By: David Oxenford,
Wilkinson Barker Knauer LLP
The FCC’s Audio Division, in the latter part of the license renewal cycle for radio stations, seems to have adopted a more aggressive position on stations that were silent for extended periods of time during their license term. In our summary of last week’s events of importance to broadcasters, we noted one case where an Oklahoma AM station was granted a license renewal for a one-year term, instead of the normal eight years, because the station had been silent for 50% of its license term. Yesterday, another decision was issued granting the license renewals of 7 Texas stations for only one year because these stations had been silent for 25% of their license term (as well as a significant period of time after the license renewal applications were filed). These and other decisions in recent months show that the FCC is cracking down on stations that are silent for extended periods of time, even if those periods of silence had been authorized by the FCC pursuant to a request for special temporary authority to remain silent.
In each of these decisions, the FCC notes that silent stations cannot be serving the public interest. When they are silent, they are not providing information to local residents, nor are they relaying EAS alerts. As the stations are falling short on their obligation to serve the public by extended periods of silence (even if those periods of silence are authorized), the FCC has been issuing these short-term renewals to be able to monitor the performance of these stations to assure that they are continuing to operate during the next year – rather than having to wait until the end of a normal 8-year term to decide if the station has been serving the public.
This action continues an evolution of FCC decisions over the last few years. In the last license renewal cycle, we wrote about decisions here and here to fine stations and grant 2-year renewals to stations that had been silent almost half of their license terms. Stations that had been silent for more than half the term were designated for hearing to determine if their renewals should be granted (see our articles here and here). Now, that policy seems to have been extended to result in short-term renewals for stations that have been silent for much shorter terms – as little as 20% of a license term. So, when commencing any voluntary period of silence for any station, a licensee should be aware that, if the station stays silent for a long period of time, its expectancy of a normal license renewal term may be jeopardized.
As it is routinely underperforming radio stations (often AM stations) that are silent for long periods of time while operators try to determine what to do with the station – whether to adopt a new program service that might attract more listeners and revenue, to sell the stations, or to turn in their licenses – one wonders what the results of the FCC’s new policy will be. If stations that are on short-term renewals go silent during the short renewal terms, will their licenses be renewed again at all, even on a short-term basis? Will operators of troubled stations, especially of troubled AM stations, risk taking those stations silent while trying to find other ways to operate them or potential buyers for those stations, or will they just abandon the licenses, resulting in even less service to the public? While the FCC’s theory is that an operator who takes a station silent for long periods is not serving the public, if the renewal is not granted, there will be no service at all.
For an AM station, it may be years, if ever, before a new window for AM stations will open where an applicant can apply for permission to construct a new facility on a vacant frequency. It has been over a decade since the last filing window for new AM stations opened – though a few AM frequencies were offered in the last FM window when an operator in St. Louis lost his licenses following the designation of his renewal applications for hearing – and none of those St. Louis AM stations drew a single bid in the FM auction – see our article here. It may well be that leaving the station with the existing operator, even if the station is not operating consistently (a station must operate at least some of the time, as Section 312(g) of the Communications Act, as we wrote here, will lead to a license being cancelled if a station is silent for a full year), may be a much quicker way to find a way for a station to return service to the public than will the cancellation of a license. But the FCC apparently feels that it cannot simply let operators “warehouse” spectrum, so it is taking these actions now. Keep these actions in mind if you are forced to take a station silent for any extended period of time.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.