For "Reasonable Access" Purposes, Predicted NLSC Determines a TV Station's Service Area

Bureau rejects station’s reliance on Longley-Rice study to show that its service area does not reach the state where pro-life presidential candidate Randall Terry is on the ballot.

With less than a week to go before Election Day, the Media Bureau has ordered Station WUSA(TV), the CBS affiliate here in Washington, to sell time to pro-life presidential candidate Randall Terry. But Terry’s not on the ballot in Washington. Nor is he on the ballot in adjacent Maryland or Virginia.  No problem, said the Bureau, because he is on the ballot in West Virginia. And despite WUSA’s claims to the contrary, the Bureau concluded that WUSA’s predicted signal contour covers enough of West Virginia to subject the station to the statutory requirement to provide “reasonable access” to any qualified candidate for federal office.

This decision is of particular importance to stations whose predicted signals may extend into multiple states, because it could result in “reasonable access” burdens beyond what such stations might otherwise expect. Just ask WUSA.

Section 312(a)(7) of the Communications Act requires broadcast stations “to allow reasonable access to or to permit the purchase of reasonable amounts of time for the use of a broadcast station . . .by a legally qualified candidate for federal elective office.” A candidate seeking air time must meet two requirements: (1) the candidate must be qualified to be on the ballot, and (2) the station’s service area must cover the area where the candidate is qualified.  Terry demonstrated that he is qualified to be on the ballot in West Virginia, but not Maryland, Virginia, or the District of Columbia.  So the question boiled down to whether WUSA serves West Virginia.

In the old analog TV days, the FCC held that a station’s Grade B service contour determined the area it serves for political access purposes. In the digital world, the noise-limited service contour (NLSC) has replaced the Grade B contour.  According to the FCC’s standard prediction method, WUSA’s predicted NLSC contour covers about 3% of the population of West Virginia.

Wait a minute, cried WUSA.  The “predicted NLSC” that Terry was relying on was just that – a prediction – and it did not (according to WUSA) accurately predict the station’s actual reception capability.  To bolster that claim, WUSA submitted a Longley-Rice terrain-limited coverage study showing that, sure enough, the station’s signal gets blocked by intervening mountains before it can get into West Virginia. Since the FCC routinely relies on Longley-Rice analyses for a wide range of engineering showings, WUSA argued, the Commission should do the same for political access purposes, too. 

The Bureau was not persuaded. As it sees it, the Commission’s own website provides a depiction of WUSA’s NLSC as part of WUSA’s Station Profile, and that’s what everyone is going to have to use.  That NLSC demonstrates that WUSA covers nearly 3% of the population of West Virginia. That’s too much to qualify for the de minimis exception to the political access statute. WUSA has to cough up the time to Terry’s campaign.

Importantly, the Bureau’s decision was issued under the time pressure of the fast-approaching election. The Bureau acknowledged that its decision was influenced by the “short time remaining before the election” and the need to issue a “prompt decision”. Whether a more extended deliberative process – with public comment and plenty of time to really knock the issue around – would have led to the same result is not clear. What is clear is that, at least for this election, the predicted NLSC will determine the extent of a station’s signal for purposes of determining “reasonable access” obligations.

One intriguing sidenote: the Bureau acknowledged that WUSA itself distributed a “Media Kit” in which it asserted that the Washington, D.C. DMA includes more than 100,000 viewers in West Virginia. The Bureau saw this as “WUSA market[ing] the fact that it has a service presence in West Virginia.” While the Bureau does not appear to have relied on this factoid in reaching its decision, it’s reasonable to assume that the WUSA Media Kit didn’t do much to bolster WUSA’s claims that it doesn’t serve West Virginia at all.

And one last observation.

