CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Staff renews NCE-FM license – but not before fining the licensee for including too much detail in underwriting announcements, admonishing it for overly relying on PSA’s, and referring it to the Department of Justice for cigarette advertising!

A relatively obscure Audio Division decision involving the renewal application of a noncommercial educational (NCE) “community” radio station in Batavia, Ohio hits the trifecta. It sheds interesting (if not entirely illuminating) light on the standards governing noncommercial underwriting practices. It touches on the apparently-forgotten-but-not-gone question of the adequacy of nonentertainment programming performance for renewal purposes – an area of potentially vast consequence to all broadcasters. And as an extra bonus, it reveals the FCC’s current regulatory take on cigarette advertising.

There’s something for everybody here. Not all of it, though, makes much sense.

The case arose when a presumably disgruntled former officer of the licensee filed an informal objection directed to the station’s license renewal application last year. According to the complaint, the station had violated the prohibition against airing “commercials” on at least three occasions. Further, during the last five months of the license term, the station had broadcast no issue-responsive programming other than some PSA’s aired between midnight and 5:00 a.m. At least that’s what the complainant claimed. The Division has now granted the renewal, but not before running the licensee through the wringer several different ways.

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Anonymous complaints about jamming result in six-digit fines.

We have previously reported on the FCC’s campaign to stamp out cell phone jamming devices. It turns out that the Commission has apparently found some guerilla allies in that campaign. In two recent Notices of Apparent Liability, two companies have been whacked with six-digit fines – $126,000 in one case, $144,000 in the other – for operating jammers. Both times the Feds were called in by anonymous tipsters.

In each case, the company admitted to operating multiple jammers. Seems they were trying to discourage  employees from using their cell phones in the workplace. While the FCC’s orders obviously don’t identify the complainants who ratted out the companies, we think it’s probably a pretty good bet that the tips came from company employees who wanted to be able to make cell calls from the workplace.

Both of the target companies ‘fessed up to acquiring the jammers online from overseas sources. One of the companies – Taylor Oilfield Manufacturing – claimed that it had fired up its jamming efforts “following a near-miss industrial accident that allegedly was partially attributable to employee cell phone use.” No matter, responded the FCC. Jamming is prohibited, and that’s all there is to that.

To emphasize how seriously it takes this kind of violation, the Commission piled on when it came to calculating the fines.

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Fox seems to think that the Second Circuit’s decision was a Big Deal. We’re not so sure.

So Aereo recently kept its winning streak alive with a favorable ruling from the U.S. Court of Appeals for the Second Circuit . . . and the next thing you know, the Fox Network is making noises about kissing good-bye to its over-the-air operations and moving to some alternative delivery system, possibly as a subscription service.

If you were to buy into Fox’s over-the-top reaction, you might get the impression that the Second Circuit’s decision marks a major, and possibly irreversible, turning point in the struggle between broadcasters and the proponents of various Internet-based programming systems. But that’s why you read CommLawBlog, right?

 As Mike LaFontaine might say, “Wha’ happened?”

Correct answer: Very little, at least as far as we can tell from the Second Circuit decision.

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In a quaint tip-of-the-hat to the Way Things Used To Be, the FCC has issued its annual public notice advertising the availability of printed versions of its rules. According to the notice, for less than $300 – $298, to be precise – you can grace your bookshelves with all five volumes that comprise Title 47 of the Code of Federal Regulations. Hot off the presses, straight from the Government Printing Office (GPO) to your door.

Before getting out your checkbook, though, take a closer look at what the FCC’s public notice is touting: hard copies of the rules as they were as of October 1, 2012. That’s right, for $298 you can buy a set of rules that are already more than six months out of date. Such a deal. It’s the kind of thing you might expect to find if you cruise a lot of yard sales on the weekends. Just the ticket if you’re looking for neat stuff to put in an October, 2012 time capsule.

For many of us there is something curiously reassuring about holding a real book in your hand, leafing through its fine-print pages to find just the rule you’re looking for. The problem with the books the government is selling is that the rule you find there may not be the rule that’s in effect anymore.  (And let's be clear here -- it's the GPO which is selling these books, not the FCC.  The FCC has simply announced their availability, and is presumably standing ready to throw them at wrong-doers.)

