a management level employee, and at least one of those employees must be present during all normal business hours. Thus, the studio should never be devoid of human life. The studio must be able to originate programming, and the station must be able to be controlled from that location so that the employees there could originate programming in the event of a local emergency. In light of these violations and others, the station in this case was fined $8000.

Another problem identified identified in another case was the lack of a functioning EAS receiver. The FCC has this week been emphasizing the importance of emergency communications, and one of the principal means of that communication (and, as we wrote here, of demonstrating service to the public in the context of all sorts of FCC proceedings) is the EAS system by which state, local or national officials can communicate with the public in the event of an emergency. In most states, the EAS system currently works as a daisy chain, with a series of stations monitoring other stations to pass the emergency message down the chain. All stations are supposed to monitor both a primary and secondary station, so that if they don't get the message from one station, they will get it from the other. In one of the recent FCC cases, FCC inspectors found that the station had not logged the receipt of any emergency alert system test from either of the stations that the inspected station was supposed to be monitoring and, after being told of the problem, the station still could not receive a test when one was conducted several days later. I have heard from some FCC inspectors, that this is not an infrequent problem, as the EAS units can be installed improperly, can be damaged by power surges or other problems, or can simply have their receive antennas knocked off the back of the unit when inadvertently jarred. As a station's Chief Operator is supposed to be signing off on a station's "Station Log" weekly, and the principal thing that is supposed to be recorded in the log is EAS tests (as well as any other technical issue at the station), if the Chief Operator does not notice that the regular EAS test has not been logged, someone is not doing their job. The log should make someone notice, and problems should be rectified at once.

Another issue turned up by these inspections was with the FCC public file. In the same case where the EAS issues were discovered, the FCC inspectors discovered that there were missing Quarterly Programs Issues lists in the station's public file. We've written before about how the failure to have these lists in a public file can lead to fines at license renewal time (probably the most frequent source of license renewal fines), but it can also lead to a fine if the FCC inspector comes knocking. Our Davis Wright Tremaine Advisory on the Quarterly Programs Issues List (the most recent edition is here, though a new one for October reports should be out very soon), talks about how important these lists are, and provides information on how to complete them. Check it out, and make sure that your station is in compliance.

Given the variety of issues that can arise during an FCC inspection, and the potential for fines in connection with any violation, stations should review their operations now to avoid issues later.

Tags: EAS, EAS receivers, EAS rules, EAS test, Emergency Communications, FCC Fines, FCC inspection, Tower Issues, chief operator, emergency alert system, main studio rules, manned main studio, public inspection file, quarterly issues programs lists, station log

Posted on August 1, 2009 by David Oxenford

David Oxenford Discusses Legal Issues at the Christian Music Broadcasters Momentum '09 Conference

On September 10, 2009, David Oxenford addressed the Christian Music Broadcasters' Momentum '09 Conference in Orlando, Florida. Dave' s presentation was titled 18 Issues in 18 Minutes: What a Broadcaster Should Worry About From Washington DC. In 18 minutes, Dave discussed topics including the FCC's proposed localism rules, sponsorship identification and noncommercial underwriting issues, contest fines, FCC technical operating and public file rules , FCC EEO obligations, and copyright issues including streaming fees and the proposed broadcast performance royalty. The 18 minute presentation to a general session of the conference was followed by a one-hour "Digging Deeper" session where conference participants asked for more details on many of these issues.

A copy of Dave's PowerPoint presentation used for the 18 minute session can be found here.

Tags: 09", Appearances, christian music broadcasters, localism, momentum , noncommercial, public inspection file, quarterly issues programs lists, streaming music fees, streaming royalties, underwriting announcement

Posted on April 30, 2009 by David Oxenford

FCC Gives No Special Consideration to Noncommercial Broadcasters Who Violate the Rules - Colleges Pay Attention to Your Radio Station!

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.

