FCC Fines

Subscribe to FCC Fines via RSS

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…

In a decision just released, the FCC fined a noncommercial FM station $8000 for failing to make its public inspection file available when it was requested.  The FCC made clear that past cases where a noncommercial station was given only an admonition for similar violations were no longer good law, finding that the public file was an important part of the station’s obligations to the public and the failure to make it available was a serious violation.  This case should serve as a warning to all stations, commercial and noncommercial, that they need to have people at the station at all times who know where the public file is located, and that all visitors who request access to the file need to be given such access.

This case was perhaps a bit more egregious than most, as the visitor who requested access to the fine was known to the station, as the person was employed by a college that had tried unsuccessfully to buy the station.  After its request to purchase the station was turned down, the prospective buyer had allegedly filed a number of pleadings at the FCC trying to force the licensee to sell the station.  When the person appeared at the station to request access to the public file, the person was first told to return another day.  After protesting that was illegal, an official of the College which is the station licensee, arrived at the scene and told the visitor that he had to leave, and could only view the public file after having made a prior appointment with the college’s attorney.  When reached by phone, the attorney allegedly told the visitor to leave the premises or he would be arrested.  Only when he returned another day, after being initially turned down yet again, was the visitor eventually able to persuade the station employees that refusal to give him access to the file was illegal.  When he was finally able to gain access to the file, he stated that he found it to be incomplete.Continue Reading $8000 FCC Fine for Noncommercial Station Not Making Public Inspection File Available Upon Request

In a recent decision, the FCC’s Enforcement Bureau ruled that a tower owner should pay a fine for a single day where the required tower lights were not operational, and where no required monitoring of the tower to discover such outage was taking place.  On top of the penalty for the non-working lights, the FCC also fined the owner for the failure to report a change in ownership of the tower.  The total fine in the case was $4000 (reduced from an initial fine of $13,000 because of the tower owner’s past record of compliance).

As with any FCC fine, while the fine was for one day of tower light outage, there was more to the story.  The FCC inspected the tower after receiving a complaint stating that the lights were out on a day that was almost a month before the inspection – indicating that the outage may have been in place for far longer than the one day revealed by the FCC inspection.  The tower owner admitted that the person who was supposed to conduct the required daily inspection of the tower lights had moved from the area in which the tower was located, and the owner did not know exactly when that occurred.  The owner did not get someone new to do the inspection until after the FCC inspection.  And the tower had no automatic monitoring system to determine if the lights were in fact operational.  With these admissions, it seemed clear that there was the potential that there had been a problem for a long time, so perhaps the fine was not unexpected, even though the lights were fixed within hours of the FCC report of the problem, as the issue was a simple one that the tower owner blamed on a careless repair person who had recently visited the site.Continue Reading Tower Lights Out for Even One Day? – Pay A Fine, Says the FCC

A jury in Sacramento returned a $16.57 million verdict against Entercom Broadcasting’s local subsidiary in the case involving the death of a contestant in a radio station-sponsored contest.  The contest – drinking water and waiting to see which contestant would win the Nintendo Wii by being the last to have to use the bathroom – led to the death of contestant Jennifer Strange by water intoxication.  The station had argued that water intoxication was not a readily known risk of the contest that could have reasonably been anticipated.  The plaintiff’s case, to refute this argument, included testimony of warnings from on-air station callers of the risks, and health complaints from contestants themselves, which were apparently ignored or minimized by the station employees who were involved in supervising the contest.  This Blog does not purport to address negligence and personal liability questions, which we will leave to others.  Instead, we’ll talk about the lesson to broadcasters and the FCC impact of this case.

First, the decision itself serves as a warning to broadcasters of the need to make employees aware of the ramifications of what goes on at a station.  In a Radio Ink Column today, Publisher Eric Rhoads suggests that broadcasters must be careful in what they do, but also submits that owners and managers cannot take the fun out of radio.  And while I wholeheartedly agree with the last sentiment, the fact that radio can be a fun business is all the more reason that owners and managers need to be careful about what goes on at a station.  While we hate to be the lawyers who ruin all the fun, management does need to make employees aware of the nature of the broadcast medium, and the fact that real people are impacted by whatever is done on the station – whether it be a "joke" on the air which some people find offensive, a dangerous contest, or simply putting off compliance with some FCC rule.  We are in a litigious time, and we have an FCC and a Congress with lots of pending matters that could determine the future of the industry.  While it may seem amazing, a single contest gone wrong or wardrobe malfunction can set the tone for the regulation of an entire industry.  So, while broadcast managers need to avoid being the heavies and playing it so safe that they take the fun out of broadcasting, they do need to impress on employees that they must be aware of the ramifications that their actions can have.  Broadcasting is still a powerful medium, and because of that fact, actions taken by broadcasters can have an impact that is magnified far beyond what might be the case in other media or other industries.  And because it is such a regulated industry, that impact can have huge consequences.Continue Reading $16.57 Million Verdict in Hold Your Wee for Wii Case – What are the FCC Implications and What Should Broadcasters Learn?

