FCC 375

Use it or lose it applies to a lot of things in life, and the Federal Communications Commission is sending a message to broadcasters that radio spectrum is on that list. It has ordered a hearing be held before an FCC judge to decide whether Birach Broadcasting should lose two long-silent Virginia AMs. WBVA (1450) and WVAB (1550) are the only stations Birach owns in the Norfolk-Virginia Beach-Newport News metro so a decision that yanks the licenses would effectively wipe a market from the company’s map.

In a unanimous vote by the Commission released on Monday, it says a record of “extended periods of silence” raised questions as to whether WBVA and WVAB should be awarded new licenses. Being on the air, and relaying Emergency Alert System messages is part of the basic duty of a broadcast license holder, the FCC said. The move may not have come as a surprise to the company since it was earlier warned about keeping the stations dark for such extended periods. When WBVA’s license last came up for renewal, the FCC said the station was silent for all but 56 days of its last license term running from 2008 to 2011.That meant the station was off the air for 1,225 days or 3.4 years by the FCC’s tally.

Things haven’t gotten much better since then. During its most recent license term the FCC says WBVA was on the air for 66 days and was dark for 2,186 days—or more than six years of silence. But even when it was on the air few people probably heard WBVA’s broadcast. The station’s tower was vandalized in 2008 when the guy wires were cut and the tower collapsed. When the station was on the air it operated from temporary sites with just 30 watts. The FCC says that tiny signal covered about 10% of the station’s licensed service area—excluding areas covered by water.

The FCC is singing a similar tune about sister WVAB. The 5,000-watt day, 9-watt night station that’s been co-located with WBVA has also been pretty tough to hear. Facing the same tower issues, WVAB has broadcast at just 6 watts. But mostly, it’s been off the air. During its most recent license term from 2011 through 2017 the FCC says WVAB was off the air for 1,943 days—or more than five years—compared to broadcasting just 309 days. And its low-power temporary tower set up means WVAB has covered less than 2% of its licensed service area, according to the FCC.

Unlike with earlier hearings, Birach’s case will not go before one of the FCC’s administrative law judges. Instead, it will be directly reviewed by the commissioners in what’s become known as a “paper hearing” process approved last summer as a way to speed-up disputes involving stations with an extended history of silence. Birach hasn’t had any formal response to the FCC’s decision to send its license renewals to the hearing process. But in earlier filings the company said it “has spent thousands of dollars on engineering and legal fees to obtain a permanent home for WBVA and WVAB, but these continuing zoning problems have been a complete nightmare.” Sima Birach bought the two stations for $345,000 in 2008 after their previous owner went bankrupt.

Silent Station Crackdown

The designation of a hearing order against Birach’s WBVA and WVAB is part of a broader FCC crackdown on silent stations. There are “several dozen” other stations that are in the bull’s eye according to FCC officials. The list includes some stations that have signed-on for just a matter of one day or even a few hours as a workaround to the rule that says a license automatically expires after a year not on the air. While in the past the FCC has looked the other way, the Commission is now warning some of those owners will now be required to go through a hearing process to determine whether they should be given a new seven-year license term.

Last August veteran broadcaster Randy Michaels became the first to be targeted when the Commission decided to send the question of whether to renew the license of long-silent WRAX, Lake Isabella, MI (98.9) to a hearing. “The message the FCC is sending to broadcast licensees today is clear,” FCC chair Ajit Pai said at the time. “Broadcast stations must serve the public interest, and they must provide service to their local community.” But rather than fight, Michaels opted to turn in the station’s license and no hearing was held.