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The FCC today released a political advertising decision that, while perhaps not surprising, will still alarm many broadcasters. Back in February, I wrote a pair of posts (here and here) about Randall Terry, who was then seeking airtime during the Superbowl to air ads featuring graphic footage of aborted fetuses, ostensibly in support of his effort to become the presidential nominee of the Democratic Party. It appears that the Democratic Party didn’t want him, as the Democratic National Committee sent stations a letter asserting that Terry was not a candidate for the Democratic nomination and was not entitled to the broadcast airtime benefits legally qualified federal candidates receive.

In my first post in February, I noted that Section 312 of the Communications Act, which requires broadcast stations to grant “reasonable access” to airtime for federal candidates, was growing increasingly susceptible to a First Amendment challenge, and that the situation presented by the Terry ads — broadcasters being forced to air visually repugnant material that they would otherwise never subject their audience to, regardless of their own political bent — represents just the kind of scenario that might motivate broadcasters to challenge this statutory requirement. It certainly gives a judge or Congress an appealing set of facts to consider overturning or reforming the current law.

It is also worth noting that broadcasters are not allowed to channel such ads into parts of the day when children are less likely to be in the audience. This inability to channel such ads away from children has always been curious, as a candidate can hardly complain about being unable to reach an audience that is too young to vote anyway (and the candidate is of course free to reach out to them with more age-appropriate ads in any event). Indeed, the FCC, which has done a respectable job over the years of applying the Communications Act’s political ad requirements in the real world, once held that broadcasters could choose to shift such ads away from kid-friendly hours. The FCC was rebuffed in court, however, in a decision that focused entirely on how such channeling could infringe upon a candidate’s freedom of expression, seemingly oblivious to the freedom of expression of stations unwilling to subject their child viewers to such content.

As I wrote in my second post, the FCC was able to avoid a confrontation over recent Terry ads for a bit longer when it ruled in February that Terry was not a legally qualified presidential candidate on the Illinois ballot (where the station being challenged was located). It also ruled that even had that not been the case, the station was reasonable in turning down a request for Superbowl ad time since it is a uniquely popular event in which the station might well find it impossible to accommodate ads from competing candidates demanding “equal opportunities” under the Communications Act to air their ads in the Superbowl as well.

Knowing how attractive the plum of guaranteed ad time at a station’s lowest unit charge is to anyone wishing to get their message out there, it came as no surprise when the Terry campaign, now running Terry as an independent candidate, filed another complaint, this time against Washington, DC station WUSA(TV). Terry sought access on the basis of being a legally qualified candidate in West Virginia, a small portion of which, he asserted, falls within WUSA(TV)’s signal.

The station rejected Terry’s ads, noting that Terry was not a legally qualified candidate in its DC/Maryland/Virginia service area. When challenged at the FCC, it submitted a Longley-Rice signal contour map, which takes blocking terrain (e.g., mountains) into account, and which indicated that the station’s actual coverage of West Virginia was slim to none (“de minimis” in FCC parlance).

In determining where reasonable access must be granted, the FCC looks at a station’s “normal service area”, and for TV, it has generally considered a station’s Grade B contour to be the “normal service area”. The transition to digital TV, however, has eliminated the analog concept of a Grade B contour. In reaching today’s decision, the FCC concluded that since the FCC considers a digital station’s Noise Limited Service Contour (NLSC) to be the equivalent of an analog Grade B contour in other FCC contexts, it is appropriate to use the NLSC as the appropriate “normal service area” for purposes of reasonable access complaints. While engineers readily acknowledge that Longley-Rice contour analysis is a more accurate predictor of actual signal reception than the NLSC, Longley-Rice analysis can be complex, and it appears the FCC opted for the simplicity and bright line certainty of using the NLSC. While the NLSC represents a somewhat hypothetical coverage area, NLSC coverage maps are widely available, including on the FCC’s own website, making it an easier tool for candidates to utilize in planning their media buys.

