Presidential State of Emergency: Information for licensed broadcast stations and those considering unlicensed operation

On March 13, 2020, the President has declared a "national emergency" as a result of the COVID-19 Coronavirus. REC provides the following advice to existing licensed broadcast stations and for those individuals who are considering engaging in unlicensed operation under the guise of a "presidential state of emergency". This article is the opinion of REC Networks based on analysis of the current situation and existing laws and regulations.  Note, that this was not prepared by an attorney and those seeking legal advice should contact a qualified attorney.

§73.1250 - Broadcasting emergency information. 

This rule, intended for licensed broadcast stations defines emergency situations as "furthering the safety of life and property include, but are not limited to the following: Tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gasses, widspread power failures, industrial explosions, civil disorders and school closing and changes in school bus schedules resulting from such conditions."  It permits broadcast stations, at the request of public officials, to transmit point-to-point messages for the purpose of requesting or dispatching aid and assisting in rescue operations.  It states that if EAS is activated for a national emergency, that it will take precedence over a local or state level emergency.  It also requires that TV broadcast stations (full-service and class A) must provide information visually or visually and aurally.  No "audio only" emergency messages.

It also states that the broadcasting of emergency information shall be combined to the hours, frequencies, powers and modes of operation specified in the station license with the exception of AM broadcast licensees which can, during an emergency operate at night using their daytime facilities (including their higher daytime power).  Such AM nighttime operation must be performed on a non-commercial basis and should only take place if unlimited-time service is non-existent, inadequate from the standpoint of coverage, or not serving the public need.  

During an emergency, FM stations, LPFM stations, FM translators and TV broadcast stations are not authorized to operate with additional power or from locations other than their licensed primary or auxiliary facility. Stations needing to operate from a different location on a temporary basis will need to file for a special temporary authority (STA) using CDBS.  

Any station providing point-to-point communications or AM stations operating their daytime facilities at night are required to complete a report in letter form of the emergency operation which includes a brief description of the information carried during the emergency and for AM stations, justification for the operations with a detailed showing that no other broadcast station existed or was adequate.  In addition, a statement must be included to indicate that the operation was conducted noncommercially.  These reports shall be submitted to the FCC. 

§73.3542 Application for emergency authorization

Under this rule, authority may be granted by the FCC, on a temporary bassis, in extraordinary circumstances requiring emergency operation to serve the public interest in sigutiations including emergencies involving danger to life and property, a national emergency proclaimed by the President or Congress or at time of war where such opertion is necessary for the national defense or security or in furtherance of the war effort.

This rule is sometimes misapplied by pirate operators to justify their unlicensed operations during an emergency (such as the "war on terror") or that operators are allowed to "operate first and file later".   The Commission made it clear in Matthew H. Britcher (21 FCC Rcd. 9076 (2006)) that the Commission must grant the proposed emergency operation in order to commence the use of transmitting apparatus, otherwise the operation violates Section 301 of the Communications Act (47 USC §301).  Let's make this clear:

There is no legal justification for anyone to broadcast without a license just because the President declared a "national emergency".

Extremely low power operation is always permitted under Part 15 of the rules when utilizing a Part 15 certified device that has not been modified.

Is COVID-19 an emergency that would warrant the need to use the emergency rules?

In our opinion, it is not.  The current situation is a pandemic that is spread through human contact. This is different than a weather emergency such as a hurricane or tornado, brush and wild fires, a seismic emergency (earthquake and aftershocks) or an industrial or transportation emergency (such as the release of toxic gasses).  Those types of emergencies require instant information that can change to be delivered to listeners as they are occuring.  In the case of the current pandemic, this type of instant delivery of constantly changing "up to the minute" information is not necessary in order to address the emergency.  

Also, the rules seem to define an emergency as something that impacts life and property, not "life or property" or "life and/or property".  COVID-19 does not have a direct impact on "property" as a fire, flood, tornado or industrial accident would.  

It is in REC's opinion that at this time, the Commission Audio Division staff is in its own crisis mode with staff members working from their homes instead of coming into the headquarters.  This means that they may have limited resources to do anything up and above their normal routine job responsibilities. 

Those in extreme circumstances who wish to discuss their organization's individual circumstances may contact REC to see if a request under §73.3542 may be justified and what should be included in the compelling argument.  

Again, just because there is a "national emergency" declaration does not give anyone the authority to turn on a transmitter, period.

LPFM (and full-service NCE) time share stations

If an LPFM (or NCE) station is currently on a time share and wishes to operate more hours throughout the duration of the emergency (i.e. modify the time share schedule), all stations in the time share group must reach a new time share agreement.  All groups should sign the agreement and each should file a license modification with the FCC through the LMS system (REC can assist).  Time share groups that reach an agreement are able to change your schedule without first obtaining FCC authorization but must file the license modification applications (with the signed time share agreement) into LMS within 10 days of the commencement of the new schedule.  Another license modification must be filed if, after the emergency, stations choose to go back.

Time share rules prohibit more than one time share member broadcasting simultaneously.  If, during an emergency situation, there may be some justification to request a waiver on a temporary basis for the duration of the emergency and it can be shown that the two LPFM stations will not interfere, we could ask for that.  Please contact REC for assistance.  Do not attempt to simultaneously operate before getting FCC authorization first.  We note though that the grant of such an arrangement is unlikely, but it does not hurt to ask, especially if a compelling argument can be made. 

Reviving "deleted" stations to operate during an emergency

While anyone could request such emergency operation in accordance with §73.3542, even a station that lost their license due to a violation of Section 312(g) of the Communications Act (silent for more than 365 days), there is no guarantee the FCC will grant such an authorization and in our opinion, COVID-19 is not the type of emergency where such an authorization would ever be granted.

LPFM/NCE stations licensed to schools

If the LPFM or full-service NCE station is licensed to an accredited educational institution (including K-12, college, vocational or university.. either public or private), the station, without the need to file a silent notification may shut down during any day which school is not in session.  This is similar to the provisions that permit school-owned stations to go off the air during summer vacation.  More information is available in REC's School Closure Guidance. 

If you have any questions, please contact REC Networks.  We wil let you know if it is appropriate to contact the FCC.