FCC Fines

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Last week, the FCC issued fines to Class A TV stations which seem to have forgotten the requirements for such stations. Class A TV stations were low power television stations on which, early in the decade, Congress decided to confer "protected" status, meaning that they could not be knocked off the air by a new full-power TV station or by a change in the facilities of a full-power station.  LPTV stations, by contrast, are "secondary services," meaning that they can be knocked off the air by changes in primary stations.  Class A stations were given this protection if they could show that they were providing local programming, had a local studio, and otherwise complied with all the operating requirements that a full-power station station has to meet – including a manned main studio, children’s television obligations, EEO reporting, and public file requirements.  Cases released last week remind these stations that they must still meet all requirements for full power stations, as the FCC fined Class A stations for main studio, public file and children’s television violations.

In one case, the FCC fined a station $1000 for violations of the main studio, main studio staffing and public file rules.  The fine was originally set at $24,000 but, as the licensee demonstrated that it had no ability to pay the higher fine, the penalty was reduced to $1000.  The FCC had tried to inspect the station, and was unable to obtain access to the transmitter site.  The Commission staff then tried to find the station’s main studio, and found that no one answered the phone number listed for the station, there did not appear to be anyone at the address on file for the main studio location, and there was of course no access to the public file.  As Commission rules require that stations have main studios in their principal service areas that are manned during normal business hours, and that stations have their public file at this location, the fine was issued.Continue Reading Class A TV Stations Need to Remember They Are Subject to Full-Power Rules – Fines for Kids TV and Main Studio Violations

The FCC today issued a Forfeiture Order imposing a $30,000 fine on the licensee of three television stations for the stations’ failure to publicize the existence and location of the Children’s Television Reports for the Stations.  Even at a rate of $10,000 per station, this fine is significant and should serve as a loud, clear…

In two separate Orders today, the FCC issued monetary forfeitures against a cable operator for failure to install Emergency Alert System (EAS) equipment and for various tower violations.  These same violations could have been cited against a broadcaster, so these cases are instructive to both broadcasters and cable operators.  The FCC issued monetary forfeitures of $20,000 and $18,000 against two Texas cable systems owned by the same company.  In both cases, the cable operator failed to install EAS equipment, failed to notify the FAA of a tower lighting outage and failed to exhibit red obstruction tower lighting from sunset to sunrise.   The higher fine related to a system’s failure to display a tower’s Antenna Structure Registration (ASR) number "in a conspicuous place so that it is readily visible near the base of the antenna structure."  

These same requirements apply equally to broadcast stations that have their own towers.   While most broadcasters are aware of the requirement to maintain working EAS equipment, many may not know that  FCC rules require a tower’s ASR to be conspicuously displayed at the base of the tower.  To be compliant, the ASR must be displayed on a weather-resistant surface and of sufficient size to be easily seen at the base of the tower.Continue Reading FCC Fines for No EAS Equipment, Unreported Tower Light Outage, and No Posting of ASR

In two decisions released in the last two weeks, the FCC fined two radio stations $4000 each for perceived violations of its contest rules.  The first decision was based on a perceived ambiguity in the contest rules that did not make clear in broadcasts and in written rules that there would be only one winner in a contest.  In the second, the FCC faulted the licensee for not giving the prize away within 30 days of the contest end.  Both cases demonstrate the seriousness with which the FCC seems to take contest rules, especially the need for disclosure of all material terms to listeners, both in over-the-air announcements (see our post here on the need to broadcast the material terms of a contest) and in the written rules governing the contest.  Seemingly, ambiguities will be construed against the licensee and any material parts of the contest, including when the prize will be delivered must be clear the contestants.

In the first case, The Commission found that the licensee had not made clear in its on-air announcements and in its written rules that there would be only one prize awarded in the contest.  When one closely reads the case, what seems to come through most clearly is that the Commission is expecting licensees to document carefully that they have clearly provided the material rules of the contest on the air, sufficiently so that a reasonable listener would be aware of those rules.  In this case, the licensee was unable to document how often its announcements providing the rules were broadcast, or to conclusively say if they had ever been broadcast at all.  The contest was to give away a garage full of prizes, so it would seem that the nature of the contest itself made clear that there was going to be only one winner.  But the Commission concluded that there were not enough unambiguous statements that there would be but a single winner – thus prompting the fine.Continue Reading Ambiguous Contest Promotional Announcements and Slow Award of Prize Each Cost Radio Stations $4000 FCC Fine

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?Continue Reading $1250 FCC Fine for Not Having Licensee’s Articles of Incorporation in Station’s Public File

Incomplete public inspection files were the largest source of fines during the last license renewal cycle.  We wrote last week about two noncommercial broadcasters whose renewal applications filed many years ago have just now led to consent decrees and voluntary contributions to the US treasury in lieu of fines.  To help commercial broadcasters avoid these…

In two consent decrees released last week, the FCC’s Enforcement Bureau agreed to significant "voluntary contributions" to the US Treasury to settle noncompliance issues reported in license renewal applications filed by noncommercial radio stations.  Both stations had voluntarily reported public inspection file issues in their license renewals.  One admitted to having no issues programs lists in its public file and having filed no biennial ownership reports for the license renewal period.  The other admitted that it was missing several years worth of quarterly issues programs lists.  In the first case, the FCC agreed to a $10,000 contribution in lieu of a fine (see the agreement here), in the other case a $1700 contribution (which was less than might normally be the case, as it was reduced by a financial hardship showing – see the order here and the agreement with the FCC here).  These cases demonstrate the significance that the FCC places on public file issues – the biggest source of fines in the last license renewal cycle.  With a new license renewal cycle beginning in June 2011, now is the time for all broadcasters – commercial and noncommercial – to make sure that they are ready for the beginning of this cycle by clearing up any outstanding regulatory issues.

