By: David Oxenford, Wilkinson Barker Knauer LLP
With more and more states, municipalities, and other authorities issuing shelter-in-place warnings or other restrictions on travel, and with more station facilities likely to be closed temporarily because of exposure to the COVID-19 virus, broadcasters need to be planning on how to continue to operate their facilities in the new world we are all facing. I participated in an online conference last week with over 100 college broadcasters who are perhaps on the front lines of this problem, as so many operate from campus buildings that were closed early after (and in some cases before) the declaration of the pandemic. We’ve had calls from many other broadcasters about the issues that they are facing in their operations, as communities take actions to enforce the personal distancing urged by medical organizations. Many commercial broadcasters may be seeing in the upcoming days greater restrictions on unnecessary travel, perhaps impacting access to their facilities and studios. Planning and coordination among broadcasters – and with broadcasters and local officials – is already underway in many cities and with many state broadcast associations. But it also needs to be considered by individual broadcasters everywhere.
One of the most basic questions is one of access. Questions are arising every day as to whether local officials can block access to broadcast stations or to the coverage of news events during the emergency. Will broadcasters be shut down like so many other businesses? There has been much written in the trade press and elsewhere about broadcasters being “essential services” that should be allowed access to their facilities and to news events during any crisis. There is in fact statutory language in the US code to that effect (see, for instance, this section that tells federal officials not to limit access or facilities to radio and TV broadcasters in an emergency). But that statute restricts the actions of federal officials to block broadcaster access and is silent as to actions by state and local officials. Even if state laws have similar provisions, those provisions are only helpful if someone in a position of authority has the time and inclination to look at the legal niceties that apply to a given situation. Coordination with state and local officials is paramount in a situation like the current one that affects everyone, everywhere. Stations should already be in touch with state and local authorities to see how they can help in the current crisis. At the same time, they should also be discussing and planning with these officials to ensure access to studios and transmitter sites, and exemptions from travel restrictions for news coverage, so that they can continue to provide their important services to the public.
Stations should also be planning for the worst-case scenario where access to their studios becomes problematic because of infections among their staffs. We’ve already seen disruptions to major broadcast networks as the infections spread. Smaller stations should be making plans for remote operations. These days, with audio and video available anywhere there is an Internet connection, getting programming together may be the least of a station’s issues. Being able to remotely control the station’s technical facilities is possible for many stations who can already monitor and control their stations remotely to operate without on-site staffing during late-night or weekend hours. Stations can also operate with an “unattended operation” where automatic facilities can cease station operations within 3 hours if the station begins to operate outside its licensed parameters and cannot be repaired (or three minutes if notified of interference to broadcast or other non-broadcast communications facilities). Also, remember to make provisions for EAS monitoring and activation. And, of course, monitor tower lights if approved automatic monitoring systems are not in place.
We’ve had numerous questions about whether a station can lock its studio doors to the public – and last week we wrote this article reminding broadcasters that a staffed main studio is no longer an FCC requirement, as the Commission two years ago essentially eliminated its main studio and studio staffing requirements. So prohibiting public access to the studio is not an issue. The FCC has also already been relaxing some other requirements – working with TV stations permitting pooling arrangements to cover virus-related events without the need for public file documentation (see our article here) and postponing deadlines for TV stations in Phase 9 of the post-incentive auction repacking (see our article here).
No matter how much planning is done, there may well be situations where stations have to be taken silent during this crisis. Some college stations have already gone off the air as students are barred from campus locations. The FCC has agreed that college stations do not need to meet their minimum operating schedules when on-campus classes are not meeting (see our post here). Commercial stations that go off the air need to notify the FCC within 10 days of the fact that they are off the air and ask for Special Temporary Authority to remain silent if they stay off the air for 30 days or more. Don’t forget that any station that remains off the air for one year or more will have its license automatically cancelled unless the FCC makes an affirmative determination that the public interest supports its continued operation (see our articles here and here). In addition, long periods of silence interrupted only by brief periods of operation may have an adverse effect on a station’s license renewal (see our articles here and here). The FCC has not yet indicated that the virus will result in any exceptions to these rules, so keep them in mind when making operational decisions.
At this point, other regulatory deadlines continue, particularly those that involve uploading material to the public inspection file. Tomorrow, we plan to post our regular update on next month’s regulatory deadlines, which will include Quarterly Issues Programs lists for stations nationwide, due in the public file by April 10. While the FCC building is shut down for normal business, the FCC itself is open and continuing to function with its employees teleworking. I have had several calls and messages from various FCC employees in the last week, so I know that they are continuing to do their jobs while coping with the same disruption to normal routines that the rest of us face. So watch these and other regulatory deadlines – and consult your own station attorney about issues for unmanned operations that we may not have considered here.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
There are no additional costs for the call; the advice is free as part of your MAB membership.