Taking a station off the air is often the last resort of a broadcast company in desperate financial times. While Payroll Protection Act loans have helped many small broadcasters avoid that action even in light of the dramatic decrease in broadcast advertising revenue in the last two months, and some relief may come in areas of the country looking at some reopening of business in the coming weeks, we have still heard of some stations that just can’t manage continued operations in this period of turmoil – either for financial or operational reasons caused by the current health crisis. If this action is in the cards for your station because of the pandemic or for any other reason including technical failures, do not forget about the FCC requirements for taking a station silent.
When a broadcast station goes silent, it must notify the FCC of that status within 10 days of going off the air. If the situation will continue for a longer period, a request for Special Temporary Authority providing the reasons for going off the air must be filed within 30 days of going silent. These STAs are granted for no more than 6 months at a time, so that date should be noted for the filing of any extension that may be needed. But be careful, as if a station is silent for a full year, Section 312(g) of the Communications Act provides that the license will be cancelled unless the FCC makes an affirmative finding that there are special public interest reasons for not taking that action (a finding made in very rare cases). When stations resume operations, they must notify the FCC that they are back on the air. But to be considered back on the air, there must be programming – running a test pattern is insufficient (see the case we wrote about here). Even with authority to remain silent, there are risks.
As described in cases that we wrote about here and here, stations that are off the air for prolonged periods, even with FCC authority, can risk the loss of their license if they come back on the air for only short periods (to avoid being off the air for a full year), then go silent again. During the license renewal review that is upcoming in many states, the FCC will look at how long a station has been off the air during the license period and, if it is a significant period, can determine that the station has not served the public interest, or grant a “short-term” renewal for something less than the full eight year term so that the FCC can review the licensee’s performance sooner (see our article here and another article here for examples of such a review).
Similar rules apply to stations that cannot meet the minimum operating schedule required for broadcasters. Note that there are special minimum operating rules for noncommercial stations requiring fewer hours per day of broadcasting, and allowing stations licensed to educational institutions to be off the air for periods for school holidays and other recess periods when students are not on campus. The FCC recently stated that schools without students on campus to run their stations during the pandemic can consider themselves to be in such a recess period (see our article here). But note that there are also risks of forced shared-time operations for noncommercial stations that do not operate regularly.
Also remember that tower lights need to be operating, even if a station is silent. Know the requirements for any station that is going silent, and be sure that you observe the obligations that the FCC imposes.
Courtesy Broadcast Law Blog