Notice of apparent liability illustrates questionable priorities in FCC’s “base forfeiture” calculation approach.
March 31, 2010, was probably not a good day for Daniel Smith, the individual licensee of a stand-alone FM in scenic Belle Plain, Kansas (just a hop, skip, and 26-mile jump down the road from Wichita). That’s when the folks from the Enforcement Bureau arrived to inspect his station. Seven months later, he’s looking at a Notice of Apparent Liability (NAL) that says he owes the guv’mint $25,000.
While that’s a healthy fine for sure, closer analysis of Mr. Smith’s alleged transgressions and the way the Feds are calculating his penalty provides some interesting, and possibly troubling, insight into the FCC’s priorities.
It’s safe to say that Mr. Smith was apparently not a stickler for complying with the Commission’s rules. Here’s what the NAL tells us about the inspection of his station:
The inspection team checked the station’s EAS gear (as inspection teams routinely do) and found it wasn’t working “because the power cord was disconnected” . . . well, because of that and also because it hadn’t worked for some time. How long? Mr. Smith said that his EAS system stopped working “sometime between the year 2000 and the year 2006”. Mr. Smith is apparently not a man of precision when it comes to dates . . . or record-keeping, for that matter: he reportedly had no logs indicating the last EAS test his station had sent or when the EAS rig went south on him. (He said he did try to hire an engineer to fix it, but “the engineer was too busy”.)
Moving on to the station’s public inspection file (again as inspection teams routinely do), the agents found no quarterly issues/programs lists for 2009 or 2010 – an omission that Mr. Smith readily acknowledged.
Stepping outside to eyeball the station’s tower, the inspectors observed that the paint was faded and bare in spots. Not surprising, because the tower hadn’t been painted (according to Mr. Smith) since it was erected in 1996. And about those three flashing beacons on the tower – that is, the beacons that were supposed to be flashing. They were either not flashing or not lit at all. Par for the course, apparently, since “several” of the sidelamps on the tower weren’t working either.
The station had no automated system to monitor the tower lights, and Mr. Smith said that the station’s staff wasn’t checking the lights every day, as required by the rules. He said he knew the sidelamps weren’t working, but wasn’t aware the flashing beacons weren’t on. He had no record of any tower observations, although he did recall having looked at the tower a couple of days before the inspection. However, since that observation occurred during the day when the “the lights were not exhibited”, it didn’t clue him in that the lights weren’t working.
If we assume that the NAL’s description of the situation is accurate, a $25K fine would not seem out of the question. But how, exactly, did the Enforcement Bureau get to that number?
It started by identifying four rules which had apparently been broken: (a) failure to maintain operational EAS equipment (Section 11.35(a)); (b) failure to make daily observations of tower lighting (Section 17.47); (c) failure to keep the tower painted and cleaned (Section 17.50); and (d) failure to place quarterly issues/programs lists in the public file (Section 73.3526).
Then it went to the books to find the “base forfeiture amount” for each. Those were: (a) $8,000 for EAS; (b) $2,000 for tower lighting observation; (c) $10,000 for tower painting; and (d) $10,000 for the public file.
Let’s take a moment here to contemplate those numbers. If the amount of the “base forfeiture” may be seen as an indication of the relative importance of the underlying rule, then keeping the tower painted and the public file complete are (at $10K each) apparently really important, keeping the EAS gear up and running ($8K) pretty important, and making sure the tower lights are on (a mere $2K) not so much.
Does that make sense? In terms of potential impact on the safety and welfare of the public, shouldn’t it be more important to keep your EAS system running? After all, EAS alerts – about, say, the approach of a destructive storm or a dangerous chemical spill or a pandemic – could affect most if not all the station’s audience in a very direct and meaningful way. Why, then, are EAS violations treated more gingerly here?
And as between tower painting and tower light observations, why is the former five times more important that the latter? Tower visibility at all times is, of course, important to air traffic. But during daylight hours even a poorly painted tower can often be seen. That’s not true of an unlit tower at night, regardless of the quality of its paint job. In view of that, shouldn’t attention to tower lighting be encouraged at least as aggressively as tower painting? (Actually, the Commission’s menu of standard fines does provide a $10,000 penalty for “failure to comply with prescribed lighting and/or marking”, but for some reason the Enforcement Bureau invoked the $10K only with respect to the tower’s paint job in Mr. Smith’s case.)
And as between tower visibility generally and EAS problems, again, doesn’t EAS have an overall greater potential impact on the public? A plane crash into a tower, tragic as it may be, is a relatively rare occurrence with a relatively limited effect on the public. By contrast, a tornado, wildfire, earthquake, terrorist threat, etc., etc. – i.e., the stuff of EAS alerts that occur all the time – are of direct importance to far more of the public. If we’re going to rank such things by their potential for affecting the public, aren’t the current fines for EAS, tower lighting observations and tower painting out of whack?
And then there’s the public file rule. $10K? Really? Back in 1997, when the Commission imposed its current “base forfeiture” approach, it defended the high “base” fine for omission of issues/programs lists because, supposedly, such an omission “diminishes the public’s ability to determine and comment at renewal time on whether the station is serving its community”. But historically, the public has demonstrated a nearly wholesale lack of interest in issues/programs lists. (That could be because the public has a more direct and effective way of determining whether a station is serving its community: that is, by listening to or watching it.) It seems clear to this writer, at least, that the $10,000 base forfeiture for omission of issues/programs lists is grossly disproportionate.
Getting back to Mr. Smith’s case, the Enforcement Bureau could simply have added up the base amounts for the violations it had identified, which would have produced a $30,000 fine. But the Bureau got fancy. It reduced the public file component of the fine from the maximum of $10K to a somewhat more reasonable $4K because the station’s public file “contained a portion of the items required.” (This is arguably consistent with the Media Bureau’s recently announced policy of dealing out $10K fines to licensees missing 12 or more lists – although where the MB folks came up with the “12 or more” break point is not clear. Equally unclear is why a licensee missing five lists, as in Mr. Smith’s case, should be liable for a $4,000 fine, as opposed to any other dollar figure. There appears to be no obvious “per missing list” multiplier at work here.)
That reduced the total to $24,000. But the Enforcement Bureau then tacked on another $1,000 to the EAS violation because Mr. Smith, as it turned out, had a record of violating the EAS rules back in 1997.
Wait a minute. He was specifically alerted to the EAS rules in 1997, and yet by 2000 (or maybe as late as 2006), his EAS gear wasn’t working and he did nothing about it? For at least four, maybe as many as 10, years? And the Bureau thinks that that warrants a mere $1,000 uptick in the fine?
It’s possible that there are a whole host of other factors, not apparent in the NAL, that affected both Mr. Smith’s conduct here and the Enforcement Bureau’s response. But from the NAL alone, the Bureau’s (and, ultimately, the Commission’s) priorities are plainly subject to question. Nevertheless, the one message that comes through loud and clear here is that the Enforcement Bureau is still actively engaged in the enforcement business, even if its calculations may be dubious.
