What if you are fined for a public file violation. What is the best way to deal with the FCC on the matter? What should you avoid doing? What can you do if you are found to be in violation and hope to get the FCC to forgive you of the fine. What if this is your first and only offense? We took all of those questions to broadcast attorney John Garziglia.
John Garziglia Says:
Fines for local public file violations typically arise in three different ways. The first way is that an FCC inspector arrives and either is not afforded access to the local public file or finds local public file materials missing. The second is that a member of the public visits to review the local public file and has similar difficulties. The third is the license renewal application self-incrimination route in which the licensee admits that radio station’s local public file has not been kept up to date.
A public file violation is difficult to fight. The FCC’s Audio Division has not shown much mercy over the past decade with public file violations, even with first time offenses. Because the forfeiture for a local public file violation is usually in the $10,000 range, any legal fees incurred fighting it are likely to easily exceed the forfeiture amount. While for personal reasons I hate to discourage broadcasters from utilizing their communications counsel to the fullest, it may not make sense to spend much in trying to fight a forfeiture that will be assessed by the FCC no matter what is argued.
There is a legal technicality that can sometimes get a broadcast licensee out of liability for a public file forfeiture. A forfeiture cannot be imposed by the FCC if the violation occurred the earlier of prior to the date of commencement of the current FCC license term, or more than one year prior to the date of the FCC’s issuance of a notice of apparent liability. If a broadcast license was recently renewed, this technicality can sometimes get a station off the hook for a public file violation.
If a broadcast licensee wishes to vigorously fight an FCC public file violation forfeiture, it may do so by refusing to pay the forfeiture even though, as noted above, legal fees may quickly outpace whatever forfeiture is assessed. There are also certain regulatory risks to taking this route to challenge the FCC and legal counsel should be consulted for an assessment of those risks.
When an FCC licensee refuses to pay a notice of apparent liability forfeiture, to collect the FCC must refer the violation to the United States Department of Justice to bring a civil suit in a court that is local to the licensee in U.S. District Court. In such a lawsuit to collect the forfeiture brought by the U.S. Department of Justice, the licensee is entitled to a trial de novo in which the Department of Justice must present affirmative evidence of the FCC violation to a Federal judge or jury.
With such an FCC violation referral to the Department of Justice, there is always the chance that the Department of Justice may determine that chasing after a broadcast station licensee for a paperwork violation is not something meriting its efforts. The government may offer to settle for an amount less than the originally imposed forfeiture amount, or may dismiss the lawsuit after being brought. Or, the FCC and Department of Justice may get really irritated by the audacity of a licensee who is seeking to spin the wheels of justice in what it views as a minor matter, and respond by causing the licensee maximum pain in legal fees and onerous procedures.
Most FCC public file violation forfeitures are paid by licensees as a cost of doing business. The licensee then makes changes in its internal procedures to ensure that a public file violation does not recur. That, of course, is the goal of the FCC’s enforcement efforts which is to make a forfeiture high enough to get the licensee’s attention, not so high so as to make it worthwhile to employ a lawyer to challenge it, and to encourage a malfeasant licensee to mend its ways.