On September 26, the FCC will hold its next open meeting and, according to a Public Notice released Friday, will consider several issues important to different parts of the broadcast industry. For television broadcasters, there will be concerns about the proposal to do away with the “UHF discount,” which gives UHF stations a 50% discount in determining the number of households they reach when determining an owner’s compliance with the limitation that prevents any one company from owning television stations that reach more than 39% of the US television households. For radio, the FCC will be getting a report on the preparations for the upcoming LPFM window, allowing applications nationwide for new LPFM stations. That window, as we have written before, is to open from October 15-29. Finally, the FCC will be looking at modifications to its Antenna Structure Registration process – which could be important to all tower owners.

As the UHF discount issue is to be considered by the adoption of a Notice of Proposed Rulemaking, it is no doubt the more controversial of the broadcast issues to be discussed at the meeting. The discount was adopted by the FCC in analog days, when UHF broadcasters faced significant disadvantages. Analog UHF signals (TV channels 14 and above) simply did not travel as far as VHF signals, were less likely to penetrate buildings (especially as many over-the-air antennas were designed for VHF reception), and were far more costly than VHF operations (as VHF transmitters operated at far lower power levels than do transmitters for UHF operations). But, in the digital world, broadcasters found that the world had been turned on its end – with UHF signals being far preferable, as the VHF digital signal was found to be far more susceptible to interference, especially in urban areas. In the less forgiving digital environment (where a signal is either there or not, instead of the degraded "snowy" picture that you could get in the analog world), the UHF signal is generally preferred – despite the higher power costs and the fact that the signals still don’t travel as far.


Continue Reading FCC Meeting to Consider UHF Discount on National TV Multiple Ownership Rules, LPFM Window, and Tower Registration Issues

The rules for determining when construction of a new tower may cause a distortion of the pattern of a nearby AM station, and when the party building the new tower has a financial obligation to remedy any interference caused, were clarified by the Commission in an order released late last week. The order makes clear that all towers used by FCC licensees must abide by these rules, putting into formal rules the existing general obligation that all “newcomers” that create interference to an existing licensee must be responsible for rectifying that interference. There was apparently some question about the duty of newcomers to rectify issues that they cause to AM stations, as the rules for all non-broadcast services did not explicitly include language embodying that concept.

The Commission also made clear that the distortion of an AM stations pattern would be measured by the “moment method,” a computer program that will determine if there is a disruption to the pattern, rather than by actual field strength measurements. Doing a “proof of performance” of an AM station can be a long and costly process. Thus the FCC several years ago authorized the moment method of modeling AM patterns (see our article here). In this order, the Commission extends the reliance on this method to the resolution of complaints about new tower construction interfering with existing AM patterns. Other specifics of the order are set forth below.


Continue Reading FCC Sets New Rules for Determining When New Tower Construction Triggers Financial Responsibility for Disrupting AM Station Antenna Patterns

Failing to properly maintain a communications tower can be expensive, as a number of FCC decisions released in the last few days demonstrate. In several decisions reached in the last week, the Commission faulted tower owners for all sorts of problems – tower lights being out without letting the FAA know, faded paint, missing fencing around an AM tower, tower registrations that had not been updated after a sale, and the failure to post the tower Antenna Survey Registration Number (“ASRN”) at the base of the tower so that the FCC could identify the tower owner. These cases provide a survey of the many issues that tower owners can have – ones that can bring big FCC fines.

In the case with the largest proposed fine – $25,000 – the FCC faulted a tower owner for having a tower with faded paint and no posted ASRN that was visible at the base of the tower. In addition, the FCC tower registration had not been updated to reflect the name of the current tower owner – even though the owner had bought the tower 10 years before. After an FCC inspection identifying the issues, the licensee promised that they would be remedied. But, according to the decision, two more inspections were made by FCC inspectors within 15 months of the first inspection, and the problems all remained. The failure to correct the errors after being repeatedly warned brought about a $10,000 increase in the fine from what would be normally warrant a penalty of approximately $15,000. Clearly, if the FCC tells you something is wrong – fix it, or face increased liability for the problems. The FCC does not like to be ignored.


Continue Reading FCC Fines Up to $25,000 for Tower Issues Including Lighting and Painting Issues, Inadequate Fencing, Tower Registration in Wrong Name and No Posted ASRN

Fines for broadcast station tower owners who fail to maintain the required lighting on their tower are not unusual. But in a decision last week, the FCC made clear that, even if the licensee of a broadcast station is not the tower owner, it still has the responsibility for dealing with tower lights that are out, even if the tower owner does not. The failure of the licensee to maintain the tower lights, and other related issues, resulted in an $11,000 fine issued by the FCC.

