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I wrote a post here in June on the FCC’s release of its proposed regulatory fees for Fiscal Year 2014. Normally, the FCC releases an order adopting the official fee amounts and the deadline by which they must be filed in early to mid-August of each year. This year, however, licensees were beginning to get nervous, as August was coming to a close and there had still been no word from the FCC as to the final fee amounts and how quickly they must be paid.

Fortunately, the FCC was able to get the fee order out this afternoon, on the last business day of August. Unfortunately, because the Public Notice of the release occurred on the Friday before a three day weekend, many licensees may miss that announcement. According to today’s Public Notice, full payment of annual regulatory fees for Fiscal Year 2014 (FY 2014) must be received no later than 11:59 PM Eastern Time on Tuesday, September 23, 2014. As of today, the Commission’s automated filing and payment system, the Fee Filer System, is available for filing and payment of FY 2014 regulatory fees. A copy of the Public Notice with the details is available here.

Also, as noted in a footnote to that Public Notice, “[c]hecks, money orders, and cashier’s checks are no longer accepted as means of payment for regulatory fees. As a result, it is the responsibility of licensees to make sure that their electronic payments are made timely and the transaction is completed by the due date.” Time to rack up those credit card frequent flyer miles!

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August 2014

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:

  • Nonexistent Studio Staff and Missing Public Inspection File Lead to $20,000 Fine
  • Failure to Route 911 Calls Properly Results in $100,000 Fine
  • Admonishment for Display of Commercial Web Address During Children’s Programming

Missing Public Inspection File and Staff Result in Increased Fine

A Regional Director of the FCC’s Enforcement Bureau (the “Bureau”) issued a Forfeiture Order against a Kansas licensee for failing to operate a fully staffed main studio as well as for failing to maintain and make available a complete public inspection file.

Section 73.1125(a) of the FCC’s Rules requires that a broadcast station have a main studio with a “meaningful management and staff presence,” and Section 73.3526(a)(2) requires that a broadcast station maintain a public inspection file. In July of 2012, a Bureau agent from the Kansas City Office tried to inspect the main studio of the licensee’s station but could not find a main studio. Although the agent was able to find the station’s public inspection file at an insurance agency in the community of license, the file did not contain any documents dated after 2009. After the inspection, the licensee requested a waiver of the main studio requirement, which the FCC’s Media Bureau ultimately denied.

In May of last year, the Bureau issued a Notice of Apparent Liability for Forfeiture (“NAL”) against the licensee. In the NAL, the Bureau noted that the base fine for violating the main studio rule is $7,000 and the base fine for violating the public file rule is $10,000. However, due to the over two-year duration of the public inspection file violation and the 14 month duration of the main studio violation, the Bureau increased the base fines by $2,000 and $1,000, respectively, resulting in a total proposed fine of $20,000.

In its response to the NAL, the licensee did not deny the facts asserted in the NAL. Therefore, the Forfeiture Order affirmed the factual determinations that the licensee had violated Sections 73.1125(a) and 73.3526(a)(2) of the FCC’s Rules. However, in its NAL Response, the licensee requested that the proposed fine be reduced because the licensee’s station serves a small market and it would face competitive disadvantages if it were required to fully staff the main studio.

The Bureau rejected the licensee’s request to reduce the fine based on an inability to find qualified staff because there is no exception to Section 73.1125(a)’s requirement of a main studio due to staffing shortages. The Bureau also pointed out that the licensee had no staff presence at the main studio for more than a year. The Bureau briefly entertained the idea that the licensee had intended to argue that it was financially unable to maintain a fully staffed studio; however, since the licensee did not submit any financial information with its response to the NAL, the Bureau dismissed the possibility of reducing the fine amount based on the licensee’s inability to pay.

The Bureau also rejected the licensee’s argument that maintaining a main studio would place the station at a competitive disadvantage because the licensee’s main studio waiver request was based only on financial considerations, which is not a valid basis for a waiver of the main studio rule. Moreover, the Bureau pointed out that even if the waiver had been granted and the licensee had then staffed the studio, corrective action after an investigation has commenced is expected by the FCC, and does not warrant reduction of cancellation of a fine. Therefore, the Bureau affirmed the fine of $20,000.

Automated Response to 911 Calls Leads to Substantial Fine

The Enforcement Bureau issued an NAL against an Oklahoma telephone company for routing 911 calls to an automated operator message in violation of the 911 Act and the FCC’s Rules.

