Character counts for broadcast licensees
A primer on FCC rules, specifically in relation to felony convictions
Editor’s Note: This post has been corrected to reflect conditions that affect all non-commercial broadcast licensees and accurately list the conditions that affect only LPFM licensees. We apologize for the mistake.
The Federal Communications Commission (FCC) assesses the character qualifications of broadcast licensees, including those individuals on the boards of non-commercial radio stations or nonprofit organizations that are the license holder.
A felony conviction doesn't automatically bar someone from serving on the board of a non-commercial radio station. However, the FCC thoroughly evaluates each case, taking into account the specifics of the conviction and the individual's overall character.
A full and honest disclosure of any felony convictions is crucial throughout the application process.
Here's how felony convictions are considered in this process:
Character assessment
The FCC considers felonies to be relevant to determining if an applicant or licensee has the necessary character to operate a broadcast station, which is mandated by the Communications Act.
Case-by-case evaluation
While felony convictions are taken seriously, they don't automatically disqualify someone. The FCC considers mitigating factors and evaluates cases on an individual basis.
Factors considered
The willfulness and frequency of the misconduct, how recently the conviction occurred and the severity of the crime, along with efforts made to rectify the wrong and the individual's history of FCC compliance and rehabilitation
Individuals who have been dishonest with the FCC in prior proceedings are ineligible to serve on a board.
Felony convictions related to discrimination or providing fraudulent statements to the U.S. government disqualify individuals from serving on a board.
Convictions resulting in the loss of federal benefits under the U.S. Anti-Drug Act also render an individual ineligible.
In addition, a significant majority (80% or more) of board members must be U.S. citizens.
LPFM-specific rules regarding board members
Board members cannot have ownership interests in other broadcast licenses, daily newspapers, or cable TV systems.
Individuals involved in operating an unlicensed broadcast station (pirate radio) cannot serve on a board.
Disclosure and Honesty
Applicants are required to disclose felony convictions on FCC forms, such as Form 605. Even expunged convictions must be disclosed. Providing an explanation that includes why granting the license would serve the public interest, and offering character references is recommended.
Administrative Hearings
The FCC utilizes administrative hearings, often based on a paper record, to evaluate character issues raised by felony convictions.
Communications Act of 1934, Sect. 326.
Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.
Most of the items shown in this article as being "LPFM specific" are really not. Many of these, such as alien ownership, the US Anti Drug Abuse Act and issues around adverse actions and character are actually valid across the entire agency including for non-broadcast services. The only qualifications that are LPFM specific are:
- Attributable interests: There can be no person on a board, nor can an organization hold any other kind of attributable interest in any other broadcast license (AM, FM, TV or even other LPFM station) or any other media regulated by the FCC. There are limited exceptions for public sector public safety entities, tribal entities and for colleges and universities proposing an LPFM station to be managed and operated primarily by students. Organizations with a board member who has an attributable interest can declare that interest and state that the specific board member will recuse themselves from all decisions regarding the LPFM station.
- Unlicensed operations (pirate radio): The LPFM specific rules regarding those with a "pirate past" are based on §632(a)(2) of a 2001 Appropriations Act (Pub. L. 106-553, aka Radio Broadcast Preservation Act of 2000) (as amended in Section 2 of the Local Community Radio Act of 2010). Applicants for original construction permits are required to certify that no party to the application has ever engaged in unlicensed broadcast operations. There are a couple of things to think about where it comes to this:
- - Such a certification is not required either on the four-corners or through a required exhibit in the case of assignment of license, transfer of control or renewal applications. While no one has ever tested this rule on assignments, transfers and renewals, it can be questioned whether someone with a pirate past can find their way in through an existing station. I note that the language in §632 states "from obtaining a low-power FM license..." and the interpreted language in §73.854 reads "application for an LPFM station".
- - Any challenge to a certification made on a new LPFM application must be backed with solid evidence. In the past, the following have been accepted: Notice of Unlicensed Operation (NOUO), Notice of Illegal Pirate Radio Broadcasting (NIPRB, replaced the NOUO for pirate radio since the passage of the PIRATE Act), other adverse actions, such as NALFs as well as police reports in states where there are pirate radio specific laws (FL, NJ & NY). I note that there was a case in FL where the police report was used as the basis for a denial. They do not need to be convicted of state crimes. The FCC is looking for mere involvement. Other documentation used in challenges, such as screenshots of Facebook posts are considered hearsay and cannot be considered.
These issues are not LPFM specific but also deal with other FCC services:
- Felonies: This is more than just lying to the government as suggested. All felonies must be disclosed. It is not an immediate disqualification, but it will take longer for the agency to review an application. The felony does not necessarily have to be communications related. For example, there was a case a few years ago where the Wireless Telecommunications Bureau revoked an amateur radio license from a ham who was found guilty of child molestation. The FCC cited the fact that the amateur radio hobby does attract children as a basis for their revocation.
- Alien ownership: These rules interpret §310(b)(3) of the Communications Act that states that no more than one-fifth of ownership can be by aliens (lawyer speak for non-US citizens). The alien ownership law applies solely to broadcast, common carrier, aeronautical en route and aeronautical fixed station licenses.
- US Anti Drug Act: Regulations to interpret these laws can be found throughout many federal agencies. This is the same law that prohibits some people with drug convictions from getting student loans. It is important to remember that in order for this provision to apply, the judgment comes from the federal level and the order specifically bars someone from federal benefits. A simple possession charge will not trigger this. This law is more focused towards traffickers and kingpins.