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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:

  • Late-Filed License Application Garners $7,000 Fine
  • FCC Fines Noncommercial Broadcaster $5,000 for Alien Ownership Violation

“Inadvertent Error” Results in $7,000 Fine for West Virginia Broadcaster

The FCC recently issued a combined Memorandum Opinion and Order and Notice of Apparent Liability (the “Order”) fining a West Virginia FM broadcaster for unauthorized operation and failure to file a required form. The base fines associated with these types of rule violations total $13,000. However, based on the circumstances detailed below, the FCC decided to reduce the overall fine to $7000.

The licensing process begins with the grant of a construction permit and concludes with the grant of a station license authorizing permanent operation of the newly-constructed facilities. Pursuant to Section 73.3598(a) of the FCC’s Rules, construction must be completed within three years and a license application must be promptly filed with the FCC when construction is completed. Subsection (e) of this rule provides that a construction permit will be automatically forfeited upon its expiration if construction is not completed and a license to cover application has not been filed within the allotted three year period.

In the instant case, the FM broadcaster was forced to utilize an emergency antenna as a consequence of a 2002 tower collapse. In June 2004, the FM broadcaster sought to modify its station to relocate its authorized tower site to a location less than two miles away. As part of this process, the FM broadcaster filed an application for a construction permit. The FCC granted the application in July 2004 and issued a construction permit slated to expire in July 2007.

According to the Order, the FM broadcaster filed its license application in May 2011, almost four years beyond the expiration of the 2004 construction permit. The license application included a request for a waiver of Section 73.3598(e), indicating that the authorized construction had been completed by April 2006, well in advance of the three year expiration date, but that due to an “inadvertent error”, the license application was not filed prior to the construction permit’s July 2007 expiration.

In support of its waiver request, the FM broadcaster cited a May 2011 case in which the FCC had “affirmed the staff’s practice of waiving Section 73.3598(e) of the Rules in situations where the applicant conclusively demonstrates that it completed construction prior to the expiration of the construction permit, notwithstanding the tardy filing of the license to cover application.” In response, the FCC’s Order noted that the prior waivers occurred where the delay in meeting the deadline was “relatively minor”, as was the case in the cited May 2011 decision, where a license application was filed three days after the expiration of the construction permit. The FCC concluded that a four year delay could not be considered minor.

Ultimately, the FCC rejected the FM broadcaster’s waiver request, dismissed the license application, and on its own motion, granted the station special temporary authority to operate while it reapplied for a new construction permit. The FCC levied the full $3,000 fine for failure to timely file a license application, but reduced the unauthorized operation fine (for the period the station operated with modified but unlicensed facilities) from $10,000 to $4,000 since the station had previously held a valid license.

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In 2009, the FCC adopted an Order which expanded the types of commercial broadcast licensees required to file ownership reports on FCC Form 323 biennially. The FCC also established November 1 (of odd-numbered years) as the single national ownership report filing date for all commercial broadcast stations. As a result, all commercial full-power AM, FM, TV, and Class A and LPTV stations, as well as entities with attributable interests in those stations, were due to file their next biennial ownership reports on November 1 of this year. However, the Media Bureau issued an Order yesterday which moves the November 1, 2011 filing deadline to December 1, 2011. The FCC indicates that despite the change in filing date, the ownership reports should still include a snapshot of station ownership as it existed on October 1, 2011.

Keep in mind that the ownership report filing requirement does not apply to TV translators, FM translators, or low power FM stations. The FCC’s action also does not affect noncommercial stations, which continue to file their biennial reports on FCC Form 323-E by a filing deadline determined based upon the state in which they are licensed (rather than a single national date).

According to the FCC, the filing date was moved because “some licensees and parent entities of multiple stations may be required to file numerous forms and the extra
time is intended to permit adequate time to prepare such filings.” Despite providing the extra time, the FCC is still encouraging parties to prepare and file their ownership reports as soon as possible.

Having provided the extra filing time, the FCC will not be too pleased with broadcasters that fail to meet this new deadline. Broadcasters should therefore accept the FCC’s advice and try to avoid last minute ownership filings, which increase the likelihood of technical and other problems that can interfere with a successful filing.

