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.