antenna structure registration

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • About 200 radio and television stations have been randomly selected to be audited by the FCC for their EEO compliance.

Last week, the FCC announced a Consent Decree with a Florida broadcaster, with the broadcaster admitting violations of several FCC rules and agreeing to pay a $125,000 fine and enter into a consent decree to ensure future compliance.  The violations addressed in the decree include (i) the failure to monitor tower lights and report that they had been out for significant periods of time, (ii) the failure to update the Antenna Structure Registration (ASR) of the tower to reflect that the broadcaster was the owner, (iii) not following the announced rules in conducting certain contests, and (iv) broadcasting seemingly live content that was in fact prerecorded, without labeling the programming as having been prerecorded.  While the details of the violations are provided in only summary fashion, these violations all serve as a reminder to broadcasters to watch their compliance – and also highlight the apparent interest of the FCC in enforcing the rule on seemingly live but prerecorded content, a rule rarely if ever enforced until this year.

Looking at the contest violations first, the Consent Decree gives a general description of the contests in question in a footnote.  One contest was apparently a scavenger hunt.  The station had intended for the contest to run for an extended period, but a listener found the prize soon after the on-air promotion began.  To prolong the on-air suspense, the station agreed with that listener to not reveal that she had won.  The station continued to promote and seemingly conduct the contest on the air for some time, until finally awarding the prize to the original winner.  In another contest, the station gave prizes to people who called in at designated times during the day.  According to the allegations in the Consent Decree, fake call-ins were recorded by the station to be broadcast during times when there were no live DJs.  As we have written before (see our articles here and here), the FCC requires that stations conduct on-air contests substantially in the manner set out in the announced rules for that contest – and the broadcasts about the contest cannot be materially misleading.  The FCC concluded that these contests did not meet that standard, and also found another problem with those prerecorded call-ins to the station.
Continue Reading $125,000 FCC Penalty to Broadcaster for Tower Structure and Contest Rule Violations – Including Violation of Rule Against Broadcasting Seemingly Live Recorded Programming Without Informing Listeners

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  Also, we include a look at actions to watch in the week ahead.

  • FCC Chairman Ajit Pai announced his intention

On September 26, the FCC will hold its next open meeting and, according to a Public Notice released Friday, will consider several issues important to different parts of the broadcast industry. For television broadcasters, there will be concerns about the proposal to do away with the “UHF discount,” which gives UHF stations a 50% discount in determining the number of households they reach when determining an owner’s compliance with the limitation that prevents any one company from owning television stations that reach more than 39% of the US television households. For radio, the FCC will be getting a report on the preparations for the upcoming LPFM window, allowing applications nationwide for new LPFM stations. That window, as we have written before, is to open from October 15-29. Finally, the FCC will be looking at modifications to its Antenna Structure Registration process – which could be important to all tower owners.

As the UHF discount issue is to be considered by the adoption of a Notice of Proposed Rulemaking, it is no doubt the more controversial of the broadcast issues to be discussed at the meeting. The discount was adopted by the FCC in analog days, when UHF broadcasters faced significant disadvantages. Analog UHF signals (TV channels 14 and above) simply did not travel as far as VHF signals, were less likely to penetrate buildings (especially as many over-the-air antennas were designed for VHF reception), and were far more costly than VHF operations (as VHF transmitters operated at far lower power levels than do transmitters for UHF operations). But, in the digital world, broadcasters found that the world had been turned on its end – with UHF signals being far preferable, as the VHF digital signal was found to be far more susceptible to interference, especially in urban areas. In the less forgiving digital environment (where a signal is either there or not, instead of the degraded "snowy" picture that you could get in the analog world), the UHF signal is generally preferred – despite the higher power costs and the fact that the signals still don’t travel as far.


Continue Reading FCC Meeting to Consider UHF Discount on National TV Multiple Ownership Rules, LPFM Window, and Tower Registration Issues

Failing to properly maintain a communications tower can be expensive, as a number of FCC decisions released in the last few days demonstrate. In several decisions reached in the last week, the Commission faulted tower owners for all sorts of problems – tower lights being out without letting the FAA know, faded paint, missing fencing around an AM tower, tower registrations that had not been updated after a sale, and the failure to post the tower Antenna Survey Registration Number (“ASRN”) at the base of the tower so that the FCC could identify the tower owner. These cases provide a survey of the many issues that tower owners can have – ones that can bring big FCC fines.