Many old timers in the communications bar swear that the Commission used to require that all licensees have on hand at their stations copies of the rules relevant to their service. If such a requirement did exist (and we suspect that it did), it appears to have gone by the boards. Nowadays, the FCC’s website says nothing about such a requirement. Instead, it refers the reader to the e-CFR website maintained by the GPO. That GPO site – which, by the way, we here at CommLawBlog swear by and strongly recommend – is generally up-to-date within 24 hours, meaning that even the most recent rule changes are reflected in their version. Oh yeah, and it’s free.

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Odd public notice also touts herculean accomplishment: summary dismissal of “more than one million” pending indecency complaints

In a public notice that surely ranks among the most bizarre any of us are likely to see, the FCC’s Enforcement Bureau and General Counsel have made three startling announcements about the Commission’s broadcast indecency policy. According to the notice, for the last seven months or so the Enforcement folks have been applying a new – but not formally announced – standard of “indecency” which is not subject to any official definition, as far as we can determine. And while the Enforcement Bureau and GC both commit themselves to continuing to implement that undescribed “standard”, they have now initiated, in a semi-comic way, an inquiry into some possibly significant changes to major elements of the Commission’s indecency policy.

This could have been an April Fool’s Day prank, but we’re guessing it wasn’t.

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639 surviving applicants face the next hurdle in the now decade-long contest.

In the long-running reality show “Survivor – 2003 FM Translators”, if you happen to be a player whose FM translator applications haven’t yet been kicked off the island, heads up: the Media Bureau has just announced the next challenge. This time affected applicants have been given a 19-day window (from April 1-19, 2013) within which to submit their Preclusion Showings.

Which applications are subject to the challenge? Any of the 639 still-pending FM translator application originally filed in the 2003 window (for Auction 83) which specifies a transmitter site that is (1) inside a Spectrum Limited market and/or (2) within 39 km of any Spectrum Limited Market Grid. For those of you who may be unclear about whether you’re still in the game (and, thus, facing this next chore), the Commission has provided a list of all 639 lucky applications. You can find a PDF version of the list at this link, but we suspect that you may find this MS-Excel version a bit more useful in terms of slicing and dicing the data on the list, which spans ten single-spaced pages. Here’s the Bureau’s explanatory description of the list:

Attachment A lists each Auction 83 Filing Window tech box proposal for which a Preclusion Showing amendment must be electronically submitted by the April 19 deadline. The list is sorted by the state in which the specified community of license is located. The “Market” column lists, if applicable, the Fall 2011 Arbitron Market number as set forth in Appendix A in the Fourth Report and Order. Each market designation was based on the location of the proposal’s specified transmitter site. The “In SL Buffer” column identifies with a “Yes” each proposal that specifies a transmitter site that is within 39 km of at least one Spectrum Limited Market Grid.

And what the heck is a “Preclusion Showing” anyway?

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Facilities covered by a permit must in any event be completely constructed by the expiration date.

Attention, everybody who is currently sitting on, or may someday be sitting on, a construction permit for a new radio station. The FCC’s Audio Division has announced, in no uncertain terms, that when the rules say that a covering license application must be filed before the expiration of the underlying construction permit, they really mean it . . . sort of.

The problem here arises from Section 73.3598(e) of the Commission’s rules, a section admirable for its concision and directness:

Any construction permit for which construction has not been completed and for which an application for license has not been filed, shall be automatically forfeited upon expiration without any further affirmative cancellation by the Commission.

Your ordinary person reading that would likely understand it to say that any permittee who doesn’t get the covering license application on file by the permit’s expiration date is out of luck. Period. End of story. That is, after all, precisely what the rule says.

But thanks to the Audio Division’s latest reading of the rule, permittees will have an extra 30 days within which to file their license applications, provided, of course, that they did in fact complete construction before the permit’s expiration.

