CommLawCenter

May 31, 2013

For more information, please visit www.mbaconvention.com.

May 30, 2013

Scott R. Flick and Paul A. Cicelski will discuss the requirements of a successful station EEO program in this webinar hosted in conjunction with the Massachusetts Broadcasters Association and the New Hampshire Association of Broadcasters on May 30, 2013 from 2:00-3:00pm ET/12:00-1:00pm PT.

Topics to be discussed will include the three major elements of the FCC's EEO rule, employment outreach requirements, the 16 FCC outreach credits, record keeping and reporting requirements, FCC EEO form information, the FCC's EEO enforcement practices and more.

For more information and to register, please see mab or nhab.

Posted May 23, 2013

By Scott R. Flick and Paul A. Cicelski

May 2013

Pillsbury's communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month's issue includes:

• FCC Establishes New Enforcement Policy for Student-Run Noncommercial Radio Stations
• CB Radio Owner Receives Fine for Harmful Interference and Lack of Responsiveness

In a recent Policy Statement and Order, the FCC established a new policy for certain first-time violations of FCC documentation requirements committed by student-run noncommercial radio stations. The new policy allows such stations the option of entering into a Consent Decree with the FCC that includes a compliance plan and a "voluntary" contribution to the government that is smaller than the typical base fines for these violations.

In justifying its more lenient policy toward student-run stations, the FCC noted that such stations are staffed by a continually changing roster of young students lacking experience in regulatory compliance. In addition, such stations function without any professional oversight other than that provided by over-worked faculty advisors, and often operate with budgets so small that they are exceeded by even the base fine for a public inspection file violation. In the past, the FCC has issued numerous fines of $8,000-$10,000 to licensees of student-run stations, and with this new policy, the FCC recognizes that continuing to impose such fines could result in schools selling their stations altogether, as has indeed happened.

In the past, the FCC rejected arguments that fines on student-run stations should be reduced solely because the stations are run by students. The FCC has also typically rejected "inability to pay" arguments for these types of stations, and instead looked at the financial resources of the entire university or college, rather than the financial resources of the station, when assessing a fine. However, the FCC now concludes that allowing the cost of a first-time documentation violation to be reduced in exchange for a consent decree with a compliance plan will actually improve compliance with the FCC's rules. Specifically, the FCC believes that such compliance plans will assist in the training of students while contributing to the educational function of these stations.

In its Policy Statement, the FCC emphasized that the policy will apply only to student-run noncommercial radio stations where the station is staffed completely by students. Stations that employ any professional staff, other than faculty advisors, do not qualify. The policy is also limited to violations where a student-run station has failed to (a) file required materials with the FCC (e.g., an Ownership Report), (b) place required materials in the public inspection file, or (c) publish a notice in a local newspaper or broadcast an announcement on the air. This new policy will not change the FCC's forfeiture policies for any other type of violation or licensee.

Continue reading "FCC Enforcement Monitor"

Posted May 10, 2013

By Paul A. Cicelski

A few minutes ago, the FCC issued a Public Notice granting a thirty-day extension of the deadlines for submitting comments and reply comments in response to the FCC's April 1, 2013 Public Notice seeking input on whether the Commission should make changes to its current broadcast indecency policies. Comments and reply comments were originally due on May 20 and June 18, 2013, respectively, but have now been extended to June 19, 2013 (comments) and July 18, 2013 (reply comments). The extension was granted in response to a Motion filed by the National Association of Broadcasters on April 26, 2013.

Scott Flick of our office posted a detailed analysis of the Public Notice early last month. To refresh your memory, the Public Notice (jointly released by the FCC's Enforcement Bureau and General Counsel's Office) was issued in response to FCC Chairman Genachowski's request that FCC staff review the "Commission's broadcast indecency policies and enforcement to ensure they are fully consistent with vital First Amendment principles."

With respect to guidance for parties planning to file comments, the quoted language below from the Public Notice describes the matters on which the FCC is seeking comment:

1. [W]hether the full Commission should ... treat isolated expletives in a manner consistent with our decision in Pacifica Foundation, Inc., Memorandum Opinion and Order, 2 FCC Rcd 2698, 2699 (1987) ("If a complaint focuses solely on the use of expletives, we believe that . . . deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.")?
2. Should the Commission instead maintain the approach to isolated expletives set forth in its decision in Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Rcd 4975 (2004)?
3. As another example, should the Commission treat isolated (non-sexual) nudity the same as or differently than isolated expletives?

The Public Notice also states that parties are invited "to address these issues as well as any other aspect of the Commission's substantive indecency policies." As Scott pointed out in his analysis last month, this final question appears to open the door to a broader review of indecency doctrine than the FCC has engaged in for quite some time.

Given the controversy the FCC's indecency policies have historically generated, you can expect to see plenty of comments filed on June 19 and reply comments on July 18 by parties on all sides of this issue. As the FCC moves toward new leadership with the departure of Chairman Genachowski, the FCC's indecency enforcement policies could take some interesting turns.