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FCC Changes Course on Fine

Communication and clarification lead commission to cancel proposed $4K penalty for AM station

In a rare turn, the FCC Enforcement Bureau has changed course on a fine against an AM station. It benefitted the station to pay attention to rules for responding to a proposed fine. “Communication and clarification” with the Enforcement Bureau led the FCC to cancel a $4,000 penalty.

In June 2012, the Enforcement Bureau issued a notice of apparent liability for forfeiture to Birach Broadcasting, licensee of WOAP in Owosso, Mich., for allegedly operating outside of its licensed hours. Another station had complained of interference at night from WOAP in 2010; specifically, the complainant heard it operating between 9 and 11 p.m., and WOAP did not have authority to operate after sunset. That was confirmed by a visit from an agent from the Detroit Enforcement Bureau.

Miscommunications ensued. The station’s chief operator believed WOAP had post-sunset authority (as well as a construction permit to build modified facilities that would allow nighttime operation) and that operating the station at low power at night would not cause any interference, according to the NAL.

It turns out that WOAP had been granted a PSSA — pre-sunrise and post-sunset authorization — on Feb. 28, 2007, but that the permission had been suspended several days later due toan FCC recalculation of PSSA operations.

The FCC rules state: “No broadcast station shall operate at times … other than those specified … ” so the Enforcement Bureau proposed the $4,000 fine.

But that’s not where the story ends. In a response filed by the Virginia firm Putbrese, Hunsaker & Trent, Birach said that it had been unaware of the rescission of the PSSA, and that it had never received notice of it from the FCC. “The staff knew nothing of this rescission [of the PSSA], nor did the ownership,” said the response. “At no time did Birach or its WOAP staff know that there had been an FCC order which rescinded its PSSA operations; no FCC letter was sent informing it of such a recession.”

The station said it also took all the right steps once it was informed that there was a possible infraction. “When learning of this situation, WOAP immediately ceased all PSSA operations.” Since the violation was unintentional and the station immediately ceased PSSA operations once it had been contacted by the FCC agent, the fine should be cancelled. “One criterion for the downward adjustment or elimination of the forfeiture is the good faith effort and remediation … to address the situation.”

The FCC agreed. In an order this month, the Enforcement Bureau says no forfeiture penalty should be imposed on Birach.

“This was really more of a clarification error by the commission,” attorney John Trent of Putbrese, Hunsaker & Trent told Radio World. “This was a case of an AM station that had pre-sunrise and post-sunset authority, who had a license on the property, but when the station was inspected, the inspector indicated the commission had cancelled the pre-sunset and post-sunset authority, but we received no notification.

“We had what we thought was correct; the inspector thought different. And after the [FCC] staff reviewed, they agreed,” Trent said. “The best way to look at is as a ‘no harm, no foul’ since there was no intent to [operate outside authority].”

While Trent is pleased at the final decision, he expressed frustration that the FCC doesn’t take more of a first-time-warning approach when dealing with situations of this nature.

“I know a lot of people in the field offices are just doing their job, I just wish there was more of a warning system versus outright nailing somebody” over simple violations, he said. “A $4,000 fine to a daytime AM station is enough to force you to turn your lights off.”