In a Consent Decree released earlier this week, the FCC showed how serious it is about requiring that when a broadcaster applies for and receives authority to construct a new station or a modification of an existing station, it really plans to construct the station and operate on a permanent basis. In this case, a company called Lowcountry Media agreed to pay $250,000 to the government and surrender FCC authorizations for about 100 LPTV stations to resolve allegations that it had abused FCC processes by filing for and receiving construction permits for changes in at least 30 of its stations without a serious intent to permanently construct and operate each station to serve the public in the area authorized by the permits. After Lowcountry agreed to these penalties, the FCC allowed the sale of numerous other Lowcountry stations, and gave Lowcountry additional time to construct other new stations whose authorizations it retained.
The FCC explained its concerns leading to the penalties in the following language:
While some Stations were constructed with temporary facilities because of Lowcountry’s alleged difficulty obtaining permanent equipment as a result of supply chain issues….. at least 30 of Lowcountry’s stations were constructed with temporary facilities and only operated for a limited duration (a matter of days) with no apparent intention to provide permanent programming to viewers.
Lowcountry’s business plan apparently was to utilize the Commission’s minor modification application process to relocate the facilities distances greater than 30 miles, without contour overlap, and never permanently operate them at the location specified in the construction permits it acquired from prior licensees and in some cases applied for itself. The Bureau believes that Lowcountry’s actions and filings amounted to an abuse of the Commission’s licensing processes…..
In the LPTV service, the holder of a license or permit for a station can file a “minor change” application at any time. A minor change is a change in the power or location of a station where some portion of the station’s existing service area overlaps with the area proposed to be served in the newly proposed facilities. However, in no event can a minor change move a station more than 30 miles. A major change is one does not fit within the definitions of a minor change. Major changes can only be filed only when the FCC opens a major change window – which rarely happens (and is usually accompanied by the opportunity to file for new stations – as a major change in an existing facility would preclude the opportunity for someone else to file for a new station). The FCC is concerned about a broadcaster using multiple “hops” of an LPTV which is not tied to any specific city to accomplish, through serial minor modifications what should only be permitted by a major change – and by doing so cutting off other applicant’s opportunity to file for a new station at some point in the future when a new window does in fact open. The FCC had a secondary concern that many of these permits were received in a window almost 15 years ago when applicants were restricted to filing for stations in rural areas and, through multiple hops, some of these stations were moved into metropolitan areas.
The FCC went through this same process in radio – principally in dealing with serial hops of FM translators, where the filing procedures for major and minor changes more or less mirror those of LPTV stations. The FCC’s actions in radio took place a decade ago, and resulted in decisions similar to the decision reflected in the Consent Decree (see, for instance, our article here). It has only been recently that the FCC’s Video Bureau began to take similar enforcement actions. See, for instance, our article here where the policy was enforced in 2017 with a big penalty and the cancellation of many licenses). The Video Division has now also joined the Audio Division in conditioning new construction permits (for LPTVs and TV translators in Video, and for FM translators in Audio) with a warning that the FCC expects permits to be constructed in a permanent fashion and to consistently serve the public in any area in which they are authorized. Subsequent “hops” of stations are prohibited, usually for a year, unless some special public interest showing can be made (see our article here where one such public interest showing was made for an FM translator). Now in both radio and TV, the FCC will not permit the construction of temporary facilities that operate for but a few days before the licensee files for a new site further on down the road to accomplish some long-distance move.
Of course, there are instances where applicants do need to move quickly, or where multiple hops do serve the public interest, but these may be limited. The Commission may well permit some of these moves, but drawing the line between what is permitted and what is prohibited is difficult. So, when you apply for a permit for a secondary service – an LPTV or radio or TV translator – expect to build that facility and operate it on a permanent basis before contemplating a move to greener pastures.