Media Personalities In Harm’s Way

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Our media world is shocked by the on-air deaths of two WDBJ journalists while covering a story, killed by a man described as a disgruntled former employee firing at point-blank range while recording his own video and then posting it online. The question immediately asked by broadcast stations is what can be done, if anything, to anticipate and forestall this type of attack.  I turned to my partner David Yandle who routinely advises on workplace employment matters, for guidance and wisdom.

David notes that while background checks are a way to limit potential workplace violence from employees and former employees, there is also a strong counter-push from the EEOC and other workplace interest groups to abolish the use of background checks in pre-hiring screening.

David observes that, under OSHA’s general regulations, employers are obligated to provide a safe workplace for employees.  Generally, however, an employer’s obligation to protect against violence in the workplace is commensurate with the employer’s knowledge of the risk.  David states that “the more specific is the employer’s knowledge of potential violence, the greater is the employer’s duty to take steps to protect its employees.”

Employers including media organizations may enhance the safety of their workplace and reduce potential liability exposure in several ways.  Carefully drawn pre-employment screening programs can identify potential threats.  Employee assistance programs which provide counseling to employees in abusive relationships may also help reduce the threat of violence.  Employers can also implement and train employees on a plan for responding to threats or actual incidents.

Employers can also consider prohibiting the possession of weapons in the workplace.  While many states allow an employer to prohibit weapons on its premises, some states specifically allow employees to keep weapons in their own automobiles in the employer’s parking lot.  Before promulgating any rules regarding weapons on the premises or conducting background checks, employers should confirm that such rules conform to applicable state and federal laws.

The U.S. Department of Labor provides guidance on preventing violence in the federal workplace at the website.    Although this federal workplace guidance does not apply directly to the civilian sector, the information can be helpful to employers in preparing a plan to forestall or respond to violence.

It is questionable, of course, whether any pro-active measures taken by the broadcast station could have prevented the WDBJ tragedy.  But conversely, in general respects with broadcast station operations, Federal Communications Commission rules and policies may actually serve to increase the danger from random or planned violence to broadcast station employees.

This week in an FCC consent decree “Order,” the FCC fined a college radio station for, among other violations, failing to keep its local public at its main studio which was in an area restricted to the public.  The station instead placed its local public file in a nearby campus building accessible to the general public.  It is questionable whether this FCC decision fining the college station for keeping its local public file in a nearby building serves either the public interest or is a fair reading of the FCC’s local public file rules.

The FCC requires in its rules at Section 73.3526(b)(1)  (for commercial stations) and Section 73.3527(b)(1)  (for non-commercial stations) that a radio broadcast station’s local public file be kept at the “main studio of the station”.   While the FCC has often opined on what constitutes a station’s main studio in terms of staffing, equipment and signage, the FCC has not spoken to whether the local public file rule is to be taken literally, meaning the file must be kept within the confines of the actual broadcast studio of the radio station, which would be a ridiculous interpretation, or at a publically-accessible location somewhere on the premises of the broadcast station.

It is doubtful that a broadcast station occupying a two-floor suite would be in violation of the FCC’s local public file rule by keeping the file in the first floor reception area while the actual studios are on the 2nd floor.  Therefore, the recently-released FCC order in which the college radio station was fined for keeping the file in a nearby building on campus may be an erroneous decision.  The college itself is the licensee of the radio station.  Since the local public file was unquestionably kept on the college campus and the station’s broadcast studios are on that same college campus, it appears that the FCC may not be thinking through the complete ramifications of exactly where on a licensee’s premises it expects a broadcast station to keep its local public file.

But, back to the subject of workplace safety, the FCC dictates that a local public file must be available to any person who visits a radio station, without an appointment, and without identifying oneself other than to give a name.  The closer the local public file is to the actual broadcast studio of a radio station, then the nearer will be a potentially malfeasant visitor who seeks to do harm is to a radio station on-air personality or other employee.

This FCC-created danger may be the best reason yet for the FCC to consider doing away completely with both the expectation that in today’s age of internet and wireless telephones that a radio station maintain a physically-accessible local public file at its main studio location, as well as the wide-open access that the FCC expects of a radio station to any member of the public who shows up.  For anyone who has visited the FCC’s offices in the past decade, such dictated unfettered access is disingenuous for a government agency that requires a picture ID and mag scan just to go through the 1st floor FCC entrance.

If any good can come out of this tragedy, it will be that the FCC re-thinks its mandated public access to broadcast station facilities.  While such a change in the FCC’s rules would have made no difference here, it is possible that future violence against the media might be forestalled if the FCC considers how its free-access to broadcast station rules could enable a future tragedy.

John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com.

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