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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:

  • Time Off the Air Leads to License Termination for North Dakota Radio Station
  • FCC Enters Into Consent Decree With Tech Company Imposing $250,000 Civil Penalty for Unlawful License Transfers and Failure to Disclose a Felony
  • Virginia Radio Station Faces Proposed $7,000 Fine and Reduced License Term Over Failure to Timely File its Renewal Application

The Sound of Silence: North Dakota Radio Station Faces License Termination After Prolonged Period Off-Air

After going off the air and remaining silent due to financial concerns, an FM station’s license was revoked for failure to timely resume operations.

Section 73.1740(a)(4) of the FCC’s Rules permits a licensee to temporarily discontinue operations for up to 30 days provided that the licensee: (1) notifies the FCC by the tenth day of discontinued operations, and (2) requests authorization from the Commission to remain silent for any period beyond 30 days.  However, Section 312(g) of the Communications Act of 1934 provides that a broadcast station’s license automatically expires if it does not transmit a broadcast signal for 12 consecutive months.  The FCC may extend or reinstate a license terminated by virtue of this provision if doing so would “promote equity and fairness.”

On August 15, 2018, the North Dakota licensee took the station off the air due to financial concerns.  After several months of radio silence, the station finally requested special temporary authority (“STA”) to remain silent on October 30.  Despite the delay, the FCC granted the STA for a period of 180 days, cautioning that the station’s license would expire as a matter of law if operations did not resume by 12:01 a.m. on August 16, 2019, when the station would reach 12 months of silent status.  The Commission also noted that the STA request had failed to meet both the 10-day notification requirement and the 30-day deadline for seeking authorization for discontinued operations.  At the end of the authorized 180 days, the licensee sought an extension of the STA, which the FCC granted, again reminding the licensee of the August 16, 2019 deadline to resume operations.

On August 15, 2019, the licensee filed a resumption of operations notice and a related application requesting a license to cover a pending construction permit.  Both indicated that the station had resumed operations that day (ahead of the 12:01 a.m. August 16 deadline).  A competing broadcaster opposed the application, challenging the licensee’s characterization of its operating status.  The competitor alleged that the station did not actually go back on air until later on August 18, and therefore the license had expired.  In response, the licensee acknowledged that the station did not resume operations on August 15 as previously indicated, citing circumstances beyond its control related to tower crew shortages and weather delays, and requested reinstatement of the station’s license.

In deciding whether to extend or reinstate a license that has been automatically terminated under Section 312(g), the Commission considers the facts on a case-by-case basis to determine the “fair and equitable” outcome.  However, the Commission has generally refused to reinstate a terminated license when the failure to resume operations resulted from the licensee’s own actions, as opposed to a natural disaster or other circumstance outside the licensee’s control.

Here, the Commission concluded that the licensee’s failure to timely resume operations was more a function of poor planning than circumstances beyond its control.  Despite being aware of the looming August 16 deadline, the licensee did not secure a tower crew to perform needed work on its tower and antenna until August 12, among other issues.  As a result, the FCC rejected the licensee’s attempt to elevate its poor planning to “circumstances beyond its control.”  The FCC also rejected the licensee’s claim that reinstatement was justified due to the station’s service to an underserved community.  The FCC noted that after the termination, the community was still served by an AM station and two FM translators, along with at least four other AM stations that reached the area.  As a result, the FCC declined to reinstate the license.

Lastly, the FCC noted that the broadcaster opposing the license application provided evidence that the licensee had made several false statements to the Commission, including the date on which station operations had resumed.  While the FCC declined to further investigate these allegations now, it required that if the licensee or its principals submit any broadcast application within the next five years, they must attach a copy of the decision rejecting reinstatement, at which point the FCC may further assess the allegations.

Unlawful License Transfers Lead to $250,000 Civil Penalty

The FCC entered into a Consent Decree requiring payment of a $250,000 civil penalty to resolve an investigation into a technology company’s corporate transactions.  The investigation concerned the unauthorized transfer of wireless licenses, the use of a wireless license by the transferee without FCC authorization, and the failure to provide accurate information regarding the prospective licensee’s qualifications to hold an FCC license.

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