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Perhaps indicating that the rapid conclusion of Stage 1 of the Incentive Auction was not a surprise to the FCC, the Commission moved with lightning speed to announce that Stage 2 of the auction will commence on September 13 with a spectrum clearing target of 114 MHz.  In a Public Notice released less than 24 hours after Stage 1 concluded, the FCC effectively indicated that it was staying the course, and reducing the spectrum clearing target by only 12 MHz for the next stage.  In light of the lackluster results of Stage 1 that we discussed yesterday, many wondered if the FCC would, or legally could, make a more significant adjustment in the spectrum clearing target to expedite the conclusion of the auction.  It now looks like auction participants will indeed be in for a long slow march to the point where spectrum supply meets demand.

However, the quick release of today’s Public Notice at least minimizes the administrative delay in the process.  In fact, the Public Notice also announced that “[b]idding in the clock phase of Stage 2 of the forward auction will begin on the next business day after the close of bidding in Stage 2 of the reverse auction.”  That will eliminate the downtime between the reverse auction and forward auction that slowed Stage 1, and will require forward auction participants to be extremely alert for the end of the reverse auction, lest they miss their opportunity to bid in the forward auction.

Also indicating that the FCC was well-prepared for the move to Stage 2, the Public Notice announced that the FCC will make an online tutorial available for Stage 2 participants tomorrow, September 1.  The tutorial will be found on the Auction 1001 website in the “Education” section, and the FCC is encouraging all broadcasters still eligible to participate in the reverse auction to review the tutorial.  Stations that exited the auction in Stage 1, whether due to withdrawing from the bid process or because the station was not needed in the auction, will not be able to return for Stage 2.  In addition, stations that did not exit in Stage 1, but which are not needed in Stage 2 due to the lower spectrum clearing target, will not be allowed to bid in Stage 2.  However, regardless of whether they are eligible to participate in Stage 2, all full power and Class A TV stations remain subject to the rule against discussing bids or bidding strategies.  Indeed, the Public Notice indicated that “communicating that a party ‘is not bidding’ in or has ‘exited’ the reverse auction could constitute an apparent violation that needs to be reported.”

Given that the auction process has begun to drag out, and may drag out further, the FCC also reminded participants to keep their auction applications (Form 177 for broadcasters, Form 175 for forward auction bidders) up to date, filing any necessary amendments to those applications within five days of a “significant occurrence”.

After being told for the last several years that mobile broadband was a more valuable use of their spectrum, broadcasters might be disappointed in the economic results of Stage 1, but were not truly surprised.  They have been arguing for years that their point-to-multipoint business model is a far more efficient use of spectrum, and that if spectrum is worth less in their hands than in the hands of cell phone companies, it is only because broadcast spectrum is burdened by excessive regulation—regulation that the FCC ironically reaffirmed as essential to the public interest less than a week ago in its Quadrennial Ownership Review.  While the auction may not turn out to be the economic windfall broadcasters had been promised, there may still be some value to it, if only to prove that broadcast spectrum is already being put to its “highest and best” use.

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You can almost hear Agent Maxwell Smart’s trademark “Missed it by that much!”  The FCC quietly announced just after C.O.B. today that “[b]idding in the forward auction has concluded for Stage 1 without meeting the final stage rule and without meeting the conditions to trigger an extended round. The incentive auction will continue with Stage 2 at a lower clearing target.”

When the FCC wrote in its 2014 Spectrum Auction Report and Order that “[w]e are designing the forward auction for speed, so that reverse auction participants need not await its outcome for week or months,” it wasn’t kidding.  The forward auction took just two weeks to conclude, but only because it yielded a highly disappointing $23.1 billion (netting $22.5 billion after auction discounts), a mere quarter of the $88.4 billion the FCC was targeting.  The result is surely disappointing for those intent upon repurposing a big chunk of TV broadcast spectrum for what we were told was an insatiable appetite for mobile broadband spectrum, but even more so for broadcasters that had been told by the FCC that their spectrum was far more valuable for purposes other than broadcasting.

So what’s next? The FCC’s Public Reporting System states that a public notice is on the way, which will announce “details about the next stage, including the clearing target for Stage 2, and the time and date at which bidding in Stage 2 of the reverse auction will begin.”  Given the large mismatch between the amount of spectrum sought by the FCC in Stage 1, and the rather paltry demand revealed by Stage 1, the FCC will have some thinking to do about how many stages of the auction it is willing to endure to achieve equilibrium between spectrum supply and demand.

