The FCC Can

Rock Your World

By Ken and Kelly Orchard

Granted, a great deal of the 28 million dollars in enforcement actions during the past year didn’t come from strictly from the radio broadcast industry, but it certainly can "rock your world" at the knowledge that the FCC Enforcement Bureau is not only active, but serious.

One of the main actions taken seriously by the FCC is Public Safety enforcement. The enhanced 911 operation of the Emergency Alert System; tower painting and lighting for aviation safety and unauthorized operations or equipment that interfere with air traffic control frequencies. The Bureau also provided assistance to federal, state and local public safety and law enforcement entities to determine the source of signals causing interference on public safety frequencies and served as a focal point for FCC Homeland Security related work.

In the month of August alone (keep in mind that is takes a while for the FCC to report on actions), the Enforcement Bureau’s Field Offices issued twenty-two Notices of Apparent Liability in the amounts totaling $211,000. Twelve involved violations of the Commission’s safety-related rules (e.g., antenna structure, AM station fencing requirements, and Emergency Alert System). There were even a few Local Public Inspection File violations.

The FCC has their own term for "AOR’. Once the AOR term for radio simply meant the Album Oriented Rock format, but it has an all-new meaning with the FCC, in their terminology, it is "Area of Responsibility" and each Enforcement Bureau Field Office takes their area of responsibility very seriously. California has the most, with three Enforcement Bureaus, and last month we had the pleasure of meeting the FCC representatives in Hawaii.

We apologize to our readers who had an issue with us reporting that we were on our way to Hawaii. Upon returning, we had several comments about it: "Tough Duty", "Must be nice". It was a great pleasure to have the opportunity to work in "paradise", but believe us, it was a lot of WORK! We were initially contracted to come over and inspect ten stations for the Hawaii Association of Broadcasters. Due to the efforts of the organization, they rallied the broadcasters to participate, and we actually inspected a total of sixteen stations while we were on Oahu! Eleven radio stations and five television stations. It was quite an experience! But, we managed to fit it all in! Mercifully, many broadcast transmitters are located at the same place, which eliminated a good deal of travel time to the transmitter site, which is usually the most cumbersome part of performing multiple inspections.

Once again, we must continue to remind you, that the Enforcement Bureau is celebrating (and yes, they do consider themselves successful, so they are celebrating) three years in existence. If you have any expertise in statistics, or odds, you can bet that if you haven’t been inspected yet, you will be in the near future. It is crucial to begin looking in to your FCC Compliance now, as many states are nearing the "half-way" point toward license renewal, stations are undergoing ownership changes, mergers, acquisitions, frequency swaps and so forth. That list alone could possibly include nearly every broadcaster in the country! You should really get busy! There are two ways for you to accomplish this task. 1) Go to the FCC website at www.fcc.gov and download the FCC Inspection Checklist and go through it item by item. It’s a very educational and eye-opening experience that every manager or engineer should go through. 2) Call your state association and elect to participate in the Alternative Broadcast Inspection Program. Most states have a program in place now, and the FCC does not only endorse it, it is highly encouraged.

Recently, a client of ours provided us with a memorandum from a seminar they had attended. This session was hosted by one of the many Washington D.C. law firms that specialize in broadcast law, and was specifically centered in the area of FCC Compliance, including Public File Rules. We appreciate the chance to utilize the expertise of others in the industry to get our point across to our readers and clients. The following is an excerpt from the memo:

"As part of its obligations as a public trustee, a broadcast licensee must make available for public inspection and copying certain materials and records. Recently, the Federal Communications Commission announced that Public File infractions constituted one of the most frequent violations noted by Field Office Bureau personnel when making routine inspections. This Memorandum discusses the nature of the materials and the procedures, which must be implemented to insure that public access is uninhibited. Failure to maintain a Public File of keep it updated can subject a licensee to monetary forfeiture. Refusal to all public access to the Public File can result in more severe sanctions".

In cases where a petition to deny your station license or a delay of a possible transfer, the FCC will consider the following:

(1) Continually served the public interest, convenience and necessity;

(2) Committed any serious violations of the FCC's rules or the

Communications Act;

(3) Committed other violations which, taken together, would constitute

a pattern of abuse.

The only evidence in these cases is found in your Station's Public File, Station Log and FCC compliance of all rules and regulations. This is a very important file! It is your ONLY documentation that proves what you have done to serve the community, and your only tool to ward off a delay or potential problem.

As we go to press on this November article for 2002, we have received many emails inquiring about "Pirate Operations" of both AM and FM stations. The following is an amusing little story, but one that we feel is important to pass on to broadcasters, as it is a lesson not only about "Pirate operations" but the FCC’s policy on "willful and repeated violations".

The FCC recently visited a station broadcasting on a "pirated" frequency and discovered they had no proper license to operate this station. When the FCC agents arrived, they took field strength measurements of the station’s signal and determined that the station required a license to operate. The FCC agents then interviewed "Mr. Pirate" and learned that the station was used as a Ministry for minority church in that area. "Mr. Pirate" admitted that his ministry owned the radio station equipment and operated the station. The FCC agent asked "Mr. Pirate" if he had a license for the station and "Mr. Pirate" replied that a friend had submitted an application to the FCC and had advised him that he could operate the station while the paperwork was being processed.

The FCC agent again advised "Mr. Pirate" that he could not operate the station without a license and directed him to the station off the air. Although "Mr. Pirate" asked for time to let his listeners know that the station was going of the air, the agents said "no" and "Mr. Pirate" than directed another person to turn off the transmitter. The FCC agents then hand delivered to "Mr. Pirate" a warning letter which advised him that operation of a radio station without a license violates Section 301 of the Act, ordered him to cease operation of the unlicensed station immediately, and listed the penalties for unauthorized operation of a radio station.

Would you believe that this station went back on the air again within two weeks of the original inspection. A licensed broadcaster filed a complaint with the FCC that their signal was interfering with another, so the FCC once again went out to inspect.

The station had moved to another location and the FCC found the transmitter by using a mobile direction finding vehicle. Again field strength measurements were taken and of course it was in violation. The station again was taken off the air. The pastor of the ministry now explained to the FCC that Mr. Pirate was the operator of the station and leased the space from the church. Mr. Pirate had purchased 50% of ownership from the person who had applied for the station. The FCC now issued a NAL to Mr. Pirate for "$10,000 for operating a station without a license, and willful and repeated violation of Section 301 of the Act.

"Mr. Pirate" and the "ministry" tried to argue with the FCC that they were "duped" by a third party that the didn’t have to worry about operating the station, especially after the FCC had been out once. This third party assured them that the FCC would not be back, and even if they did, they would only issue another warning. WRONG. The FCC slapped them with a $10,000 fine, and now they are scrambling to determine who is ultimately responsible to pay the forfeiture. They asked the FCC to waive it, but the FCC responded with a resounding "NO".

The reason for bringing this particular case to your attention is simply to let you be aware that the FCC isn’t going to accept ignorance of the rules, being "duped" by someone else, or willfully violating broadcast rules and regulations. The Enforcement Bureau is just that, enforcing the rules to make broadcasters abide by them, so that everyone plays on the same level.

If you need help with your FCC Compliance, there are several ways that you can achieve it. We always appreciate your calls and emails and we will do our best to lead you in the right direction, but you must put your compliance on your priority list, before you too, get inspected by the FCC’s Enforcement Bureau.