License Renewals: Is It Time to Come Clean with the FCC?
March 13, 2012
Renewal Time Due Diligence
As renewal filing deadlines move across the land, broadcasters are rediscovering their duty to disclose any violations of existing rules. The duty is required at Section II, Item 4 of the FCC form 303-S license renewal application.
Here's what is says:
FCC violations during the preceding license term.
Licensee certifies that, with respect to the station(s) for which renewal is requested, there have been no violations by the licensee of the Communications Act of 1934, as amended, or the Rules and Regulations of the Commission during the preceding license term. If No, the licensee must submit an explanatory exhibit providing complete descriptions of all violations.
We have been getting calls! WOW, say some. In eight years … yeah, I remember this or that problem. You know, we had a transmitter problem we didn't report, or a tower light went out that took longer to replace than it should have, or we didn't place the issues programs list in the public file on time. Over an eight-year license term, many broadcasters recall some possible violation of Commission rules that may have occurred at their station, although it may have been a very slight one.
In fact, isn't the Alternative Broadcast Inspection Program (ABIP) designed to allow a diligent and well-meaning licensee who may have a violation found during an inspection to correct it immediately without an adverse consequence? So, they want to know, should a violation found during an ABIPS inspection, known only to the broadcaster and the ABIPS inspector, be confessed and reported in response to question #4 on Form 303-S.
If you've heard it once, you've probably heard it a hundred times. Better to "come clean" than fail to mention even the slightest infraction that could brand you as lacking candor with the FCC -- the worst possible FCC violation.
Broadcasters can breathe a sigh of relief. Fortunately, the answer is no, such violations do not have to be reported on the 303-S.
The problem for many, and the reason the question comes up, is that they are reading the Form 303-S in the FCC Consolidated Data Base System (CDBS), where only the question is viewable and the instructions are not. More guidance is found in the instructions for the form, but to read them one must download the PDF form found in a separate forms section on the FCC's website. To save you the trouble, here's a link: http://transition.fcc.gov/Forms/Form303-S/303-S.pdf
The instructions to the form are far more informative. The instruction explains that an applicant is required to disclose only the violations of the Act or Commission Rules that occurred at the subject station during the license term, as preliminarily or finally determined by the Commission staff, or Court of competent jurisdiction.
The instruction includes Notices of Violation, Notices of Apparent Liability, Forfeiture Orders, and other specific findings of Act or Rule violations. It explicitly excludes "violations" identified by the station itself or in conjunction with the station's participation in an ABIPS program. In fact, the instructions explicitly say that licensees are not to submit any information concerning self-discovered or other "violations" that have not been identified by the Commission, its staff, or a court.
Accordingly, while the renewal form question is broadly phrased, it applies only to violations actually identified by FCC official staff. It does not cover matters that the broadcaster may suspect might have constituted violation, or that were discovered through an ABIPS or other self-inspection program.
One further point! Once the Commission staff has determined that there was a violation, even if that determination is being contested by the licensee, such as by a petition for reconsideration or application for review that is already in the record, it must still be disclosed on the renewal form. Handle such a situation by submitting an exhibit in the form that explains the circumstances and reason for appeal.
This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.