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

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.

According to the NALs, BBC essentially admits that, prior to the LOI, the time brokers: provided the programming the stations’ aired; paid the salaries and wages of the personnel who operated the stations; handled the marketing and finances at the stations; and bore sole responsibility for ensuring compliance with various FCC requirements (like maintenance of the public inspection files and performance of EAS tests). BBC, for its part, was responsible for the maintenance of each station’s physical plant. 

The lack of any formal TBA didn’t help matters, since (according to the Bureau) Commission rules technically require each TBA to be in writing  (and kept in the station’s public inspection file, to boot). Plus, any TBA is supposed to reflect that the licensee has ultimate authority over the operation of the station, including specifically control over station finances, personnel and programming. The absence of formal TBAs undercut BBC’s assertion that de facto control of the station had not passed to the programmers.

Regarding station staffing, the Bureau cited the policy, established nearly 20 years ago, that a licensee must, “at a minimum, maintain full-time managerial and full-time staff personnel” at the main studio. So BBC’s arrangement – which amounted to a single licensee rep splitting his time, long distance, between two non-co-located stations – fell about three full-time employees short.

The thrust of the Commission’s TBA and main studio policies is that the licensee must be in a position at any time to take over the station’s reins. Even when a full-time TBA is in place, the licensee must be a presence, “a stand-alone entity”, at the station, ready to run the operation. This concept may occasionally be overlooked by a licensee who, having arranged for a TBA, suddenly feels free of responsibility for station operation. As BBC’s experience demonstrates, any such sense of freedom is a dangerous illusion.

How dangerous? Well, in BBC’s case, the initial price tag set in the NALs is a total of $30K, in addition to which BBC must report within 60 days regarding its steps to bring its stations back into compliance with the FCC’s requirements. If BBC does not fully reassert control over the stations, the Bureau ominously assures that further sanctions – including, possibly, loss of license – may be in store.      

It remains to be seen whether these NALs mark the beginning of a crack-down on TBAs – after all, the time line (inspections in 2005, NALs issued five years later) hardly suggests any urgency on the FCC’s part here. But given the size of the proposed fines and the threat of further sanctions (including, possibly, the ultimate sanction), licensees engaged in TBAs would be well advised to make sure their houses are in order before the Feds drop by for a visit.

Revised community coverage and main studio rules for commercial stations – MMTC would have the FCC reduce, from 80% to 50%, the required coverage of each commercial station’s community of license. As MMTC sees it, this change would still provide a majority of the community with a listenable signal while making it easier for incumbent stations to make improvements or move tower sites, thereby increasing flexibility in tower siting and facilitating a more targeted approach to some audiences. 

With respect to AM stations, MMTC urges that all nighttime coverage requirements be eliminated (or at least “relaxed”). 

And it also proposes that the main studio rule be eased considerably. That rule currently requires that studios be maintained either (a) in the community of license, or (b) within 25 miles of the transmitter site, or (c) within the city-grade contour of any station (of any service) licensed to the community. In MMTC’s view, licensees should be permitted to establish their studios pretty much anywhere as long as stations not meeting the current rules: (a) maintain its public file and a direct telephone tie line at the library nearest to the community of license and (b) host three town hall meetings a year in the community of license to hear from local citizens.

Creation of a new local “L” class of LPFM stations – MMTC proposes that LPFM development be promoted through the creation of a new local “L” Class entitling some LPFMs to primary service status upon the completion of two years of operation as a “significantly local service”.

Extended construction periods for ALL new station construction permits – According to MMTC, in light of the economic crisis, the Commission should adopt a blanket one-year extension of the three-year construction period for all original permits for new stations. Concerns about warehousing spectrum, says MMTC, are vastly outweighed by the hardships and barriers to entry faced by broadcasters – especially small-market broadcasters – in obtaining financing and tower siting.

MMTC’s proposals are ambitious and far-reaching. Apparently designed to attract the broadest amount of support throughout the radio industry, they offer a little something for just about everybody. In doing so, however, they appear in a number of respects to transgress aspects of the “localism” orthodoxy developed in recent years under the watchful eye of, in particular, Commissioner (and, for a time, Acting Chairman) Copps. For example, the one-two punch of liberalized main studio rules and reduced community coverage requirements flies in the face of the agency’s previously-expressed interest in tying stations even more tightly to their communities.

This puts the Commission in a difficult position. On the one hand, it has – at least tentatively – embraced the concept of more intense regulation designed to insure greater localism. On the other, it has expressed concern about the paucity of minority/female-oriented stations. MMTC, an established representative of minority and female interests, appears to be suggesting to the Commission that the tension between localism and minority/female interests should be resolved in favor of the latter, even if that would benefit non-minority/female interests as well. 

It will be very interesting to monitor the Genachowski Commission’s response to that approach. It has been observed that the 2007 localism proposals were in many respects grossly unrealistic and likely to inflict extensive harm on a radio industry which was already suffering. The intervening economic meltdown of 2008 has exacerbated those problems. Will the Commission now back off some (or all) of its localism proposals in the face of MMTC’s petition?

Of course, not all of MMTC’s proposals run counter to localism. Some are not at all inconsistent with the Commission’s previously announced localism approach. But those proposals are still controversial. The Channel 5/6 suggestion would theoretically promote localism by assuring ample spectrum for new (and transplanted) LPFM stations. But re-purposing Channels 5/6 from video to audio would require the Commission to jump back into the potential quicksand of major league service migrations just months after the Commission had managed, at long last, to get itself out of similar quicksand on the TV side with the completion of the DTV transition. There is bound to be considerable resistance to that proposal, even though its proponents promise a far more efficient and equitable mechanism for distributing radio spectrum for the coming decades.

In any event, the Commission has invited public comment on the MMTC Petition and its various component proposals. Let the public debate begin.

Eliminating the main studio rule probably isn't what the FCC had in mind when it created the new public file online requirement for TV stations, but it isn't that much of a leap. To the contrary, it seems like the next logical step. Under the current rules, stations must maintain a local or toll-free telephone number for communication with the public. If the public file is online and the station locally publicizes an email address for electronic correspondence and a physical address for correspondence by regular mail, the public would have all of the purported benefits of a locally-maintained main studio without requiring the station to have a potentially unnecessary office in any particular location. At the very least, the FCC could eliminate the main studio location rules, allowing stations to put their facilities wherever business requirements dictate, freeing stations from unnecessary expense and freeing the FCC from the need to police main studio locations. We would hope that the FCC would consider a move that would ease burdens on both licensees and the FCC's staff without compromising service to the public. Then again, we may be uncommonly hopeful people.