Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

In another case, a tower owner was fined $3750 for failing to have operating lights on a tower, and failing to notify the FAA that the lights were not working.  The fine was imposed even though the tower no longer had any communications antennas mounted on it, the tower was scheduled for demolition, and the owners were elderly and in poor health.  The FCC reminded tower owners that they must observe all lighting requirements even if no licensees were using the tower for as long as the tower is standing.  A $10,000 fine was proposed in another case for a North Carolina station that did not have operating tower lights, and did not have a system in place to monitor the lights.  In both cases, the FAA was apparently not notified immediately upon the tower lights failing.

These tower owners were not the only tower owners to get into trouble.  The Commission issued a Notice of Apparent Liability for $20,000 to another tower owner in Atlantic City NJ who had a tower that had faded paint, lights that were not operational, and an open gate in the fence surrounding the base of the tower.  The FCC inspected the tower several times, notified the owner of the issues, and was promised that the lights would be fixed by a given date.  But, upon revisiting the site well after the promised date, the lights were still out and the paint was still faded. Thus, the fine was upped from the $17,000 that would be suggested by the FCC's schedule of routine amounts for fines, to the announced amount of $20,000.  Obviously, if you make a promise to the FCC that you are going to fix a problem, keep it.

But keeping track of who owns a tower is also important, as a $3000 fine was proposed for a tower owner in California.  The FCC visited the tower, and contacted the owner listed in the FCC tower registration records (when registering, tower owners are given an Antenna Structure Registration of ASR number).  That owner told the Commission that the tower had been sold years before - with the Buyer apparently never bothering to update the tower registration at the FCC.  As we have warned before, the FCC tower registration is not automatically updated when the sale of a broadcast station is approved by the FCC.  A buyer must proactively go to the FCC and file a separate form to change the owner in the FCC tower registration database.  If you don't update the tower registration, and a problem arises at your site where the FCC needs to find the tower owner, you may be looking at a fine.

While operating your tower in compliance with the rules is important, so is operating at the right power.  Fines for overpower operations, especially on AM stations that have to switch power levels or directional patterns at sundown, seem common, including fines of $4000 in cases reported here and here.  Especially at this time of year, on Friday nights with high school football games going on after dark, and sundown coming earlier and earlier, stations may be inclined to cheat.  But if you get caught, you are looking at fines - and you have built in enforcers in competing stations who don't want you to get the competitive advantage of an overpower operation.

Moving a station without approval can also be costly - as shown by the case here.  The Commission is proposing a $22,000 fine for a station operating from a site not authorized in its license (even small moves require FCC approval), and not having an operating EAS system or a complete public file. 

This host of fines demonstrates that the FCC is very serious about the technical operations of broadcast stations.  Seemingly little issues can result in big fines - so pay attention to details and save yourself a few dollars. 

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. 

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.

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.]

One of these cases also imposed a fine on a station for the failure of its Studio Transmitter Link to be operating on its assigned frequency.  The licensee admitted having had the STL transmitter modified to operate on the new frequency, but apparently the licensee had not bothered to ask the FCC for permission to operate on that new frequency in the six months since the rebuild.  Like so many other little things, a station must follow the rules and file the correct papers to have the FCC approve the channel change ( or a site change, as we've written about before) for a broadcast auxiliary license.  We've written about some of the other little issues like this that stations need to make sure are accurate (like registering a tower, updating the tower registration, observing tower lights, remembering to renew earth station licenses, and similar issues).  Fail to observe them, and a fine could be coming your way.

Finally, another recurring issue discovered in one of these cases was the failure to have an enclosed and locked tower site.  We've written many times about cases where the FCC has fined stations with unlocked fences, fences that are partially knocked down, or ones with holes that could allow access under the fence.  Here, the station had fenced all of the towers in its multi-tower AM array, but did not have a lock on the fence surrounding one of the towers. 

The FCC is alert for violations - and particularly alert to problems at transmitter sites that affect a station's radiation pattern or present safety issues.  So check your operations - and make sure that your bases are covered to avoid a nasty financial surprise should the Commission inspector come knocking

In the second, the FCC let a $2400 fine stand against an AM broadcaster who had failed to register its 305 foot tower with the FCC .  Under the Commission's rules, a tower owner must register its tower with the Commission if the tower meets certain criteria set out in the FCC rules - generally when it exceeds 200 feet in height,  or if it is lower but within certain distances of the end of an airport runway.  The FCC had twice inspected the station involved in the case, two years apart, and the tower was not registered in either case.  While the licensee had made unsuccessful attempts to register the tower, these had failed because the tower had not been approved by the FAA, and the FCC faulted the licensee for not actively monitoring the status of the FAA application.

 These cases remind broadcasters of their obligations to maintain their towers and observe all FCC rules about these towers.  The FCC seemingly has zero tolerance for improperly maintained broadcast towers.