FCC Clarifies Backfill Policy

November 1, 2008

When considering city-of-license change proposals, whether in the context of a minor change application or a rule making, FCC policy prohibits the removal of an FM channel from the community to which it has been allotted if such removal would result in the loss of the community's only local radio station, whether the facility is a commercial or noncommercial facility. In a recent decision the Commission ruled that this policy requires an actual licensed and operating station (rather than an un-built construction permit) remain available in the community if another station in the community wants to move out.

The new case comes from a small community in Texas, where the only station in town wanted to move to another town — so it could cover a larger area and population. A construction for a new noncommercial FM had been issued for the station's community of license, but the station had not yet been built. The station that wanted to change communities applied for the move anyway, arguing that the noncommercial “backfill” station was near completion and the spirit of the backfill policy had been satisfied. A waiver of the policy was requested in case the FCC disagreed.

A petition to deny was filed that argued that a nearly-built CP is not the same as a licensed and operating station, and therefore the community-change application violated the backfill policy and should not even have been accepted for filing. The FCC's Audio Division agreed, holding that reliance on the unbuilt CP constituted an unacceptable backfill proposal. But since the applicant had a right to request a waiver, the staff determined the application was properly accepted for filing so the waiver request could be considered. And in the meantime, the noncommercial station had been constructed and had commenced operation, thus mooting the waiver request as well as the petitioner's argument.

This case could have gone either way. As of the date the community change was applied for, the proposal was defective, as was the waiver request. Here, however, because the backfill station had been fully constructed by the time the FCC got to the case, the defective nature of the waiver was considered moot and was overlooked. This hardly seems fair to the petitioner, but occasionally the FCC, as it did here, sees its public interest mandate more in terms of promoting new service than in adhering to hyper-technical interpretations of its rules and policies.

FCC acts against pirate stations

In September, the FCC issued orders and notices regarding nearly a dozen pirate radio stations identified by FCC agents. Most of the stations were using the FM band in locations in Florida, Ohio, Oregon and New York. Standard fines of $10,000 were issued to those pirates.

While most of the pirates chose to operate in the standard FM broadcast band, one case involved unauthorized transmissions at 156.80MHz, a frequency in the marine band used by ships. Over a period of weeks, the Coast Guard responded to several false distress calls, and scrambled ships and aircraft to phantom emergencies. After multiple false alarms, the Coast Guard contacted the FCC to help determine the source of the false distress and mayday calls.

The FCC tracked the signal to a Largo, FL, trailer park where they learned that the local police had already arrested a 16-year-old boy. According to the police, in the boy's room they found multiple radios, a marine battery and a whip antenna. This resulted in incarceration in a juvenile facility. The FCC's $18,000 fine against the boy was cancelled when the agency learned that he had been locked up.


Dec. 1 is the deadline for submission of biennial ownership reports by radio stations in Colorado, Minnesota, Montana, North Dakota and South Dakota.

On Dec. 1, radio stations with more than 10 full-time employees located in Colorado, Minnesota, Montana, North Dakota and South Dakota must electronically file their Broadcast EEO Mid-Term Reports (Form 397) with the FCC.

Also on or before Dec. 1, radio stations licensed in the following states must place their annual EEO Reports in their public files: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, South Dakota, Vermont and Rhode Island.

Martin is a past president of the Federal Communications Bar Association and a member of Fletcher, Heald & Hildreth, Arlington, VA. E-mail martin@fhhlaw.com.

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