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Neely Loses Two FCC Appeals

FCC rejects his argument that its rules are unfair to small businesses

Broadcaster Frank Neely, who has had his legal battles with the FCC, is on the losing side this week of not one but two commission rulings.

Neely, licensee of AM station WGIV in Gastonia, N.C. (formerly WLTC), had asked the Media Bureau to reconsider a $9,000 fine in a public file case. It was one of those instances in which an owner replied “No” when asked during license renewal whether proper documentation had been placed in station files. Files were missing for 1998 through early 2003, the FCC said.

In 2004 the Media Bureau announced a fine but said this had not been a “serious violation” and there was no evidence of a pattern of abuse, so it granted license renewal.

Later Neely asked for cancellation of the fine, arguing that the FCC’s public file requirement serves no useful purpose, that the fine was higher than in comparable cases and that he was unable to pay. The FCC rejected all those arguments.

In 2008 he filed a petition again seeking to overturn the ruling. He reiterated the reasons but added an argument that FCC rules don’t comply with the Small Business Regulatory Enforcement and Fairness Act — essentially, that the FCC treats small businesses unfairly.

The commission now has again given him thumbs down, saying it already determined that its policies comply with that small business law. Further, it said, a U.S. District Court in 2009 rejected Neely’s position in another case in which the federal government sued him to collect a $4,000 fine for a case involving improper station power.

Separately this week, Neely lost an appeal to the FCC in yet another case, this one involving a new FM construction permit.

Neely had been named winning bidder in FM Auction No. 62 for a CP in the community of Due West, S.C., but the commission ruled that he violated FCC rules by not filing the post-auction Form 301 application in a timely way. He eventually did file, asking for a waiver. In 2006 the FCC granted the waiver but eventually fined him $3,000.

Among Neely’s reasons for appealing that fine were that no one had been hurt; but the FCC ruled that it does not consider the absence of public harm a mitigating factor in a rule violation. “Regardless, the untimely filing of applications harms the public interest by disrupting the commission’s administrative process.” Neely also applied the small business argument mentioned earlier, again without success.