Posted on May 8, 2011 by David Oxenford

Tower Lights Out, High RF Radiation, Insufficient Transmitter Site Fences - FCC Fines Up to $14,000

Three recent FCC cases demonstrate how seriously the FCC views tower site issues - imposing fines up to $14,000 for various violations of FCC rules.  One $14,000 fine was in a case where an AM station's tower was enclosed by a fence that was falling down and did not enclose areas of high RF radiation as required by Section 73.49 of the rules.  The station also had a main studio that was unattended on two successive days, and had no one answering the phone on those days - no one to respond to the FCC's calls.  The FCC broke the fine down as $7000 due to the lack of fencing, and $7000 to the unattended main studio.

In the second case, the FCC, the FCC fined a station $10,000 for areas of high RF radiation that were not fenced or marked by signs when the FCC conducted its inspection, and $4000 for operating overpower.  The Commission measured the overpower operation on one day, inferred that it had been in place the previous day, and thus deemed the violation repeated.  The Commission found that the station's tower was fenced, but that there was high RF outside the fence, leading to the fine.  The third case was one where the Commission found that the top flashing beacon on a tower was out on two successive days, even though the required steady lit obstruction lights on the side of the tower were operational.  While the licensee notified the FAA of the outage three days later (with no noted prompting from the FCC), and had the situation corrected two days after notifying the FAA, the Commission also determined that the the violation was repeated and willful, leading to a $10,000 fine.

What do these cases tell broadcasters?  While they are only Notices of Apparent Liability, which can be contested by the licensees, they demonstrate the aggressive nature of FCC enforcement - particularly with regard to tower and safety issues.  The FCC Enforcement Bureau seems to take the position that any violation - if they find it occurring on more than one day, is a willful and repeated violation subject to fine.  Many broadcasters have recently argued that "willful and repeated should mean something more than a violation of the rule that goes on for more than one day.  So far, the FCC has rejected all of these arguments.  And, when dealing with safety issues, whether the FCC discovers them through a complaint, by happenstance, or by random inspection, the FCC is particularly aggressive.  And these types of violations are usually not covered by the alternate inspection programs conducted by state broadcast associations.  So broadcasters must themselves carefully monitor compliance with all transmitter site technical issues, especially those that could potentially affect health and safety, or face big fines from the FCC.
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Posted on March 14, 2011 by David Oxenford

FCC Clarifies Requirement for Antidiscrimination Clause in Advertising Contracts - And Sets Out Other License Renewal Changes

The FCC today released a Public Notice announcing new provisions in its license renewal Form 303S - the form that radio and television stations will be using to file license renewal applications, starting with license renewals for radio stations in DC, Virginia and West Virginia in June.  The Notice addressed several changes in the license renewal form - including the addition of certifications concerning whether a station was off the air at any point during the license term for a period of more than 30 days, whether principals of the licensee have interests in daily newspapers in the same area, and whether the station is in compliance with the RF radiation rules.  Two other issues of note were raised in the Public Notice - one dealing with stations that have not received a license renewal from the last license cycle, and one dealing with the newly required certification that stations must make - that their advertising contracts contain a nondiscrimination provision to assure that advertisers are not purchasing advertising on the station for a discriminatory purpose. 

We've written about the advertising anti-discrimination certification before, suggesting language that stations include in their contracts.  What is new in today's notice is that the FCC has clarified that the certification only covers the period from today's notice until the filing of the license renewal application.  So stations that do not have such certifications can still get them into their contracts now to avoid certification issues later.  In our previous articles on this subject, we've noted that this is a confusing requirement, and that even its supporters have urged the FCC to clarify it. Today's Notice only says that stations must avoid advertising purchases made on the basis of "no urban, no Spanish" dictates, but does not go any further in interpreting the requirements of this policy. 

The Public Notice also requires that stations that have license renewals pending from the last license renewal cycle file another application updating all their information from the time since their last renewal application was filed.  We had suggested that this would occur in our article reporting on the FCC's attempts to clear up some of the backlog of old renewal cases.  But this notice makes clear that broadcasters who have had their applications held up (for the most part due to indecency complaints), must file another license renewal application (which itself will presumably not be acted on while the indecency issue remains unresolved).

The RF certification is actually a reduction in paperwork, eliminating the need for stations that have had no change in the RF situation at their tower sites from having to provide any sort of exhibit explaining why no RF issue exists.  That exhibit will still be required if new antennas have been added at the station's tower site, changing the RF situation there.

The certification about whether a station has been off the air for 30 days arises as the FCC has suggested that a prolonged period of silence by a station could affect the FCC's determination of whether the station is operating in the public interest.  The newspaper certification is required as the rules preclude the FCC from granting any application for a license for an AM, FM or TV station if any attributable party owns an interest in a daily newspaper that serves substantially the same area (unless the FCC makes a public interest finding that such cross-ownership is acceptable).  Thus, the FCC will not grant an application to acquire a broadcast station if an owner has interests in a daily paper.  But the FCC has no jurisdiction over whether an existing licensee subsequently buys a daily newspaper.  The first chance that the FCC may have to deal with broadcast-newspaper cross-ownership created by the subsequent purchase of a daily newspaper may be in connection with the station's renewal application.

