Vol. 3, Issue 1, January 2004

Window Announced for New and Major Change AM Applications

A filing window for applications proposing major changes to existing AM stations and new AM facilities will take place between January 26-30, 2004. Both types of applications will be accepted and processed to determine mutual exclusivity.

As with past broadcast filing windows, those applications which are not mutually exclusive (“singletons”) will be listed on a public notice and then, following the filing of a long-form application, be eligible for grant without auction.

Mutually exclusive applications will be grouped together in MX groups and a subsequent public notice will afford those applicants a limited amount of time in which to devise engineering solutions to resolve the mutual exclusivity.

FCC Fines 28 MD, VA, WV and DC Stations for Public File Violations

In a departure from past practice, the FCC actually fined 28 broadcast stations with license renewal applications pending for public inspection file violations. The affected stations each stated in their renewal applications that their public inspection files were incomplete at some time during the past license term, and each station pledged to correct or asserted that it had already corrected the violations.

In the past, the FCC would have admonished the station or done nothing at all since the station represented the problem had been corrected. In this case, without ever inspecting the station, the FCC instead issued fines based on the licensees’ admissions in the renewal application. It is safe to assume that this new practice will continue throughout this renewal cycle.

Renewal and Ownership Report Schedule

February 1, 2004 is the deadline for radio licensees in Arkansas, Louisiana and Mississippi to file their renewal applications with the FCC. It is also the day pre-renewal filing announcements should start at radio stations located in Indiana, Kentucky and Tennessee. And finally, it is the deadline for radio and television stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma to file biennial ownership reports.

April 1, 2004, is the deadline for renewal applications for radio stations licensed in Indiana, Kentucky and Tennessee.

Also in April 2004, Michigan and Ohio radio stations, and the first batch of television stations (those licensed in the District of Columbia, Maryland, Virginia and West Virginia) will start their pre-filing announcements in preparation of for their renewal applications.

A Last and Final LPTV Settlement Window

With approximately 2,900 mutually exclusive LPTV applications still pending from the filing window that opened in mid- 2000, the FCC has decided to afford these applicants one final opportunity to reach settlements to resolve the conflicts. Settlements must be on file with the FCC no later than March 5, 2004. Anti-collusion rules are suspended during this settlement period, but will be back in effect after March 5. Remaining mutually exclusive applications will then proceed to auction.

Beware of Sending “Unsolicited Faxes.”

Following the passage of the Telephone Consumer Protection Act, the FCC adopted rules to prohibit the sending of unsolicited advertisements to telephone facsimile machines. Minor first time violations have been handled with simple admonishments from the Commission. However, on January 5, 2004, the FCC levied a fine of $5,379,000 against Fax.com, Inc.

Unlike other violators, Fax.com’s entire business is the delivery of unsolicited facsimile advertisements on behalf of its clients. The FCC’s Order cited 489 separate occasions where Fax.com delivered unsolicited advertisements, and fined it the maximum of $11,000 per violation.

The fine is probably not the end of the story. In its defense before the FCC, Fax.com alleged that the prohibition against sending unsolicited advertisements was a violation of its First Amendment rights. Expect the company to challenge the FCC fine and the legality of its rules in court.

Enforcement Actions Against Non-Commercial Stations.

In December 2003, a noncommercial radio station in Florida was admonished and a noncommercial television station is California was fined $10,000 for broadcasting advertisements over their stations. In the decisions, the Commission explained that advertisements are defined as program material broadcast in exchange for any remuneration and intended to promote any service, facility or product of for-profit entities.

The Florida station did not dispute that the text of the subject announcements would make the announcements “advertisements.” Instead, the station argued the prohibited announcements could not be considered “advertisements” because the station did not receive any money for broadcasting the particular program where the announcements were run. The FCC disagreed, finding that the station’s remuneration was the fact that it received two hours of programming from the show’s producer at no cost.

In the California case, the $10,000 fine was levied because the FCC found that over 1,900 announcements which fell within the definition of advertisement were aired between 2000 and 2002.

Voluntary State Inspection Programs – Good or Bad?

I have had many conversations with station owners, engineers and lawyers about state voluntary inspection programs. Some think the programs are not necessary, because they do not keep FCC inspectors away and would not prevent a station from being fined during an FCC inspection. Others are quite sure it is the best insurance policy a station can buy to keep the FCC inspectors away while keeping a station in compliance with FCC rules.

I would like to hear stories from you. Please e-mail (scott@cinnamonlaw.com) or fax (202-789-2929) me to let me know what your experience with the program has been, and the outcome of any FCC inspection you had following a voluntary state inspection.

Thanks…

A special thanks to all of you for keeping me and my family in your thoughts and prayers as we dealt with the illness and eventually passing of my mother, Caren, during the month of December. While her death was sudden, sad and unexpected, we felt very fortunate to have so many kind and caring people thinking of us.
This newsletter is intended to be for informational use only. Readers should not act upon the information presented here without seeking professional legal counseling to address the facts and circumstances specific to them. The transmission and/or receipt of this newsletter does not create an attorney-client relationship.

This newsletter is intended to be for informational use only. Readers should not act upon the information presented here without seeking professional legal counseling to address the facts and circumstances specific to them. The transmission and/or receipt of this newsletter does not create an attorney-client relationship.

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