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
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.
The FCC today upheld the cancellation of a television station’s license for being off the air for over one year. Section 312(g) of the Communications Act instructs the Commission to cancel a license of any broadcast station that has not transmitted "broadcast signals" for over one year, unless there is a public interest reason for allowing…
What will be the issues that broadcasters need to be concerned about in next year’s Media Ownership proceeding? To get a clue, broadcasters should watch and listen to the second day of the FCC workshop on multiple ownership, featuring members of various public interest groups in Washington the week before last (watch it on the FCC website, here). These workshops, as we wrote here, were held to start the process on the Commission’s upcoming Quadrennial Review of the multiple ownership rules. The representatives who testified on this panel discussed the issues that they thought should be reviewed, and facts that they thought should be collected, in order for the Commission to successfully complete the ownership review required by Congress. As these Washington "insiders" are sure to be the ones filing comments in the proceeding and lobbying the Commission on the issues, the agenda of these organizations are likely to set the grounds for debate in the upcoming proceeding. From watching this hearing, there are bound to be a number of contentious issues that will come up.
The panel was made up of representatives of five different Washington public interest groups – four that tend to favor more regulation and less consolidation. The representative of the fifth organization, suggesting just the opposite – that in the new media world, little or no media ownership regulation is necessary. While much of the discussion was process-oriented, there was discussion of specific issues that might come up in the review. Both the process – which included extensive discussion of the need for detailed industry information for informed regulation to take place – and the substance could cause problems for broadcasters. Substantive issues discussed included the need for more scrutiny of shared services agreements in the television world (as some saw these as a way of evading the FCC ownership regulations), and for ways to insure that there is more local programming as part of the process. One representative also mentioned the need to review noncommercial broadcasting as part of the ownership proceeding – which is usually restricted to a review of commercial operations.
Each day, there seems to be a report about broadcast stations going off the air because of the current economic downturn – some permanently (witness several Montana full-power television stations formerly owned by Equity Broadcasting whose licenses were surrendered two weeks ago), some temporary, and some being given away to charity (like Clear Channel’s announcement of its donation of 4 AM stations to the Minority Media and Telecommunications Council). Several months ago, we wrote here about the steps a broadcaster should take when taking a station off the air – notification to the FCC within 10 days of the station going silent, seeking permission to remain silent after 30 days, and making sure that tower lights are maintained even if the station is off the air. But, as this situation becomes more common, there are a couple of other issues that have recently come up that are worth mentioning – one having to do with the one year period that a station can stay off the air without forfeiting its license, and the other dealing with music royalties.
First, in the last few months, there have been cases which have clarified, at least to a degree, the law that states that a license will be forfeit if a station is off the air for more than a year. In one decision, the Commission’s Video Division of its Media Bureau canceled the license of a television station that had come back on the air shortly before the year of silence was to end, but only broadcast a test pattern. Finding that the station had not broadcast any programming, and that transmission of a test pattern did not constitute "broadcasting", the Division determined that the obligation to return to the air had not been met, and canceled the license. The licensee is appealing this decision, arguing that the law (Section 312g of the Communications Act) does not require that a station broadcast programming, just that it "transmit broadcast signals" within a year of the time that it went off the air. But, for now, licensees who take their stations silent should plan for returning to the air with some programming within a year, or risk the cancellation of the station license.
In these challenging economic times, it seems like almost every day we see a notice that a broadcast station has gone silent while the owner evaluates what to do with the facility. This seems particularly common among AM stations – many of which have significant operating costs and, in recent times, often minimal revenues. The DTV transition deadline (whenever that may be) may also result in a number of TV stations that don’t finish their DTV buildout in time being forced to go dark. While these times may call for these economic measures to cut costs to preserve the operations of other stations that are bringing in revenue, broadcasters must remember that there are specific steps that must be taken at the FCC to avoid fines or other problems down the road.
One of the first issues to be addressed is the requirement that the FCC be informed of the fact that a station has gone silent. Once a station has ceased operations for 10 days, a notice must be filed with the the FCC providing notification that the station is not operational. If the station remains silent for 30 days, specific permission, in the form of a request for Special Temporary Authority to remain silent, must be sought from the FCC. The rules refer to reasons beyond the control of the licensee as providing justification for the station being off the air. Traditionally, the FCC has wanted a licensee to demonstrate that there has been a technical issue that has kept the station off the air. The Commission was reluctant to accept financial concerns as providing justification for the station being silent – especially if there was no clear plan to sell the station or to promptly return it to the air. Perhaps the current economic climate may cause the FCC to be more understanding – at least for some period of time.