Since, according to the FCC, WUSA(TV)’s NLSC covers nearly 3% of West Virginia’s population, the FCC concluded in today’s decision that the station was unreasonable in rejecting Terry’s ads. While the FCC’s decision is a pragmatic one, it adds more kindling to the reasonable access fire, as stations are now forced to offend their audiences with content from candidates that are legally qualified in any area that is within their NLSC service area, whether or not actual TV reception exists. This not only increases the number of reasonable access requests stations may face, but will further antagonize their viewers, who might understand why a station has to air ads for a candidate that is on the ballot in their area, but will be particularly perplexed as to why a station is airing offensive content from a candidate they have never heard of and cannot vote for or against. When Congress drafted the reasonable access and “no censorship of political ads” provisions of the Communications Act, it probably assumed that extreme content would not be a problem since a candidate was unlikely to air such content if he or she wanted to be elected. However, that logic evaporates when the viewing audience doesn’t even have the opportunity to vote against such a candidate.

While the FCC appears to have been concerned that a more complex contour analysis could be gamed by a broadcaster, the result instead unfortunately encourages issue activists of every persuasion to game the system for their own gain. In the present case, it is pretty obvious that buying very expensive airtime in the nation’s capital is not a cost-effective way of reaching less than 3% of the voters in West Virginia, and that the real audience is the large DC-area population for which Terry was apparently unable to qualify to be on the ballot. That became even more obvious when WUSA(TV) provided the Longley-Rice contour map indicating that the station actually had little or no coverage in West Virginia, but the Terry campaign nonetheless continued to press for airtime on the station.

The obvious path for future issue activists is to declare their candidacy for federal office, but instead of doing the hard work of qualifying for the ballot in large population centers in order to be heard, taking the easier path of qualifying for the ballot in less populated surrounding areas that are just within the fringe coverage of a big market station’s predicted NLSC coverage. By following this formula, they get guaranteed access to airtime in front of a large market audience, and at much lower rates than commercial advertisers would pay, with the added benefit that the station cannot edit the ad or decline to air it no matter how offensive the content.

For those who make the not unreasonable argument that putting up with some questionable exploitation of the political ad rules is necessary to ensure that legitimate candidates can get their message out, consider the following: only federal candidates have a right of reasonable access. In this heated political season, particularly in the heavily contested large population centers, stations have been forced to preempt the spots of many of their normal commercial advertisers to make room for political spots for federal candidates (seen a car ad lately?), and local and state candidates have similarly suffered from having their ads pushed aside to make way for federal candidate ads. As a result, forcing broadcasters to air content that offends adult viewers, disturbs child viewers, and damages the relationship of trust between the broadcaster and its public harms more than just the broadcaster and its audience. It harms each and every local and state candidate that actually is on the ballot in a station’s market. They too would like to get their message out, but in their case, to people who can actually vote for them and that are affected by who is elected to represent them. To the extent that “all politics is local”, it make little sense to shunt aside these local and state candidates merely to guarantee access to those using the Communications Act’s “federal formula” to game the system for their own agendas.

While today’s decision is not one that will be welcomed by broadcasters, make no mistake, it is not the FCC’s fault that we have reached this point. The reasonable access requirements for federal candidates are encoded into the Communications Act, and there is only so much the FCC can do in applying the statute in a political landscape that is far more complex than those who drafted these provisions likely ever contemplated. With election season nearly over, and many stations sold out of airtime through the election, the immediate impact of today’s decision will be limited. It is a safe bet, however, that the underlying issue will continue to haunt future elections.