Warning:  We have seen the Terry spots.  Viewers who are easily offended might wish to turn to another channel – if they can find one where Terry doesn’t buy ads in the closing days of a frenetic campaign.  Terry’s ads are focused on his pro-life philosophy and are intended to shock viewers with graphic images of aborted fetuses, as well as comparing the President of Planned Parenthood to a Nazi.  Most stations consider these spots highly offensive (they are intended to be at least shocking) and would prefer not to carry them. Tough. An earlier FCC decision, upheld by a court, prevents stations not only from refusing the ads but also from channeling them to late night hours when children are least likely to be in the audience.  All time periods must be made available.  The politicians here in Washington who decry censorship are about to have some tough stuff thrown in their faces on local TV.

Audio Division Re-Affirms Ruling: Studio Site Moves Based on Longley-Rice Must Be Approved in Advance

Studio relocation without prior FCC OK leads to $7K fine (minus $1,400 for good behavior)

When it comes to main studio site compliance and Longley-Rice, the Media Bureau’s Audio Division is sticking to its guns. As we reported back in October, 2010, the Division had issued a Notice of Apparent Liability (NAL) to an FM licensee even though its main studio was within the station’s city-grade contour, as required by the rules. Now the Division has followed up with a Forfeiture Order re-affirming that NAL. If you’ve got a main studio whose legality hinges on Longley-Rice signal coverage calculations and if you weren’t paying attention when the NAL came out in 2010, now would be a good time to focus on this. 

What’s the problem with relying on Longley-Rice, you ask? Nothing, as long as you jump through the right hoops in the right order, according to the Division. It seems that this particular licensee’s studio location was not within the city-grade contour according to the FCC’s predicted method, even though it was within that contour as determined by a Longley-Rice analysis. According to the licensee, it performed the Longley-Rice analysis to confirm that the site in question was within the contour as required by the main studio rule; comfortable with that knowledge, the licensee went ahead with the move, simultaneously notifying the Commission of the move. In the notification the licensee asserted that the new location complied with the rules. (It later moved a block or two down the street, to a site that also complied with the rules, according to Longley-Rice.)

More than a year after the first move, the Commission started an investigation when somebody (we’re guessing it was a competitor, but you never know) complained. The licensee explained what it had done. In response, the Division whacked the licensee with a $7,000 fine, even though everybody agreed that, per Longley-Rice, the studio was street legal.

According to the Division, before a station can move to a studio site whose compliance is based on Longley-Rice, the licensee must first get Commission approval for the move. The Forfeiture Order re-affirms that position, although it reduces the fine to $5,600 because the licensee has managed to keep its nose clean (in FCC-speak, it has a “record of compliance”).

The Forfeiture Order does nothing to spackle over the gaping holes in the Division’s earlier “analysis”. (Check out our earlier post for a brief discussion of some of those holes.) While the Division continues to claim that the rules require prior FCC consent when compliance depends on Longley-Rice, the language of the rules continues not to support that claim. Undaunted by that technicality, the Division continues to rely on language in a footnote to a 1997 Commission decision which still does not appear to support the Division’s position quite as firmly as the Division seems to think. According to the Division, to perceive the footnote’s supposedly “clear” mandate, you have to “pars[e]” the language of the footnote “in context”. We would have thought that “clear” language would not require “parsing”, but what do we know? 

In any event, there appears to be reasonable basis to conclude that the Division’s take on the rule could be overturned on appeal. But don’t expect the licensee in question to take this to the courts.  An appeal would likely cost tens of thousands of dollars in unrecoverable attorney fees – and the best possible result would be the elimination of a $5,600 fine. Do the math and you’ll probably come to the same conclusion we have – an appeal sure looks unlikely.

Which leaves everyone in the same position they were in back in 2010, when the NAL was issued. As we observed then, if you moved your studio to a site which Longley-Rice said would be OK, and you did so without any prior FCC approval, it looks like you’re going to be on the hook for a $7,000 fine if and when the FCC finds out.

