FCC Hearing Designation Order Reminds Broadcasters that Long Periods Where They are Not Operating May Lead to License Renewal Problems

David Oxenford

By: David Oxenford,
Wilkinson Barker Knauer LLP

On March 8, the FCC issued a hearing designation order, sending to an Administrative Law Judge the question of whether an AM station’s license renewal application should be granted.  The hearing seeks to gather evidence as to whether the renewal should be granted despite the station’s record, under its current licensee, where it was operating for only 36% of the time that the licensee owned the station prior to the renewal being filed, and for only 2 days in the 9 months in 2020 after the renewal was filed.  During much of the period that the station was operating, it operated at less than full power (according to the FCC, often without receiving an STA for that low power operation).

Because of these prolonged periods of silence, the FCC asks whether the licensee was really serving the public interest.  For example, if a station is not operating, it cannot cover local issues or broadcast EAS warnings.  Over the last several years, there have been several cases where the FCC has designated for hearing or revoked licenses of stations with records of non-operation for extended periods during a license renewal term, finding that broadcasters cannot warehouse spectrum.  See our articles here and here about some recent examples.  If a broadcast channel is not used by a licensee, these hearings are held to determine if the public interest might not be better served by taking the channel from its current licensee and awarding it to some other party who will make use of it.

During the early days of the pandemic, we heard of many stations considering going silent in the face of economic uncertainty.  See our article here where we discussed what stations needed to do if they were contemplating going silent.  Now, as the license renewal cycle progresses, stations need to consider last week’s FCC order if their stations are still silent or contemplating any extended periods of silence in the future, as these periods of non-operation may be hazardous to your license.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

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