$125,000 FCC Penalty to Broadcaster for Tower Structure and Contest Rule Violations – Including Violation of Rule Against Broadcasting Seemingly Live Recorded Programming Without Informing Listeners

Last week, the FCC announced a Consent Decree with a Florida broadcaster, with the broadcaster admitting violations of several FCC rules and agreeing to pay a $125,000 fine and enter into a consent decree to ensure future compliance.  The violations addressed in the decree include (i) the failure to monitor tower lights and report that they had been out for significant periods of time, (ii) the failure to update the Antenna Structure Registration (ASR) of the tower to reflect that the broadcaster was the owner, (iii) not following the announced rules in conducting certain contests, and (iv) broadcasting seemingly live content that was in fact prerecorded, without labeling the programming as having been prerecorded.  While the details of the violations are provided in only summary fashion, these violations all serve as a reminder to broadcasters to watch their compliance – and also highlight the apparent interest of the FCC in enforcing the rule on seemingly live but prerecorded content, a rule rarely if ever enforced until this year.

Looking at the contest violations first, the Consent Decree gives a general description of the contests in question in a footnote.  One contest was apparently a scavenger hunt.  The station had intended for the contest to run for an extended period, but a listener found the prize soon after the on-air promotion began.  To prolong the on-air suspense, the station agreed with that listener to not reveal that she had won.  The station continued to promote and seemingly conduct the contest on the air for some time, until finally awarding the prize to the original winner.  In another contest, the station gave prizes to people who called in at designated times during the day.  According to the allegations in the Consent Decree, fake call-ins were recorded by the station to be broadcast during times when there were no live DJs.  As we have written before (see our articles here and here), the FCC requires that stations conduct on-air contests substantially in the manner set out in the announced rules for that contest – and the broadcasts about the contest cannot be materially misleading.  The FCC concluded that these contests did not meet that standard, and also found another problem with those prerecorded call-ins to the station.

The FCC found that these pre-recorded segments violated the rule against the broadcast of seemingly-live but prerecorded programming that was not labeled as having been recorded.  We wrote about that rule earlier this year when the FCC imposed a substantial fine on a broadcaster who, for months after the host had died, broadcast re-runs of a call-in program without telling the audience that the program had been prerecorded.  We noted then that this was a rare fine for the violation of this rule – and now we have our second instance where that rule is cited by the FCC.  As stated in last week’s consent decree:

The Commission has a longstanding goal of protecting consumers by ensuring that the public knows when certain program material is “live,” rather than taped, filmed, or recorded. Consistent with this goal, Section 73.1208 of the Rules requires licensees to disclose that material is prerecorded when “time is of special significance, or . . . [when] an affirmative attempt is made to create the impression that it [i.e., the program material] is occurring simultaneously with the broadcast.”

As we noted in our article about the case earlier this year, many broadcasters probably did not realize that this rule existed until that fine.  And even though we now have another penalty being assessed for the violation of the rule, we still do not have clear guidance as to exactly when enforcement actions in this area will be taken.  The FCC has cited the language of the rule requiring the labeling of pre-recoded programming, Section 73.1208, to say that broadcasters must disclose to their audience that program material is prerecorded when “time is of special significance, or . . . [when] an affirmative attempt is made to create the impression that [the program material] is occurring simultaneously with the broadcast.” In both the current case and the one earlier this year, audience call-ins were involved.  In the earlier case, the program was billed as program where listeners could call in to have questions about health issues discussed.  That program even used the word “live” in its title.  In last week’s case, the call-ins were purported to be call-ins from listeners trying to win a contest.  Thus, it seems clear that trying to pass off pre-recorded calls as being live failed the requirements of the rule.  How else it may be applied remains to be seen.  We wrote more about the rule and its likely application in our prior article on the subject.  Review our discussion, the recent cases, and the text of the rule, and talk to your own legal advisors as to how this rule might impact your on-air operations.

Finally, the Consent Decree faults the station for issues concerning its tower.  The FCC received a complaint that tower lights were out for an extended period of time without the FAA having been notified.  That, of course, is a real concern as it threatens the safety of aircraft.  The FAA is to be notified immediately when tower lights are out, and a broadcaster has an obligation to regularly monitor those lights to make sure that they are working. In investigating the tower light outage, the FCC discovered that the registered owner of the tower had not owned it for years – and in the Consent Decree, the FCC faulted the new owner for not updating the ASR within 5 days of a change in ownership as required by the rules.

Last week’s consent decree highlights many regulatory obligations of which broadcasters need to be aware.  Think about these obligations and make sure that your operations are in full compliance with all of these rules.

Courtesy Broadcast Law Blog