In 2010, we suggested that the Division might want to declare an amnesty of sorts, sticking to its insistence on prior approval but allowing that there may have been some reasonable doubt as to that requirement prior to 2010. The Division has, regrettably but clearly, declined that suggestion.  Here’s another suggestion: perhaps the NAB or one or more state broadcast associations could take up the fight. If enough of their members are facing possible $7,000 fines, it might make sense for such organizations to challenge the Division on this. While the economics of the situation (as noted above) make it unlikely that any single licensee will appeal, the calculation changes if the would-be appellant is an association representing a critical mass of potentially affected licensees. 

It’s hard, if not impossible, to determine precisely how many folks out there are currently operating from a heretofore unapproved studio site the legality of which depends on Longley-Rice. If there are a significant number of such folks, it might make economic sense to band together in some fashion to advance their common cause – the alternative being to sit tight and wait for the Commission to spank you for $7K. So if you’re a licensee who could be looking down the wrong end of one of these studio site fines, you might want to check with one or another broadcaster association to see if they might be interested in helping out.

Longley-Rice Dependent Studio Site? No Prior Authorization? $7K, Please!

Audio Division issues fine for failing to ask for prior approval of a compliant studio site

The Media Bureau’s Audio Division has shone a light on a question relating to the placement of a main studio. The question:  what is the proper procedure for relying on Longley-Rice calculations to assure compliance with the main studio location rule?

SPOILER ALERT: For those of you who prefer to cut to the chase, here’s the answer. According to the Audio Division’s latest pronouncement, broadcasters MAY rely on Longley-Rice to confirm that a site is within the appropriate contour for main studios, BUT FCC review and approval of the underlying calculations MUST be sought BEFORE the main studio is relocated to that site. Oh, and by the way, if you happen already to have jumped the gun and moved your main studio to a Longley-Rice-justified site without having asked for the Commission’s blessing, get your checkbook out: if this decision stands, you’re probably looking at a $7K fine if and when the Commission finds out about your premature relocation.

The story starts back in 2002.

In October of that year, Station WULF(FM) relocated its main studio. According to the licensee, before the relo the licensee commissioned a Longley-Rice study that established that the new site was within the station’s city-grade contour.  The main studio rule then required (as it still does) that the studio be located, among other possibilities, at “any location within the principal community contour of any AM, FM, or TV broadcast station licensed to the station's community of license”. And since 1997 the Commission has permitted the use of Longley-Rice to confirm the suitability of main studio sites. So the licensee was confident that that condition was met, and the only thing left to do was to notify the FCC of the move – which the licensee did.

The next year a complainant alleges that the studio location didn’t comply with the rules. The Enforcement Bureau (EB) asks the licensee for a response and the licensee explains that, according to Longley-Rice, the studio site complies. The EB asks for further demonstration, and in early 2004 the licensee provides a detailed Longley-Rice showing. In August, 2004, the EB closes the books on its investigation without issuing any fines. However, the EB cryptically cautions the licensee that the closing of the investigation should not be “construe[d] . . . as a determination that a violation did not occur.”

When the licensee sent the EB its detailed Longley-Rice analysis, the licensee also sent a copy to the Media Bureau (MB), along with a request that the MB confirm that the challenged studio site complied with the rules. (Alternatively, the licensee also asked for a waiver of the main studio rule, if necessary.) 

The MB then sat on that request for nearly seven years, only to address it now.

The MB’s resolution? The good news for the licensee is that, sure enough, its main studio is within the station’s city-grade, as established by the Longley-Rice showing. The bad news? Since the licensee was (according to the MB) supposed to ask the MB for approval of the main studio site before moving to that site, and since the licensee didn’t do that, the licensee violated that element of the main studio rule and is therefore getting whacked $7K for the violation.

The MB’s position is not – how can we say this delicately? – unassailable. After all, the main studio rule clearly provides that a main studio may be located within a station’s principal community contour, and the MB has now conclusively held that the WULF studio is indeed within that contour. The rule says nothing about having to get prior approval if you’re relying on a Longley-Rice analysis.

