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.