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The FCC this morning announced a “temporary” freeze on the filing and processing of applications for full power and low power television stations on Channel 51. The freeze was announced in response to a petition filed in March by CTIA – the Wireless Association and the Rural Cellular Association asking the FCC to take steps to “prevent further interference caused by TV broadcast stations on channel 51” to wireless broadband services in the Lower 700 MHz A Block. More specifically, the petition urged the FCC to “(1) revise its rules to prohibit future licensing of TV broadcast stations on channel 51, (2) implement freezes, effective immediately, on the acceptance, processing and grant of applications for new or modified broadcast facilities seeking to operate on channel 51, and (3) accelerate clearance of channel 51 where incumbent channel 51 broadcasters reach voluntary agreements to relocate to an alternate channel.”

What is odd about the FCC’s announcement, however, is that freezes are normally implemented to “lock down” the engineering database to permit the FCC to analyze various engineering solutions using a stable database. For example, during the DTV transition, the FCC issued numerous freezes as it attempted to engineer a DTV channel plan that would allow each full power station both a digital and an analog channel to operate during the transition. That task would have been much harder if the database had kept changing during that time.

Here, however, the FCC is not freezing Channel 51 applications to give it time to resolve a Channel 51 engineering issue. Instead, it is freezing Channel 51 applications to ostensibly give it time to determine whether to freeze Channel 51 applications. That is a novel use for a freeze, and seems to prejudge the ultimate question of whether the FCC should grant the underlying petition.

Of particular interest is the fact that today’s notice goes farther than just a freeze, as it “(1) announces a general freeze, effectively [sic] immediately, on the filing of new applications on channel 51 and the processing of pending applications on channel 51; (2) lifts the existing freeze as applied to, and will accept, petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement; and (3) opens a 60-day window for parties with pending low power television station applications on channel 51 to amend their applications to request a voluntary channel assignment.”

Typically, when the FCC issues a freeze, it is only on the filing of new applications. As a matter of fairness, the FCC will normally process applications already on file when a freeze is announced since such an applicant has already expended its resources to file an application that was fully grantable before the freeze was announced. That makes this freeze unusual, as it freezes even pending applications, and in doing so, pretty much “temporarily” grants the wireless industry’s petition.

That last aspect is particularly odd. In contrast to a freeze designed to “lock in” the current engineering situation while options are assessed, the freeze notice does the opposite, specifically encouraging Channel 51 applicants and licensees to amend their applications and modify their facilities to change the current Channel 51 engineering terrain. In other words, it is a freeze that is not designed to lock in the current situation, but to actively change the current situation.

If it wasn’t already clear where the FCC is heading, establishing a 60-day “window” for low power applicants to clear off of Channel 51 in response to only a “temporary” freeze would make no sense if the FCC didn’t intend the freeze to be permanent. A low power station that fails to file a displacement application during those 60 days could well be deprived of a subsequent opportunity to amend when the FCC adopts a permanent Channel 51 freeze. Otherwise, there would be no point in limiting such applications to a 60-day window. In that regard, the assertion in the freeze notice that the FCC’s action is purely procedural and therefore “not subject to the notice and comment and effective date requirements of the Administrative Procedure Act” will be of little comfort to the low power applicant who waits to see what “permanent” action the FCC takes in this proceeding.

While the freeze does leave the FCC staff some wiggle room to grant waivers for modification applications by existing Channel 51 stations where necessary to maintain service to the public (thank you Media Bureau!), it is apparent that the FCC has decided to begin winding down use of Channel 51, even though the wireless entities that bid on the adjacent spectrum knew that they were subject to interference from Channel 51 stations when they bought it.

Broadcasters not affected by this freeze should derive little comfort from that fact. The FCC has made clear its desire to recover 120 MHz of contiguous broadcast spectrum, which means that all channels higher than 30 would disappear. This Channel 51 freeze merely establishes the template for those future FCC actions, and soon the bell could be tolling for far more than just Channel 51.

