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At FCC, New Attention on Renewals for Long-Silent Stations

O’Rielly bashes long judicial delays in certain cases as bordering on misconduct

It sounds like the FCC is about to become far less tolerant of station owners who win broadcast license renewals despite almost never being on the air.

In a case with implications for other stations that sit silent for long periods of time, the FCC has adopted a hearing designation order pertaining to an FM in Lake Isabella, Mich. It announced a new procedure for such cases, and the action may presage bigger changes aimed at speeding up certain legal proceedings involving broadcasters.

Radioactive LLC was granted a license to operate WRAX at 98.9 MHz in 2010. In 2012, it applied for a license renewal. But now, according to the FCC, records submitted by Radioactive indicated that the station has been operated only one day a year for the last seven years. The Communications Act requires that a broadcast station license be forfeited automatically if it is silent for one year, absent rare circumstances.

The order begins a proceeding to determine whether this station’s license renewal application should be granted; but starting now, this process will be conducted by paper filings; the commission said this will enable it to act efficiently in deciding whether Radioactive has fulfilled its license obligations. Under this process, the full commission, rather than an administrative law judge, will decide whether the renewal should be approved or denied. The FCC said these procedures may be an effective way for it to address similar situations involving renewal applications.

Commenting on this situation in a blog post, Melodie Virtue at law firm Garvey Schubert Barer wrote this analysis: ‘‘The FCC staff has been voicing their concern informally for years that it is not possible to serve the public interest if a station is silent and has frowned on the practice of operating for one day solely in order to avoid the automatic termination provision of the act. Now, the full commission has set one such license renewal for hearing. One question is whether the station’s license application should be denied, even though the station had apparently obtained permission to remain silent through a series of Special Temporary Authorizations. This action by the commission should get the attention of any station operators who use STAs to remain silent for extended periods.’’

All three seated commissioners voted for this order.

In a statement, Chairman Ajit Pai said, “The station’s licensee, Radioactive, has asked the FCC to renew its license. But I’m not sure we should. … It’s hard to say that a station has served the public interest if it’s only been on the air one day a year during its license term.” About the “paper procedure,” Pai said: “This reform will help us cut down on the backlog of such applications while still giving licensees like Radioactive every opportunity to present their case for their licenses to be renewed.”

Commissioner Mignon Clyburn stated, “There is not a month that goes by, without someone sharing with me their dream of being a broadcast station owner. Their largest impediment is usually access to capital, but another is the inability to secure an available license. So when a broadcast license holder is unable or unwilling to meet its obligations to their community, it is high time that the FCC acts to ensure that someone else who has the desire and ability, can and will.” She recalled that former Commissioner Michael Copps once described the broadcast license renewal process as an “utterly ludicrous, no-questions-asked regime.” She said that in the past, if a licensee failed to meet its obligations, “the FCC reached a Consent Decree, which included a fine, a shortened license term and/or the implementation of a compliance plan and everyone went on their merry way.”

Commissioner Michael O’Rielly emphasized that he wasn’t commenting about WRAX specifically yet but said that the process change is consistent with his desire to reform the administrative law judge procedures. ���My idea raised the ire of a number of outside detractors for one reason or another. These criticisms often ignored the simple fact that cases have been stuck within the ALJ for multiple years. In last month’s item, the case had been pending for six years. And, it is my understanding that there are cases stuck within various levels of the ALJ process for well over a decade. … That is beyond negligence and borders on misconduct.” He called the action here a logical first step toward reform. “In the end, maybe the functions of the ALJ should be to just conduct evidentiary hearings when there are complex factual issues that, for some reason, can’t be handled by staff and then let the commission resolve any pending cases. Then again, maybe after a little more review we can remove the need for an ALJ altogether.”