Silence and Its Lurking Penalties

Why the above summary?  Well, the FCC – as we near the end of this 4-year staggered renewal cycle – has decided to stick its regulatory toe in the water and analyze the worthiness of license renewal for a station that was off the air for an extended period of time that was short of the 12- consecutive-month-period.  The decision has many lessons.

First, in the context of license renewal, if a broadcast station is silent for more than ½ of its license term, the FCC will designate your license for an evidentiary hearing to determine whether license renewal should be denied   Importantly, “license term” does not have the 8-year default meaning that one would think.  Instead, if the licensee at the time of renewal has not held the license for the entire 8-year term, then the “license term” is the shorter period during which the licensee held the license.  In the case decided by the FCC, that period was right at four years, and the station narrowly missed being put into a hearing because it had been off the air collectively for nearly two of those four years.

Second, the FCC noted what it called a “practice” of some stations of going silent for nearly a year, and then resuming operation for a short period to “interrupt” the 12-month period that would trigger license cancellation.  The FCC decision doesn’t directly address the question of whether the interruption was sufficient to avoid license cancellation (though it does not cancel the license), but it does find that prolonged silent periods nevertheless raise a question as to whether a license should be renewed.  The FCC cited to a 2001 decision where it “warned” broadcasters that they will face a “very heavy burden” in demonstrating public interest service when they have been silent for most or all of the prior license term.

Third, the FCC concluded that a short-term license renewal of two years was an appropriate sanction, and that it would grant that renewal upon conclusion of the associated forfeiture proceeding ($4,000) for public file violations.  The station is not promised a follow-on renewal for the remainder of the normal 8 year license term, but instead a close review of the station’s compliance, and an ability to take whatever corrective actions may be warranted at that time.

Fourth, in a footnote that is a little chilling, the FCC notes that some stations have operated with minimal power instead of remaining completely silent.  It then declares that “if the power level is too low to provide the minimum signal level required under the Rules for service to a station’s community of license, this type of operation is the functional equivalent of silence.”  We don’t like that statement, though it is instructive for future responses to license renewal silent questions.  And for times when a station must seek temporary authority to operate at reduced power, we note that it might be helpful to clarify that your station is still providing coverage to its community of license (if that is the case).  If it is not, be forewarned that the FCC might consider that status to be “the functional equivalent of silence,” which would raise a whole host of other prickly questions.