The underlying story starts back in 2004, when an FM station in West Virginia obtained a CP to construct new facilities after its then-authorized tower had been destroyed. The permit specified the conventional three-year construction period, with an expiration date in 2007. 

Wouldn’t you know it, 2007 came and went, but no license application got filed.

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Proposed change in the form would allow individuals to identify themselves as members of as many as five separate racial categories, simultaneously. But the results may not help the Commission get to where it seems to want to go.

The Federal Register on March 1 has informed us that the FCC’s Broadcast Ownership Report (FCC Form 323) is back at the Office of Management and Budget (OMB) for review. According to the notice, the Commission is proposing a change in the question seeking the racial identification of attributable interest holders. You can get to the OMB’s files on the matter at this link.

The form currently in effect lists five racial categories and then a catch-all “Two or more races”; respondents are required to select only one of those six options. Apparently, though, OMB changed its policies governing collection of data relative to race and ethnicity last September. (According to the FCC, that change is reflected in an OMB action dated September 13, 2012, cited by the FCC as “Notice of Office of Management and Budget Action (NOA), dated 09/13/2012”. We were unable to track down a copy of that action, but we’re willing to take the Commission’s word that it exists somewhere. If any reader can point us to a site where we might find the OMB action in question, we’d be much obliged.) As a result, the Commission is proposing to eliminate the “Two or more races” option and to allow respondents to select as many of the other racial options as may apply to the individual who is the subject of the response.

While the elimination of the generally uninformative “Two or more races” might be thought to provide a greater degree of useful data concerning the racial composition of commercial broadcast ownership, we’re not confident of that.

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Forfeiture cancellations suggest possible path to clearing backlogged complaints (and enforcement holds).

It appears that the Commission may have taken the first steps – baby steps carefully cloaked from public view, perhaps, but steps nonetheless – toward addressing its hopeless backlog of broadcast complaints. In a series of super-low-key actions in recent weeks, the Media Bureau has quietly cancelled a number of previously assessed forfeitures. The actions have been reflected in terse (and we do mean terse – check out this example) letters that provide no explanation for the cancellations. But based on the answers we got to some informal inquiries, we figure that these cancellations could be the harbinger of considerably more dramatic developments on the complaints front.

It appears that the recent forfeiture cancellations have all involved the same general fact pattern. The Bureau issued a notice of apparent liability (NAL) and/or forfeiture order for violations which occurred significantly more than five years ago. The target licensee responded by arguing that, thanks to 28 U.S.C. §2462, the FCC is statutorily prevented from collecting the fines, so they should be cancelled. That argument has been initially rejected by the Bureau in some cases (here’s an example), but the licensees have pressed their argument before the Commission in applications for review. 

And now, we understand that the Bureau has been directed by higher-ups in the agency to cancel the forfeitures in light of that Section 2462 argument. The Bureau’s cancellation letters are, we are told, the result of that direction.

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Media Bureau gives Dave Doherty a break, provides itemized list of latest victims

In what may be the last peristaltic spasm of the FM translator review process, the Media Bureau has announced that it has dismissed “several dozen” (by our count it’s a total of 40) remaining FM translator applications that were filed back in 2003. According to its public notice, the Bureau “has now completed” its review of the Selection Lists and Cap Showings filed last month by translator applicants and “has identified those applications which do not satisfy filing requirements”. So if your application (a) wasn’t already tossed out in last week’s mass dismissal and (b) isn’t listed in this most recent batch, then presumably you’ve survived the cut and your application can now be processed. 

No official word yet on when the next processing steps are likely to happen, but we’re guessing they’ll be happening sooner rather than later – possibly in a matter of a few weeks. As we have previously reported, the Commission has made clear its hope that the next LPFM window can be opened promptly (as early as next October, if the Chairman has his way), and the Bureau has thus far been doing its darnedest to turn that hope into reality.

One additional note: Unlike last week – when the Bureau tossed more than 3,000 applications without issuing any itemized public notice specifically identifying those applications – this time around it has provided a listing of the 40 latest victims in PDF and Excel formats, convenient for easy slicing and dicing. That should take our friend Dave Doherty off the hook this time around.

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