FCC Politically-Incorrect Inaction

(By John Garziglia) As reported in Radio Ink “FCC: Radio Groups Were Not Following the Rules,” in exchange for a grant of license renewal applications, six radio groups were recently forced by the FCC into a consent decree promising remedial compliance actions for failing to upload political time purchase requests “as soon as possible.”  Section 73.1943(c) of the Commission’s rules, the FCC’s political file rule, defines “as soon as possible” as “immediately absent unusual circumstances”.  

With the advent of the online public file and time-stamped uploads, the FCC has a new weapon to deploy against radio stations – a stopwatch.  Previously with paper political files, tracking broad timeliness on the part of the radio industry’s compliance with political file upload requirements was an inexact endeavor, at best.  Now that assessment is date/hour/minute precise.  

It is worth reading at least one of the six nearly identical FCC Orders with the attached Consent Decrees:  The six paired documents are at:  Alpha Media USA LLC; Beasley Media Group Licenses, LLC; Cumulus Media New Holdings Inc.; Entercom License, LLC; iHeartMedia, Inc.; and Salem Media Group.

Five of the six Orders and Consent Decrees recite almost uniformly that the subject licensees provided “information … in multiple license renewal applications stating that certain materials were not uploaded to a station’s online public files in a timely manner” which further elicited a “voluntary” statement to the Media Bureau in February, 2020 that the failures concerned the uploads of requests for the purchase of political broadcast time.  

Only the Entercom License, LLC Order and Consent Decree differs in any notable way from the other five.   With Entercom, the FCC’s investigatory exertions began with a December, 2018 written complaint to the Media Bureau from an individual alleging that three Entercom radio stations charged a political candidate in excess of the Communications Act Section 315(b) legally-prescribed lowest unit charge, a complaint that was later determined to be without merit upon being “thoroughly investigated” by the Media Bureau.  But, in the course of the FCC’s investigation, a review of the subject radio stations’ online public files revealed no political time uploads whatsoever for calendar year 2018.   Due to this absence in a mid-term election year, a year in which it would be reasonable to assume there were at least some political buys, the FCC expanded its investigation to all include Entercom radio stations.  The Media Bureau political file investigation concluded that, of the 234 radio stations licensed to Entercom, 196 were non-compliant with FCC political file obligations.

Whether or not, absent the Entercom investigation, the FCC would have otherwise flagged the other five radio groups for their license renewal political file infirmities is unknown.  Notably, a cursory look at their license renewal political file exhibits does not reveal any shockingly dramatic problem.  For instance, Salem’s WAVA(AM), Arlington, Virginia license renewal application revealed only one late-upload instance of a request for political time, while Alpha’s WDJX(FM), Louisville reported “several instances in 2018 and 2019 in which political advertising material was uploaded to the online public file more than a week after an order was placed”, with no such instances in 2020.  

Nonetheless, after a full investigation, the Media Bureau determined that the six group owners repeatedly failed to comply with their political file obligations leading to the Orders and Consent Decrees. The Orders and Consent Decrees uniformly contain burdensome and time-consuming “Compliance Plans” requiring written employee operating procedures, compliance checklists, compliance manuals, employee compliance training programs, compliance reports with spreadsheets and detailed descriptions of non-compliance, to be submitted to the FCC.  In particular, any reports of non-compliance with “detailed explanations” must be submitted to the FCC within ten calendar days of a discovery of non-compliance.   Each of the six broadcasters must also cooperate with the National Association of Broadcasters and state broadcaster associations in “promoting and encouraging education and training” for small broadcasters and stations with limited resources with respect to the FCC’s political broadcasting rules.  

For the six broadcast groups, the path forward is fraught with danger.  Unless FCC strict policies change with respect to political file violations, any future violations can be expected to be dealt with harshly by the Media Bureau.  The FCC in 2016 entered into a sponsorship identification Order and Consent Decree [https://docs.fcc.gov/public/attachments/DA-16-3A1.pdf] with a former Cumulus Radio Corporation’s licensee entity agreeing to a $540K fine.  Three years later, the FCC in an August 16, 2019 Notice of Apparent Liability for Forfeiture [https://docs.fcc.gov/public/attachments/FCC-19-70A1_Rcd.pdf] proposed an additional $233K fine for failing to “self-report” violations pursuant to the consent decree.   Similar significant fines likely await any of these six broadcasters who do not faithfully abide by the Orders and Consent Decrees.  

For all other broadcasters, these six political file Orders and Consent Decrees serve as a pointed reminder of the seriousness that the FCC takes its political file rules, at least as to the timeliness of political file uploads.  Broadcasters should not otherwise be lulled into complacency by the FCC’s apparent willingness to resolve lowest unit charge disputes in an informal real-time setting with the goal being compliance rather than penance.  

The FCC’s attention to this timely upload aspect of the political file rules may be driven, in part, by the combination of more sophisticated candidate political spot buying techniques coupled with extensive scraping of information from the FCC’s online political files.   Basically, there is big money in culling and examining information in the FCC’s online political files, information that until FCC public files went online was simply unavailable in aggregate form.   While there is no suggestion in the six Orders and Consent Decrees that the FCC is responding to private third-party economic interests, even if the FCC is, that does not excuse non-compliance by radio stations.

The information that must be uploaded about requests for the purchase of political broadcast time include whether the request is accepted or rejected, the rate charged, the date/time the ad ran or will run, the class of time purchased, the name of the candidate, the office being sought, the issues that are referenced, the name of the person or entity purchasing the time, and a list of executives of the sponsoring entity.

For radio broadcasters in general, the political file mantra must be “upload upon arriving at the door”.  Stations with centralized traffic systems must find a way to have information more-or-less automatically uploaded upon a complete request being received for political time with the consequent disposition of that request also immediately uploaded.   Stations with manual traffic systems should likely require that one person, with an appropriate back-up, be the point person for all political time requests to avoid the “I thought he uploaded it” situation from occurring.   

Under the FCC’s rules requiring uploads “as soon as possible”, there cannot be an “inbox” that fills up with political time requests and dispositions.  There can only be an “outbox” that immediately uploads to the station’s online political file.    

John Garziglia is a communications attorney at Womble Bond Dickinson and can be reached at (202) 857-4455 or [email protected]