Silence may be golden, but apparently not to the Media Bureau.
With the start of the next broadcast renewal cycle less than a year away, now would be a good time for broadcasters to start preparations for that octennial exercise. And the first thing each licensee ought to do is make sure that its station is actually operating. It appears that the Media Bureau, troubled by the number of non-operating stations – which is at an historic high, according to one in-the-know observer – is looking into how a station’s failure to operate during the preceding license term might be factored into the renewal process.
This is not good news if you happen to be off the air. It’s really not good news if your non-operation has dragged on over a significant portion of your most recent license term.
The available stats establish that just under 200 AM and FM stations had reported to the Commission that they were off-the-air as of September 1. And beyond that is the separate universe of stations that have (a) ceased operation but (b) not bothered to tell the Commission (even though the FCC rules – Sections 73.561(d) for NCE FMs, 73.1740(a)(4) for commercial stations – require them to do so).
As some folks at the Commission see it, it’s quiet out there . . . too quiet.
The rules, of course, permit stations to shut down from time to time, and there’s plenty of good reasons why they might: for examples, equipment problems, emergency conditions (think wildfires or earthquakes or hurricanes or floods, etc.), and – particularly in this period of economic hardship – plain ol’ money problems. The Commission itself routinely approves suspension of operation (usually in six-month hits) on a showing of good cause.
Such officially-sanctioned suspensions do not last longer than a year, though, because the Communications Act includes a fail-safe incentive to goose stations back on the air. Section 312(g) provides that any station that “fails to transmit broadcast signals for any consecutive 12-month period” loses its license automatically at the end of that period. (That section does afford the Commission some discretion to breathe the breath of life back into an automatically-expired license, but to date the FCC’s staff has demonstrated a decided reluctance to avail themselves of that discretion.)
Some at the Commission believe that, despite the threat of automatic expiration, a number of licensees are turning their stations off and keeping them off for extended periods. Those licensees dodge expiration, apparently, by returning to the air for brief periods so as to avoid a “consecutive 12-month period” of silence and, thus, the Section 312(g) kiss of death. But, having operated for a while, they then go back off the air. (Note that the FCC has never officially addressed the question of how long a station has to be on the air to toll the 12-consecutive-month period for Section 312(g) purposes. In a footnote (Number 21, if you’re looking) to a 2003 decision not directly involving Section 312(g), the Commission hinted – but stopped short of formally holding – that 24 hours of operation would do the trick.)
The Commission’s staff has signaled that it will consider instances of non-operation during the preceding license term as part of the renewal process. This could entail revision of the renewal application form (FCC Form 303-S) to require each renewal applicant to provide a detailed listing of instances of non-operation during the preceding license term.
The general idea goes back to a 2001 Commission decision involving a Pocomoke City, Maryland AM station that was off the air for nearly four consecutive years in the early 1990s (i.e., before Section 312(g)’s automatic expiration provision was inserted into the Act). The Commission, responding to an objection about the licensee’s failure to operate for most of the license term, concluded that renewal was appropriate. BUT – and it’s an ominous “but” – the decision was based on the facts that: (a) historically, the FCC had been “particularly lenient” in granting “stay silent” STAs; and (b) the licensee in question had not been warned that continued silence might “put [its license] at risk”.
The Pocomoke City decision took care of that latter factor, in spades. The Commission wrapped up its decision by pointedly stating that:
we take this opportunity to caution all licensees that as a result of the clarification provided herein, a licensee will face a very heavy burden in demonstrating that it has served the public interest where it has remained silent for most or all of the prior license term.
FCC to broadcast industry: you have now been warned.
A focus on the renewal applicant’s performance during the preceding term is squarely within the chores assigned the Commission by Congress. Section 309(k)(1)(A) of the Act specifies that, before it can grant an unconditional broadcast renewal, the FCC must first determine that, during the immediately preceding license term, the licensee “has served the public interest”. It’s difficult to imagine how a station could logically be said to have served the public interest when it wasn’t operating at all.
Whether the renewal form will in fact be revised remains to be seen. After all, the 200 or so radio stations off-the-air as of September 1 represent only about 1% of all AM and FM stations – not a huge chunk of the industry. Does it really make sense to impose an across-the-board reporting requirement when such a small percentage is being targeted? And bear in mind that at least some, if not many or even most, of those 200 stations may be off-the-air for valid technical reasons, with no intent to stay off longer than necessary to fix the problem and crank back up. In other words, if a chronic off-the-air problem does exist, it may be isolated to considerably less than 1% of the industry. Does the Commission really need to get its Big Guns out?
If the staff does plan to revise the renewal form to include a question about instances of non-operation, it will have to start the ball rolling soon. Form revisions generally require that the public be given the opportunity to comment, both at the FCC and before the Office of Management and Budget. With the next round of renewals due by June 1, 2011, the Commission has significantly less than nine months to have the form ready to go. Check back here for updates.