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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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?Continue Reading Short Term License Issued to Radio Stations Because of Violations of RF Radiation Rules – Showing the FCC’s Options for Penalties at License Renewal Time
Three recent FCC cases demonstrate how seriously the FCC views tower site issues – imposing fines up to $14,000 for various violations of FCC rules. One $14,000 fine was in a case where an AM station’s tower was enclosed by a fence that was falling down and did not enclose areas of high RF radiation as required by Section 73.49 of the rules. The station also had a main studio that was unattended on two successive days, and had no one answering the phone on those days – no one to respond to the FCC’s calls. The FCC broke the fine down as $7000 due to the lack of fencing, and $7000 to the unattended main studio.
In the second case, the FCC, the FCC fined a station $10,000 for areas of high RF radiation that were not fenced or marked by signs when the FCC conducted its inspection, and $4000 for operating overpower. The Commission measured the overpower operation on one day, inferred that it had been in place the previous day, and thus deemed the violation repeated. The Commission found that the station’s tower was fenced, but that there was high RF outside the fence, leading to the fine. The third case was one where the Commission found that the top flashing beacon on a tower was out on two successive days, even though the required steady lit obstruction lights on the side of the tower were operational. While the licensee notified the FAA of the outage three days later (with no noted prompting from the FCC), and had the situation corrected two days after notifying the FAA, the Commission also determined that the the violation was repeated and willful, leading to a $10,000 fine.Continue Reading Tower Lights Out, High RF Radiation, Insufficient Transmitter Site Fences – FCC Fines Up to $14,000
The FCC today released a Public Notice announcing new provisions in its license renewal Form 303S – the form that radio and television stations will be using to file license renewal applications, starting with license renewals for radio stations in DC, Virginia and West Virginia in June. The Notice addressed several changes in the license renewal form – including the addition of certifications concerning whether a station was off the air at any point during the license term for a period of more than 30 days, whether principals of the licensee have interests in daily newspapers in the same area, and whether the station is in compliance with the RF radiation rules. Two other issues of note were raised in the Public Notice – one dealing with stations that have not received a license renewal from the last license cycle, and one dealing with the newly required certification that stations must make – that their advertising contracts contain a nondiscrimination provision to assure that advertisers are not purchasing advertising on the station for a discriminatory purpose.
We’ve written about the advertising anti-discrimination certification before, suggesting language that stations include in their contracts. What is new in today’s notice is that the FCC has clarified that the certification only covers the period from today’s notice until the filing of the license renewal application. So stations that do not have such certifications can still get them into their contracts now to avoid certification issues later. In our previous articles on this subject, we’ve noted that this is a confusing requirement, and that even its supporters have urged the FCC to clarify it. Today’s Notice only says that stations must avoid advertising purchases made on the basis of "no urban, no Spanish" dictates, but does not go any further in interpreting the requirements of this policy. Continue Reading FCC Clarifies Requirement for Antidiscrimination Clause in Advertising Contracts – And Sets Out Other License Renewal Changes
Operating a communications tower can always lead to issues, but two recent FCC decisions give tower owners some degree of relief. In one decision, the Commission’s Audio Services Division rejected a petition filed against the construction of new facilities for an AM station in Wasilla, Alaska – rejecting claims that the FCC’s RF radiation standards were not strict enough to protect local residents. In another case, the FCC determined that towers using an automatic system to monitor tower lighting – the “RMS system" – did not need to physically inspect the lights on the tower every quarter, as now required, but instead could do so annually, and set up an expedited system for approving tower owners who want to take advantage of this flexibility.
The first case, dealing with RF radiation, may be dismissed by some as just a decision stating the obvious – that a station that complies with the FCC’s RF radiation standards should be allowed to be constructed. But it is not always so simple. We have had clients face situations in many areas around the country where local residents complained about a new broadcast facility – blaming it for everything from the failures of electronic equipment to the health problems of nearby residents. Various organizations have espoused theories that the FCC’s RF standards are insufficient to protect the public, and their theories are often publicized through the Internet. And sometimes, these complaints can be brought to local elected officials who, not wanting to anger local voters, try to make an issue out of what should be a fairly straightforward analysis.Continue Reading FCC Decisions Making the Life of a Tower Owner Easier – Easing Approval for Automatic Monitoring, and Making Clear that RF Radiation Standards Are Not Arbitrary
Are you ready to file your next license renewal application? It seems like the last license renewal cycle just ended (in fact, the last cycle is not over, as evidenced by the fact that the FCC in the last week has released several decisions dealing with late-filed renewals from the last cycle, and many TV stations still have license renewals that have not been granted due to pending indecency issues). Nevertheless, a whole new cycle of Form 303 license renewal applications will soon be upon us – beginning in less than a year. The cycle begins with radio stations in Virginia, West Virginia, Maryland and the District of Columbia, who are due to file their license renewal applications on June 1, 2011. Then, every two months thereafter, stations in another group of states files applications, until April 1, 2014 when radio stations in Pennsylvania and Delaware bring the radio renewal cycle to a close. Television station renewal applications will be due on a state-by-state basis beginning one year later – starting with TVs in DC and the same three states in 2012. A schedule for the radio renewal filings is available here. With these deadlines almost upon us, what should stations be doing now to get ready?
In the last renewal cycle, the biggest source of problems dealt with public file issues. Remember, stations need to certify in their renewal applications that their public file is complete and accurate and, if it is not, to specify areas where there are deficiencies. In the last cycle, many stations in particular had issues with Quarterly Programs Issues Lists that were missing from the files, in many cases incurring fines of $10,000 or more where there were many such reports missing from the files. These reports are also very important, as they are the only required official records to demonstrate the programming that a station broadcast to serve the public interest needs of its service area. If that service is ever challenged, you will need the reports to demonstrate how your station’s programming met the needs and interests of your city of license and the surrounding area. Check out our last advisory on the Quarterly Programs Issues Lists, here.Continue Reading FCC License Renewal Application Cycle Begins in Less Than A Year – What Stations Should Be Doing to Get Ready
A petition was recently filed at the FCC proposing to allow all AM stations to increase to 10 times their current power in order to overcome the effects of interference that has grown up in most urban areas from the operation of all sorts of electronic equipment, fluorescent lights and other devices that simply did not exist when AM power levels were first established. The petition was drafted by an engineer, who argues that, as the amount of background noise from all sorts of electronic devices has increased, so has the noise on the AM band. He believes that the only way to make the AM signal usable is to vastly increase power on all stations. As the stations would maintain their relative power levels towards each other, he claims that there would not be increased interference between AM stations – but that the increased power levels would overcome the background noise. However, because of AM skywave issues, the petition suggests that nighttime power levels remain at their current levels.
How realistic is this proposal? The petition recognizes that, in border areas, the power increase could not happen without international coordination and the amendment of existing treaties. But, given the proposed high power for AM stations and the cumulative effect that their signals can have on distant stations, this increase could seemingly affect international AM stations even if the US stations increasing power are far from the border. However, the use of AM stations has been decreasing in some countries – in Canada, a number of AM stations have already ceased operating, so maybe the international implications could be overcome given enough time.Continue Reading An Across-the-Board AM Power Increase to Overcome Electronic Interference?