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The FCC has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2011 must be received no later than September 14, 2011.

As of this date, the FCC has not released a Public Notice officially announcing the deadline for payment of FY 2011 annual regulatory fees. However, the FCC’s website indicates that the 2011 annual regulatory fees must be paid no later than 11:59 pm (EST) on September 14, 2011.

As reported in July 2010, beginning in 2011, the Commission has discontinued mailing assessment notices to licensees/permittees. It is the responsibility of each licensee/permittee to determine what fees are due and to pay them in full by the deadline. Information pertaining to the annual regulatory fees is available online at

Annual regulatory fees are owed for most FCC authorizations held as of October 1, 2010 by any licensee or permittee which is not otherwise exempt from the payment of such fees. Licensees and permittees may review assessed fees using the FCC’s Media Look-Up website – Certain entities are exempt from payment of regulatory fees, including, for example, governmental and non-profit entities. Section 1.1162 of the FCC’s Rules provides guidance on annual regulatory fee exemptions. Broadcast licensees that believe they qualify for an exemption may refer to the FCC’s Media Look-Up website for instructions on submitting a Fee-Exempt Status Claim.

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While our monthly editions of FCC Enforcement Monitor have continued to grow in popularity over the past decade, I’m never quite sure if it is because readers rely on it to better understand the FCC’s Rules, or if it is more akin to going to the races to see who crashes. Every month, FCC Enforcement Monitor highlights some of the FCC’s recent enforcement actions, and the penalties imposed. Having edited every issue since it launched in 1999, I find it useful in spotting enforcement trends before our clients find out about those trends the hard way.

One of the trends that is increasingly apparent is the FCC’s hardening line on public inspection file violations. In fact, we just did a major update to our Client Advisory on public file compliance to help broadcast stations avoid that pitfall, and I’ll be in Austin this week at the Texas Association of Broadcasters/Society of Broadcast Engineers convention with Stephen Lee of the FCC’s Houston regional office discussing the public file rule and other FCC compliance issues.

One of the questions on the broadcast license renewal form requires applicants to certify that they have fully complied with the public file rule and that their files are complete. Once upon a time, a station that could not make that certification and was therefore required to disclose its file’s shortcomings to the FCC might well get an admonition from the FCC to do better in the future, combined with an acknowledgement that the applicant had at least voluntarily disclosed its infraction. Then the FCC began issuing $2000 fines for public inspection violations, which crept upward in the last license renewal cycle to $3000 and then to $4000. During this time, there was much consternation among broadcasters who had sought to comply with the rule, admitted to the FCC any shortcomings in their public file, and felt that they were being unfairly punished for being forthright with the FCC.

In 1997, the FCC established a base fine of $10,000 for public inspection file violations, but tended not to issue fines for the full $10,000 unless it was an egregious violation, such as a station that failed to keep a public file at all for some period of time. However, in the past decade, $10,000 has become the standard “go to” fine for even minor public file violations. In fact, the most recent FCC Enforcement Monitor details a recent case where the FCC chose to adjust its base fine upward and issue a $15,000 fine for a public inspection file violation.

Of equal interest in that same issue of FCC Enforcement Monitor is a case in which the FCC fined a student-run noncommercial station $10,000 for documents missing from the public file. In assessing the fine, the FCC made clear that the station’s “voluntary” disclosure of public file problems in its license renewal application no longer earns any sympathy from the FCC. The FCC stated that “although the Licensee has admitted to the violations, it did so only in the context of the question contained in its captioned license renewal application that compelled such disclosure.” When the station later asked that the fine be cancelled or reduced given its student-run and noncommercial nature, the FCC once again had no sympathy, and reaffirmed the $10,000 fine.

Since submitting a false certification on a federal form can lead to far worse penalties than a fine, broadcasters have but one option for avoiding a $10,000 (or worse) fine, and that is by making sure their stations’ public inspection files are above reproach. With the next license renewal cycle now upon us, broadcasters would be wise to ensure their public file is getting the attention it deserves. If that leaves us with no FCC public inspection file fines to discuss in a future issue of FCC Enforcement Monitor, I’ll be happy with that result.