In the past several weeks, broadcast indecency has been back in the news – seemingly almost on a daily basis.  First, there was the story about Bob McDonnell, the Republican candidate for Virginia governor who, seemingly inadvertently, dropped the f-bomb, perhaps as a result of tripping over his tongue during a news interview on a news radio station in Washington.  Then came the extensive coverage of New York City TV newscaster Ernie Anastos who, during on-air banter with the weather man, also let the f-word fly – in what was apparently not a slip of the tongue, but perhaps a slip of the brain, where the anchor must have thought that he was somewhere other than on the set of a live TV newscast.  And then this past weekend, an actor on Saturday Night Live let the word fly during the late night program.  These incidents come on the heels of the FCC releasing its statistics on complaints that it had received in the first quarter of this year (reflecting many indecency complaints in the last month), while the Commission has asked the Court of Appeals for the opportunity to reexamine its decision in the Janet Jackson case to determine if any violation of the indecency rules was "willful."  What does all of this activity mean?

The recent well-publicized on-air slip-ups demonstrate how the fleeting expletive, which have formed the basis of a number of recent FCC cases, including the Supreme Court decision upholding the FCC’s authority to decide to change its prior holdings and issue fines for such utterances (but leaving open the constitutional questions as to whether the FCC regulation is consistent with the First Amendment), can no longer hide from public examination.  In the past, fleeting expletives were just that – fleeting.  If there was an on-air slip up, people in the audience may have done a double take, trying to decide if they really heard what they thought that they heard.  Often, there would be a shrug of the shoulders and the event would pass.  Not so in today’s electronic world.  Now, when a politician or a TV announcer slips up and let’s one of those you-can’t-say-that-on-TV words slip, the listening public quite often has the opportunity to check out YouTube or some other website to confirm what they did or didn’t hear.  As a recent press article about the NY anchor observes, these events become viral.  A similar observation was made today about the SNL skit.  And, when they become viral, the FCC often hears about it in the form of a complaint.  As the FCC does not usually monitor stations themselves looking for indecency, but instead only takes action where a member of the public complains, the viral preservation of these incidents have no doubt resulted in far more FCC complaints that would have otherwise occurred – certainly more than have occurred in the past.Continue Reading Broadcast Indecency Can’t Hide – A Candidate for Governor, a TV Newscaster, Saturday Night Live and the Clothing Malfunction

Last week, we wrote about the FCC fining stations for a number of violations found at the studios of some broadcast stations.  In these same cases, the FCC also found a number of technical violations at the tower sites of some of the same stations.  Issues for which fines were issued included the failure to have an locked fence around an AM station’s tower, the failure of stations to be operating at the power for which they were authorized, and the failure to have a station’s Studio Transmitter Link operating on its licensed frequency.

An issue found in two case was the failure to operate at the power specified on the station’s license.  In one case, an AM station simply seemed to not be switching to its nighttime power – in other words, at sunset, it was not reducing power from the power authorized for its daytime operations.  The second case was one where another AM station was not switching to its nighttime antenna pattern after dark.  In that case, there were apparently issues with the nighttime antenna but, rather than request special temporary authority from the FCC to operate with reduced power until the problem was fixed, the FCC notes that the station apparently just kept operating with its daytime power.  An STA is not difficult to obtain when there is a technical issue (as the FCC does not want stations going dark if it can be avoided), and some effort is made to specify a power that avoids interference to other stations.  So, if faced with technical problems, request authority for operations that are different from those authorized by the station’s license until those problems can be fixed, or risk a fine from the Commission.Continue Reading FCC Inspections – Transmission Site Fines for Overpower Operation, Unlocked Tower Fences, and Improper STL Operations