Tags: FCC Fines, FCC licensee responsibility, Noncommercial Broadcasting, college radio, college radio fines, educational radio, license renewal, noncommercial radio fines, nonprofit radio, nonprofit radio fines, public inspection file

Posted on May 15, 2008 by David Oxenford

Broadcasters and the Regulatory Pendulum - Swinging Toward More Regulation

In recent months, the broadcast industry has experienced one of the most active periods of regulatory activity in recent memory. Since November, the FCC has adopted enhanced disclosure obligations concerning the public interest programming of television broadcasters and requirements for an on-line public inspection file; rejected most calls for increased deregulation of broadcast ownership (allowing only the cross-ownership of broadcast stations and newspapers in the largest markets); established specific prohibitions against advertising practices that involved “no Spanish, no urban dictates”; placed mandatory disclosure obligations on television broadcasters in connection with promotion of the DTV transition; proposed rules that could favor low power FM stations over improvements in full-power broadcast services and existing FM translator licensees; and proposed sweeping regulation of broadcasters which could potentially require specific amounts of nonentertainment programming by all stations, restrict the flexibility of broadcasters' location of their main studios, require 24-7 live staffing for all stations that operate on that basis, and perhaps even evaluate the music selection process of radio operators. Rumored to be in the offing are proposals to regulate embedded advertising, to adopt enhanced rules on sponsorship identification in connection with video news releases and payola-like practices, and perhaps even expand EEO reporting requirements (as the FCC recently asked for public comment on the employee-classification information for its long-suspended requirements for the filing of FCC Form 395 – the Annual Employment Report in which stations categorize all their employees by their employment duties, race and gender). And Congress has not been idle, with proposals introduced for the adoption of a performance royalty on over-the-air radio for the use of sound recordings, hearings about potential restrictions on prescription drug advertising, and a proposal to roll back the limited ownership reform adopted by the Commission in December.

With all this activity in a six month period under a Republican administration with a Republican majority on the FCC, during a time of great turmoil in the broadcast industry itself, as television prepares for the digital transition and broadcast revenue growth is slow or nonexistent (based on a variety of factors including general economic conditions and competition from the plethora of new media choices), many broadcasters are wondering what’s going on? And some fear even more changes could come about in any new administration that may come to Washington after the November elections, no matter what the result of that election. The one candidate with the most experience in the regulation of broadcasting, Senator McCain who has chaired the Senate Commerce Committee which regulates the broadcast industry, has by no means been a captive of the broadcast industry – leading efforts to enhance the use of LPFM and at one point pushing a spectrum tax proposal for television broadcasters for the use of the digital spectrum.

So what is going on? There was an interesting article in the Wall Street Journal several weeks ago discussing the cyclical nature of government regulation. While the article focused on the financial industry and the calls for re-regulation in light of the subprime mortgage problems, the thesis of the story is equally applicable to the broadcast industry. After almost 25 years of gradual deregulation by the FCC under both Republican and Democratic administrations, where the general consensus was that the less government regulation was better and more reliance on marketplace forces would insure service to the public, the regulatory pendulum has swung back with a vengeance in broadcasting, paralleling moves in almost every industry toward a more aggressive role of the Federal government. Proposals for regulation of broadcasting are simply falling into line with proposals for greater regulation of financial institutions and mortgage companies, airlines, consumer product safety matters, and environmental regulation, just to name a few.

Soon after I graduated law school and started representing broadcasters in 1980, the FCC began the deregulatory progression. Many of the issues that I dealt with in the first few years of my legal practice disappeared – ascertainment, quantitative program obligations, the regulatory “underbrush” (regulations governing many very specific advertising and operational practices of broadcast stations – from restrictions on horse racing ads to FCC enforcement of fraudulent billing practices of some radio stations and even the regulation of whether a station used accurate coverage maps in its promotional materials). At that point in my career, a senior lawyer told me that this was all part of a regulatory cycle that swung from more regulation to less than back again. While I was skeptical at that time, it appears that these statements are now, some 25 years later, being borne out. So, for what little comfort this may provide, the cycle will no doubt at some point run its course and the pendulum will begin to swing back in a more deregulatory direction at some point in the future. Let’s hope that this point is not too far in the future and, during this more regulatory phase, the regulators take the reality of the business into account, and don’t take actions that could, during this time of increasing turmoil in the business, jeopardize the robust over-the-air broadcast business that we have enjoyed for so long .

