FCC Fines

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The FCC today issued two fines to stations who violated the FCC’s rule against airing phone calls for which permission had not been received before the call was either taped for broadcast or aired live.  We’ve written about other fines for the violation of this rule, Section 73.1206, many times (see here, here, and here).  What was interesting about the new cases is that they made clear that a station needs to get permission to record or broadcast the phone call even before the person at the other end of the line says "hello."  

In one case, the station was broadcasting using a tape delay.  The station placed a call to a local restaurant and, when the person at the other end of the line said hello, the station DJ informed the restaurant employee that he was being broadcast and asked if that was OK.  The person responded "yep."  But he changed his mind later in the call.  The station claimed that, had the person not given permission, the tape delay would have allowed the call to be dumped but, as permission was given, the station continued to run with the conversation on the air. The FCC found that insufficient, as permission had not been received prior to the person saying hello.  The second case was much more straightforward – a wake up call by the station to a randomly selected phone number.  While the station immediately informed the person who answered the phone that the call was on the air – that did not happen until the recipient of the call had already said hello.  In the first case, the fine was $6000 – in the second, $3200.Continue Reading More Fines for Stations That Broadcast Telephone Conversations Without Prior Permission – Permission After “Hello” Is Too Late

In three recent cases, the FCC revisited the issue of broadcast contest rules – fining stations for not following the rules that they set out for on-air contests, and reiterating that the full rules of any contest need to be aired on the station (see our previous post on this issue here).  The most recent case also made clear that a broadcast station’s contests that may be primarily conducted on its web site are still subject to the FCC’s rules if any mention of the contest is made on the broadcast station.  Thus, even though the contest itself may be conducted on the website, with entries being made there and prizes being first announced on the site, if the station uses its broadcast signal to direct people to the site to participate in the contest or otherwise promote it, the broadcaster must announce all of the rules on the air.

In one case, a listener called a station with what she believed to be the correct answer to a question that needed to be answered to win a prize.  The listener gave the answer, only to be asked a second unexpected question that she did not answer correctly.  The next day, she heard another listener call in, answer the original question in the same way that she did – and win the prize without ever even being asked the second question.  When the first listener complained, station employees agreed that the second question was not part of the rules, but did nothing to correct their mistake until after the listener filed her complaint with the FCC.  The Commission fined the station $4000 for failing to follow the contest rules and for failing to fully publicize all of the material terms of the contest on the air. Continue Reading Broadcast Station Contests – Announce the Full Contest Rules and Follow Them

The FCC last week issued a decision that should make Buyers think twice in determining how sales of broadcast stations are concluded – especially in the days of $325,000 potential fines for indecency violations.  In the case decided last week, the Commission concluded that the licensee of a broadcast station was liable for fines for violations…

Just after Christmas, the FCC gave a number of broadcasters the equivalent of coal in their stocking – fining six different licensees for violations of the FCC’s EEO rules.  The fines issued that day ranged between $7,000 and $20,000, and included penalties issued to major broadcasting companies including Fox and Cumulus.  Also included were fines against Urban Radio in New York City and Puerto Rico Public Broadcasting – demonstrating that the FCC’s EEO rules, adopted in late 2002 after previous rules were declared unconstitutional essentially on "reverse discrimination" grounds (as they encouraged broadcasters to make hiring decisions not based on qualifications but instead based on race or gender), are truly race and gender blind.  It would be logical to assume that Urban Radio and Puerto Rico Public Broadcasting both had significant numbers of minority-group members on their staffs but, as they could not demonstrate that they had complied with the new rules requirements to reach out to all groups in their communities (as opposed to just racial or gender focused groups), they were assessed fines.  Reporting conditions, requiring that the broadcasters regularly file reports with the FCC so that their EEO efforts can be monitored, were also imposed.  All of the decisions can be found on the FCC’s Daily Digest for that day, here.

The basis of all of these fines was the failure of the licensees to be able to demonstrate that they had "widely disseminated" information about all of their job openings.  The core of the 2002 EEO regulations was the requirement that licensees broadly disseminate notice about their job openings in such a way so as reach all of the significant groups within the community that the station serves.  The Commission was not looking to specifically force minority hiring, but instead to push for hiring from diverse sources.  The Commission wanted to push broadcasters to use recruitment sources beyond the existing broadcast community – so that hiring was not simply done by word of mouth or from within other professional broadcast circles.   Thus, the rules require that broadcasters use recruitment sources that reach out to various groups within their community and document those efforts. Continue Reading FCC Fines Multiple Broadcast Stations for EEO Violations – Fines Up to $20,000 Imposed

The FCC last week issued an order fining a broadcast  tower owner $2000 for failure to monitor the lights on its tower.  The FCC requires that a tower owner either monitor the tower by visual inspection or by a properly installed automatic monitoring system, at least once every 24 hours.  In this case, the tower owner…

