Constructing Too Early Has Consequences

Posted on August 29th, 2014 by

The FCC has fined a broadcaster for violating its policies against premature construction of a broadcast facility. The matter arose from a complaint filed with the FCC alleging, among many other things, that a permit holder had built a tower prior to obtaining a construction permit for a new broadcast facility.

The decision explains the FCC policy, and distin-guishes between permissible and impermissible pre-authorization construction. The FCC noted that its premature construction policy arises from the Communications Act’s requirement that the FCC not issue a license to a station unless a con-struction permit has been granted. It explained that this requirement was enacted to ensure that applicants don’t use incurred expenses as a means of exerting improper pressure on the FCC to grant an application. If the entire station has been constructed prior to a permit grant, the FCC is prohibited from granting a license.

However, some types of pre-authorization construction are allowed, such as site clearance, pouring of concrete tower footings, installation of tower base/anchors, installation of power lines, and purchase and on-site storage (but not installation) of equipment. Pre-authorization construction of towers or installation of radio antennas is strictly prohibited.

In this case, the applicant had completely constructed the tower before obtaining the permit, and argued to the FCC that it intended to use the tower for broader business purposes, leasing space to other tenants. But it did not produce any evidence showing those business purposes, and the FCC therefore rejected the argument, fining the company $10,000 for that and other violations.