As we’re approaching the anniversary of September 11, it may be appropriate that the FCC issued an order on Friday upholding a fine imposed on a radio station that did not have an operating EAS system. The station, while it had a system in place that was capable of transmitting the required EAS tones, had not received any EAS alerts for about a year, and had not entered any reasons for that failure in its station log at any time during the period. The FCC initially issued an $8000 fine, but reduced the fine to $6400 based on a showing that the station did not have any history of past violations. However, even though the station was operating at reduced power for a significant period of time due to towers damaged by a storm, the FCC refused to reduce the fine further based on financial hardship as the fine did not exceed 2% of the station’s average gross revenue during the previous three years.
The FCC will reduce fines for a variety of reasons – the most common being the past good record of the station. In most cases, as here, a showing that the station has not previously been fined will be sufficient to demonstrate the past compliance of the station and justify some reduction in the amount of the fine. Stations also often plead that they cannot afford to pay a fine. The 2% of gross revenue standard announced by the Commission in this case seems to set the threshold at which the Commission will consider that plea. To prove that a reduction of a fine is in order, according to this case, a station needs to submit financial statements showing the past three years performance, and demonstrating that the proposed fine will exceed 2% of the station’s average gross revenues.
The case also reminds stations to conduct the required tests of the EAS system, and to be sure to check their EAS equipment to make sure it has noted the receipt of the monthly EAS test that it is supposed to receive from the primary EAS stations that it is supposed to be monitoring. If no test has been received in a month, an investigation should be conducted as to why the test was not received, and notations to that effect placed in the station log. The FCC noted in this case that, had the station been checking for the required monthly tests, it would have noted the problems with its equipment long before the FCC inspection. As EAS violations are consistently listed as among the most common violations by broadcast stations, the station’s Chief Operator, who should be regularly reviewing the log and otherwise ensuring the station’s technical compliance, should be reminded to check EAS test reception as one of his or her principal duties. It will save the station from having to pay the FCC should one of its inspectors be the one to discover the problem.