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NAB Asks FCC to Drop Cumulus Penalty

Association thinks a planned $32,000 EEO fine is “unlawful and unjust”

Photo: Getty Images/Jose Luis Pelaez Inc

The NAB is blowing the whistle on the way the FCC blew the whistle on Cumulus Media.

The National Association of Broadcasters spoke up in defense of Cumulus in an FCC enforcement case. Basically, NAB says the FCC is way overreacting.

As we’ve reported, Cumulus faces a $32,000 penalty in a case in Georgia involving EEO rules. In explaining why it chose to raise what might have been a smaller fine, the FCC had criticized Cumulus broadly about its habits including its “prior history of non-EEO rule violations.”

It listed a string of Cumulus FCC cases over 19 years involving political files, public inspection files, broadcasting phone conversations, tower fencing, antenna painting and false certification in a renewal application. And it said the company’s “apparent disregard of the commission’s EEO rules is particularly troubling.”

[Read our original story: “FCC Has Harsh Words for Cumulus”]

Now the NAB is urging the commission to rethink the case.

“The proposed penalty is unlawful and unjust,” the NAB wrote.

It argued that inadvertent mistakes should not lead to monetary penalties, especially big ones; and that in this instance Cumulus would be penalized unfairly for “understandable and inevitable human error.”

It also said the FCC should not consider prior violations “when there has been an intervening transfer of control, or when violations have occurred nearly two decades ago. … As a general matter, it is unclear why violations from a decade or more ago should be held against a licensee under any circumstances given normal personnel turnover and advancement and the probability that many or most licensees will eventually experience some degree of human error,” NAB wrote.

NAB said there was no reason to believe there would have been any public input about the stations’ annual EEO reports had they been uploaded on time, and no basis for the conclusion that Cumulus’s administrative failure necessarily means the company failed to analyze its EEO programs.

“The violation in question — the failure to upload a report that the licensee had actually completed — should be treated as a minor violation and subject to admonishment.” If the FCC insists on imposing a forfeiture despite the lack of public complaint or substantive harm, it asked the agency to reduce rather than increase the penalty.

The association also urged the FCC “to apply a more balanced and reasonable approach to proposed forfeitures going forward.”