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:
- Premature Construction Turns Texas LPFM’s Minor Change into a Major Fine
- FCC Issues Notice of Violation to Miami LPFM Licensee for Unauthorized Antenna Location
- California Man Pleads Guilty to FCC Bomb Threat, Fatal “Swatting” Hoax
Houston, We Have a Problem: Media Bureau Proposes $5,000 Fine for Unapproved Construction of a Broadcast Facility
The FCC’s Media Bureau issued a Notice of Apparent Liability (“NAL”) to the licensee of a Houston-area low power FM (“LPFM”) station for engaging in premature construction of broadcast facilities.
Section 319(a) of the Communications Act (“Act”) prohibits the FCC from licensing an applicant to operate broadcast facilities unless that applicant has previously obtained a construction permit from the FCC to build those specific facilities. A construction permit sets out the facilities and operating parameters for a proposed station, including the station’s frequency allotment. Though an applicant may initiate certain pre-construction measures, including site clearance and purchase of broadcast equipment that is not specific to the station (e.g., generic studio equipment, but not a frequency-tuned antenna), the applicant may not take more substantive steps until it has a construction permit in hand.
In seeking a construction permit, an applicant must show that its proposed service contour is sufficiently distant from other stations operating on the same or adjacent frequencies as to ensure no interference will be created to existing stations. If the proposed LPFM facilities do not satisfy the minimum geographic distances set out in Section 73.807 of the FCC’s Rules, the applicant must obtain a waiver of those requirements by demonstrating that the proposed operation will not result in actual interference. For example, an applicant might be able to demonstrate that intervening terrain (mountains) will block the interfering signal.
According to the NAL, the LPFM applicant filed for a construction permit to modify its existing facilities. Because the proposed site would not satisfy the minimum distance requirements for two local second-adjacent FM stations, the licensee also filed a waiver request purporting to demonstrate that the proposed service contour would not reach the two FM stations’ potential listeners.
Before the Commission granted either of these requests, it received a Petition to Deny from another local station, alleging that the licensee had prematurely begun construction on the proposed site without prior FCC approval. The petition alleged that the licensee had mounted an antenna on an existing tower and had already proceeded to attach a transmission line to the antenna, in contravention of the prohibition on premature construction.
The petition also alleged that the waiver request was “flawed” because it did not sufficiently protect local listeners of the two second-adjacent FM stations. According to the petition, the waiver application assumed its contour would only reach one-story structures, when, in fact, several surrounding structures were two-story.
In response, the applicant swiftly removed its equipment from the tower only three weeks after it had installed it. In a later amendment, the applicant also proposed operating at a lower power level with a different antenna to reduce the likelihood of interference to nearby two-story buildings.
Nearly ten months later, the Media Bureau issued the NAL, proposing a $5,000 fine for the applicant’s premature construction. Though the FCC’s Rules establish a base fine of $10,000 for unauthorized construction, the Media Bureau adjusted this amount downward, citing the brief duration of the violation and the licensee’s prior history of compliance.
The Media Bureau indicated that once the fine was “resolved,” and assuming no additional issues emerged, it intended to grant the waiver and related modification application, finding that the applicant’s new engineering solution was sufficient to prevent interference to the nearby second-adjacent stations.
Technical Foul: Miami Licensee Cited for Unauthorized Facilities
In another case involving an LPFM, the Enforcement Bureau presented a Notice of Violation (“NOV”) to the licensee of a Miami station for operating at variance from the station’s authorization. As with all other broadcast operations, LPFM stations must operate in compliance with the Commission’s technical rules and with the station’s own authorization.
In August of this year, FCC field agents investigated the Miami LPFM and found violations in nearly every aspect of the station’s operation. At the time of the investigation, the station’s license authorized it to operate on 107.9 MHz in southern Miami at a height of 62 meters. Two months prior, the station had been granted a construction permit to operate four miles west of its original location on a new frequency and at a height of 15 meters.
When the field agents located the actual transmission facilities, however, they found that the licensee was operating at a completely different location several miles away from both its licensed and newly-authorized coordinates. The station was also using an antenna located 45 meters above ground. Continue reading →