The FCC’s implementation of the 2023 Low Power Protection Act favors full-power stations at LPTV’s expense (see 2312080043), improperly uses Nielsen designated market areas, and unlawfully doesn’t give Class A stations must-carry status, said a brief from Radio Communication Corporation in the U.S Court of Appeals for the D.C. Circuit Monday. By allowing LPTV stations to upgrade to Class A status only in DMAs with 95,000 households or fewer, the FCC “excludes service to populated areas and promotes Class A service to deserts, rivers, lakes, mountains, prairie grasslands, literally authorizing Class A service to everywhere, except those places where people are located,” said RCC. The FCC has said that the use of Nielsen DMAs and the 95,000 household threshold were specifically required by the language of the LPPA, but RCC’s brief disagreed. “The LPPA does not authorize the Commission to sacrifice LPTV and Class A licenses for the benefit of NAB’s Clients,” RCC said. In the brief’s glossary, the term “NAB’s Clients” is defined as “full service TV clients” – full power stations. Rather than limiting Class A upgrades based on the size of a station’s DMA, the agency should have limited it based on the size of their community of license, RCC said. By using Nielsen’s markets, the FCC is unconstitutionally delegating authority to a private company, RCC said. The FCC’s order “transforms the ‘Low Power Protection Act’ into the ‘Large Power Protection Act’ by unreasonably limiting, at every critical determination, LPPA’s economic protection of LPTV stations,” RCC said. The DC Circuit rejected RCC's request for an emergency stay of the FCC's LPPA order in March.
The U.S. Court of Appeals for the D.C. Circuit has rejected AM licensee Gerald Parks’ en banc appeal of the court’s denial of his petition for mandamus relief (see Ref:[2308110028]), said an order Tuesday. Parks has argued that the FCC is legally required to allow him to continue holding a broadcast license even though he didn’t file a 2020 renewal application on time.
The U.S. Court of Appeals for the D.C. Circuit rejected the National Religious Broadcasters Noncommercial Music License Committee en banc appeal (see 2309130069) of the court’s webcast music rates ruling from July, said an order issued Wednesday. ”Upon consideration of appellant’s petition for rehearing en banc, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied,” said the order. NRB appealed the case Sept. 12. In July, a D.C. Circuit three-judge panel upheld the Copyright Royalty Board’s ruling on rates for webcast music for 2021-2025 against challenges from NAB, NRB and Sound Exchange. Only NRB sought appeal, arguing that the court’s decision conflicts with U.S. Supreme Court precedent on religious discrimination.
Schwab Multimedia seeks an en banc hearing before the U.S. Court of Appeals for the D.C. Circuit to review the three-judge panel’s unanimous March 3 rejection of Schwab's appeal of FCC decisions that led to the broadcaster losing its permit to build an AM station in Culver City, California (see 2303030076), said pro se appellant William Schwab in his petition Friday (docket 22-1016). There’s now a “clearer emphasis on facts presented that may have not been apparent at the time” of the D.C. Circuit’s rejection, said Schwab. “This is a case of exceptional importance of a possible loss of a major market radio station in Los Angeles,” he said. This was “unfortunately due to the confusion and misunderstanding of how information is misinterpreted by the court,” plus the result of other information “curiously withheld by the FCC” from the D.C. Circuit during the appeal hearing, he said. The court’s rejection seems to have been based on Schwab not having a site for the unbuilt KWIF(AM), or at least a lease for one, he said. A lease isn't required by the FCC, he said, but “in fact, I did have a lease, and it was submitted in evidence, yet was somehow glossed over or not considered in the decision,” he said. If KWIF(AM) were to fail “after a court and FCC decision in my favor, it should be only from my own fault, and not one because of a tiny procedural snafu in this legal quagmire,” he said.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected Schwab Multimedia’s appeal of FCC decisions that led to the broadcaster losing its permit to build an AM station in Culver City, California, according to Judge Justin Walker's opinion Friday (docket 22-1016). “You can’t build a radio station without a place to put it,” wrote Walker. Schwab appealed the agency’s denial of its fourth tolling request to extend construction deadlines for the unbuilt KWIF(AM) Culver City. After losing its original construction site, Schwab argued industry delays from the COVID-19 pandemic and California wildfires caused its failure to construct, and said it secured a new site, though the FCC hadn’t approved that site by. The agency said site loss was the reason for the delays, and site loss isn't a valid reason for extending construction deadlines under FCC rules. “Because the agency’s decision was reasonable and reasonably explained, we affirm,” the opinion said. Schwab didn't comment.