In the case with the largest proposed fine – $25,000 – the FCC faulted a tower owner for having a tower with faded paint and no posted ASRN that was visible at the base of the tower. In addition, the FCC tower registration had not been updated to reflect the name of the current tower owner – even though the owner had bought the tower 10 years before. After an FCC inspection identifying the issues, the licensee promised that they would be remedied. But, according to the decision, two more inspections were made by FCC inspectors within 15 months of the first inspection, and the problems all remained. The failure to correct the errors after being repeatedly warned brought about a $10,000 increase in the fine from what would be normally warrant a penalty of approximately $15,000. Clearly, if the FCC tells you something is wrong – fix it, or face increased liability for the problems. The FCC does not like to be ignored.


Continue Reading FCC Fines Up to $25,000 for Tower Issues Including Lighting and Painting Issues, Inadequate Fencing, Tower Registration in Wrong Name and No Posted ASRN

In a Notice of Apparent Liability, the FCC proposed a $14,000 fine on a broadcaster for a series of violations with respect to its tower. The FCC found that the station failed to have the required lights on the tower operating after sunset on at least two days, failed to notify the FAA of the outage (so that the FAA could send out a NOTAM – a notice to "airmen" notifying them to beware of the unlit tower), and failed to properly register the tower when the current owner acquired the station from its previous owner. As the tower had been sold over 3 years prior to the inspection that discovered the tower lights being out, the FCC determined that the violations were particularly egregious, and upped the fine – which would have been $10,000 for a failure to have the lights operating, and $3000 for failing to update the Antenna Structure Registration ("ASR") by an additional $1000. As noted below, updating tower registrations is considered very important by the FCC as, in another recent decision, the FCC proposed a $6000 fine merely for the failure of a licensee to update a tower registration. 

The case also showed the importance of keeping accurate records of the observation of tower lights. While the FCC did not specifically fine the station owner for not logging the tower light inspections, it did note that there was confusion between the station owner and engineer as to who was inspecting the tower lights and how often they were being inspected, when first asked by the FCC inspector. While records were later provided by the licensee that supposedly showed that the tower lights were inspected on a daily basis, the records were inconsistent and seemed to contradict the observations of the FCC inspectors. What do the rules require?


Continue Reading $14,000 FCC Fine for Tower Violations – Obstruction Light Out, No FAA Notification and Failure to Update Antenna Survey Registration to Report New Owner

Last week, I did a presentation on the issues facing broadcasters at the Kansas Association of Broadcasters annual convention (a copy of the slides from my presentation is available here).  I spoke about some of the day-to-day issues that can get broadcasters into trouble, as well as some of the big policy issues that broadcasters need to consider.  My presentation was preceded by a session conducted by the agent in charge of the Kansas City field office of the FCC, who emphasized the many issues that the field agents discover at broadcast stations that can lead to fines.  In the week since I returned from Kansas, it seems like the FCC has wanted to demonstrate the examples given by their agent, as there have been a large number of fines demonstrating the breadth of technical issues that broadcasters can face.  Fines (or "forfeitures", as the FCC calls them) were issued or proposed for issues ranging from faded tower paint, tower light outages, EAS problems, operations with excess power, and the ubiquitous (and very costly) public file violations.  Fines of up to $25,000 were issued for these violations – demonstrating how important it is not to overlook the day-to-day compliance matters highlighted in my presentation.

The largest of these fines was for $25,000.  This fine was imposed on a station for failing to have operational EAS equipment, not having an enclosed fence around the antenna site, and a missing public file.  The fine was originally proposed in a Notice of Apparent Liability (the first step in imposing an FCC fine, when the FCC spells out the apparent violation and the fine proposed, and the licensee is given time to respond to the allegations), released in July (see our post here).  The licensee failed to respond to the Notice of Apparent Liability, thus the fine is now being officially imposed.