Tags: Advertising Issues, Digital Television, EEO Compliance/Diversity, EEO regulation, FM Translators and LPFM, Form 395, General FCC, Multiple Ownership Rules, Programming Regulations, Public Interest Obligations/Localism, broadcast regulation, enhanced disclosure, main studio, marketplace regulation, media business, media competition, public inspection file, public interest, reregulation

Posted on July 27, 2007 by David Oxenford

Big Fines for Public File Violation that Escalated

The FCC released an order today, fining a broadcaster $20,000 for misrepresentations made in its license renewal application about the completeness of its public inspection file. The fine issued in this case was not a fine for the fact that the file was incomplete (two stations in the cluster had each already been fined $4000 for the actual public file violations), but instead the fine was issued because the licensee had certified in its renewal application that the public file had been complete and accurate at all points during the course of the license term. This case highlights both the need to keep an accurate public inspection file, and the need to carefully consider all certifications made in FCC applications. Incorrect certifications can lead to fines and potentially even more severe sanctions if the FCC finds an intentional misrepresentation or lack of candor - the potential loss of a license. Admitting a minor paperwork transgression like an incomplete public file will result in a fine - an inaccurate certification which appears to try to hide a problem can lead to far more severe consequences.

In this case, the FCC found that the licensee had not maintained Quarterly Issues Programs lists. The licensee claimed that its obligations had been met through a listing of public service announcements that the stations had put in their files. The FCC rejected that argument, citing the requirement in its rules requiring that Quarterly Issues Programs lists contain "a narrative description of what issues were given substantial treatment" by the licensee as well as the programs that treated each issue. In addition, the time and date of broadcast of each program, as well as its title and duration, is to be provided. A simple list of PSAs does not meet these requirements - as it does not list the issues addressed, much less provide the detailed program information required by the rule. For a summary of the Quarterly Issues Programs list obligations, and a model form to be used to meet the obligations, see our most recent memo on the subject, here. Remember, the Quarterly Issues Programs Lists are a broadcast station's only official record of how they have served the public interest needs of its community, so be sure that adequate attention is paid to the completion of these forms.

Perhaps more troubling in this case was the fact that the licensee, despite having twice been fined for public file violations during the course of the license term (and having paid the fines, essentially admitting the violations), nevertheless went ahead and certified that the public file had been complete at all times during the course of the renewal term. While the licensee tried to justify its answer based on the belief that the PSAs covered the requirement, the fact that it had already paid fines on this issue seems to point to the fact that the licensee was simply sloppy in filing out the license renewal, not paying attention to the certifications in the renewal and their actual meaning.

Similar inaccurate public inspection file certifications have previously caused broadcasters to be fined and, in the case of one California noncommercial station, the designation for hearing of a license renewal application to determine if the station's license should be revoked. Once again, it is important to emphasize that the underlying misconduct, if admitted by the licensee, would have at most cost the licensee a fine of a few thousand dollars (and, in this case, as fines were already paid, quite possibly nothing more). But the inaccurate certification, in and of itself, is one of the most serious offenses in the FCC's jurisdiction. On any FCC application, it is much better to admit a violation and take whatever penalty may follow than to try to hide or obscure the violation.

This case serves as a warning to all broadcasters - honestly is the best policy, and care in completing FCC forms to avoid any appearance of dishonestly is essential.

Tags: FCC Fines, FCC certifications, FCC lack of candor, FCC misrepresentations, Public Interest Obligations/Localism, Quarterly Issues Programs List, broadcast community service, broadcaster files, license renewal, public inspection file, public interest

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