FCC lack of candor

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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).
Continue Reading Another FCC Broadcast Case Designated for Hearing – With Much Different Stakes

The FCC released an order today, fining a broadcaster $20,000 for misrepresentations made in its license renewal application about the completeness of its public inspection file.  The fine issued in this case was not a fine for the fact that the file was incomplete (two stations in the cluster had each already been fined $4000 for the actual public file violations), but instead the fine was issued because the licensee had certified in its renewal application that the public file had been complete and accurate at all points during the course of the license term.  This case highlights both the need to keep an accurate public inspection file, and the need to carefully consider all certifications made in FCC applications.  Incorrect certifications can lead to fines and potentially even more severe sanctions if the FCC finds an intentional misrepresentation or lack of candor – the potential loss of a license.  Admitting a minor paperwork transgression like an incomplete public file will result in a fine – an inaccurate certification which appears to try to hide a problem can lead to far more severe consequences. 

In this case, the FCC found that the licensee had not maintained Quarterly Issues Programs lists.  The licensee claimed that its obligations had been met through a listing of public service announcements that the stations had put in their files.  The FCC rejected that argument, citing the requirement in its rules requiring that Quarterly Issues Programs lists contain "a narrative description of what issues were given substantial treatment" by the licensee as well as the programs that treated each issue.  In addition, the time and date of broadcast of each program, as well as its title and duration, is to be provided.  A simple list of PSAs does not meet these requirements – as it does not list the issues addressed, much less provide the detailed program information required by the rule.  For a summary of the Quarterly Issues Programs list obligations, and a model form to be used to meet the obligations, see our most recent memo on the subject, here.   Remember, the Quarterly Issues Programs Lists are a broadcast station’s only official record of how they have served the public interest needs of its community, so be sure that adequate attention is paid to the completion of these forms.Continue Reading Big Fines for Public File Violation that Escalated