Failure to correct omission of issues/programs lists triggers $4K uptick in fine
The market for a reasonably-priced time machine has probably expanded a bunch with the issuance of a Notice of Apparent Liability for Forfeiture and Order (NAL) which might indicate that a Class A TV licensee is expected to reconstruct eight and a half years’ worth of issues/programs lists . . . within 30 days.
At first blush the NAL looks routine. Inspectors from the FCC’s San Diego Field Office visited the Class A’s studio in June, 2010, and asked to see its public file. Nothing unusual there. The file was lacking 34 issues/programs lists. Since the station had not received Class A status until August, 2001, that means that the licensee had none of the lists that would have been required. While perhaps on the high side in terms of the raw number of missing lists, the fact that the inspectors found lists to be missing is also not unusual.
In March, 2011, the Field Office sent the licensee a follow-up letter of inquiry asking about the status of the station’s public file. The letter specifically requested a list of the contents of the file. The document list which the licensee sent in response included no issues/programs lists.
Next thing you know, out comes the NAL, which (a) assessed the licensee a $14,000 fine for failure to comply with the public file rule, and (b) ordered it to file a statement under penalty of perjury within 30 days stating that the station is in compliance with that rule. The NAL explicitly states that, while the standard fine for a public file violation is $10,000, an extra $4,000 was tacked on because the licensee “failed to correct the violation subsequent to the inspection”.
Let’s think about that for a minute.
Does that mean that the inspectors want the licensee – in 2011 – to create issues/programs lists relating to programming aired as long ago as 2001? It’s possible that the “failure to correct the violation subsequent to the inspection” might refer to the licensee’s seeming failure to prepare issues/programs lists between the June, 2010 inspection and the March, 2011 letter of inquiry. (That would entail three lists – due in the public file in July and October, 2010 and January, 2011.)
But since “the violation” involved the failure to maintain issues/programs lists, that failure could arguably not be “corrected” unless all the missing lists were somehow re-constructed. That seems to be the position staked out by the San Diego office in a separate NAL directed to a different licensee earlier this month.
But if the inspectors were in fact looking for the license to reconstruct years-old issues/programs lists, how realistic is that? Maybe some licensees somewhere have programming records going back that far, but it seems a bit of a stretch for the Commission to expect that all licensees are in that position. If this particular Class A doesn’t have such records, how can it be expected to assemble issues/programs lists that would be anything more than a reasonably educated guess about the programming? And if the lists are, as a result, little more than a quasi-fiction concocted to please the inspectors, what good are they to anybody?
If a violation is subject to remedy – f’rinstance, a station’s tower lights malfunction, or its EAS gear is MIA – the FCC can and should impose sanctions designed to encourage the licensee to fix the problem as quickly as possible. But missing issues/programs lists are in a different category. It’s not easy – and, in some cases, not even possible – to reconstruct reliable lists reflecting programming from years gone by, and the practical utility of such reconstructions is dubious at best.
Be that as it may, the San Diego Field Office may be expecting licensees to reconstruct their issues/programs lists promptly once the fact that those lists are missing is brought to the licensee’s attention. Whether or not this expectation will spread to other Field Offices, or to the Enforcement Bureau’s Washington HQ, remains to be seen. But anyone out there whose public file may be lacking issues/programs lists, heads up – if the inspectors knock on your door, you should probably be prepared to assemble make-good lists pronto or run the risk of a hefty add-on to an already hefty $10,000 standard fine.
How you assemble those make-goods is your own business, but that’s where it might be handy to have that time machine . . .