Public File Fines Catching the Attention of Broadcasters at License Renewal Time

By Scott R. Flick While our monthly editions of FCC Enforcement Monitor have continued to grow in popularity over the past decade, I'm never quite sure if it is because readers rely on it to better understand the FCC's Rules, or if it is more akin to going to the races to see who crashes. Every month, FCC Enforcement Monitor highlights some of the FCC's recent enforcement actions, and the penalties imposed. Having edited every issue since it launched in 1999, I find it useful in spotting enforcement trends before our clients find out about those trends the hard way. One of the trends that is increasingly apparent is the FCC's hardening line on public inspection file violations. In fact, we just did a major update to our Client Advisory on public file compliance to help broadcast stations avoid that pitfall, and I'll be in Austin this week at the Texas Association of Broadcasters/Society of Broadcast Engineers convention with Stephen Lee of the FCC's Houston regional office discussing the public file rule and other FCC compliance issues. One of the questions on the broadcast license renewal form requires applicants to certify that they have fully complied with the public file rule and that their files are complete. Once upon a time, a station that could not make that certification and was therefore required to disclose its file's shortcomings to the FCC might well get an admonition from the FCC to do better in the future, combined with an acknowledgement that the applicant had at least voluntarily disclosed its infraction. Then the FCC began issuing $2000 fines for public inspection violations, which crept upward in the last license renewal cycle to $3000 and then to $4000. During this time, there was much consternation among broadcasters who had sought to comply with the rule, admitted to the FCC any shortcomings in their public file, and felt that they were being unfairly punished for being forthright with the FCC. In 1997, the FCC established a base fine of $10,000 for public inspection file violations, but tended not to issue fines for the full $10,000 unless it was an egregious violation, such as a station that failed to keep a public file at all for some period of time. However, in the past decade, $10,000 has become the standard "go to" fine for even minor public file violations. In fact, the most recent FCC Enforcement Monitor details a recent case where the FCC chose to adjust its base fine upward and issue a $15,000 fine for a public inspection file violation. Of equal interest in that same issue of FCC Enforcement Monitor is a case in which the FCC fined a student-run noncommercial station $10,000 for documents missing from the public file. In assessing the fine, the FCC made clear that the station's "voluntary" disclosure of public file problems in its license renewal application no longer earns any sympathy from the FCC. The FCC stated that "although the Licensee has admitted to the violations, it did so only in the context of the question contained in its captioned license renewal application that compelled such disclosure." When the station later asked that the fine be cancelled or reduced given its student-run and noncommercial nature, the FCC once again had no sympathy, and reaffirmed the $10,000 fine. Since submitting a false certification on a federal form can lead to far worse penalties than a fine, broadcasters have but one option for avoiding a $10,000 (or worse) fine, and that is by making sure their stations' public inspection files are above reproach. With the next license renewal cycle now upon us, broadcasters would be wise to ensure their public file is getting the attention it deserves. If that leaves us with no FCC public inspection file fines to discuss in a future issue of FCC Enforcement Monitor, I'll be happy with that result.

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