Under Section 64.3001 of the FCC’s Rules, telecommunications carriers are required to transmit all 911 calls to a Public Safety Answering Point (“PSAP”), to a designated statewide default answering point, or to an appropriate local emergency authority. Section 64.3002(d) of the FCC’s Rules further requires that if “no PSAP or statewide default answering point has been designated, and no appropriate local emergency authority has been selected by an authorized state or local entity, telecommunications carriers shall identify an appropriate local emergency authority, based on the exercise of reasonable judgment, and complete all translation and routing necessary to deliver 911 calls to such appropriate local emergency authority.”
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The Federal Communications Commission recently adopted a Report and Order to streamline and eliminate outdated provisions of its Part 17 Rules governing the construction, marking, and lighting of antenna structures. According to the Commission, the goal was to “remove barriers to wireless deployment, reduce unnecessary costs, and encourage providers to continue to deploy advanced systems that facilitate safety while preserving the safeguards to protect historic, environmental and local interests.” The question, as Commissioner O’Rielly put it, is “why did it take nine years to get this item before the Commission for a vote?” While it was a long time in coming, the changes the FCC made will be mostly welcomed by tower owners across the country.

The need for changes to the rules was first raised in the FCC’s 2004 Biennial Ownership Review, and the FCC initiated a formal review of the antenna structure rules in 2010 in a Notice of Proposed Rulemaking. The FCC’s goal in streamlining Part 17 of its rules was to improve compliance and enforcement while eliminating unnecessary and burdensome requirements for tower owners. The revised rules impact a number of regulations, and the hope is that the changes will also harmonize the FCC’s rules with the safety recommendations and rules of the Federal Aviation Administration (FAA). That said, in its update, the FCC made a point of removing from its rules references to FAA Circulars that the FCC has determined are out of date.

The primary changes to the rules that tower owners should be aware of are:

Antenna Structure Marking and Lighting Specifications. The Order updated the FCC’s rules to require that tower owners comply with the marking and lighting specifications included in the FAA’s “no hazard” determination for that particular tower, thereby making FCC and FAA regulations consistent in this area. The Order also emphasized that changes to marking and lighting specifications on an Antenna Structure Registration (ASR) require prior approval from both the FAA and the FCC. Importantly, the FCC specifically declined to require existing antenna structures to comply with any new lighting or marking requirements unless mandated to do so by the FAA.

Accuracy of Height and Location Data. The FCC noted in the Order that its prior rules did not define what kinds of “alterations” to an existing tower required a new registration and FCC approval prior to making those changes. The new rules are clear that FCC approval is required for any change or correction to a structure of one foot or greater in height, or one second or greater in location, relative to the existing information in the structure’s ASR form. The new criteria is the same as that used by the FAA for requiring a new aeronautical study and determination of “no hazard”.

Notification of Construction or Dismantlement. Tower owners are now required to notify the FCC within five days of “when a construction or alteration of a structure reaches its greatest height, when a construction or alteration is dismantled or destroyed, and when there are changes in structure height or ownership.” Under the prior rules, structure owners were given only 24 hours to provide notification to the FCC.

Voluntary Antenna Structure Registration. Under the FCC’s prior rules, tower owners were given the option to voluntarily register structures even when the FCC’s rules did not require registration. The new rules will still allow voluntary registration, but parties will be allowed to indicate that the registration is indeed voluntary, and they will not be subject to the Part 17 rules that apply to towers that are required to be registered (i.e., towers that exceed 200 feet or, for those located in close proximity to an airport, lower heights).

Posting of Antenna Structure Registrations. The new ASR posting requirement gives tower owners greater latitude regarding where they must post their Antenna Structure Registration numbers. The old rule required that the ASR number be displayed “in a conspicuous place so that it is readily visible near the base of the antenna structure.” As a result of the rule change, registration numbers can now be posted at the “closest publicly accessible” location near the tower base.

Providing Antenna Structure Registration to Tower Tenants. Tenant copies of ASRs will no longer need to be given to tenants in paper. Under the new rules, a link to the FCC’s website can be provided by mail or email.

Inspection of Structure Lights and Associated Control Equipment. The Order established a process allowing qualifying network operations center-based monitoring systems to be exempted from the existing quarterly inspection requirements that apply to automatic or mechanical control devices, indicators, and alarm systems used to ensure tower lighting systems are functioning properly. Specifically, systems with advanced self-diagnostic functions, an operations center staffed with “trained personnel capable of responding to alarms 24 hours per day, 365 days per year”, and a backup network operations center that can monitor systems in the event of failure, may be eligible for the exemption.

