Cumulus thought its quarterly public file lists were in compliance . . . Cumulus was wrong.
A prominent broadcaster recently got caught in the dangerous trap the FCC has set for unwary broadcast renewal applicants. You can read the FCC’s decision here. There are a number of lessons to be learned here about public file maintenance, quarterly issues/programs lists, and certifications lurking in renewal applications.
It happened to Cumulus at a couple of stations they own in Florida and Georgia.
Back in 2003, both stations filed for renewal. In response to the question about the completeness of their public files, each station certified that, yes, all required material had been placed in their public files at the appropriate times. In early 2004 a couple of objections rolled in alleging that the files were missing the required quarterly issues/programs lists; Cumulus responded (also in 2004) that all required lists WERE placed in the file in a timely manner and the renewal certifications WERE accurate and correct.
Fast forward a couple of years. In April, 2006, FCC field agents inspected the stations and determined that Cumulus was simply putting "copies of public service announcements" in the public files. According to Cumulus, those PSA’s would do the trick as the stations’ quarterly issues/programs lists. The Field Office disagreed and whacked Cumulus with a fine ($4K per station) for violating the public file rule. Cumulus paid the fine.
The renewal applications were still pending at that point, and still contained the certification that the stations’ public files had been properly maintained. In March, 2007, the Audio Division asked Cumulus about the discrepancy between that certification, on the one hand, and the results of the 2006 inspection, on the other. Cumulus explained that its renewal certification had been based on its belief that its "copies" of PSA’s satisfied the issues/programs list requirement.
Imagine everyone’s surprise in late July, 2007, when the Division fined Cumulus $20,000 for false certification.
According to the Division, Cumulus could not reasonably have thought that copies of PSAs could be deemed to be issues/programs lists – so when Cumulus certified that its public files were complete in its 2003 renewals, it was LYING.
(It could have been worse. At least the staff decided that Cumulus didn’t intend to deceive the Commission. Otherwise, Cumulus might have been found to be disqualified from holding any licenses at all.)
So what have the rest of us learned from this? First and foremost, before you check the "yes" answer to the broad certification questions in your renewal application (or anything else you file with the FCC), make REAL sure that (a) you know precisely what you’re certifying to and (b) your "yes" answer is completely accurate. Second, you can’t just dump PSA scripts into the public file and call them your issues/programs lists. Third – and perhaps most ominously – if you act in the mistaken belief that what you are doing is legal, and if the FCC second-guesses you a couple of years later, it may not be an adequate defense to say that you thought you were acting properly.
This decision should cause all broadcasters to doublecheck their quarterly issues/programs lists. While those lists are, we hear, almost never inspected by members of the public, obviously the Commission attaches some importance to them. If a licensee’s past programming performance is ever called into question, the lists are supposed to provide the most reliable record of that performance. As a result, keeping the lists as thorough and accurate as possible is a good idea.
And last but by no means least, the decision reminds us of how important it is to be candid, honest and forthright with the FCC.