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FCC: Late Renewal Filing Is Not an Automatic Death Sentence

“Nothing in the Act requires us to impose a ‘death sentence’ ... because the licensee files its renewal application late”

If your station fails to file for license renewal on time, does that mean another licensee can jump in and take advantage?

Not necessarily, and not easily.

In a case that hinges in part on that question, Press Communications and the Atlantic City Board of Education have been duking it out for a long while in legal proceedings before the Federal Communications Commission. Now the FCC has upheld renewal of the school board’s license for noncom WAJM(FM) in Atlantic City.

In 2010, Press asked to move its WBHX(FM) to a new frequency and location. It argued that the license of student-run WAJM had expired in 2006 and so was not entitled to spacing protection. Press felt that a failure by a station to file for renewal on time mandated the loss of license if another station discovered the omission and filed a conflicting application.

The FCC last fall ruled unfavorably for Press, and now has rejected an appeal.

The case involved petitions to deny, short-spacing, joint oppositions and other wrangling over topics such as cut-off protections. It also involved Equity Communications, licensee of another station that was involved only because Press was seeking an involuntary channel substitution.

But the original issue was that the Atlantic City school board should have filed for renewal of WAJM in 2006 yet did not until 2010, apparently prompted by the Press attempt to exploit an opportunity.

The FCC Media Bureau subsequently decided, among other things, that precedent supported renewing the license, though it did announce a consent decree last fall in which the school board agreed to pay a cash penalty and follow a compliance plan.

Press fought on, saying the FCC should honor “the unambiguously expressed intent of Congress” in the laws — WAJM had no license because it had been operating without authorization when Press sought its move.

Not so, the commission says; it has discretion to settle enforcement actions and, further, it consistently has allowed licenses to be renewed even though applications were filed after the term expired.

A key quote: “The Bureau treats a broadcast license as having been cancelled only after it has issued a letter, public notice, or both, affirmatively stating that the license has been cancelled.” That begins a period for filing a petition for reconsideration or application for review; conflicting applications cannot be filed until there is a final order cancelling a license.

“Nothing in the Act requires us to impose a ‘death sentence’ on licensees and deprive audiences of established broadcast service because the licensee files its renewal application late,” the commission stated. “We have other means to enforce our rules.”

It said its policies are intended to “promote continuity in broadcast station operations and protect existing licensees from conflicting applications pending final agency action on license renewal applications, for the benefit of the public.”

You can read the outcome here. More detailed background on the case is in the earlier consent decree.

Commissioner O’Rielly concurred in the ruling but said the case highlights a “fairly major discrepancy in our treatment of late license renewal applications depending on whether they are filed with the Media Bureau or the Wireless Telecommunications Bureau.” He said the practice of allowing broadcast licenses to be renewed even when a license term expired long before an application “seems inappropriate and problematic: we ought not have different standards for deadlines based on the service being offered and we ought not allow late filings.”

While most broadcasters do file on time, O’Rielly said, the FCC should examine whether the discrepancy in types of renewal applications should be eliminated, “and possibly take action to equalize the treatment of these licensees with emphasis given to timely filings.”

Commissioner Clyburn dissented in the latest decision.