Studio relocation without prior FCC OK leads to $7K fine (minus $1,400 for good behavior)
When it comes to main studio site compliance and Longley-Rice, the Media Bureau’s Audio Division is sticking to its guns. As we reported back in October, 2010, the Division had issued a Notice of Apparent Liability (NAL) to an FM licensee even though its main studio was within the station’s city-grade contour, as required by the rules. Now the Division has followed up with a Forfeiture Order re-affirming that NAL. If you’ve got a main studio whose legality hinges on Longley-Rice signal coverage calculations and if you weren’t paying attention when the NAL came out in 2010, now would be a good time to focus on this.
What’s the problem with relying on Longley-Rice, you ask? Nothing, as long as you jump through the right hoops in the right order, according to the Division. It seems that this particular licensee’s studio location was not within the city-grade contour according to the FCC’s predicted method, even though it was within that contour as determined by a Longley-Rice analysis. According to the licensee, it performed the Longley-Rice analysis to confirm that the site in question was within the contour as required by the main studio rule; comfortable with that knowledge, the licensee went ahead with the move, simultaneously notifying the Commission of the move. In the notification the licensee asserted that the new location complied with the rules. (It later moved a block or two down the street, to a site that also complied with the rules, according to Longley-Rice.)
More than a year after the first move, the Commission started an investigation when somebody (we’re guessing it was a competitor, but you never know) complained. The licensee explained what it had done. In response, the Division whacked the licensee with a $7,000 fine, even though everybody agreed that, per Longley-Rice, the studio was street legal.
According to the Division, before a station can move to a studio site whose compliance is based on Longley-Rice, the licensee must first get Commission approval for the move. The Forfeiture Order re-affirms that position, although it reduces the fine to $5,600 because the licensee has managed to keep its nose clean (in FCC-speak, it has a “record of compliance”).
The Forfeiture Order does nothing to spackle over the gaping holes in the Division’s earlier “analysis”. (Check out our earlier post for a brief discussion of some of those holes.) While the Division continues to claim that the rules require prior FCC consent when compliance depends on Longley-Rice, the language of the rules continues not to support that claim. Undaunted by that technicality, the Division continues to rely on language in a footnote to a 1997 Commission decision which still does not appear to support the Division’s position quite as firmly as the Division seems to think. According to the Division, to perceive the footnote’s supposedly “clear” mandate, you have to “pars[e]” the language of the footnote “in context”. We would have thought that “clear” language would not require “parsing”, but what do we know?
In any event, there appears to be reasonable basis to conclude that the Division’s take on the rule could be overturned on appeal. But don’t expect the licensee in question to take this to the courts. An appeal would likely cost tens of thousands of dollars in unrecoverable attorney fees – and the best possible result would be the elimination of a $5,600 fine. Do the math and you’ll probably come to the same conclusion we have – an appeal sure looks unlikely.
Which leaves everyone in the same position they were in back in 2010, when the NAL was issued. As we observed then, if you moved your studio to a site which Longley-Rice said would be OK, and you did so without any prior FCC approval, it looks like you’re going to be on the hook for a $7,000 fine if and when the FCC finds out.
In 2010, we suggested that the Division might want to declare an amnesty of sorts, sticking to its insistence on prior approval but allowing that there may have been some reasonable doubt as to that requirement prior to 2010. The Division has, regrettably but clearly, declined that suggestion. Here’s another suggestion: perhaps the NAB or one or more state broadcast associations could take up the fight. If enough of their members are facing possible $7,000 fines, it might make sense for such organizations to challenge the Division on this. While the economics of the situation (as noted above) make it unlikely that any single licensee will appeal, the calculation changes if the would-be appellant is an association representing a critical mass of potentially affected licensees.
It’s hard, if not impossible, to determine precisely how many folks out there are currently operating from a heretofore unapproved studio site the legality of which depends on Longley-Rice. If there are a significant number of such folks, it might make economic sense to band together in some fashion to advance their common cause – the alternative being to sit tight and wait for the Commission to spank you for $7K. So if you’re a licensee who could be looking down the wrong end of one of these studio site fines, you might want to check with one or another broadcaster association to see if they might be interested in helping out.