designation for hearing

Yesterday, the FCC issued a hearing designation order – though one with much lower stakes than the last designation order issued by the FCC which seemingly resulted in the termination of the proposed Sinclair-Tribune merger. Yesterday’s order was at almost the opposite end of the spectrum from a massive merger of TV companies – the upcoming hearing will determine whether to revoke the license of a Low Power FM station. Issues were raised as to whether the licensee in its FCC applications lied to the FCC about whether its board of directors was made up of US citizens – there being substantial evidence that the board members were in fact citizens of other countries.

As we wrote here when the Sinclair acquisition was designated, hearings are most commonly used when the FCC is faced with disputed issues of fact. But hearings are also required in some cases by the Communications Act, including in cases where there is a proposed revocation of an existing license, as appears to be the reason for the order yesterday – though the FCC also lists a number of issues in the LPFM case that need a factual review. These include whether the licensee made misrepresentations to or lacked candor with the FCC (essentially whether the licensee had lied to the FCC in its applications when it said its directors were US citizens), whether the license was controlled by aliens (i.e. foreign citizens), whether the licensee failed to keep information on file at the FCC accurate and up to date, and whether the licensee failed to respond to FCC inquiries (the FCC having asked for information about the apparent foreign ownership and received no response).
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In light of yesterday’s announcement that the FCC Chairman has proposed that portions of the acquisition by Sinclair Broadcast Group of the television stations owned by Tribune Media would be designated for hearing, one question that many have asked is, “What does designation for hearing mean?”  Several decades ago, the process of designating an application for hearing was a common occurrence – used by the FCC to decide between competing applicants for new broadcast (and in some cases non-broadcast) licenses, in connection with determinations of whether or not to grant the license renewal of broadcast stations where substantive petitions or competing applications were filed against such applications, or to deal with enforcement issues when there were questions about the facts of a particular situation.  The FCC had a large staff of Administrative Law Judges who heard these cases, and they were usually quite busy.  But as the staff of ALJs at the FCC has dwindled to one, and as cases referred to that Judge are increasingly infrequent, it might be worth discussing a bit about the hearing process at the FCC.

Congress established, in Sections 309 and 310(d) of the Communications Act, the manner in which the FCC is to process applications filed with it.  In cases involving applications for new stations or for the purchase and sale of stations, applications are filed providing information required by the FCC and such supplemental information as the FCC may request.  Interested parties routinely have 30 days in which to file objections to applications, in which the petitioner needs to submit detailed allegations supported by facts either in the public record or otherwise supported by statements from those with personal knowledge of the facts, arguing why an application should not be granted.  Applicants have the opportunity to respond.  In most cases, the FCC will attempt to resolve any disputes, or any questions that it has on its own, on the basis of the written materials presented in the application, the petitions, and in response to any FCC supplemental request for information.  But Section 309(e) makes clear that, if there is a “substantial and material question of fact” or if the Commission is otherwise not able to determine that an application meets the requirements of the rules, it needs to formally designate the application for hearing.
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Starting June 1, 2019, just over a year from now, the next broadcast license renewal cycle will begin. By that date, radio stations in DC, Maryland, Virginia and West Virginia must file their renewal applications. Every other month for the next 3 years will bring the filing of radio license renewals in another set of states. And television stations will begin their renewal cycle a year later (June 1, 2020). The FCC’s schedule for radio license renewals can be found here and here. For TV stations, the schedule of renewal filings by state is in the same – just one year later than for radio. Every eight years, broadcast stations have to seek the renewal of their licenses by the FCC by demonstrating their continuing qualifications to be a licensee, including showing that they have not had a history of FCC violations and that they have otherwise served the public interest.

We have already written several times about how, with all broadcasters – both radio and TV – now required to have an online public file, it is important for stations to make sure that those files are complete and are kept up to date on a regular basis (see our articles here, here and here). Given that the contents of the online public file can be viewed by anyone, anywhere, just by launching an Internet browser, we would expect more complaints about incomplete files, and more scrutiny by the FCC of the contents of files that rarely were subject to FCC review in the past. FCC staffers can review public file compliance from their offices or homes, and do not have to rely on the rare field inspection to discover a violation. Thus, stations should be reviewing the contents of their files now to be sure that they are ready for the scrutiny that they will receive in the upcoming renewal cycle. But that is not the only issue about which stations need to be concerned, as illustrated by a decision released by the FCC yesterday, deciding to hold an evidentiary hearing as to whether the license renewal of a broadcast station that had been silent much of the last license renewal term should be granted.
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The FCC yesterday issued a Hearing Designation Order for two AM stations in Virginia as these stations were silent for most of their license renewal terms. One of the two stations was on the air for only 54 days out of the 3.4 years that the licensee held the station during the license term, and

Last week, we wrote an article which received much attention, addressing the legal issues that could come up if contests are not conducted properly. One issue that we did not anticipate was reflected in an FCC order released yesterday, designating for hearing the license renewal of the Entercom Sacramento radio station that was involved in

In every license renewal application, applicants must certify that their operations are in compliance with the RF radiation standards set out in Section 1.1310 of the Commission’s rules. In connection with the renewal applications of two Hawaii FM stations, the FCC issued short-term one-year renewals of the station’s licenses, rather than the normal 8 year renewals. The Commission’s decision chronicles a period that spanned several years where the FCC twice found the stations to be in violation of the RF radiation rules, responding to complaints from those who worked nearby. The first time the station had reported that the problem was corrected, the FCC inspected and found that it still existed. Finally, after these inspections and FCC fines for noncompliance, the stations moved to new sites that resolved the issues.

Beyond the demonstration of how seriously the FCC takes its RF radiation rules, and how broadcasters need to be truthful and accurate in reporting on the state of their compliance, the decision shows the FCC’s process of evaluating penalties when deciding whether to issue a license renewal to an applicant with a history of rule violations. The FCC has several choices when confronted at license renewal time with violations of its rules. In many cases (like public file violations that we wrote about last week), the FCC will simply issue a fine. As in this case, the FCC can issue a short-term renewal. But, in the case of serious violations, the FCC can “designate a case for hearing”, meaning that they send the renewal application to an administrative law judge (a judge who is part of the FCC) to hold a trial-type hearing to determine if the license should be revoked. When is that most serious option pursued?


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