FCC Enforcement Monitor

FCC Throws the ($89,200) Book at Class A Licensee for Evading Main Studio Inspections

The FCC’s Enforcement Bureau imposed a fine of $89,200 against a Philadelphia Class A TV licensee for failing to (1) make its station available for inspection by FCC agents on multiple occasions, (2) maintain a fully staffed main studio, and (3) operate the station’s transmitter from its authorized location.

Section 73.1225(a) of the FCC’s Rules requires broadcast licensees to make a station “available for inspection by representatives of the FCC during the station’s business hours, or at any time it is in operation.” In addition, Section 73.1125(a) of the Rules has been interpreted by the FCC to require broadcast licensees to maintain a main studio with a “meaningful management and staff presence” during normal business hours. Finally, Section 73.1350(a) of the Rules requires a broadcast licensee to “maintain[] and operat[e] its broadcast station in a manner which complies with the technical rules . . . and in accordance with the terms of the station authorization.”

In August 2011, FCC agents attempted to inspect the station’s main studio. After observing that the main studio was inaccessible due to a locked gate, the agents called the station manager and requested access to inspect the main studio. Ten minutes later, the station manager emerged and informed the agents that he could not facilitate the inspection because he was leaving for a medical appointment, and requested that the agents return the next day. When asked about staffing, the station manager said that no one else was available to facilitate the inspection. One of the agents called the sole principal of the station and advised him that the station manager had failed to make the station available for inspection, and asked the principal to call the agent back. The principal did not return the phone call.

Over one month later, in September 2011, the agents returned to the station to inspect the main studio. The station manager appeared at the locked gate, and asked the agents to wait as he returned to the building. After waiting for ten minutes, the agents left. The agents returned that afternoon and found that the gate was still locked. An agent called the station manager, who said the gate was locked for security purposes and that the public must contact the station to obtain access. However, the agents noted that there was no contact information on the gate. An agent called the sole principal about the second failed attempt to inspect the studio, and again did not receive a return phone call.

In addition to the two failed inspection attempts, FCC agents found in March 2012 that the station’s antenna was actually 0.2 miles from the site listed in the station’s license. The agents determined that the station had operated from the unauthorized location for approximately eight years.

The FCC subsequently issued a Notice of Apparent Liability (“NAL”), proposing an $89,200 fine against the station. The base fine for failing to make a station available for inspection is $7,000. However, due to the “unacceptable” conduct of the station, the FCC used its discretion under Section 503(b)(2)(A) of the Communications Act to adjust the proposed fine upward to the maximum amount allowed under the Act: $37,500 for each of the two failed inspections. The FCC also proposed an upward adjustment of the base fine for operating the station from an unauthorized location, from $4,000 to $7,200. In addition, the FCC proposed a $7,000 fine (the base fine amount) for the violation of the main studio rule, for a total fine of $89,200.

In response to the NAL, the licensee stated that the failed inspections were the result of medical problems and miscommunications with the FCC agents. It also said that the unauthorized operation was a “minor mislocation” of the antenna caused by reliance on the tower site’s owner, which was promptly remedied following the investigation. In addition, the licensee argued that it did not have sufficient income to pay the fine.

The FCC rejected all of the licensee’s arguments, noting that the FCC’s inspection authority does not depend on the convenience of the licensee or availability of station personnel. Regarding the unauthorized transmitter site, the FCC stated that licensees are responsible for violations committed by third parties on their behalf, and that corrective efforts must be taken prior to notification of the violation to warrant a fine reduction.

Finally, regarding the licensee’s inability to pay argument, the FCC noted that it requested, but never received, tax returns and other financial information from the sole principal, and therefore did not have sufficient information to conclude that the licensee was not able to pay. The FCC also noted the licensee’s pending $6.4 million sale of the station—a fact that the licensee had failed to mention in its filings.

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