Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
The FCC’s Audio Division, in the latter part of the license renewal cycle for radio stations, seems to have adopted a more aggressive position on stations that were silent for extended periods of time during their license term. In our summary of last week’s events of importance to broadcasters, we noted one case where an Oklahoma AM station was granted a license renewal for a one-year term, instead of the normal eight years, because the station had been silent for 50% of its license term. Yesterday, another decision was issued granting the license renewals of 7 Texas stations for only one year because these stations had been silent for 25% of their license term (as well as a significant period of time after the license renewal applications were filed). These and other decisions in recent months show that the FCC is cracking down on stations that are silent for extended periods of time, even if those periods of silence had been authorized by the FCC pursuant to a request for special temporary authority to remain silent.
In each of these decisions, the FCC notes that silent stations cannot be serving the public interest. When they are silent, they are not providing information to local residents, nor are they relaying EAS alerts. As the stations are falling short on their obligation to serve the public by extended periods of silence (even if those periods of silence are authorized), the FCC has been issuing these short-term renewals to be able to monitor the performance of these stations to assure that they are continuing to operate during the next year – rather than having to wait until the end of a normal 8-year term to decide if the station has been serving the public.
Continue Reading FCC Cracking Down on Long Periods of Station Silence – Short-Term Renewals for Radio Stations Silent More than 25% of License Term
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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Here are some of the FCC regulatory and legal actions of the last week of significance to broadcasters — with a quick look at the week ahead— with links to where you can go to find more information as to how these actions may affect your operations.
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Continue Reading This Week at the FCC for Broadcasters: May 30, 2020 to June 5, 2020
Here are some of the FCC regulatory and legal actions 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.
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Taking a station off the air is often the last resort of a broadcast company in desperate financial times. While Payroll Protection Act loans have helped many small broadcasters avoid that action even in light of the dramatic decrease in broadcast advertising revenue in the last two months, and some relief may come in areas of the country looking at some reopening of business in the coming weeks, we have still heard of some stations that just can’t manage continued operations in this period of turmoil – either for financial or operational reasons caused by the current health crisis. If this action is in the cards for your station because of the pandemic or for any other reason including technical failures, do not forget about the FCC requirements for taking a station silent.
When a broadcast station goes silent, it must notify the FCC of that status within 10 days of going off the air. If the situation will continue for a longer period, a request for Special Temporary Authority providing the reasons for going off the air must be filed within 30 days of going silent. These STAs are granted for no more than 6 months at a time, so that date should be noted for the filing of any extension that may be needed. But be careful, as if a station is silent for a full year, Section 312(g) of the Communications Act provides that the license will be cancelled unless the FCC makes an affirmative finding that there are special public interest reasons for not taking that action (a finding made in very rare cases). When stations resume operations, they must notify the FCC that they are back on the air. But to be considered back on the air, there must be programming – running a test pattern is insufficient (see the case we wrote about here). Even with authority to remain silent, there are risks.
Continue Reading Broadcast Stations Going Silent – What You Need to Do
The FCC yesterday took what some may suggest is an unprecedented action to potentially deny the license renewal of an FM broadcast station that was silent for all but one day each year during its license renewal term. According to the Hearing Designation Order, the station operated one day each year to avoid forfeiting its license pursuant to Section 312(g) of the Communications Act (a provision we have written about here and here, which provides for the automatic cancellation of the license of a broadcast station that has been silent for more than one year). The order released yesterday points to a 20 year-old case as warning broadcasters that, if they do not operate for substantial portions of a license renewal term, they are in danger of losing their license. As the FCC points out, if the station is not operating, it cannot fulfill the obligation of a licensee to serve the public interest.
The hearing scheduled by the FCC will be a “hearing” in name only. As there are unlikely to be disputed facts, the FCC has adopted a simplified process of a paper hearing. The licensee of the station will need to submit all the records of station operations during the last renewal term, if such records exist (e.g. station logs, issues-programs lists, and EAS test reports), and a written statement of no more than 25 pages setting out why the license should be renewed. That evidence, along with any comments filed by any party that wants to intervene in the case, will be reviewed by the Commissioners themselves. No oral presentation will be made, and no administrative law judge will be involved in the review of the record compiled by this station. Hearings where the FCC proposed to revoke the license of a station have in the last four decades been held before an administrative law judge, usually with live witnesses. In commenting on this new procedure, Commissioner O’Rielly notes that cases before an administrative law judge can take years to resolve, and often end up being reviewed by the Commissioners themselves anyway, so this paper hearing before the Commission will be much more efficient.
