A flurry of fines against broadcasters have come out of the FCC in the last week. These fines highlight the scrutiny under which owners of broadcast stations can find themselves should an FCC Field Office inspector knock on their door. If the FCC pays a visit and finds a violation, a station is often looking at a fine even if it quickly takes corrective action. Let’s look at some of these fines and the issues raised by each.
First, a Regional Director of the FCC’s Enforcement Bureau yesterday released a $17,000 Forfeiture Order (a notice of a fine) to a Michigan AM broadcaster for having a fence around its tower that had “separated” allowing unfettered access to the site and for missing quarterly issues programs lists in the public file. The FCC refused to lower the fine, despite the licensee’s arguments that the quarterly issues programs lists were in fact at the station but there was “confusion” as to where they were at the time of the inspection, and its argument that it should not be responsible for the fencing issue as it did not itself own the real estate or the towers.
On the question of tower fencing, the FCC said that the licensee of an AM station licensee is the party responsible for meeting the obligations in the FCC Rules (Section 73.49) that deals with the obligation to keep an AM stations antenna structure within an effective locked fence. This rule is part of the rules specifically applicable to AM stations, so the Commission determined in the decision that the responsibility for the maintenance of the fence was an obligation of the licensee, not of the site owner. There are other rules governing the operation of towers that are contained in a separate part of the rules, implying that there might have been some more leniency if the violation was under one of those sections of the rules (though the licensee still has secondary responsibility for rules in that section, like tower lighting rules, so it would not be totally absolved of responsibility, especially in connection with safety issues – see our article on a case where a licensee who leased tower space was fined for not fixing tower lights that were out, and not notifying the FAA, when the tower owner did not).
In connection with the public file issue, the decision said that the confusion makes no difference – the files were not available for inspection when the FCC visited the station, so the fine attaches even if that confusion was later cleared up. In many recent decisions, the FCC has made clear that post-inspection corrective actions don’t warrant any downward adjustment of a fine.
That same reasoning was applied in another case upholding a fine of $22,000 against a station for not having an operational EAS system and for having a transmitter that was operating from an unlicensed site – at coordinates different than its licensed site. Again, the FCC said that post-inspection remedies do not excuse the initial violation in the FCC’s eyes. A $3200 fine against a Catholic radio AM station for operating overpower was also upheld – rejecting arguments that the violation was not “willful” and that the corrective actions should mitigate the fine. The Commission said that not knowing the rules is no excuse (and therefore the violation was willful), and again reiterating that after-the-fact corrections merit no leniency for fines against a station.
There was also another public file case – involving a big fine for missing quarterly issues programs lists, which raised an issue that many broadcasters have raised with me from time to time in informal conversations. In that action last week, the FCC upheld cumulative fines of $25,000 to a licensee who had missing quarterly issues programs lists at 5 stations, rejecting arguments that it should not have been fined so severely because the public file no longer served any useful purpose as it was never visited by the public. While many broadcasters note that the public really does not seem to be interested in the public file, the FCC continues to consider it important, leading to the proposal for the online public file for radio now making its way through the FCC.
These fines all reiterate the need for broadcasters to take care to insure compliance with the FCC’s rules and the conditions of their licenses. We have suggested Alternate Broadcast Inspection Programs (“ABIP”) run by state broadcast associations many times (see our articles here and here), and will do so again here. The state broadcast associations, in cooperation with the FCC, hire private inspectors who visit stations and look for violations. If the station corrects those violations, there is no penalty to the broadcaster, and the FCC will not conduct a random inspection of the station for three years (targeted FCC inspections in response to a complaint or a safety violation are still allowed). Having one of these inspections done is like buying insurance – it keeps your station in working order and essentially buys immunity from penalties from random FCC inspections for most of the routine violations found in these inspections. They are something that all broadcasters should seriously consider.