The FCC should renew the license of Snake River Radio’s KPCQ(AM) Chubbuck, Idaho, for a shortened term rather than take the station’s license over its period of silence (see 2212130058), said Snake River’s reply submission Wednesday in docket 22-53, the station’s license proceeding before FCC Administrative Law Judge Jane Halprin. The station’s conflicting submissions about whether its tower had been dismantled stem from a misunderstanding in a single email to the agency from Snake River’s attorney Jeffrey Timmons, the broadcaster said. Its subsequent communications demonstrated that the tower was still standing, the reply filing said. “In hindsight, of course, Snake River wishes that it had explained the differences at that time,” said the filing. “But the fact is that Snake River has explained that discrepancy now, as supported by the August 5, 2018 email which demonstrates that it was just a drafting error by counsel.” The public interest wouldn't be served by taking the station’s license “as that would discourage parties from investing the effort and substantial funds risked to try to save a failing station,” the filing said. “The Commission should encourage -- rather than punish -- entrepreneurs willing to take the risks and invest both the time and funds necessary to try to save failing stations.”
Discovery in the hearing proceeding for AM broadcaster Arm & Rage was extended to March 31, in an order from FCC Administrative Law Judge Jane Halprin Monday in docket 22-122 (see 2301060061). Discovery had been set to end Jan.18, but the Enforcement Bureau requested an extension due to a technology issue and the large number of documents involved. Arm & Rage didn’t object to the request. With the extension, the EB’s affirmative case will be due May 15, the broadcaster’s response June 12, the EB’s reply July 10, and requests for an oral hearing July 24.
The FCC Enforcement Bureau requested additional time to review discovery for the hearing proceeding for broadcaster Arm & Rage (see 2206170063) due to a technical issue with some of the filings and the large amount of documents involved, said a filing posted Friday in docket 22-122. Arm & Rage doesn’t oppose the extension, the filing said. The EB wants the close of discovery moved from Jan. 18 to March 31. Arm & Rage's Joseph Armstrong, owner of WJBE (AM) Powell, Tennessee, was convicted of making a false statement on a 2008 tax form.
Snake River Radio’s KPCQ(AM) Chubbuck, Idaho, was silent for 80% of its license term, repeatedly violated FCC public file requirements, and gave the agency conflicting and unverifiable information about the state of its transmission tower, said the FCC Enforcement Bureau in its case submission Monday in docket 22-53, Snake River’s license proceeding before the FCC’s administrative law judge. Snake River said in its own filing the matter stems from a misunderstanding by the broadcaster’s attorney, Jeffrey Timmons. Stations that are silent for more than 12 consecutive months automatically lose their broadcast license. According to the EB, Snake River notified the FCC in August 2018 that its broadcast tower had been dismantled but then said it had resumed broadcasting on the same tower in 2019 and then later that the same tower had been accidentally collapsed by a construction crew. The broadcaster was also unable to give the bureau contact information or evidence of written communications with the construction crew involved or an engineer it said had brought the station back online, or any evidence of a date for pictures it said were evidence that the tower was still up when the station said it was. “Snake River failed to provide any independent, credible evidence demonstrating that the Station’s tower remained standing beyond June 30, 2018 and until at least June 15, 2019,” said the Enforcement Bureau. The problem stems from a clerical error, said Snake River in its case submission. “The apparent discrepancy is due only to counsel’s drafting error when preparing and filing the silent STA request in August 2018 (unfortunately, contrary to the information provided by the client, Snake River, at that time),” the filing said. The misstatement “appears to be the whole basis for designation” of the license for hearing, the Snake River filing said. Even if the ALJ decides the station hasn’t automatically lost its license, the broadcaster hasn’t operated in the public interest, the EB said. Snake River missed numerous public file deadlines for issues/program lists, failed to maintain emergency alert system logs, and was late in responses in this proceeding, the EB said. “The public interest would be better served by encouraging parties to make the investments and efforts necessary to save failing stations, such as KCPQ,” said Snake River in its own submission. “Snake River requests that the Commission impose a lesser sanction, such as a short-term renewal of the Station’s license, as a more appropriate sanction.”
The U.S. District Court for the District of Columbia doesn’t have jurisdiction over a radio broadcaster’s appeal of FCC decisions rejecting his arguments that an expired FM construction permit should be reinstated, it said in an opinion in docket 1:21-cv-2050 Tuesday (see 2107290070). The case concerns Urban One Broadcasting Network managing member William Johnson’s repeated attempts to have the FM construction permit for Cross City, Florida restored after it expired in 2014. Johnson, whose company has no connection to large Maryland-based broadcaster Urban One, represented his company pro se before the court. That alone is sufficient to dismiss the case, said Tuesday’s opinion from District Judge Colleen Kollar-Kotelly. “It has been the law for the better part of two centuries that a corporation may appear in the federal courts only through licensed counsel,” it said. The U.S. Courts of Appeals also have jurisdiction over FCC decisions, not the district courts, the opinion said. “By statute, the federal district courts lack jurisdiction to review FCC administrative decisions.” Johnson had filed an appeal before the D.C. Circuit but it was dismissed after he failed to prosecute it. The district court also rejected the appeal because Johnson has ongoing filings at the FCC.