David Oxenford

David Oxenford, Partner, Wilkinson Barker Knauer LLP 

A new blog post by attorney David Oxenford urges broadcasters to strategize how to maintain their operations in wake of the COVID-19 pandemic, especially as a growing number of states and municipalities urge social distancing, issue shelter-in-place orders or put restrictions on travel.

“Many commercial broadcasters may be seeing in the upcoming days greater restrictions on unnecessary travel, perhaps impacting access to their facilities and studios,” Oxenford writes. “Planning and coordination among broadcasters — and with broadcasters and local officials — is already underway in many cities and with many state broadcast associations. But it also needs to be considered by individual broadcasters everywhere.”

One immediate issue, Oxenford says, is access, and whether broadcasters are “essential services” or whether they can be shut down like other businesses. While existing federal statute keeps officials from limiting access to broadcast facilities in the event of an emergency, state and local laws aren’t so clear.

“Even if state laws have similar provisions, those provisions are only helpful if someone in a position of authority has the time and inclination to look at the legal niceties that apply to a given situation,” Oxenford writes. “Coordination with state and local officials is paramount in a situation like the current one that affects everyone, everywhere.”

In other words, this is a good time for broadcasters to be in touch with state and local authorities to obtain clarity on what role they can play during the current crisis — and whether they’ll be able to maintain access to studios and transmitter sites.

Broadcasters also need to know how possible travel restrictions could inhibit news coverage.

On Monday, Massachusetts Gov. Charlie Baker issued an emergency order that requires all businesses and organizations not deemed “essential services” to close their workplaces during the pandemic. That issue, which exempts broadcasting operations and facilities, takes effect Tuesday (March 24) and, at least for now, lasts until noon on Tuesday, April 7.

Oxenford says radio stations, in addition to ensuring access to their facilities and the freedom of their employees to move about, also need to plan for remote operations in the event of a broadcasting disruption due to worker infections.

“No matter how much planning is done, there may well be situations where stations have to be taken silent during this crisis,” Oxenford writes, noting that some college stations have already gone off the air with students prohibited from accessing campus locations.

Oxenford also notes that commercial stations that go silent must notify the FCC within 10 days and request Special Temporary Authority to remain silent if staying off the air for 30 days or more. In addition, he says, stations that remain off the air for a year or more will have their licenses automatically terminated — unless the FCC decides the public interest supports their continued operation.

“In addition,” he writes, “long periods of silence interrupted only by brief periods of operation may have an adverse effect on a station’s license renewal. The FCC has not yet indicated that the virus will result in any exceptions to these rules, so keep them in mind when making operational decisions.”