Continue Reading A Host of FCC Fines of Over $20,000 for Technical and Tower Issues – And a Presentation on How to Avoid FCC Problems to the Kansas Broadcasters

Among the many things that broadcasters need to remember when they buy a broadcast station is making sure that the tower registration (the "Antenna Structure Registration" or "ASR") for that station is transferred along with the rest of the station assets.  Unlike most registrations and filings done at the time of the Closing

The question of the environmental impact of the construction or significant alteration of a communications tower has been a matter of controversy for quite some time.  Three years ago, when conservation groups challenged the FCC’s procedures on the approval of towers and the consideration of the impact that such towers have on migratory birds, the US Court of Appeals ordered the FCC to include more public participation in the determination of whether those towers required detailed environmental studies ( an "environmental assessment" or an "EA") before they could be built.  This week, the FCC sought comments on their Draft Environmental Notice Requirements and Interim Procedures for its Antenna Registration Program.  These rules propose:

  • That, before an Antenna Structure Registration ("ASR") is issued by the FCC, any applicant must first give public notice of the construction in a local newspaper or other local media source.  The proposal will also be listed on the FCC’s website.  These notices are to allow the public to comment on the proposal.   
  •  If an EA is required, the FCC will process that assessment before the filing of the ASR
  • An EA will preliminarily be required for all requests for an ASR for towers of more than 450 feet to determine its impact on migratory birds, though the FCC may modify this requirement after further study.

This proposal is somewhat tracks the proposed requirements for an EA that were set out in a settlement agreement between many affected parties, including conservation groups, the NAB and CTIA – an agreement about which we wrote here.  That agreement, while conclusively requiring an EA for towers of over 450 feet, stated that towers between 351 and 450 feet would be dealt with on a case-by-case basis, and left open the question of whether an EA would be required for towers of 350 feet or less. 


Continue Reading FCC Requests Comments on Draft Requirements for Environmental Assessments of the Impact of Tower Construction – Including The Effect on Migratory Birds

The FCC today announced that it will be holding a series of three hearings to assess the environmental impact of its Antenna Structure Registration (ASR) program.  The FCC is required by the National Environmental Policy Act ("NEPA") to determine if its programs have any adverse environmental impact.  In a Court decision in 2008, the US Court of Appeals determined that the FCC had not adequately assessed its obligations under NEPA with respect to the impact of communications towers on birds after there were claims that towers killed millions of birds each year.  The hearings are to review the Commission’s ASR process to gather evidence to determine whether a more extensive analysis of the potential environmental impact of tower construction is necessary when towers are constructed or modified.  In addition to the hearing, the FCC is soliciting written public comment on these proceedings. 

After the Court decision, American Bird Conservancy v. FCC, parties representing those involved in tower construction and conservation groups engaged in a series of discussions to attempt to resolve issues raised in the case.  The parties included the NAB, CTIA, PCIA, and the National Association of Tower Erectors.  Conservation groups included the American Bird Conservancy, Defenders of Wildlife, and The National Audubon Society.  These parties reached an agreement that was submitted to the FCC, setting out three levels of environmental review of tower construction, based on the height of the tower proposed.  As summarized below, the height of a proposed tower would determine if the proposal for construction had to be placed on a Public Notice by the FCC, soliciting public comment about the proposed construction, and whether the tower would need to have an Environmental Assessment ("EA") completed before it was constructed (an EA is a more extensive analysis of the environmental impact of planned construction than the Environmental Impact Statements that most broadcasters include with their current FCC applications).  The parties suggested the following:

  • For New Towers above 450 feet above ground, an Environmental Assessment would need to be conducted, and any proposal would be put on a public notice to solicit public comment
  • For New Towers between 351 and 450 feet, the proposal would be put on a public notice by the FCC and, after comments are filed, the FCC would decide on a case-by-case basis if an Environmental Assessment is necessary
  • For New Towers 350 or less, the parties could not agree as to whether Public Notice would be required.  Resolution of whether Public Notice was required was left to the FCC. 

This proposal has not been adopted by the FCC, so it will no doubt be addressed as part of these hearings. 


Continue Reading FCC Plans Hearings on Environmental Impact of Tower Registration Program – Follow Up to Court Case on Impact of Communications Towers on Birds