Posted on October 10, 2009 by David Oxenford

STA Request Saves Broadcast Station License From Cancellation For Being Off the Air for A Full Year

Section 312(g) of the Communications Act authorizes the FCC to cancel the license of any broadcast station that has not operated for a full year.   In a recent case, the Commission clarified when it would choose to use that authority to cancel the license of a station that had not been on the air with authorized facilities within that one year period.  In this case, the FCC decided not to cancel the license of a station whose tower was destroyed, where the station came back on the air from the old site but with reduced facilities before the end of the one year period, even though the resumption of operations was initially conducted without FCC authority for the low power operation. The station did, however, ask for Special Temporary Authority to operate with these facilities, authority which was not granted until several weeks after the station had resumed operation.  As the station had requested the authority to resume operations, and had been candid with the FCC about its operations and intentions, the Commission did not cancel the license, but it did fine the station $7000 for operating with unauthorized facilities during the period before the STA was granted.

The decision distinguished the actions of the licensee here with that of the licensee in another case, about which we wrote here, where the FCC canceled the license of a station that was forced off the air at its licensed site, and came back on the air just before the end of the one year period from a totally new site where it had no FCC authority, and where it could not get FAA approval for operations.  The Commission stated that the element of deception in the earlier case, with the station coming on the air at a site where it could not get FCC approval as the FAA had refused its operations from the site, was the distinguishing factor which caused that station license to be canceled. 

Being straight with the FCC with is always the best policy.  The FCC is not anxious to cancel licenses, as they do not want listeners to lose service.  If a licensee can get a station that has been off the air for a significant period of time back into operation, the operator should be able to get the FCC to authorize the operation if the FCC is given sufficient time to process the request, either through a new construction permit or through an STA (especially if the service from the temporary area is inside the current station contour).  Take these steps, plan ahead, and avoid the potential loss of license or fine that may otherwise result.
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Posted on July 28, 2009 by David Oxenford

Broadcast Stations Going Dark - Issues to Think About

Each day, there seems to be a report about broadcast stations going off the air because of the current economic downturn - some permanently (witness several Montana full-power television stations formerly owned by Equity Broadcasting whose licenses were surrendered two weeks ago), some temporary, and some being given away to charity (like Clear Channel's announcement of its donation of 4 AM stations to the Minority Media and Telecommunications Council).  Several months ago, we wrote here about the steps a broadcaster should take when taking a station off the air - notification to the FCC within 10 days of the station going silent, seeking permission to remain silent after 30 days, and making sure that tower lights are maintained even if the station is off the air.  But, as this situation becomes more common, there are a couple of other issues that have recently come up that are worth mentioning - one having to do with the one year period that a station can stay off the air without forfeiting its license, and the other dealing with music royalties. 

First, in the last few months, there have been cases which have clarified, at least to a degree, the law that states that a license will be forfeit if a station is off the air for more than a year.  In one decision, the Commission's Video Division of its Media Bureau canceled the license of a television station that had come back on the air shortly before the year of silence was to end, but only broadcast a test pattern.  Finding that the station had not broadcast any programming, and that transmission of a test pattern did not constitute "broadcasting", the Division determined that the obligation to return to the air had not been met, and canceled the license.  The licensee is appealing this decision, arguing that the law (Section 312g of the Communications Act) does not require that a station broadcast programming, just that it "transmit broadcast signals" within a year of the time that it went off the air.  But, for now, licensees who take their stations silent should plan for returning to the air with some programming within a year, or risk the cancellation of the station license.

In another case, the FCC canceled the license of a station that had returned to operations in less than a year - but had operated from a site not authorized by the FCC.  The US Court of Appeals upheld that cancellation, finding that an operation from an unlicensed facility did not meet the obligation for a station to return to the air within one year.  Thus, stations who have lost transmitter sites, causing their silence, must first get some FCC approval, even if it is through a grant of Special Temporary Authority (an "STA") for their new operations, in order for those operations to count as meeting the obligation to return to the air within one year.

Another issue to consider when taking a station off the air is the issue of music royalties.  I've inquired of both ASCAP and BMI and been told that, as a silent station will be playing no music, it need not pay royalties.  But, station licensees need to notify the Performing Rights Organizations that their stations have gone silent, and the payment obligations will be suspended until the station returns to the air.  This advice was informal advice given by people at these companies, but you should check with ASCAP and BMI to confirm the practice yourself before relying on it.  But it is an issue to remember to address, as you don't want financial obligations accruing on a station that has ceased operations.

In today's economic climate, stations may be forced off the air for some time.  But, to avoid a total loss of the broadcast investment, remember to watch out for these issues.

 

 
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