Enforcement Relief for "Student-run" NCE Stations

New Media Bureau policy opens door for reduced fines for first-time violators of some paperwork rules.

The FCC’s enforcement actions often leave us shaking our heads wondering if the bureaucracy recognizes the challenges faced in real life by those it regulates. But occasionally there are rays of hope.  Case in point: the Media Bureau has revised its policy for enforcing certain paperwork obligations against student-staffed noncommercial educational (NCE) radio broadcast stations. The revised policy provides an opportunity for such stations to avoid crushing forfeitures which could end up shutting the stations down.

Last July, we blogged about the stifling impact of the FCC’s forfeitures on student-operated stations. Because of frequent student staff turnover, such stations can be prone to rule violations, which in turn result in steep forfeitures often amounting to a substantial portion of -- indeed, sometimes even more than -- the station’s annual budget. That happens when the fine is based on the Commission’s schedule of “standard” forfeitures even without any upward adjustments.

While some stations hit with fines have argued to the Commission that their budgets can’t sustain the forfeiture amount, the FCC has historically ignored such claims. Instead, it has looked to the resources of the entire educational institution, rather than just the station itself, presumably (but unrealistically) assuming that the institution would pay up.  Unfortunately, as we reported in our earlier post here,even though many institutions do pay up, the threat of further severe regulatory enforcement has apparently led some institutions to sell their stations, thereby eliminating opportunities for entry and training of young people in the art of broadcasting.

But now the Bureau has a new policy.

Under that new policy, certain stations which violate certain rules will be invited to negotiate a consent decree providing for payment of a reduced “voluntary contribution” to the U.S. Treasury and commitment to a compliance plan designed to prevent future violations.

What stations are we talking about? NCE radio stations that are “student-run”. And what does that mean? According to the Bureau, for purposes of the new policy, a “student-run station” is

a radio station licensed as an NCE station to an educational institution or an entity under the control of an educational institution and which is staffed completely by student volunteers, rather than partially or predominantly by students.

That narrow definition excludes more than 85% of all NCE stations – and all commercial stations, even those licensed to educational institutions and staffed by students – but it should still be welcome by the fewer than 500 stations that are eligible to take advantage of the new policy. (Note: “student-run” stations may be supervised by a “faculty advisor”, and the term “student volunteers” includes students receiving either course credit or work/study stipends for the work at the station.) One more thing: the new policy is available only to first-time violators. If you’re a “subsequent or repeated” violator, the new policy is off the table.

What rules are we talking about? 

Rules involving “the submission of reports and other materials or public notice of information”. The Bureau cites as examples the requirement to the Ownership Reporting rule, the Issues/Programs list requirement, and the requirement to provide notice (on-air or in the local newspaper) about the filing of certain applications. 

The new policy will not be available with respect to non-paperwork violations. Thus, violations relating to improper or undisclosed underwriting announcements, misleading contests, engineering violations, or (as you might expect) obscene or indecent material will not be entitled to the new, arguably lenient approach.

And what happens when the new policy is invoked? The case which triggered the new policy provides an illustration. William Penn University is the licensee of NCE Station KIGC(FM) in Oskaloosa, Iowa, a “student-run” station with less than 250 watts of power. Its annual budget is currently $6,650. The Bureau determined from the station’s most recent license renewal application that the station hadn’t filed a number of Ownership Reports on time, hadn’t prepared a couple of Issues/Programs lists on time, and had failed entirely to prepare the remainder of its Issues/Programs lists at all. (It should go without saying that these are likely to be fairly common problems at stations with transient novice staffs.)

Normally, violations of this sort would result in a fine of $20,000 or more. But in this case, under the terms of the Consent Decree resolving the problem, the University will have to pay only $2,500 ("only" being a relative term, since in this case it represents more than one-third of the station's annual budget).. The FCC says that in the future, in determining the amount to be paid in such cases, it will take all financial circumstances into account. In other words, student-run stations caught in violations will be able to argue, for example, that their own budgets, rather than the licensee institutions overall resources, should determine the level of financial penalty imposed.

In addition to committing to making the $2,500 “voluntary contribution”, through February, 2021 (i.e., the end of the next license term), the University will have to implement a “Compliance Plan” imposing on-going obligations. In particular, the University will have to institute a number of internal logging, monitoring and training activities, over and above any required by the Commission’s rules, to reduce the risk of further violations. 

And for each of the next three years, the University will have to file a certification, signed by a University officer, affirming that the station is in compliance with the all FCC rules. That requirement could pose a challenge – after all, there are five volumes of FCC rules. Would any of our readers certify under penalty of perjury that they are in compliance with every single one of those rules – or even just all of the 419 pages of rules devoted primarily to broadcasting?

The purpose of a consent decree is to avoid litigation over a violation, so a station opting to take the consent decree option foregoes any chance to challenge the validity of the FCC’s action. It’s akin to copping a plea – although most consent decrees include a proviso that the incident cannot be used as a black mark against the station in the future. For that reason a consent decree can afford a pretty good escape from permanent harm (assuming, of course, that the licensee does indeed comply with the requirements of the decree).

In our post here last year we raised many of the reasons underlying the Bureau’s decision to change its policy.  If our discussion there helped bring about the policy change, we are pleased that we might have had some influence.

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