FCC Fines Three Illinois Radio/Television Stations
by Jerry Glover
February 22, 2014
For the last several years it has become almost a common practice for the Federal Communications Commission (FCC) fine stations which fail to comply with the FCC’s public file requirements. These forfeitures (or fines) range from several thousand dollars up to $20-35,000 dollars. The FCC recently imposed a monetary forfeiture (i.e., fine) against two Illinois stations for violating the public file rules. Non-commercial Radio Station WZRD (FM) was fined $1,000 and Television Station WOCK was fined $20,000.
In a third recent decision the FCC fined Radio Station WLS (AM) $44,000 for failing to identify programming which it broadcast as being sponsored programming.
Noncommercial television/radio stations are required to maintain a public inspection file which contains, among other things, the station’s quarterly issues/programs lists. These reports provide the public with details about programs broadcast by the station that have provided that station’s most significant treatment of community issues during the preceding three month period. When a station applies for renewal of its license with the FCC, the renewal application form requires the licensee to certify that these types of lists, among other things, had been placed in the station’s public files at the appropriate times.
On its renewal application, WZRD answe3rd “No” to that certification noting that the issues/programs lists were missing from its files for three quarters in 2007, all four quarters in 2008, all four quarters in 2009 and the third quarter of 2010. The station claimed that the reports had been prepared but were misplaced when the station employee authorized to serve as the quarterly issues office left that position and the station reorganized its studio space.
The FCC noted that a station could not escape liability for violating FCC rules because of the negligent acts or omission of employees. The FCC added that any remedial actions taken by the state after discovery of the violations would excuse or nullify the violations.
The Federal Communications Act allows the FCC to issue a monetary forfeiture to any station that has willfully or repeatedly failed to comply with the Act or any rule or regulation of the FCC. “Willful” means “the conscious and deliberate commission or omission of [any] act , irrespective of any intent to violate the law.” 47 U.S.C. Sec. 312(f)(1).. “Repeated” means the commission or omission of an act more than once or, if continuous, for more than one day.” 47 U.S.C. Sec. 312(f)(2).
For failing to maintain proper documentation, the FCC sets a base forfeiture amount of $10,000. But the FCC can adjust this amount upwards or downwards based on several factors including the “nature\, circumstances, extent and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay and ,,, other matters as justice may require.” 47 U.S.C. Sec. 503(b)(2)(D).
The Commission credited the station’s statements that the required reports had been prepared when required but had been misplaced. Therefore, the Commission reduced the fine imposed by the FCC Media Bureau to $1,000.
In an interesting footnote, the Commission noted that the station was, at the time of the violations, a student-run station. The Commission is more lenient with student-run stations especially when a first time violation of the documentation rules is reported. The FCC allows the station to negotiate a consent decree that usually includes a voluntary contribution to the U.S. Treasure. In this case, however, the station did not respond to “numerous message” regarding a proposed consent decree. Therefore, the Commission had no choice but to proceed with the monetary forfeiture.
In the second forfeiture case, WOCK was charged with failing to include quarterly issues/programs lists in its public file for 13 quarters as well as the Children’s Television Programming Reports for 11 quarters. The station was also charged with failing to report these violations on its license renewal application.
The station did not deny these violations but argued that the $20,000 fine should be reduced because of the station’s inability to pay. In order for a station to escape a fine or have it reduced, the station has to provide the Commission with one of several documents including a federal tax return for the most recent three- year period, financial statements or some other documentation that accurately reflect the station’s current financial statement. The FCC noted in this case that it uses gross revenue as the primary measure when evaluating a station’s ability to pay.
The FCC reviewed the financial documentation supplied by WOCK but determined that the station could afford to pay the $20,000 forfeiture. In its ruling the FCC noted that WOCK could avoid this forfeiture it is reverted to low power television status.
The WLS case was different from the cases just discussed. In this case the station was charged with willful and repeated violation of the Federal Communications Act (47 U.S.C. Sec. 317(a)(1)) and the Commission’s rules by failing to air required sponsorship identification announcements (47 C.F.R. Sec. 73.1212(a)). The station was fined $44,000.
In 2009 the station aired programs on behalf of the Workers Independent News (WIN). It allegedly did not disclose that the “program” was an advertisement and not a news story. The station admitted its aired various WIN programs and promotional announcements for some form of consideration. The programming included 110 90-second spots which were not identified as coming from WIN, not WLS.
WLS argued that the fine should be reduced to $4,000.
The Commission noted that the Federal Communications Act and the agency’s rules require that all matter broadcast over a licensee for which any money or other consideration id directly or indirectly paid must announce at the time of broadcast that the program was paid for or furnished by a third party. These rules are based on the principle that listeners/viewers are entitled to know what organizations are trying to persuade them and provides them with information about the source or programming so that the viewers/listeners are not mislead or deceived.
The FCC noted that the base forfeiture amount for one violation of these rules is $4,000. But the FCC refused to treat WLS’ violations as one discrete violation. WLS pointed to previous FCC cases that had issued a forfeiture of the base mount for a single violation even though there were multiple violations by a station. The Commission acknowledged these prior decisions but noted that in more recent decisions the base amount was multiplied by the number of violations even though those violations were all based on similar circumstances. The Commission announced that the FCC would continue to use this more recent policy approach to forfeitures although the particular facts of a given case may call for a different result
WLS argued that the violations occurred because of an “inadvertent employee error” requiring a reduction of the forfeiture amount. But the Commission notified its long standing policy that a downward adjustment was not justified where a station claims its actions were due to this type of error.
The $44,000 forfeiture was upheld.
(1) Our broadcast licensee clients must assign at least one person to insure that its public file includes all required quarterly reports and that those reports are filed on a timely basis. If, however, the station finds that these reports have not been filed as required, it must report these violations on its license renewal form to avoid a separate forfeiture based on its failure to report.
(2) A station must always clearly identify any programming it does not produce as being sponsored programming. Suggested language: “This program was paid for by [name of organization].” Treat sponsored programming the same way that political advertisements are treated: name the source.