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October 2012

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • FCC Takes Action against Illegal Jamming Devices
  • Unlicensed Transmitter Gets Renter into Trouble

FCC Goes After Marketing and Sale of Illegal Jamming Devices

The FCC’s enforcement efforts this month focused heavily on the marketing and sale of illegal signal jamming devices. The advertising, sale, or operation of devices which jam GPS, cell phone, or other wireless communications is prohibited under Section 301 of the Communications Act as well as under the FCC’s Rules. As the Commission has previously noted, it is unlawful to use a jammer, even on private property. In the span of a week this October, the FCC issued eight “Citation and Order” actions against companies and individuals it determined were unlawfully advertising jammers for sale on Craigslist.org.

In those orders, the FCC emphasized that it views unlawful operation of jammers as a public safety hazard. In several of the orders, the Enforcement Bureau wrote that it is “increasingly concerned that individual consumers who operate jamming devices do not appear to understand the potentially grave consequences of using a jammer. Instead these operators incorrectly assume that their illegal operation is justified by personal convenience or should otherwise be excused.” Because of this, the FCC cautioned that going forward, it “intend[s] to impose substantial monetary penalties, rather than (or in addition to) warnings, on individuals who operate a jammer.” The FCC added that “substantial monetary penalties” in these cases would mean up to $16,000 per violation, or, in the case of a single continuing violation, $16,000 per day up to a total of $112,500.

The Enforcement Bureau indicated that the FCC will continue to target individuals and companies involved in the illegal advertisement, sale, or operation of jammers. In fact, on October 15th, the Bureau launched a dedicated jammer tip line – 1-855-55-NOJAM – to make it easier for members of the public to report the use or sale of illegal jammers. It also released an Enforcement Advisory explaining the FCC’s “zero tolerance” policy regarding the unlawful sale and operation of jammers. Based on these recent actions by the FCC, we expect to see a growing number of signal jamming fines in the months ahead.

Turning a Blind Eye to Illegal Operations Is Also a Violation of the FCC’s Rules

This month, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) against a property renter after finding that an unlicensed transmitter was being operated on his leased property. What makes the case interesting is that the renter claimed the equipment was not his, and was actually operated by unnamed third parties (the classic “not my stash” defense).

In September 2012, agents from the FCC’s Enforcement Bureau, responding to a complaint, used direction-finding equipment to locate the source of the suspect radio transmissions. They found an FM transmitting antenna mounted to the chimney of a residence. The antenna was emitting signals exceeding the FCC’s limits for unlicensed operation under Part 15 of the FCC’s Rules. Upon subsequent inspection of the FCC’s records, the agents determined there was no FCC authorization for the antenna, nor for any antenna near that address.

The following day, the agents returned to the property with the property owner and found a transmitter located in a locked basement room in the residence. The agents then questioned the renter of that room about the antenna, transmitter, and an accompanying computer which fed audio to the transmitter. The renter admitted to having installed the equipment, but denied that he was operating the unlicensed station. He claimed that unnamed individuals owned and operated the equipment and gave him money each month to pay the rent. The renter further claimed that the operators had not provided him with their names, but had informed him that the FCC might inspect the station and order him to cease operations because of unlawful operations.

Apparently not convinced by the renter’s defense, the FCC issued an NAL for $10,000 against the renter for operating a station without FCC authorization. The NAL clarified that “operating” a station means both the technical operation of the station and the “general conduct or management of a station as a whole.” Noting that the renter himself acknowledged that he had been told by the unnamed “operators” that the operation was illegal, the FCC indicated that “in spite of the warning, [the renter] nonetheless allowed the station to continue to operate in his basement.” Under the circumstances, the FCC concluded that the renter’s actions qualified as being involved in the general conduct or management of a station, defined to include “any means of actual working control over the operation of the [station].” The FCC therefore concluded that the renter did in fact “operate” the unlicensed radio station, justifying the proposed fine. In addition, the FCC noted that it had difficulty believing the renter’s claimed defense, indicating that “we find it implausible that [the renter] (or anyone for that matter) would install radio equipment, rent space, allow for unlawful operations in the rented space, and incur potential financial and other liability on behalf of complete strangers.”

A PDF version of this article can be found at FCC Enforcement Monitor.

