The FCC has for decades prohibited the “premature construction” of broadcast stations – constructing new stations or new facilities for existing stations prior to the issuance of an FCC construction permit. In recent years, fines for such activities have been rare. But, last week, the FCC issued a Notice of Apparent Liability proposing to fine an LPFM station licensee $5000 for making changes in its station without prior FCC approval of its pending construction permit application. This decision highlights that broadcasters should not jump the gun in constructing a station or a modified facility until they have a construction permit in hand, even if they do not start broadcasting from the new facilities, as they could face FCC penalties for having done so.
This policy stems from a fear by the FCC that if broadcasters construct facilities before they are granted construction permits, the broadcasters can try to use that construction as evidence of a hardship that they would face should the FCC deny the construction permit application, making their expenditures worthless. Rather than simply rejecting such arguments, the FCC imposes a fine on broadcasters who take a risk in constructing their facilities before the FCC issues a construction permit. The Commission noted in last week’s decision that certain pre-construction activities are permitted before the grant of a construction permit (e.g. clearing and grading a transmitter site, pouring tower footings, installing electricity to a site, or even buying, but not installing, broadcast equipment). But constructing a tower or installing an antenna before a construction permit has been issued, can lead to an FCC fine or other enforcement action. In last week’s decision, the fine is proposed even though the operator de-constructed the new facilities after a complaint alleging premature construction was filed. While it may seem harsh that the FCC does not allow broadcasters to take the risk of constructing new facilities before a construction permit is granted, this decision makes clear that the premature construction doctrine is still being enforced, so broadcasters need to beware. With winter approaching in much of the country, some broadcasters may want to get a jump on the weather and construct new facilities before the FCC grants pending permits – but beware of the consequences that can follow.