The case was unusual in that the broadcast licensee, and the company from which it bought the station, were arguing over who owned the tower – not contending that the each owned the tower, but instead each pointing to the other as the one with the responsibility for the maintenance of the tower. The former owner of the station maintained ownership of the underlying land, but claimed that the tower was conveyed to the new station owner. The licensee claimed that the tower was still owned by the former owner, and that former owner should be responsible for the tower lights. The FCC reviewed the contract between the two parties, seemed to conclude that the licensee had in fact acquired the tower, but said that the final determination on that issue was one for local courts, not the FCC.  But even if the licensee did not own the tower, it still had the responsibility for the tower as licensees have the responsibility to insure that the tower lighting requirements in their licenses are met. This obligation is set out in Section 17.6 of the Commission’s rules and in various policy statements.  Thus, no matter who owned the tower, the licensee was still subject to the fine for the lights not being operational.


Continue Reading $11,000 Fine for Broadcast Station Tower Light Outage – FCC Emphasizes the Responsibility of Licensee To Maintain Lights if Tower Owner Does Not

In a Notice of Apparent Liability, the FCC proposed a $14,000 fine on a broadcaster for a series of violations with respect to its tower. The FCC found that the station failed to have the required lights on the tower operating after sunset on at least two days, failed to notify the FAA of the outage (so that the FAA could send out a NOTAM – a notice to "airmen" notifying them to beware of the unlit tower), and failed to properly register the tower when the current owner acquired the station from its previous owner. As the tower had been sold over 3 years prior to the inspection that discovered the tower lights being out, the FCC determined that the violations were particularly egregious, and upped the fine – which would have been $10,000 for a failure to have the lights operating, and $3000 for failing to update the Antenna Structure Registration ("ASR") by an additional $1000. As noted below, updating tower registrations is considered very important by the FCC as, in another recent decision, the FCC proposed a $6000 fine merely for the failure of a licensee to update a tower registration. 

The case also showed the importance of keeping accurate records of the observation of tower lights. While the FCC did not specifically fine the station owner for not logging the tower light inspections, it did note that there was confusion between the station owner and engineer as to who was inspecting the tower lights and how often they were being inspected, when first asked by the FCC inspector. While records were later provided by the licensee that supposedly showed that the tower lights were inspected on a daily basis, the records were inconsistent and seemed to contradict the observations of the FCC inspectors. What do the rules require?


Continue Reading $14,000 FCC Fine for Tower Violations – Obstruction Light Out, No FAA Notification and Failure to Update Antenna Survey Registration to Report New Owner

The over-the-air reception of television stations has taken on heightened awareness in recent years.  In the regulatory world, this prominence comes from the FCC’s consideration of taking back some of the broadcast spectrum for use by wireless broadband based at least partially on the Commission’s belief that broadcasters are not using that spectrum efficiently as many viewers,over the last

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

With the recent publication in the Federal Register, several new Commission rules and policies regarding communications towers and migratory birds are now on the books, however, they are not yet effective as the collection of information still requires OMB approval.  The Commission’s new rules are an outgrowth of a decision from the Court of Appeals

Last week, I did a presentation on the issues facing broadcasters at the Kansas Association of Broadcasters annual convention (a copy of the slides from my presentation is available here).  I spoke about some of the day-to-day issues that can get broadcasters into trouble, as well as some of the big policy issues that broadcasters need to consider.  My presentation was preceded by a session conducted by the agent in charge of the Kansas City field office of the FCC, who emphasized the many issues that the field agents discover at broadcast stations that can lead to fines.  In the week since I returned from Kansas, it seems like the FCC has wanted to demonstrate the examples given by their agent, as there have been a large number of fines demonstrating the breadth of technical issues that broadcasters can face.  Fines (or "forfeitures", as the FCC calls them) were issued or proposed for issues ranging from faded tower paint, tower light outages, EAS problems, operations with excess power, and the ubiquitous (and very costly) public file violations.  Fines of up to $25,000 were issued for these violations – demonstrating how important it is not to overlook the day-to-day compliance matters highlighted in my presentation.

The largest of these fines was for $25,000.  This fine was imposed on a station for failing to have operational EAS equipment, not having an enclosed fence around the antenna site, and a missing public file.  The fine was originally proposed in a Notice of Apparent Liability (the first step in imposing an FCC fine, when the FCC spells out the apparent violation and the fine proposed, and the licensee is given time to respond to the allegations), released in July (see our post here).  The licensee failed to respond to the Notice of Apparent Liability, thus the fine is now being officially imposed.


Continue Reading A Host of FCC Fines of Over $20,000 for Technical and Tower Issues – And a Presentation on How to Avoid FCC Problems to the Kansas Broadcasters