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In my last post, I discussed the FCC’s mammoth NPRM asking for public comment on an immense number of issues relating to the planned spectrum incentive auctions. In particular, I noted the challenges faced by both the FCC and commenters in trying to cover so much ground on such complex issues in such a short time. One of the emails I received in response to that post was from an old pro in the broadcast industry who wrote that “I’ve been reviewing the NPRM for 12 days and haven’t finished yet!”
Having heard that message from a number of people, the importance of the NPRM to a great many segments of the communications industry, and the inability of many of our clients to dedicate several weeks to perusing the NPRM, Paul Cicelski and I have drafted a highly condensed summary of the NPRM in a Pillsbury Client Advisory that may be found here. In condensing it, we were mindful of the quote, often attributed to Albert Einstein, that “everything should be made as simple as possible, but not simpler.” While an entirely sensible approach, it would have abbreviated the 205-page NPRM (including attachments) only marginally. So instead, we threw that bit of advice out the window and condensed our summary down to five pages, giving us an industry-leading 41:1 compression ratio.

As a result, the Advisory cannot contain the level of detail found in the NPRM itself (that’s how you cut out 200 pages!), but our hope is that it will make the NPRM’s content accessible to a much broader audience, particularly the many who will ultimately be affected by the FCC’s various auction and repacking proposals. In addition to providing a relatively painless way for those interested to learn more about this proceeding, the Advisory should provide a road map for parties seeking to identify the issues that will most greatly affect them so that they can focus their attention on those specific aspects of the NPRM when preparing comments for the FCC.

Given that the volume of issues to be addressed in the NPRM is so great, and there is literally no way any individual party could cover them all, the best chance for a well-informed outcome in this proceeding is for the FCC to hear from a large number of commenters who, cumulatively, will hopefully touch on most of the key issues in their comments and reply comments. As a reminder, the comment deadline is December 21, 2012, with reply comments due on February 19, 2013. Whether a potential seller in the reverse spectrum auction, a potential buyer in the forward auction, or a television bystander that may be buffeted by the winds of repacking, now is the time to step up and make your voice heard, rather than merely grumbling over the next several years about how the process is unfolding.

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With the unprecedented popularity of social media, employees have increasingly used LinkedIn and other online forums to network for business and social purposes. When the line between personal and business use is blurred, litigation may ensue. A federal court recently ruled that an employer did not violate federal computer hacking laws by accessing and altering its recently departed CEO’s LinkedIn account, but that the former CEO could proceed to trial on her state law misappropriation claim. In addition, California, Illinois, and Massachusetts recently joined Maryland in enacting laws prohibiting the practice of requesting access to prospective employees’ password-protected social media accounts.

In Eagle v. Morgan, et al., Linda Eagle, former CEO of Edcomm, Inc. (“Edcomm”), filed a complaint in U.S. District Court in Pennsylvania alleging that Edcomm hijacked her LinkedIn social media account after she was terminated. While Eagle was CEO of Edcomm, she established a LinkedIn account that she used to promote Edcomm’s banking education services, to foster her reputation as a businesswoman, to reconnect with family, friends and colleagues, and to build social and professional relationships. Edcomm employees assisted Eagle in maintaining her LinkedIn account and had access to her password. Edcomm encouraged all employees to participate in LinkedIn and contended that when an employee left the company, Edcomm would effectively “own” the LinkedIn account and could “mine” the information and incoming traffic.

After Eagle was terminated, Edcomm, using Eagle’s LinkedIn password, accessed her account and changed the password so that Eagle could no longer access the account, and then changed the account profile to display Eagle’s successor’s name and photograph, although Eagle’s honors and awards, recommendations, and connections were not deleted. Eagle contended that Edcomm’s actions violated the federal Computer Fraud and Abuse Act (“CFAA”), Section 43(a) of the Lanham Act, and numerous state and common laws. In an October 4, 2012 ruling on the company’s summary judgment motion, U.S. District Judge Ronald L. Buckwalter dismissed Eagle’s CFAA and Lanham Act claims against Edcomm but held that Eagle had the right to a trial on whether Edcomm had violated state misappropriation law and other state laws.