Notification of Extinguishment or Improper Functioning of Lights. The FCC’s rules require that when tower lights do go out, tower owners immediately notify the FAA so that the FAA can issue a Notice to Airmen (NOTAM) to make aircraft aware of the outage. Parties are also required to notify the FAA when repairs have been completed so that the FAA can cancel the NOTAM. Under the new rules, tower owners are required to keep the FAA up to date and let the FAA know when repairs are expected to be complete at the expiration of each NOTAM (which last 15 days each). The good news is that the FCC clarified its rules somewhat, stating that lighting repairs must be completed “as soon as practicable”. Instead of adopting a fixed deadline for repairs to be made, the FCC will consider whether the tower owner has exercised due diligence and made good faith efforts to complete repairs in a timely manner.

Recordkeeping Requirements. Under the FCC’s prior rules, there was no specification regarding how long records of improper functioning needed to be kept. Under the newly adopted rules, the FCC requires antenna structure owners to maintain records of observed or otherwise known outages or improper functioning of structure lights for two years, and the records must be provided to inspectors upon request.

Maintenance of Painting. With regard to painting, the FCC adopted the FAA’s “In-Service Aviation Orange Tolerance Chart” as the standard for determining whether an antenna structure needs to be cleaned or repainted. The FCC did not say how often towers should be repainted or how close someone has to be to compare the colors on the chart with those on the tower. The FCC did say that placing the chart over a portion of the top half of the tower would give the best results, as that is where most of the wear and tear typically occurs.

The new rules will take effect thirty days after notice of the Order is published in the Federal Register (except for those provisions requiring Office of Management and Budget approval), which has not yet occurred. Despite the time it took to adopt new rules, the rule changes themselves are relatively straightforward, and tower owners should be sure to take advantage of the new rules when they take effect. It’s not every day we see less regulation from the FCC.

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For those who follow my speaking schedule on our CommLawCenter Events Calendar… wait, no one follows my speaking schedule? Disappointing. Well if you had, you would have known I was speaking on a pair of regulatory panels at the Texas Association of Broadcasters’ convention yesterday (incidentally, another great show this year from Oscar Rodriguez and TAB’s excellent staff).

On the first of those panels, with Stephen Lee of the FCC’s Houston Enforcement Bureau office, we discussed the FCC’s July 1st expansion of the TV online political file requirement to all TV stations. During that discussion, an audience member asked whether radio stations would someday have to put their public inspection files online as well. I noted that when the FCC moved TV public files online in August of 2012, it had indicated that it was starting with TV, but anticipated it would eventually consider moving radio public files online as well. However, in the two years since, the FCC has focused on working the bugs out of the online public file software and has not mentioned expanding the online requirement to radio.

Unknown to most, that changed unexpectedly about two hours after the panel, when the FCC released a Public Notice rapidly responding to a petition for rulemaking filed just six days earlier by the Campaign Legal Center, Common Cause and the Sunlight Foundation. The petition asked that cable and satellite providers also be required to post their political files online. While broadcasters and those three organizations (who have filed more than a dozen complaints against TV stations for alleged online political file violations in the past few months) haven’t seen eye to eye on much in the past, this might be one requirement they can agree on, albeit for very different reasons.

While the original purpose of the political file was to ensure that candidates had the information needed to enforce their rights to equal opportunity and lowest unit rate for advertising, the Campaign Legal Center, Common Cause and the Sunlight Foundation have sought to use it instead to track political spending by PACs, since that information is not available, at least in real time, from the Federal Election Commission. To make it easier for them to access this information, they demanded the FCC require that TV stations post their political files online. They have also urged the FCC to require TV stations’ political files be posted in a machine-readable format to make aggregating the information easier.

Broadcasters opposed those efforts, noting the burden of keeping the fast-changing political file up to date online, and the competitive concerns with posting sensitive ad rate data online for all the world to see. In particular, they found it competitively unfair that broadcasters were required to post their ad rate information online when competing cable and satellite providers were not.

The FCC agreed, and when it decided to require that TV stations post their public files online, it originally excluded the political file from that requirement, finding that uploading and updating the political file online would be too burdensome. However, after a change in personnel at the FCC, the agency reversed course and concluded that posting the political file online wouldn’t be burdensome after all.

