Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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If you have a commercial or noncommercial FM radio station, an LPFM or an FM translator, and are looking to file an FCC application to seek a construction permit to authorize technical changes to your station, or to file a license to cover changes that were previously authorized (or which need no prior authorization),…
The FCC’s Media Bureau this week released a decision denying the license applications of five new FM stations, and cancelling the construction permits for those stations. While the principal reasons for the denial of the license applications was the failure of the applicant to complete the applications correctly after the several deadlines imposed by…
In the last month, the FCC has released two decisions dealing with efforts by holders of expiring FM construction permits to retain the rights to construct the technical facilities authorized by that permit beyond the expiration date of the permit. In one case, the FCC announced a policy that, from now on, the construction of temporary facilities will be insufficient to warrant the grant of a license application for a new station. In another case, the FCC decided that a station that had an expiring construction permit for modified facilities to upgrade its station from a Class C1 to a Class C0 station, which had twice expired before and been replaced by a new CP each time, was subject to a competing applications filed the day after the expiration of the most recent CP. It is clear from these cases that the FCC’s Audio Division is taking a hard line on the three year deadline on the construction of new facilities for FM stations, and is reluctant to preserve expiring permits, especially if the permit blocks opportunities for the use of the frequency elsewhere.
The first case involved a permittee of a new station who, immediately before the expiration of the three years that it was given by its construction permit to build the station, turned it on and filed a license application that was quickly granted by the FCC. About 10 days later, the new licensee requested authority to go silent while it sought approval of its construction plans for a permanent facility. The station remained silent for almost a year, before recommencing temporary operations from a different transmitter site pursuant to an STA. When the licensee filed for the renewal of its license and another application to move to a different transmitter site and to change city of license, a competitor objected, arguing that the licensee had misrepresented facts to the FCC about whether its station was ready for its initial operations from its original site and contending that the original license should never have been granted.
Continue Reading FCC Takes Hard Line on Efforts to Keep Alive Expiring Construction Permits for Both New FM Stations and Modifications of Existing Stations
A $4000 fine was levied by the FCC on an FM station owner who failed to file an application for license after completing construction of changes authorized by a construction permit, finally submitting the license applicaiton about 4 years after that permit had expired. When a broadcaster receives a construction permit authorizing technical changes in a station’s facilities, in most cases, it has three years to complete construction. Upon the completion of construction, the licensee must file an application for a license (on FCC Form 302 for commercial stations) certifying that the station was constructed as authorized. In this case, when the license application was finally submitted long after the permit expired, the application stated that construction had in fact been completed within the three year period set out in the construction permit. So the applicant requested retroactive approval of that license, relying on past FCC cases where license applications filed after the end of the construction period were nevertheless granted where the applicant could show that construction had been completed during the period set out in the construction permit.
The FCC decided in this case that a waiver was not appropriate given the time that expired between the expiration of the permit and the filing of the license application. While gaps of a few days or even a few weeks between the expiration of the permit and the filing of the license application are excusable, the Commission concluded that a four year gap was just too much to excuse – not the minor error that can be forgiven without a fine. Waiting four years to file a license application was deemed to be too much to forgive – so the question was whether a fine was appropriate and, if so, how much.Continue Reading $4000 Fine for Station That Forgets to File License Application After Completing Construction of Modified Facilities
The failure to follow FCC filing rules when a station finished construction of new facilities under a construction permit will apparently cost a radio station $7000 according to a recent Notice of Apparent Liability released by the Commission’s Media Bureau. Before a broadcast station can make most changes to its technical facilities, it must apply to the FCC for approval, which the FCC grants by way of a construction permit. In most cases, the broadcaster has 3 years to construct the proposed facilities. Once construction is complete, the broadcaster must notify the FCC of that fact by filing an application for a license on FCC Form 302. That form gives details of the construction, so that the FCC can tell that the station was built in the manner authorized by the construction permit, and in accordance with any conditions placed on construction in the permit. In this case, the broadcaster built the new facilities that it proposed within the 3 year period, but forgot to file the Form 302 – and only did so 3 years after the end of the construction period. Under this Notice, the late filing, and the failure to ask for special temporary authority ("STA") to operate the station after the failure to file was discovered, may cost the station $7000.
In the past, the FCC had allowed some stations to file their license application late, if construction had occurred in a timely fashion, and where the licensee provided proof of the timely construction. In this decision, the FCC found that these cases were situations where the late filing was for an insignificant period of time – a few days or weeks at the most, not for the years that went by in the case here. The late filing, and the fact that, as the construction permit had expired and no license had been granted, the station was deemed to have been operating without authority at the new site, warranted the $7000 fine in the FCC’s opinion. The case not only serves as a reminder to those with construction permits to file their license applications on time after they complete construction, but also shows that while the FCC may show some flexibility in enforcing its procedural rules, it will not allow licensees to ignore them for long periods. So be careful to meet the requirements of the rules, or look for big fines from the Commission. Continue Reading $7000 Fine for Radio Operator Who Builds Construction Permit But Forgets to File a License Application