The Eagle case is just one example of how the absence of a clear and carefully drafted social media policy can lead to protracted and expensive litigation. This area of law appears to be garnering increasing attention on the legislative front as well as the judicial front, as three more states recently enacted laws prohibiting employers from requiring, or in some cases even requesting, access to prospective employees’ social media accounts. The attached chart includes more detail about the California, Illinois, Massachusetts and Maryland laws and the provisions of similar legislation pending in the various states and in the U.S. Congress.

A common theme connects the Eagle case with the recent password access legislation: the importance of defining the lines of ownership and demarcating the boundary between the professional and the personal. If Edcomm, for example, had established a LinkedIn account for its CEO’s use and had asserted its property interest in the account at the outset of the employment relationship, Edcomm’s CEO would have had no reasonable expectation of ownership in it. Under that scenario, Edcomm likely would not be facing trial on a misappropriation claim. Similarly, the social media password legislation definitively declares that employers and prospective employers have no right to access the social media accounts that applicants and employees have established for their personal use.

In addition, as explained in our recent Client Alert on enforcement actions under the National Labor Relations Act in connection with employer discipline of employees for social media postings, employer responses to employee use of social media can also result in government agency action against employers. These developments all point to the same message: employers wishing to avoid legal risk should be proactive in implementing well-defined policies and procedures relating to the LinkedIn, Pinterest, Twitter, Facebook and other social networking and media accounts of prospective, current and former employees, including clearly identifying rights to those accounts when the employee leaves the company.

A PDF version of this article can be found here, which includes a chart summarizing State and Federal Social Media Bills.

To read prior Client Alerts related to this subject, click on the links below:

Client Alert, First NLRB Decisions on Social Media Give Employers Cause to Update Policies, Practices

Client Alert, Employ Me, Don’t Friend Me: Privacy in the Age of Facebook

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Given that the FCC adopted its Notice of Proposed Rulemaking to establish the parameters of its much-anticipated broadcast spectrum auctions on September 28, 2012, and released the text of that NPRM on October 2, 2012, you would think that the communications industry would now be buzzing over the details of the FCC’s long-in-the-making plan. Instead, from many corners of the industry, there has been stunned silence; not because there were any real surprises in the NPRM, but because the NPRM made clear to those not previously involved in the process the sheer enormity of the tasks ahead.

Also feeding the industry’s muted reaction is the fact that, because there were no surprises, the industry doesn’t know much more now than it did before about how the auctions will be structured. Instead, we are left with many excellent but unanswered questions asked by the NPRM, leaving the auction rules and structure a very ethereal proposition. As the annual deluge of Halloween horror movies reminds us, people are afraid of ethereal entities, and are unlikely to visit the FCC’s cabin in the woods (despite the “big money for spectrum” signs out front) until the FCC is able to remove the dark mystery from this undertaking.

On the one hand, the FCC’s staff deserves immense credit for asking the right questions on what is unquestionably the most complex undertaking the FCC has ever attempted (it makes you long for the simple-by-comparison DTV transition, which only took 13 years to accomplish). On the other hand, asking the right questions meant producing a 140 page, 425 paragraph NPRM, along with an additional 65 pages of appendices and commissioner statements.

The NPRM is a densely packed document with numerous questions and issues raised for public comment in each paragraph. Part of the problem, however, is that in order to get the entire package of materials down to 205 pages total, some of the NPRM’s questions had to be condensed so severely as to make it difficult to discern what precisely the FCC is asking about or proposing. As a result, you will note that a lot of the third-party summaries circulating are short on condensed narrative and long on direct quotes from the NPRM–often a sign that the person drafting the summary gave up on trying to figure out what the NPRM was trying to say, and decided to let the reader take a crack at it instead.

