Except in Alaska?
By Henry Solomon, Esq.
For the past eight years Peninsula Communications, Inc., a radio station owner in Alaska, has been litigating before the FCC, the DC Circuit Court of Appeals, and a Federal District Court in Alaska. The combined record in these cases is approaching the size of the Manhattan telephone directory. Peninsula's position is that there is a so-called "Alaska Exception," according to which broadcasters in that state are exempt from expanding their coverage by using FM translators and other "alternative" means of signal delivery.
Litigation began when Peninsula refused to shut down seven FM translators it owned. The translators were violating FCC regulations that prohibit FM stations from using owned translators to extend their signals into distant communities that already have local broadcast outlets. An FCC Administrative Law Judge found that Peninsula was unqualified to continue as the licensee of two of its FM stations and revoked their licenses. Peninsula has appealed his verdict. In related proceedings, the Commission terminated the seven offending FM translator licenses, and fined Peninsula $140,000 for willful and repeated failures to cease unlicensed translator operations. Peninsula has not paid the forfeiture and is appealing collection efforts in Alaska.
Now it looks like Peninsula has blindsided the FCC by going directly to the Hill for relief. It convinced Congress to amend the Communications Act by carving out special exceptions for translators in Alaska, and thereby (purportedly) reversing adverse and potentially adverse administrative and judicial rulings in Washington and Anchorage.
The "Peninsula amendments" relate to Sections 307 and 312 of the Act, though it's debatable whether they will save Peninsula's bacon. Nevertheless, though the amendments appear to be restricted to cases arising in Alaska, the amendment to Section 312 may have wider applicability. Until the amendments were signed into law on December 8, 2004, Section 312(g) provided broadcast stations that remained off the air for any 12 consecutive months would automatically lose their licenses. The 12-month rule was enacted Congress in 1996, and took away the FCC's ability to grant extensions. The new language grants the FCC unlimited discretion to extend silent or dark stations' broadcast licenses beyond the 12-month period regardless of where the station seeking relief is located.
How the FCC will interpret and enforce its new mandate remains to be seen. Clearly, it won't get any help by perusing legislative history because there is none. It turns out that the Peninsula Amendments were tacked on to the Consolidated Appropriations Act of 2005, literally at the eleventh hour, and it's questionable whether the FCC was even aware of them. That's how things sometimes work in Washington.
Are you reading this from a forwarded email?
