Class A Stations Ready Responses to Show-Cause Orders, As More Are Released
Class A stations are readying responses to orders to show why they shouldn’t lose FCC interference protection and face channel changes without reimbursement or go off the air for good because there will be fewer vacant frequencies, industry lawyers and executives said. Longtime attorneys from Fletcher Heald, Wiley Rein and other law firms whose clients got Media Bureau show-cause orders met last week to try to map out strategy, some said. The bureau has continued to send letters of inquiry (CD March 21 p3) to other low-power broadcasters asking them to answer why they're qualified to keep Class A status.
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The status protects them from interference. Under the spectrum law passed Feb. 22, their relocation costs would be paid if the commission forced them to move as it repacked channels in order to auction other TV frequencies for wireless broadband. The bureau has moved from targeting stations that appeared to be breaking FCC rules and often were in smaller cities, to those in top designated markets like Detroit and Orlando, Fla., that don’t appear to have violated precedent by seeking waivers to go off-air or for having their main studios listed, perhaps incorrectly, in industry publications as at post office boxes, executives and lawyers said. They said that if the commission ends their Class A status, it will have more frequencies available to auction because it won’t have to move regular low-power TV broadcasters.
Forty-four Class A stations have gotten bureau orders since the FCC got voluntary incentive auction authority, our research shows. Owners range from individuals with one station to companies that own multiple outlets across the nation like Una Vez Mas and ZGS. Many of them plan to protest the orders, whose responses were due starting March 30, and should they lose their status, some may try to sue, executives and lawyers said. They said any lawsuit could say the FCC is interpreting Class A status as requiring stations to be continually on-air, even if they sought waivers because they couldn’t afford to broadcast, a practice which the bureau hadn’t objected to previously.
More show-cause orders appear to be coming, executives and lawyers said. They said several stations have gotten letters of inquiry in recent months from the bureau asking them to show why they're qualified to keep their Class A status and thus interference protection under the 1999 Community Broadcasters Protection Act. LOIs are a prelude to show-cause orders, lawyers said. The LOIs haven’t been made public by the bureau, which declined to comment for this article. The orders, at http://www.warren-news.com/showcause.htm, continued to be released by the bureau, with two being issued Thursday. They also cite the act.
The bureau hasn’t acted on special temporary authorization waiver requests made in recent years by Class A stations, executives and lawyers said. They said the outlets considered them granted and went off-air for reasons including the loss of network affiliation or because they had to change antenna locations. WZGS Raleigh, N.C., went “silent” April 1, 2010, when it lost its network affiliation because of financial circumstances, and “has been on the air slightly more than two weeks during the past two years,” an order Thursday said (http://xrl.us/bmzxet). “Given WZGS-CA’s operating schedule during this time, it is highly unlikely that ZGS adequately maintained a main studio consistent with our rules.” A lawyer for the station declined to comment.
Full-power broadcaster executives continue to say they're worried about the show-cause orders. The NAB “is very concerned about the potential loss of service to viewers” of Class A outlets, a spokesman said. “Many Class A stations provide, for free, foreign language, religious and independent programming options not found anywhere else on television.”
The other station getting a show-cause order Thursday will protest it. WHDO Orlando went silent Sept. 17, 2010 because it intended to file a minor change application to move and that would save the station money, but it never filed the request and has been “on the air for one week” in the past 18 months, an order said (http://xrl.us/bmzxhu). “We will vigorously defend our position for keeping our class A status,” owner John Salov said. “In my mind we've met all the requirements” of Class A stations, which must keep all paperwork that full-power outlets are required to have and face similar rules, he said. “We kept the public file in a studio in Orlando. We have a full-time employee.” The station had to move its antenna, because it lost use of a hotel’s rooftop, and recently made a request to flash-cut WHDO to digital at another site, Salov said. WHDO doesn’t run syndicated shows, and has won awards for its children’s shows, making it disappointing it got a show-cause order, he said.
The investigations of Class A stations “are getting a little out of control,” said low-power TV lawyer Peter Tannenwald of Fletcher Heald, among the lawyers who met last week to try to find a common strategy. “They're swinging a baseball bat at these people.” Tannenwald and others are “trying to come up with legal arguments about why the commission has overstepped its authority” by not following the previous interpretation of the law, he said. “If you are off the air, where’s the authority for revoking your Class A status from that, say as opposed to saying you violated a rule and fining you?” It seems the agency “has already decided what they're going to do, and it’s just a question of whether we can stop them from” yanking interference protection, Tannenwald said. “Maybe they haven’t made up their mind, but they obviously have an intent to take away some Class A licenses.”