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This Advisory is designed to help commercial and noncommercial radio and television stations comply with the FCC’s public inspection file rules. See 47 C.F.R. §§ 73.3526 and 73.3527. This Advisory tracks the public access, content, retention and organizational requirements of those regulations. Previous editions of this Advisory are obsolete, and should not be relied upon.

As of the date of this Advisory, the FCC is considering petitions for reconsideration of two new, but not yet effective, regulations that will have an impact on public inspection files maintained by television broadcast stations. One will require every full-power and Class A television station with a website to post a duplicate set of virtually the entire contents of their current “paper-based” public inspection file on their website. The second will require such television stations, on a quarterly basis, to complete a new report entitled “Standardized Television Disclosure Form” using new FCC Form 355, file that report with the FCC, place a copy of the completed report in the station’s public inspection file, and post the report on the station’s website, if it has one. As mentioned, neither of these two new requirements is legally effective at this time. It should be noted that representatives of the broadcast industry have challenged both requirements, and it is not possible to predict the outcome of those challenges. Accordingly, stations should evaluate what steps they may need to take to come into compliance with these new regulations at a later date. We intend to update this Advisory if and when either of those two requirements goes into effect.

Public Access to the Public Inspection File
The FCC requires every applicant, permittee, and licensee of a full-power AM, FM, and TV station or of a Class A TV station to maintain a local public inspection file. The purpose of this file, according to the Commission, is “to make information to which the public already has a right more readily available, so that the public will be encouraged to play a more active part in a dialogue with broadcast licensees.” Because the public file rules are part of the FCC’s commitment to responsive broadcasting, the importance of broadcaster compliance with these rules cannot be overemphasized. (continued…)

A PDF version of this entire article can be found at Special Advisory for Commercial and Noncommercial Broadcasters: Meeting the Radio and Television Public Inspection File Requirements.

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As we reported previously, in an atypical display of unity among broadcasters and the cable industry, the parties found common ground and filed a Petition with the FCC seeking to extend the deadline for implementing the Common Alerting Protocol (CAP) standard.

Last week, that unified front continued when we filed a further extension request with the FCC on behalf of an even greater assembly of EAS Participants, including the State Broadcasters Associations, representing all fifty States and the District of Columbia, the National Association of Broadcasters, the Broadcast Warning Working Group, the National Cable and Telecommunications Association, the American Cable Association, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service. The Petition asks the FCC to grant a further extension of at least 180 days beyond the current September 30, 2011 CAP compliance deadline, with the 180 days to run from the effective date of the Commission’s amendment of its Part 11 rules pursuant to its recently released Third Further Notice of Proposed Rulemaking. (Our discussion of the Third Further Notice can be found here).

In granting the earlier request for an extension of the CAP deadline, the FCC acknowledged that if it failed to extend the 180-day deadline, it could “lead to an unduly rushed, expensive, and likely incomplete process.” As a result, the Commission issued its Order giving EAS Participants until September 30, 2011, to acquire and install equipment able to accept CAP-formatted EAS messages.

In their Petition seeking a further extension of the CAP deadline, the broadcast and cable industries assert that a later deadline is warranted given the regulatory uncertainty that remains regarding CAP compliance. The Petition notes the nearly unanimous view of those who commented on the Third Further Notice that the deadline should be further extended because the FCC has not yet decided whether it will itself conduct EAS equipment certification in addition to the certification being done by FEMA. The Petition also notes that the Third Further Notice may lead to Part 11 rule changes altering the current obligations of EAS Participants in ways that would affect the purchase, installation and operation of new EAS equipment.

The Petition also states that a further extension will allow participants in the scheduled November 9, 2011, National EAS Test to focus their limited engineering resources on ensuring the success of the nationwide test. (We previously reported on the first National EAS Test here and here).

It remains to be seen whether a further extension will be granted, but if the Petition and the majority of comments recently filed in response to the FCC’s Third Further Notice in the EAS proceeding are any indication, EAS Participants — including broadcasters, cable operators and many others — feel strongly that a further extension of the deadline is essential.