John Garziglia says: Unlike tower fences, the FCC does not have specific rules requiring that transmitter buildings be locked. The FCC also does not have rules against allowing transmitters, audio processors and exciters to be stolen as a result of an unlocked transmitter building. With that being said, there are FCC rules that could be violated as a result of an unsecured transmitter building.
Those in the broadcasting business for a while remember a time when transmitters, or transmitter remote meters had to be in the view of the operator on duty when the station was on the air. Also, for many AM stations, the operator on duty had to have a First Class FCC license (and later the General FCC license) which led to many of us who were then radio personalities getting this extra certificate which looked impressive. I still have mine on my office wall. These FCC operator-on-duty rules, which essentially required a person watching the transmitter to be certain it did not walk away, were done away with in 1995 when the FCC allowed most stations to go to unattended operations. The FCC?s deregulatory theory in making the rule change was that advances in electronics made transmitter equipment much more stable.
The FCC shifted the burden for compliance with technical rules, from mandatory monitoring of certain transmitter parameters with many stations having to take meter readings every hour, to an assumption that the licensee itself having the responsibility for being certain that broadcast station transmission equipment operated within specifications.
So, to get around to the question asked of just what are the FCC liabilities for a transmitter that is accessible to others? The answer is three-fold. First, the broadcast station licensee has the absolute liability to insure that its transmitting equipment is operating within FCC specified tolerances and parameters. If either through human malfeasance or equipment failure, an out-of-tolerance condition occurs, the FCC?s rules require that a radio station be able to correct that condition, or turn the transmitter off, within three hours of the occurrence of the condition. If the condition involves operations posing a threat to life or property, or is likely to significantly disrupt operations of other stations, the condition must be corrected or transmitter turned off within three minutes of the occurrence of the condition.
Second, a broadcast station licensee is responsible for radio-frequency-radiation exposure to both workers and the general public. If a transmitter site is so insecure that anyone other than authorized persons classified as occupational might be exposed to RFR in excess of the public limits, the station may very well have a forfeiture liability to the FCC. Finally, most transmitters are dangerous. Someone tampering with one, either out of ignorance or in an attempt to do mischief, could hurt himself or herself. The thought of such a person, or his or her estate, bringing a lawsuit against a radio station for injury might initially sound ludicrous, it is not beyond the pale of what might be possible.
It is foolish on any number of levels to have an unsecured transmitter building. For non-owned or shared buildings, the lease should specify certain minimum levels of security. If minimum levels of security are not observed, this is probably an occasion for strong letter, probably written by a lawyer, to the landlord and/or offending tenant, pointing out that there are several legal theories under which the landlord and/or tenant might be liable if as a result of landlord or tenant negligence, damage, injuries or FCC violations occur.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com
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