In several decisions released on Friday (here, here and here), the FCC fined Class A TV stations for not meeting their obligations under the Children’s Television Rules to notify their viewers about the location of their public file containing information about the educational and informational programming they broadcast directed to children…

Today FCC Chairman Kevin J. Martin released a tentative agenda for the scheduled December 18, 2008 Open Commission Meeting.  The tentative agenda, available here, contains a number of items that the Chairman has circulated to the other Commissioners for consideration at the upcoming Open Meeting.  Whether these items actually make it to the agenda…

On Monday’s edition of Morning Joe on MSNBC, host Joe Scarborough, while recounting a story about Obama Chief of Staff designate Rahm Emanuel, dropped the "F-bomb" – seemingly without even realizing that he did it.  He genuinely looked shocked after being told that he had not used the euphemisms that we’re using here, and apologized profusely, apologies that were even posted on the MSNBC website later in the day.  While the cast joked about the FCC fines that would be imposed, and discussed the legal ramifications about this incident, none seemed to recognize that cable – even basic cable – has not been subject to the same indecency regulation as over-the-air television, even though most basic cable networks generally observe the same standards observed by broadcasters to avoid offending their audiences (and perhaps inviting new attempts to regulate their operations.

Cases have generally held that cable, being a pay medium invited into the household, and with filtering technologies that allow particular channels to be blocked, does not have the same intrusive nature as the broadcast medium which comes in free to any house with a TV set and an antenna.  And, until recently when the V-Chip was introduced, over-the-air television did not have the same ability to block access to adult content.  It is interesting that this incident occurs only one week after the Supreme Court held its oral argument on the fleeting expletive case deciding if the inadvertent, unscripted use of a profanity should be subject to a fine.  If nothing else, this incident shows that mistakes happen even in the most unexpected places – who would expect that the host of a morning television program would slip up and let fly with an improper word?  This incident, and the cases before the Supreme Court, do not involve intentional, repeated use of profanity, like the George Carlin routine about which we wrote here, but instead just a fleeting isolated use of one of those "bad" words.  The FCC simply cannot demand perfection from its licensees without demanding perfection from society at large, which is clearly beyond the FCC’s jurisdiction. Continue Reading Joe Scarborough Drops the F-Word On Morning Joe – Lucky it Was on Cable

A Canadian radio station has apparently pulled off an amazing stunt that would have prompted an FCC fine if it had been done by a US radio station – calling Vice Presidential nominee Sarah Palin and engaging her in an on-air conversation under the premise that she was talking to French President Nicholas Sarkozy.  A recording of…

In two recent actions, the FCC has evidenced its concern about the EEO performance of its licensees.  Last week, the Commission’s Enforcement Bureau entered into a Consent Decree with DIRECTV, by which DIRECTV paid the FCC $150,000 in lieu of a fine for the company’s failure to abide by the FCC’s EEO rules by not preparing an Annual EEO Public File Report or submitting a Form 396-C for several years.  The FCC also released a Public Notice announcing changes in the racial categories to be used in FCC Form 395 – the Form breaking down the employees of a broadcaster or cable company by race and gender.  That form has not been filed for years, as its use was prohibited when the FCC EEO rules were declared unconstitutional.  In adopting new EEO rules in 2003, the FCC promised to return the form to use, but has been wrestling with the issue of whether or not the form should be publicly available or whether it should simply used internally by the FCC to collect data about industry employment trends. The adoption of new definitions for the racial categories specified on the form may signal the return of this form.  Together, these actions demonstrate that the FCC has not lessened its concern about EEO in any fashion.

The DIRECTV fine was the result of the company’s failure to prepare Annual EEO Public File Reports or to submit 2003 and 2004 Form 396-C reports – reports that are more detailed versions of the Form 396 filed by broadcasters with their license renewals and the Form 397 Mid-Term Employment report.  The Form 396-C requires that multichannel video providers detail their hiring in the previous year and the outreach efforts made to fill job vacancies, the supplemental efforts that the employment unit has made to educate its community about job openings, and other details on the company’s employment practices.  After review of the company’s efforts, the Commission not only faulted the company for its paperwork failures, but also determined that the company had not engaged in sufficient outreach for all of its employment openings – relying solely on the Internet and on word-of-mouth recruiting for many job openings, which the Commission found to be insufficient.  Broadcasters need to make sure that they do not forget to file their required EEO forms, prepare their annual EEO Annual Public File Report, and engage in wide dissemination of information about all job openings.  Details of the FCC’s EEO rules, policies and requirements applicable to broadcasters can be found in Davis Wright Tremaine’s EEO Advisory.Continue Reading Big EEO Fines on DIRECTV, and The Return of FCC Form 395B