Television broadcasters therefore likely welcomed yesterday’s Public Notice seeking comment on at least leveling the information playing field with cable and satellite. However, buried in the middle of the Public Notice, and completely unrelated to the petition for rulemaking on cable and satellite political files to which the Public Notice responds, is a single sentence sending chills down the collective spines of radio broadcasters:

“We also seek comment on whether the Commission should initiate a rulemaking proceeding to require broadcast radio stations to use the online public file, and on an appropriate time frame for such a requirement.”

While the need to first launch a rulemaking means that a radio online public file requirement would take at least some time to implement, it appears that it is indeed (spontaneously) back on the FCC’s agenda. With staffs that are typically much smaller than those of TV stations, radio stations would undoubtedly find an online public file requirement to be far more burdensome than it was for TV (not that TV stations found it to be a picnic either). If they don’t want to find themselves facing that very burden in the not too distant future, radio licensees will need to speak up in what most would have assumed is a completely unrelated proceeding. To the broadcaster who asked that question at yesterday’s panel, the FCC has quietly changed my answer.

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The FCC’s July 11, 2014 Order, concluding that clips of video programming shown by broadcasters are required to be captioned when delivered on the Internet, was published in the Federal Register this week. The rule specifically applies when a provider posts a video clip or video programming online that was first aired on television (“covered” Internet Protocol (IP) video). The FCC ultimately plans to expand its Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) captioning rules to cover all forms of video programming on the Internet.

As I have discussed many times previously, the FCC requires that certain video programming delivered online by television stations be captioned if that programming previously aired on television with captions. Some of my recent posts on the subject can be found at the following links: “FCC Seeks Greater Clarity on IP Video Captioning Rules”, “Second Online Captioning Deadline Arrives March 30”, and “First Online Video Closed Captioning Deadline Is Here”.

More recently, I noted that the FCC sought comment on information regarding whether it should remove the “video clip” exemption from its rules. The FCC’s final answer was “yes”. The rules will apply to video clips regardless of their content or length.

According to the FCC, the new rules are intended to accomplish the following:

  • Extend the IP closed captioning requirements to IP-delivered video clips if the video programming distributor or provider posts on its Web site or application a video clip of video programming that it published or exhibited on television in the United States with captions;
  • Establish a schedule of deadlines for purposes of the IP closed captioning requirements;
  • After the applicable deadlines, require IP-delivered video clips to be provided with closed captions at the time the clips are posted online, except as otherwise provided;
  • Find that compliance with the new requirements would be economically burdensome for video clips that are in the video programming distributor’s or provider’s online library before January 1, 2016 for “straight lift clips”, and January 1, 2017 for “montages”; and
  • Apply the IP closed captioning requirements to video clips in the same manner that they apply to full-length video programming, which among other things means that the quality requirements applicable to full-length IP-delivered video programming will apply to video clips.

In its Order, the FCC also established the following set of deadlines for providing captions based on the type of video clip shown:

  • January 1, 2016: for “straight lift” clips, which include a “single excerpt of a captioned television program with the same video and audio that was presented on television”;
  • January 1, 2017: for “montages”, which are defined as a single file containing “multiple straight lift clips”; and
  • July 1, 2017: for “video clips of live and near-live television programming, such as news or sporting events”, keeping in mind that there is a “grace period” of twelve hours to caption “live video programming” and eight hours to caption “near-live programming.”

As part of the item, the FCC also issued a Second Further Notice of Proposed Rulemaking, which proposes to extend the reach of the FCC’s captioning rules even further. Among other things, the Further Notice is specifically asking for comment regarding whether: (1) third party video programming providers and distributors should be subject to the closed captioning requirements; (2) the FCC should decrease or eliminate the “grace periods” for “live” and “near-live” programming; (3) application of the IP closed captioning requirements should be extended to “mash-ups”, which the FCC defines as files that “contain a combination of video clips that have been shown on television with captions and online-only content”; and (4) application of the IP closed captioning rules to “advance” video clips “that are first added to the video programming distributor’s or provider’s library on or after January 1, 2016 for straight lift clips or January 1, 2017 for montages, but before the associated video programming is shown on television with captions, and which then remain online in the distributor’s or provider’s library after being shown on television.”

Comments on the Further Notice are due October 6, 2014, and reply comments are due November 3, 2014.

As is often the case, the new closed captioning rules adopted by the FCC are complex and parties should make sure that they remain up to speed with the rapid pace of the ever evolving rules in this area. The Order and Further Notice demonstrate that the FCC appears far from satisfied with the many new closed captioning rules that it has already adopted in recent years and that there will undoubtedly be additional rules to deal with in the not too distant future.