Continue Reading FCC To Hold Hearing to Determine Whether to Deny License Renewal of Radio Station that was Silent for Most of its License Term
Last week, the FCC issued a consent decree entered into with a broadcaster who is the licensee of multiple radio stations, many of which were silent for long periods during the last license renewal cycle. As part of the deal, in order to get renewals for 12 stations granted, the licensee agreed to either…
In a decision released yesterday, the FCC proposed to fine a station and gave it a short-term license renewal as the station could not demonstrate that it had served the needs and interests of its community. Why? Because the station had been silent for much of the renewal term – only turning on for a short time every now and then – enough to avoid having its license cancelled for being silent for more than a year. Several years ago, Congress amended the Communications Act to add Section 312(g) requiring that the FCC cancel a station’s license if it has been silent for more than a year, unless the station can demonstrate some overriding public interest reason for leniency (a showing that, as we wrote here, is difficult to make).
To avoid the ultimate sanction of having a license cancelled, many stations facing economic issues or other long-term problems with transmitter sites or other matters, will find a way to turn their stations back on the air for a day or two to avoid being off the air for more than a year. As long as programming is run on the station during that on-air period, the FCC has thus far allowed the stations to continue in this mode. But, in this license renewal cycle, broadcasters were for the first time required to specify if their stations had been of the air for more than 30 days at any point in the license term. In yesterday’s decision, the FCC makes clear that a station that spent a significant amount of time off the air may face a sanction – here, the grant of the license renewal for only 2 years rather than the normal 8 year period. If a station is off the air for more than half the renewal term, it looks like an even more serious sanction may be in the works.
Continue Reading Radio Station Being Silent Too Long Brings FCC Sanction – How Long Can a Broadcast Station Be off the Air Before It Causes Trouble at License Renewal Time?
Sometimes, even though you have FCC authority for your operations, you can still run into issues that can cause you to have that authority pulled out from under your operations. In three cases decided this week, the FCC’s Audio Division interpreted a number of its procedural rules – in two cases leading to the cancellation of FM translator licenses and the silencing of operating translator stations. In one case, the FCC decided that a licensed and operating FM translator had been licensed in error, as it actually created interference to an existing full-power FM station in a populated area, even though the translator application had initially claimed that it would not. In the second case, a translator was forced to cease operations because of interference from a new full-power station. When it did not resume operations within a one-year period, the FCC found that its license was automatically forfeited because of the year’s silence – even though the station had resumed operations in the construction period specified in a construction permit authorizing the translator to operate on a new frequency. These cases make clear how important the FCC’s procedural rules can be – actually leading to what are effectively life or death decisions for the license of a broadcast station.
In the first case, a translator licensee had a construction permit application granted to move to a new transmitter site. After the permit was granted, the licensee of a full-power station filed a Petition for Reconsideration of the grant, arguing that the translator would in fact create interference in populated areas served by its station. Despite the protest, the permittee constructed the translator at the new site, started operations and filed a license to cover the new construction – which was granted by the FCC. In reviewing the evidence filed by the petitioner, the FCC determined that there would in fact be interference caused to the full-power station in inhabited areas, contrary to what had been claimed in the translator’s CP application. Based on that finding, the FCC revoked the license and underlying CP for the translator. The FCC made clear that a permittee who constructs a station when there is an objection to the underlying CP does so at its own risk. Where, as here, the underlying objection is found to have merit, the mere fact that the permittee had the right to build the station does not give him any grounds to argue that the station should be permitted to continue to operate – rejecting claims by the translator operator that, as there were no complaints of real interference caused by its operation, it should be permitted to continue to operate. Where the translator had prohibited contour overlap with the protected full-power station, and where it was shown that the area in which that overlap occurred was populated (shown by a USGS Topographic map that showed structures in the area), the operation was not permitted to continue.…