The MB counters, though, that back in 1997, the Commission said that anyone relying on a Longley-Rice analysis for studio siting purposes would have to ask for permission to do so before actually moving to the new site. You can read the 1997 decision here – the discussion you’re looking for is at Paragraphs 69-74 (and particularly footnote 54). Maybe you can find exactly where the Commission made it “clear” (to quote the MB’s charitable characterization) that prior consent was absolutely mandatory.  Be sure to let us know if you do, because even with the MB’s explanation in hand, it doesn’t really leap off the page at you. 

The EB seems to know what we’re talking about. In a 2002 case eerily similar to the WULF situation, a complainant alleged that the main studio of WGRQ(FM) was outside the station’s principal city contour, in violation of the rules. The WGRQ licensee countered with a Longley-Rice showing. In response, the EB held that the “Commission has approved the use of supplemental showings (including the Longley-Rice analysis) to show compliance with main studio requirements in situations involving irregular terrain.” The EB then dutifully reviewed the Longley-Rice showing and concluded that, indeed, the studio’s site was in compliance with the rules. End of case.

As anyone who has suffered through an inspection knows all too well, EB personnel know how to ask for evidence of prior FCC authorization when such prior authorization is supposed to have been issued. So the EB’s failure to do so in the WGRQ case could reasonably be read to indicate that no such prior authorization was necessary there.

Not so, retorts the MB. “Section 73.1125(d)(2) is unambiguous” in its insistence that prior approval is obligatoire. Perhaps, but that particular subsection refers to studio sites located outside the station’s principal city contour. And in the cases of both WGRQ and WULF, everybody agrees that the challenged studio sites were indeed inside that contour (albeit with an assist from Longley-Rice) – so Section 73.1125(d)(2) wouldn’t seem to apply here.

But putting that (and some other similarly questionable aspects of the MB’s decision) aside, the fact is that the MB’s WULF decision reflects the Bureau’s current views on the matter – which raises a thorny question. Suppose you’re a licensee who didn’t happen to read the Commission’s 1997 decision (footnote and all) the same way the MB does now. And suppose that – much like WGRQ and WULF – you moved your studio to a site which Longley-Rice said would be OK, and that you’ve been operating from that site since, without any prior FCC approval. 

What do you do now?

If the MB’s decision in the WULF case stands, it looks like you’re going to be on the hook for a $7,000 fine at some point. Unless, of course, the Bureau has a change of heart – and there are perfectly good reasons why it should have a change of heart. 

The real problem here involves a lack of notice: while the MB would like to think that all broadcasters have long been on clear notice that they needed prior approval before moving to a Longley-Rice-justified studio site, a strong argument could be made that there was no such notice. Because of that, instead of issuing more fines, the MB might think instead about issuing a public notice clearly and unequivocally mandating the submission of showings justifying any studio site whose compliance is based on Longley-Rice (or some equivalent supplemental showing). Sites found to be in compliance would be approved retroactively, or nunc pro tunc (ain’t Latin great?), with no fine attached. Sites not in compliance would trigger a fine. The Bureau would get what it wants – i.e., the opportunity to double-check Longley-Rice predictions – while licensees would not be subjected to fines they legitimately might not have expected.

Of course, the Bureau might elect instead to stick to its guns, waiting for each Longley-Rice-dependent licensee to march in, Longley-Rice study in one hand, a $7K check (payable to the FCC, thank you) in the other. 

At this point, the unfortunate reality is that the latter is probably more likely than the former. But we can dream, can’t we?

P.S. – For all you Longley-Rice aficionados out there (and you know who you are), the MB’s recent decision also officially confirms the demise of the 20-meter/100-meter threshold test – sometimes referred to as the delta-h, or Δh, test – which was snuck into FCC jurisprudence in a footnote in an unpublished letter in 2002. The full Commission pounded a stake into that test’s heart in a 2008 decision. There the Commission alluded to a threshold standard first announced in 1997: a supplemental coverage showing (e.g., a Longley-Rice analysis) will be considered only if it results in an extension of the predicted contour by at least 10%.  In its latest decision, the MB acknowledges that its 2002 delta-h experiment is toast.  Let us know if you would like further information about this.