The FCC also notes that they will not be mailing any reminders to broadcasters about the need for the filing of the license renewal application.  At most, applicants will get an email reminder from the FCC. but only if their email address is current and on file at the FCC.  The FCC suggests that stations update this information now to avoid issues later.  There is a base fine of $4000 for a late-filed renewal. 

Renewal applications are fast approaching.  Read this public notice - and be ready!
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Posted on November 18, 2010 by David Oxenford

FCC Decisions Making the Life of a Tower Owner Easier - Easing Approval for Automatic Monitoring, and Making Clear that RF Radiation Standards Are Not Arbitrary

Operating a communications tower can always lead to issues, but two recent FCC decisions give tower owners some degree of relief. In one decision, the Commission’s Audio Services Division rejected a petition filed against the construction of new facilities for an AM station in Wasilla, Alaska – rejecting claims that the FCC’s RF radiation standards were not strict enough to protect local residents. In another case, the FCC determined that towers using an automatic system to monitor tower lighting – the “RMS system" – did not need to physically inspect the lights on the tower every quarter, as now required, but instead could do so annually, and set up an expedited system for approving tower owners who want to take advantage of this flexibility. 

The first case, dealing with RF radiation, may be dismissed by some as just a decision stating the obvious – that a station that complies with the FCC’s RF radiation standards should be allowed to be constructed. But it is not always so simple. We have had clients face situations in many areas around the country where local residents complained about a new broadcast facility – blaming it for everything from the failures of electronic equipment to the health problems of nearby residents. Various organizations have espoused theories that the FCC’s RF standards are insufficient to protect the public, and their theories are often publicized through the Internet. And sometimes, these complaints can be brought to local elected officials who, not wanting to anger local voters, try to make an issue out of what should be a fairly straightforward analysis.

The recent decision carefully sets out that the FCC’s RF standards are not some arbitrary standards adopted with no public or scientific justification. Instead, the standards were adopted, and later revised, based on scientific evidence provided by standard-setting organizations, and subject to public comment before they were adopted. As set forth in the decision, if there are parties who believe that there is data that suggests that that standards are wrong, they should petition the FCC to revise the standards, not try to apply some ad hoc standards to a specific broadcast station construction.

In the second decision, the FCC determined that certain systems that automatically monitor tower lighting are sufficiently reliable so as to do away with the need for a quarterly visual monitoring of every tower using these systems. We have written about previous waivers granted to particular tower operators based on similar technologies (though we have also written about an FCC decision that fined an owner when the monitoring system itself had failed). In this decision, the Commission stated that it would process expedited waivers of the monitoring requirements for towers using these systems if such waivers are filed at the Commission. These two decisions should make tower owner’s days just a little easier.
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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. 
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Posted on May 4, 2010 by David Oxenford

An Across-the-Board AM Power Increase to Overcome Electronic Interference?

A petition was recently filed at the FCC proposing to allow all AM stations to increase to 10 times their current power in order to overcome the effects of interference that has grown up in most urban areas from the operation of all sorts of electronic equipment, fluorescent lights and other devices that simply did not exist when AM power levels were first established.  The petition was drafted by an engineer, who argues that, as the amount of background noise from all sorts of electronic devices has increased, so has the noise on the AM band.   He believes that the only way to make the AM signal usable is to vastly increase power on all stations.  As the stations would maintain their relative power levels towards each other, he claims that there would not be increased interference between AM stations - but that the increased power levels would overcome the background noise.  However, because of AM skywave issues, the petition suggests that nighttime power levels remain at their current levels.

How realistic is this proposal?  The petition recognizes that, in border areas, the power increase could not happen without international coordination and the amendment of existing treaties.  But, given the proposed high power for AM stations and the cumulative effect that their signals can have on distant stations, this increase could seemingly affect international AM stations even if the US stations increasing power are far from the border.  However, the use of AM stations has been decreasing in some countries - in Canada, a number of AM stations have already ceased operating, so maybe the international implications could be overcome given enough time.

The proposal does pose other problems.  Already, many AM stations have difficult problems locating acceptable tower sites when their present sites are lost.  The potential for increased RF radiation concerns from AM stations with much higher power levels may well make power increases for many urban stations impractical even if this proposal were to be adopted.  And, if a station cannot increase power due to RF concerns, such a station may be subject to severely increased interference from stations that are able to increase power.

Any adoption might also have a negative impact on the FCC's consideration of the proposal to move all AM stations to an expanded FM band, taking advantage of TV channels 5 and 6, which have been vacated by full power TV operators in many parts of the country.  That proposal is already before the FCC as a way of dealing with many of the same issues that the petitioner identifies (see our post here).

There has obviously been a decrease in the listening to AM in many markets - with many AM stations going dark or selling for smaller and smaller prices.  Do AM operators think that this is a viable proposal, or are there other technical issues with the proposal?  Are there other ways for AM stations to overcome the interference posed by modern electrical devices.  Any thoughts on these questions from our readers?
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