FCC Enforcement Monitor ~ February 2020
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:
- Violations of the Live Broadcasting Rule Lead to $50,000 Consent Decree
- Decision Affirming Dismissal of Mississippi Station’s License Renewal Application Highlights Intricacies of License Renewal Process
- FCC Reversal Leads to Reinstatement of Georgia Radio Station’s License
Is This Live? California Broadcaster Settles with FCC Over Violations of the Live Broadcasting Rule
The FCC recently entered into a Consent Decree with a large California-based radio broadcaster for violating the FCC’s rule prohibiting the broadcast of prerecorded programming that “creates the impression that it is occurring live” (often referred to as the “live broadcasting rule”). This settlement represents the first time the FCC has publicly enforced the rule in recent years.
According to the FCC, the live broadcasting rule is effectively a consumer protection rule that ensures viewers are not misled into believing that a program is live when it is not. Under Section 73.1208 of the FCC’s Rules, where “time is of special significance” to the program material aired, or “an affirmative attempt is made to create the impression that [the program material] is occurring simultaneously with the broadcast,” broadcasters must disclose if the program was previously taped, filmed, or recorded. Such disclosure must be made at the beginning of the broadcast “in terms commonly understood by the public”. The live broadcasting rule does not extend to prerecorded commercial, promotional, or public service programming.
The FCC began its investigation after receiving a complaint alleging that one of the broadcaster’s Los Angeles-area AM stations was airing a call-in show with the word “Live” in its title even though the show was actually prerecorded. The FCC’s Enforcement Bureau responded by directing a Letter of Inquiry to the station’s licensee seeking additional information about the program. In response, the licensee admitted the broadcast had indeed been prerecorded and that at several times during the broadcast, the program’s host had suggested that he was taking listener calls live over the air. The licensee acknowledged that even though the program created the impression that the broadcast was live, the station under investigation, as well as other commonly-controlled stations that broadcast the same program, had failed to make the required disclaimer.
To resolve the investigation, the licensee’s parent company entered into a Consent Decree with the Enforcement Bureau. Under the terms of that agreement, the company: (1) agreed to pay a $50,000 civil penalty; (2) admitted to violating the live broadcasting rule; and (3) must implement a three-year compliance plan to prevent future violations. Considering the costly penalty, broadcasters should be wary when airing prerecorded programming, taking care to determine whether the audience needs to be informed of that fact.
Undisclosed Death of Mississippi Radio Station Owner Ends in Non-Renewal of License
In a recent Memorandum Opinion and Order (“Order”), the FCC denied an Application for Review which challenged the dismissal of a Mississippi AM station’s 2012 license renewal application. The application had failed to disclose that the station’s licensee had previously died, and unsurprisingly, also failed to include the deceased licensee’s signature.
The years-long saga began in January 2011 following the death of the station’s licensee. Continue reading →