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FCC Staff Disavows One Precedent in Favor of Another

Footnote in public file penalty case involves the statute of limitations in certain circumstances

A Tennessee university is the latest licensee to find out that public file violations can be costly, though it did win a reduction of its fine after appeal.

This case included an interesting twist in which the FCC staff disavowed its own earlier action involving how the statue of limitations is calculated when a notice of liability is issued to a station at the same time as it receives a license renewal.

The FCC this week confirmed a fine against Southern Adventist University of $8,000 for problems at WSMC(FM) in Collegedale; that penalty was reduced from $10,000.

The original notice was issued in 2007, in one of those cases in which a licensee, asked at renewal time whether required documentation had been in its public file, checked “no.”

The station later acknowledged that as of its renewal filing, several quarterly issues/program reports were missing, but it said its manager had reconstructed and reformatted the missing files and was now maintaining the issues/program files properly. The station was hit with a $10,000 NAL.

According to the FCC’s summary, the university didn’t dispute that it had failed to place at least 22 missing issues/programs lists in the file; but it argued that the fine had been imposed too late. Federal law provides that a forfeiture cannot be imposed on a person holding a broadcast license if the violation occurred more than a year prior to the notice of apparent liability or commencement of the current license term, whichever is earlier.

The FCC rejected the station argument, saying the station had incorrectly identified the date of the new license term.

In a footnote, the commission said its finding was consistent with a 1996 case involving Emmis in Boston. In that case, the FCC said that the statute of limitation was not triggered when the commission simultaneously issued a fine notice and a license renewal. But in confirming that stance this week, the FCC staff also acknowledged it was disavowing its actions in another case in which the simultaneous grant of a license renewal and issuance of a NAL “had the effect of placing the NAL in a new license term” and triggered the one-year statute of limitations.

Bottom line: WSMC didn’t win on its point; and the FCC now has clarified that the 1996 Emmis case is the precedent it continues to rely on. So if your station is hit with an NAL at the same time as you receive license renewal, don’t expect to rely on a shorter interpretation of the statute of limitations.

(WSMC also raised several objections that are common in such cases: that it had acted in good faith, that the violation occurred during a period of frequent turnover, that the violation had been disclosed voluntarily, that it acted immediately when it became aware of the problem and that it has an overall history of compliance. As it has in other cases, the commission rejected most of those arguments, but it did reduce the fine based on the compliance record.)