In a decision by the FCC’s Enforcement Bureau, the Commission issued a $1250 fine to a station that did not have its licensee’s Articles of Incorporation and By-Laws in its public file when a listener came to check the file. While the rules allow such documents to be left out of the file if there is a list of ownership-related documents in the file and the documents themselves are provided within 7 days of a request, here the licensee did not provide the missing documents for over a month of the request. After investigating the complaint from the person who had looked at the file, the Commission arrived at the $1250 fine. But there is another troubling aspect to this case, and that deals with the decisions references to the Alternate Broadcast Inspection Program ("ABIP").
The Alternate Broadcast Inspection Program is run by state broadcast associations, in cooperation with the FCC. These plans are meant to encourage broadcasters to voluntarily police themselves, by having private inspectors hire by the state associations, inspect their stations. If violations are found and corrected, the FCC will often be lenient or give the station a pass altogether (as in many reporting violations found in renewal applications). In addition, the FCC’s own inspectors are supposed to not single out a station that has had an ABIP inspection for a random FCC field inspection. Here, the station had participated in several ABIP inspections, and the inspector had not found the public file violation. Nevertheless, the Commission stated that a station is responsible for compliance with the FCC Rules, and it cannot delegate that responsibility to anyone else. So, even though the inspector had not seen the problem, the station was still liable. The ABIP program does not give a station immunity from an FCC action in response to a complaint, or from stepping in where there is a threat to safety or other immediate danger. Even though this action by the FCC, taken in response to a complaint, may not technically be prohibited from the terms of the alternate inspection program, one wonders if the Commission, in this circumstance, is not being a little harsh. The document missing from the public file was not one fundamental to station operations, or even to the mission of the FCC. The failure to have it in the file did not cause interference between broadcast stations, nor likely did it have any discernible impact on the content of the broadcasts from the station. Yes, its absence may have technically been against the FCC’s rules, but wouldn’t an admonition have gotten the message across just as well as a fine in this case, particularly where the participation in several ABIP inspections made clear that the licensee was operating in good faith – trying to comply with the FCC’s rules?
The alternate inspection programs should be encouraged by the FCC, as the FCC itself simply does not have the resources to visit most stations on any regular basis. The voluntary ABIP program is thus the best way for the FCC to ensure that stations are complying with the Commission’s rules. The Commission should be giving stations an incentive to participate in the program by showing some understanding to those stations that have voluntarily gone through the program and, in good faith, thought that they were operating in compliance with the rules. To dismiss the participation in the manner that was done in this case seems to provide the wrong motivation to stations with respect to these programs.
As to the violation itself, corporate entities are supposed to have their articles of incorporation in their files. Licensees are also supposed to have in their public file other documents reflecting any future ownership rights in the station (options, pledges, warrants, etc) and any documents that significantly restrict the actions of the licensee (e.g. many security agreements). All must either be in the file or otherwise listed in the file and available for inspection within a week. For more information about public inspection file obligations, see our Guide to the Basics of the Public File Rules for Commercial Broadcast Stations. Check it out to avoid issues like this one, and look for future clarifications on the ABIP issue as this case makes its way through the halls of the FCC.