Proof Of Performance

By Ken and Kelly Orchard

Happy New Year 2002!

We’d like to look at your Proof of Performance.

If this suggestion was posed to an engineer, that would mean something about your transmitter, right?

Yes, but let’s look at what it would mean by somebody who filed a "Petition to Deny" your license renewal application or the sale of your station. That "Proof" would now be your evidence so that your station can either go through with the assignment to the new buyer or get your license renewed for another eight years. The proof in that Public File box of paper is your only documentation that you served the community of license and fulfilled your obligation of FCC rules and regulations.

Could you imagine going into a courtroom and your lawyer pointing to a cardboard box on a table and saying, "Our evidence is in that box." No attorney worth his salary would go to court to defend your license unprepared! The court would not allow it!

Imagine receiving a letter from the IRS stating that they are coming to your office for a full audit and when they arrive you tell the IRS Agent that all your Tax records are in this box over in the closet.

So here is the start of a new year and some notes about your Public File.

The public must be given access to your Public File during regular business hours. Lets say any given eight hours between 9:00am and 5:00pm or 8:00am and 4:00pm. All you are permitted to ask for is the name and address of the visitor. So, you should have some sort of a "sign in" sheet for your records.

The File must be accessible to that visitor, so if your file is in the closet or file cabinet or in a box in the office of a staff member, remember that this file must be easily accessible for anyone to view. And, what if that visitor was disabled in a wheel chair? The "Americans with Disabilities Act" will come into force, so make it accessible. I don’t think somebody in a wheel chair can see into the top drawer of a file cabinet nor reach into a box on the floor in a closet that is located on the second floor.

It is also important to make sure that the File is available even though your staff members have gone to lunch. I remember a station that used to go to lunch every day at noon and lock the front door. It would be worthwhile to have somebody come in for that hour each day to answer the phone and make sure your station door is always open.

If your license period is from 1997 to 2005, do you have that file in order with a table of contents? Why, you may ask? Well, in a recent FCC letter to a station, the FCC demanded a list of the items and documentation that was in their Public File. It certainly would have been easy to send or fax a "Table of Contents" for each year to the FCC. On a side note, the FCC did show up a few weeks later to verify the Public File contents.

The recommendation from one Law Firm was that is should be normal practice that one individual on the station’s staff be made responsible for the maintenance of the Public File.

The fine for not having a Public File is $10,000! I talked with one of the FCC bureau offices and they told me they could add more dollars to that initial fine if they found other commonly owned stations in that same building also did not maintain files. Additionally, the FCC would be alerted to watch other stations in the same ownership group.

It seems that many stations have knowingly or ignorantly allowed themselves to become weak in their compliance to FCC Rules and Regulations due to the inexperience of strong managers and owners who know FCC rules. Many current managers weren’t even in radio in 1997 when their stations’ license period began.

Its not surprising when Chairman Powell said, "Fines are not stopping or deterring violations, so watch out."

When a station owner or manager is saying says, "I have no money in the budget for this compliance nonsense," I wonder what he will say when he has to get his evidence out of the box for the FCC "Petition to Deny" hearing. Of course we know that the station manager will not be there working at that station at that point. Most likely, he’ll have moved on by then.

Let us quote you a letter to the FCC that a group used to try and get out of a non-compliance problem was for a technical notice of violation;

Don’t you really think the FCC sees that excuse all the time? It’s just like a kids homework excuse! They may as well tell the FCC that the dog is responsible! Especially when the FCC can look up the database and find out the real date they acquired the station, the date that the first chief operator was let go and the current hiring of the new chief operator. The station was in violation of this technical matter for over 17 months. When the FCC visits your station and looks at your station log and finds that you did not write down this technical matter in the log for 17 months that there was a problem, then you deserve this fine.

Beware in 2002. The FCC may move for a "No-Tolerance Policy" for blatant violations of FCC rules and regulations.

I’ve always wondered how an owner or manager would know about renewing his station license and will do it on time, but seems to forget about the all important Public Files, EAS requirements, Station logs and all the other mandated regulations and documentation during their eight year license period.

During a conversation with one manager, he was bragging that since he took over in managing the station he had increased collections this particular quarter by $10,000. All that great effort to increase sales would be lost with an FCC fine for no Public File.

If your station is concerned about its bottom line, just remember, FCC fines add to this bottom line.