(By John Garziglia) The observation that “It’s easier to ask forgiveness than it is to get permission” is attributed to early computer programmer Rear Admiral Grace Murray Hopper (1906-1992). (Hopper developed the first compiler for a computer programming language). The FCC’s Audio Division, however, fails to agree.
The Audio Division levied a $20,000 fine and dismissed three Syracuse radio market acquisition applications for an act-first/ask-later procedure attempted by a Syracuse radio market seller. The Audio Division’s decision is available here: Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture
Syracuse market broadcasters FoxFur Communications, LLC and WOLF Radio, Inc., which are commonly-owned, entered into an exchange agreement by which two of their FMs, WCIS-FM and WCIO(FM), would be traded for WNDR-FM, to unaffiliated Family Life Ministries, Inc. FoxFur and WOLF are already at the FCC Syracuse radio market ownership limit of seven stations. The sale would result in FoxFur and WOLF reducing their number of Syracuse market stations by one.
But, for reasons unexplained in the applications, FoxFur entered into an immediate time brokerage agreement for Family Life’s WNDR-FM. The FCC regards a same-market time brokerage agreement as fully attributable to the time broker if the time broker has other same-market radio ownership interests. Thus, the WNDR-FM time brokerage agreement put FoxFur’s attributable Syracuse market ownership at eight stations, which is one radio station over the FCC’s limit.
FoxFur requested a temporary waiver of the FCC’s ownership rules to allow for the over-limit situation. In response, the Audio Division denied the waiver, and issued a $20K fine.
The Audio Division lashed out at FoxFur stating that it engaged in a “flagrant violation” of the Commission’s ownership rules. The Audio Division further matter-of-factly observed that “[b]usiness expedience is not synonymous with the public interest.”
This Audio Division decision is remarkable for several reasons. First, the assignment applications that are the subject of this forfeiture letter were filed a little over two months ago. In the past, issues with assignment applications have often taken months, if not years, to resolve. The rapidity of this decision’s release is unusual.
Second, there is no indication that the Audio Division had any communication with the applicants to allow for a resolution prior to issuing the forfeiture. With many previous non-contested assignments of license applications, if the Audio Division had an issue it usually communicated with applicants to try to resolve things.
Finally, FoxFur and WOLF make the point in the applications that, under the FCC’s scheme for counting stations, WNDR-FM, as well as WCIS-FM and WCIO (FM), are counted twice. WNDR-FM is attributable to Family Life as the licensee. Under the FCC’s time brokerage rules, WNDR-FM is also attributable and counted to FoxFur. Likewise, with FoxFur and WOLF being the licensees of WCIS-FM and WCIO (FM) respectively, and the two stations being time-brokered to Family Life, FoxFur and WOLF under common ownership continue to have those stations counted against them for ownership purposes.
The FCC is expected in the next several weeks to release a further document in its 2010 and 2014 quadrennial ownership rule review. (See “Court Chides FCC For Not Doing Its Job” https://radioink.com/2016/05/26/court-chides-fcc-not-job/.) While no one presently expects the FCC to propose any changes to its radio ownership rules, this case illustrates the arbitrary aspect of some of those rules by attributing same-market time-brokered radio stations to two licensees.
FoxFur, WOLF, and Family Life can re-file the assignment applications. Further, FoxFur can challenge the assessment of the forfeiture. What FoxFur cannot now continue is the WNDR-FM time brokerage as, under the FCC’s seven radio station limit for Syracuse, eight is too many.
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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 by e-mail at Garziglia, John [email protected]