Comments on the NPRM are due on December 21, 2012, with Reply Comments due on February 19, 2013. While the FCC indicates that it intends to hold the spectrum auctions in 2014, keep in mind that once the Reply Comments are filed, if the FCC were able to resolve a paragraph’s worth of issues each and every day the FCC is open for business after that date, it would resolve the final issues in October of 2014. It would then need to release an order adopting the final policies and rules, and begin the process of setting up the reverse auction (for broadcasters interested in releasing spectrum) and the forward auction (for those interested in purchasing that spectrum for wireless broadband). Completing that process before 2015 will be extremely challenging.

Even this understates the actual time that will be required for the FCC to have a shot at a successful auction. Critically important to the success of such auctions is providing adequate time for potential spectrum sellers and buyers to analyze the final rules and assets to be sold to determine if they are interested in participating and at what price. If the FCC wants to encourage participation, it will need to ensure that potential spectrum sellers and buyers have at least a number of months to assess their options under the final rules. Otherwise, it is likely that many who might participate will not have attained an adequate level of comfort in the process to participate, or at least not at the prices the FCC is hoping to see. In that case, they will elect to remain on the sidelines.

Given the number of moving parts and these related considerations (which ignore entirely the possibility of additional delay from court appeals of the eventual rules), a 2014 auction seems very optimistic unless the FCC’s goal shifts from having a successful auction to just having any form of auction as soon as possible. While those already intent upon being a buyer or seller of spectrum would certainly prefer a fast auction since that means quicker access to spectrum and spectrum dollars and less competition for both, the FCC and the public have a vested interest in holding auctions with a broader definition of success (in terms of dollars to the treasury, less disruption of broadcast service, producing large enough swaths of spectrum to maximize spectrum efficiency, etc.).

This morning, the FCC announced an October 26, 2012 workshop focusing on broadcaster issues in the NPRM, so efforts at removing at least some of the mystery surrounding the auctions are already underway. Given that all television broadcasters will be affected by this process, whether through participation in the reverse auction or by being forced to modify their facilities in the subsequent spectrum repacking, it would be wise to participate in the workshop, which is also being streamed on the Internet.

And one last bit of good news: the workshop will be held at the Commission Meeting Room at FCC Headquarters in Washington, DC rather than at that cabin in the woods mentioned above. However, don’t be surprised if there is still a “big money for spectrum” banner over the door when you get there.

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The FCC has initiated a rulemaking proceeding seeking comments on a comprehensive review of its satellite and earth station licensing and operating rules. The nearly 100-page Notice of Proposed Rulemaking (NPRM) is the FCC’s first broad reexamination of its Part 25 rules in over fifteen years. Among other items, the FCC’s proposed revisions include:

  • Focusing the rules on addressing interference issues and removing unnecessary Commission oversight and regulation of technical decisions.
  • Increasing the number of earth station applications eligible for routine and streamlined processing.
  • Removing unnecessary reporting rules and consolidating remaining requirements for annual reporting, while improving reporting of emergency contacts.
  • Providing greater flexibility to earth station applicants in verifying antenna performance.
  • Consolidating and clarifying several of the milestone requirements for space stations.
  • Codifying the FCC practice of granting a single earth station license covering multiple antennas located in close proximity to each other.
  • Updating, improving, and consolidating definitions and technical terms used throughout Part 25.

With these proposed changes, the FCC hopes to remove administrative burdens on stakeholders and FCC staff, expedite its licensing process, and to facilitate satellite and earth station operations. The comment filing deadlines have not yet been set, but will occur 45 days after the FCC’s rulemaking order is published in the Federal Register. Parties interested in commenting on the FCC’s proposals, or wishing to provide alternative proposals for the FCC to consider, will want to begin gearing up for this proceeding by talking these issues through with counsel to determine what to propose, and how best to present it to the FCC.