The rules are in place, but the enforcement sucks
I was talking to a good radio operator a few days ago, and they were telling me about another radio station in their market that had been breaking all the rules for decades. My friend has filed formal complaints with the Commission. And nothing has happened, despite the fact that a formal complaint triggers a mandatory investigation. Nada.
So I decided to look at the FCC’s legal responsibility in such cases. Here’s what I found:
Informal Complaints. The Commission has significant prosecutorial discretion. They can choose which complaints are worth their resources based on the severity of the alleged violation and the evidence provided. They apply what is known as the “reasonable ground” standard. Under 47 U.S.C. § 208, the law states that if a complaint is filed and the accused party does not satisfy the complaint, it shall be the duty of the Commission to investigate if there appears to be any reasonable ground for doing so.
If the complaint is vague, lacks evidence, or describes something that isn’t actually a rule violation (e.g., “I don’t like the host’s voice”), the FCC can dismiss it immediately without an investigation.
The FCC is legally barred from investigating complaints that would interfere with First Amendment rights (like general programming choices or “biased” news), unless there is documented evidence of intentional news distortion.
Formal Complaints: When you pay the fee (currently $600-900) and file a Formal Complaint, you are essentially initiating a lawsuit within the FCC’s system.
The duty to act: The FCC is legally obligated to issue a ruling or a Final Order on a properly filed formal complaint. They cannot simply ignore a formal filing that meets all procedural requirements.
The burden is on you: Unlike an informal complaint where the FCC might do the legwork, in a Formal Complaint, you (the complainant) act as the prosecutor. You must provide the briefs, discovery, and sworn affidavits. The FCC acts as the judge.
When Are They Likely to Investigate? The FCC must investigate informal notices when the violation involves:
- Public safety: Interference with emergency frequencies or FAA towers.
- Pirate radio: Unlicensed broadcasting that physically disrupts the spectrum.
- Clear rule violations: Failing to maintain a Public Inspection File or violating top-of-the-hour identification rules, provided you supply an aircheck as proof.
And now for the fun part: the Commission stalls investigation or never gets around to it even though the law clearly specifies their need to do so. It’s a Catch 22 most people don’t know about: by statute, they can do whatever they want about informal notices; and even if a station is willing to put out the high filing fee for a formal notice, the FCC has ways of delaying or ignoring it with impunity.
The situation has been exacerbated by the equal opportunity regulations concerning access to ownership by minorities and women. For one thing, these regulations have been frequently circumvented by large broadcasting companies simply by listing a woman or a minority—or both—as a principal in the subsidiary that actually buys or starts a station.
But the real problem is that the political climate is so sensitive that the opportunities are not equal: those who do not have the same qualifications as other broadcasters are permitted radio stations. Because they are either unqualified or unaware of their obligations as licensed to broadcasters—or choose to ignore those obligations—they make trouble for other broadcasters in the region, and they can get away with it for decades because of the sensitivity of their protected class status.
The owner my broadcaster friend is concerned about has violated pretty much every rule the FCC has since they bought the station decades ago, but because they are a member of a minority group, the agency has failed to act on most of the violations and have issued wrist-slaps for others. All of the fines levied have gone unpaid for years.
I am all in favor of lowering the barriers to entry into the broadcasting business for minorities and women. But I am not in favor of turning a blind eye to obvious deficiencies, regardless of who has them.
Most small market radio complaints never reach the formal stage because of the cost and legal complexity. And even then, the FCC can stall or deny based on questionable technicalities. Given the FCC’s disregard for the struggles of small market operators, we need to find a way of combining resources to mount challenges to the FCC’s indifference.
If you want the FCC to feel obligated to look at your case, the most effective tool isn’t a formal filing—it’s volume. If 100 local listeners file informal complaints about the same specific rule violation, the Enforcement Bureau is far more likely to open a field investigation. Less effective, but still better than nothing, is all the stations in the area filing complaints.
But true change requires political and legal approaches. Are you listening, NAB? And I’m also talking to you, state associations.
Commercial radio is a very small piece of the FCC pie, but we have to get the government to pay attention to that piece, even if it means dousing it with hot sauce.