The FCC yesterday took what some may suggest is an unprecedented action to potentially deny the license renewal of an FM broadcast station that was silent for all but one day each year during its license renewal term. According to the Hearing Designation Order, the station operated one day each year to avoid forfeiting its license pursuant to Section 312(g) of the Communications Act (a provision we have written about here and here, which provides for the automatic cancellation of the license of a broadcast station that has been silent for more than one year). The order released yesterday points to a 20 year-old case as warning broadcasters that, if they do not operate for substantial portions of a license renewal term, they are in danger of losing their license. As the FCC points out, if the station is not operating, it cannot fulfill the obligation of a licensee to serve the public interest.
The hearing scheduled by the FCC will be a “hearing” in name only. As there are unlikely to be disputed facts, the FCC has adopted a simplified process of a paper hearing. The licensee of the station will need to submit all the records of station operations during the last renewal term, if such records exist (e.g. station logs, issues-programs lists, and EAS test reports), and a written statement of no more than 25 pages setting out why the license should be renewed. That evidence, along with any comments filed by any party that wants to intervene in the case, will be reviewed by the Commissioners themselves. No oral presentation will be made, and no administrative law judge will be involved in the review of the record compiled by this station. Hearings where the FCC proposed to revoke the license of a station have in the last four decades been held before an administrative law judge, usually with live witnesses. In commenting on this new procedure, Commissioner O’Rielly notes that cases before an administrative law judge can take years to resolve, and often end up being reviewed by the Commissioners themselves anyway, so this paper hearing before the Commission will be much more efficient.
This case is one of a line of cases that we have written about here and here, where the FCC has been developing law on what to do with stations that do not operate for substantial periods of time and seek a license renewal. As stated in the Hearing Designation Order, the FCC does not want to see spectrum “warehoused” for future uses. It wants spectrum to be put into use to serve the public as quickly as possible.
It was only in recent years that the FCC required that stations state, in their license renewal applications, whether they had been silent for any substantial period of time during the course of the license term. In a few cases in the last license renewal cycle, the FCC granted renewals where stations had substantial periods of silence, but had also operated at least some periods of time beyond just a day here and there to preserve the license. In some cases, those renewals were for a short term or contained conditions requiring that the operator report to the FCC about its continued operation. This case appears to be one that tested the limits of the FCC’s patience and, depending on the evidence shown, could result in the loss of a license. It should serve as a warning to any broadcaster forced to cease operations to get back on the air promptly, as the FCC’s tolerance of warehousing of spectrum seems to be short.