The fines also once again demonstrate that the Commission no longer treats noncommercial broadcasters differently than commercial broadcasters – fining noncommercial stations for violations just as it does their commercial brethren (see a previous post on this subject, here).  In these cases, the use of Consent Decrees also demonstrate the problems that issues arising at renewal time can cause.  If a station’s license renewal reports a problem, such as an incomplete public file, the application is pulled out of the routine processing pile for further scrutiny.  Such scrutiny can often take a year, and sometimes several years, to resolve.  While the renewal application is in this state of limbo, a sale of the station will not be approved, and sometimes other regulatory actions can be held up (in fact, in one of these cases, a transfer of control of the licensee company was delayed while this issue was being resolved).  Thus, to avoid these lengthy delays, stations often decide to pursue the consent decree route to try to resolve the issue more quickly than would be the case if the application were just left with the FCC to run its course.Continue Reading Fines For Public Inspection File Issues – Noncommercial Broadcasters Enter into Consent Decrees to Resolve Rule Violations

$15,000 per station was the cost of a broadcast licensee’s failure to adequately supervise two stations of which he was the licensee, but which were operated pursuant to time brokerage agreements or LMAs. Like many stations in these tough economic times, this licensee decided to allow a third party to provide the bulk of the programming and retain the bulk of the sales revenues, in exchange for a payment. However, as the licensee remained the licensee, he was required to maintain and exercise control over the station’s operations, and maintain a meaningful staff presence at the station. In reviewing the operations of these stations, the FCC’s Enforcement Bureau in recent decisions (here and here) concluded that the adequacy of that control was insufficient – providing a warning to other station licensees operating under LMA agreements that they must maintain operational control over the stations that they own.

The FCC has long said that a licensee must maintain a meaningful staff presence at a station, even if the station receives the vast majority of its programming from some other source – whether that is a network or programming provided under an LMA. Meaningful presence has required that at least two employees at the station be employed by the licensee, one of whom must be managerial and perform no services for the broker providing the programming under the LMA. This case makes clear that these required licensee employees must be physically present at the station’s main studio on a regular day to day basis – they cannot be located at some distant location supervising the station remotely or only periodically present at the main studio. Failure to have the station’s main studio manned by the required personnel in and of itself accounted for $7000 of the fine in this case.Continue Reading FCC Issues $15,000 Fines For Unauthorized Transfer of Control and Main Studio Staffing Violations for LMA Done Wrong

Two FCC cases were released last week fining broadcasters for violations of the FCC rule against broadcasting a telephone call (or recording a call for broadcast purposes) without first obtaining the permission of the person at the other end of the call.  In one case, a licensee was fined $16,000 for phoning a woman, pretending to be a hospital calling with news that her husband had been in a motorcycle accident and had died.  The FCC refused to reduce or eliminate the fine because the call was made by an independent contractor, as the Commission found that the contractor had been hired to provide recorded "bits" for the station, and was thus not acting outside of any limits set by the licensee.  The decision also made clear that the violation occurs as soon as the person at the other end says "hello", if a recorder is running, even if the person being recorded subsequently consents to the broadcast of the call.

The size of the fine may seem surprising, but the Commission’s staff found $16,000 to be appropriate due to the fact that the same licensee had just recently been fined for a similar offense.  In another case released the same day, the fine was "only" $4000.  Here, the call was made to airport officials in the context of asking these officials questions about a local controversy.  The licensee raised a host of defenses – all of which were rejected.  First, the FCC would not eliminate the fine based on the fact that the station employee making the call had immediately identified himself as being from the station.  The licensee argued that, as the caller had identified himself as being from the station, the recipients of the calls should have known that they were on the air, and had thus implicitly consented to being broadcast as they kept talking.  The FCC rejected this argument for two reasons.  As the call was immediately put on the air, the decision found that once the "hello" was broadcast without prior permission, the station had violated the rules.  Moreover, the exception in Section 73.1206 (the rule that bans the broadcast of phone calls without permission) that allows calls to be broadcast where the person on the call can reasonably be expected to know that the call will be broadcast applies only to situations where the caller "originates the call" to the station – calling the station to be put on a program (like a talk show) that they know or should anticipate will be broadcast. Continue Reading $16,000 Fine For Recording Telephone Conversation for Broadcast Without Prior Permission – No Excuse Because Call Made By Independent Contractor, By Subsequent Approval, or By the First Amendment

In two just released cases, the FCC fined television stations $8000 each for failing to publicize the location of their Children’s Television Programming Reports for an entire license renewal period (the cases can be found here and here).  The FCC found that any remedial steps taken by the licensees after they discovered their failures at…