In my November 2011 column, I discussed the FCC's rulemaking addressing the coordination of new applications for Low Power FM stations and FM translators. I referenced the new policy of the Commission's staff to slow the processing of FM translator applications where the licensees have moved a facility long distances through a series of minor change applications.
The Commission has taken a further step to address this issue. On Feb. 10, 2012, the Media Bureau issued a letter of inquiry to a broadcaster that had filed a series of minor change applications to move an FM translator across the state of Wisconsin. The issuance of the letter is likely the first salvo in a new battle between the Media Bureau and FM translator licensees. The letter also serves as a reminder for all licensees of the FCC requirements for the construction of broadcast facilities.
First, the letter focuses on whether the licensee had obtained reasonable assurance from the tower/land owner of each site from which the station operated, and to supply documentation of such reasonable assurance in the form of lease agreements, invoices or cancelled checks. In the past, the Commission required applicants to actually supply evidence with their applications, but later only required certification pursuant to its 1999 Streamlining Order.
Even if an applicant is not attempting to move a facility across the state, though, the Commission does require certification from the applicant that it has contacted the tower/land owner, and has had some meeting of the minds regarding the availability of the site should the application be granted. There is a long line of FCC decisions on what qualifies as "reasonable assurance," and the letter seeks supporting information from the applicant for each of the sites referenced in its applications.
Next, the letter requests evidence that the licensee actually operated at each site, such as power bills or invoices from engineering firms. The letter also requests the licensee detail which station it rebroadcast during its operation at each site, and for how long it operated at each site. In the event that the station was silent for more than 30 days, the letter requests information as to whether the Commission was informed, and whether special temporary authority to remain silent was requested.
In most cases, a station's extended silence is due to equipment malfunction or damage, or the licensee's lack of funds. However, in the case of applicants moving FM translators, the silence is usually tied to the practice of turning the station on at each site to submit the license to cover application, but then taking the station silent shortly thereafter while the next move is planned.
As with the reasonable assurance question, the issue of not having alerted the Commission to a station's silence extends beyond the context of FM translator move-ins, and applies to all broadcast stations. If a broadcast station is silent for more than 10 days, the licensee is responsible for filing a notification with the Commission. If the silence extends beyond 30 days, special temporary authority to remain silent from the Commission is required. Thus, all licensees should take steps to notify the Commission when the station goes silent.
The letter likely foreshadows the Media Bureau's intent to issue additional inquiries to other licensees that have followed a similar path. The Media Bureau has taken the position that these move-ins are an abuse of the Commission's processes and reflect a lack of candor or misrepresentation to the Commission as to the intent of the licensee to serve the intermediary communities.
On the other hand, the Commission has a long history of processing these applications, so it may face difficulty in justifying the mid-stream switching of gears should a licensee take the matter to court. The best short-term advice to all licensees is to keep detailed records of their construction efforts in case the Commission comes knocking some day.
March 2012: Stations in Indiana, Kentucky and Tennessee continue running license renewal pre-filing announcements on March 16.
April 1, 2012: Stations in Indiana, Kentucky and Tennessee file license renewal application and EEO Program Report. Noncommercial radio stations in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee file their Biennial Ownership Report (FCC 323-E).
April and May 2012: Stations in Michigan and Ohio commence running license renewal pre-filing announcements, continuing on April 16, May 1 and 16. Stations in Indiana, Kentucky and Tennessee commence running license renewal post-filing announcements, continuing on April 16, May 1 and 16.
Petro is of counsel at Drinker Biddle & Reath, LLP. Email: firstname.lastname@example.org.