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Review of Recent Enforcement Actions

While the rest of Washington had cleared out during the holidays, the enforcement elves at the FCC were busy at work

While the rest of Washington had cleared out during the holidays, the enforcement elves at the FCC were busy at work. Two recent actions are noteworthy because they touch on the need for full disclosure when filing an application, and the need for broadcast licensees to fully disclose the sponsor of advertising.

First, the Enforcement Bureau entered into a Consent Decree with Cumulus Radio for $540,000 in connection with advertisements found to be lacking full disclosure of the sponsor. Specifically, the licensee had run advertisements regarding the Northern Pass electric project in New Hampshire on a station during a five-month period. The bureau took issue with the advertisements because, while they mentioned some variation of the Northern Pass Project, they did not specifically state that the electric company � Northern Pass Transmission, LLC � had placed the ads.

The bureau noted that the FCC�s sponsorship identification rules require disclosure whenever �money, service or other valuable consideration� is paid or promised to the broadcast station. It determined that the reference to just the name of the project did not adequately identify the party placing the advertisements. Because the advertisement ran 178 times during the five-month period, the FCC imposed the penalty and also required Cumulus to develop a company-wide compliance program.

Next, the Media Bureau issued a Notice of Apparent Liability in the amount of $9,000 to a licensee who made incorrect certifications on applications submitted to the FCC. Another broadcaster filed a petition to deny the assignment of the FM translator, alleging the seller had falsely certified construction on a tower that had been destroyed eight years earlier. The petitioner also alleged that station was constructed at variance from its authorized parameters.

In response, the licensee confirmed that the tower site referenced in its construction permit and license authorization was incorrect. According to the licensee, the tower site was originally specified in its 2003 FM translator filing window short-form application. When it filed its application in 2013 to implement the proposal, it merely carried over the information, and provided a photograph of a nearby tower it assumed to be the one specified in the application. The licensee also confirmed that the station operated at variance, but just briefly before the station was taken silent to make further modifications.

In reviewing the matter, the Media Bureau noted that each of the applications about which the petitioner had complained were final authorizations, so the FCC would not re-open consideration of the applications. However, the bureau noted that it still could issue a forfeiture against the licensee for the false certifications contained in its license authorization during the term of its license.

Addressing the merits of the argument, the bureau found that the licensee provided incorrect information (i.e., a false certification), which warranted a $5,000 forfeiture. Because the station operated at variance from its authorized facility, the bureau added $4,000. Finally, the bureau admonished the licensee for supplying information without having a reasonable basis for believing it was accurate. The licensee will need to provide a copy of the FCC�s determination with every construction permit application and license application for five years.

The takeaway is that the FCC expects licensees to take all necessary steps to comply with both the letter and the spirit of its rules. The FCC consistently expresses its lack of patience when licensees are found in noncompliance of their rules, especially when this arises from a licensee failing to make accurate disclosures.

Petro is of counsel at Drinker Biddle & Reath LLP. Email: [email protected].