In the meantime, broadcasters remain subject to the FCC’s rules prohibiting certain communications (a/k/a the “quiet period”) until the FCC releases a public notice announcing the successful completion of the auction.  It looks like that may be a while.

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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:

Headlines:

  • Spoofed Calls Lead to Multiple $25,000 Fines and Ongoing Criminal Case
  • Amateur Radio Licensee Fined $25,000 for Intentional Interference
  • Failure to Timely Request STA Results in $5,000 Fine and Shortened License Term

Spoofing’s No Joke: Two Men Face $25,000 Fine Each for Harassing Phone Call Scheme

The FCC proposed to fine two New York men for apparently using false caller ID numbers – a practice commonly known as “spoofing” – to place harassing phone calls to the ex-wife of one of the men.

The Truth in Caller ID Act of 2009, as codified in Section 227(e) of the Communications Act and Section 64.1604 of the FCC’s Rules, prohibits any person, in connection with any telecommunications service or IP-enabled voice service, to knowingly cause, directly or indirectly, any caller ID service to transmit or display misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value.

In September 2015, the National Network to End Domestic Violence contacted the FCC on behalf of one of their clients and explained that someone was using spoofing services to stalk and harass her. The FCC subsequently opened an investigation into the matter.

Using information and call logs provided by the woman, the investigation found that between May 2015 and September 2015, 31 harassing phone calls were made. It found that the callers used a spoofing service provider to make the woman believe she was answering calls from sources such as local jails and prisons, the school district where her child attends school, and her parents’ home. In addition, it found that the callers used a voice modulation feature of the spoofing service to disguise their voices, and conveyed threatening and bizarre messages. For example, calls that spoofed the caller ID information of Sing Sing correctional facility threatened “we are waiting for you.” Other calls referenced personal information specific to the woman and her minor child.

FCC staff subpoenaed call records for the cell phone of a friend of the woman’s ex-husband after the woman told staff that she believed her ex-husband – against whom she had a restraining order during the time period in question – and his close friend were behind the calls. The woman explained to FCC staff that for some of the calls she had used a third-party “unmasking” service to reveal that the true caller ID was that of her ex-husband’s friend, with whom she had no independent relationship. The call records showed that each time the friend called the spoofing service, the woman received a spoofed call. The parent company of the spoofing service confirmed that the friend used its service to make spoofed calls to the woman.

The FCC also found that the ex-husband was directly involved in at least some of the calls. For example, the FCC found that the friend made a spoofed call moments after he was called by the ex-husband, and while he was still on the phone with the ex-husband. The FCC explained that the fact that the ex-husband “did not dial the spoofed calls himself does not absolve him of liability for the harassment and stalking of his ex-wife.”

The Communications Act and the FCC’s Rules authorize a fine of up to $10,000 for each spoofing violation, or three times that amount for each day of a continuing violation, up to a statutory maximum of $1,025,000. The FCC may adjust a fine upward or downward depending on the circumstances of the violation. Citing the “egregious” nature of the violation, the FCC proposed to fine the ex-husband and the friend $25,000 each. The friend was also arrested and charged with stalking and aggravated harassment after the woman filed a complaint with local police.

Haters Gonna Hate: Amateur Radio Licensee Fined $25,000 for Racial Slur-Filled Interference

A California amateur radio licensee received a $25,000 fine from the FCC for intentionally interfering with the transmissions of other amateurs radio operators and transmitting prohibited communications, including music.

Section 333 of the Communications Act states that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any stations licensed or authorized by or under the Act or operated by the United States Government.” Similarly, Section 97.101(d) of the FCC’s Rules states that “[n]o amateur operator shall willfully or maliciously interfere with or cause interference to any radio communication or signal.” In addition, Section 97.113(a)(4) of the Rules states that “[n]o amateur station shall transmit . . . [m]usic using a phone emission except as specifically provided elsewhere in this section.”

After receiving multiple complaints of interference, primarily from the Western Amateur Radio Friendship Association (“WARFA”), FCC field agents, with assistance from the FCC’s High Frequency Direction Finding (“HFDF”) Center, conducted investigations to find the source of the interference. On August 25 and 27, 2015, between 7:45 p.m. and 9:45 p.m., the agents observed at least 12 instances of the licensee intentionally transmitting on top of, and interrupting, WARFA amateurs. The interruptions lasted from 30 seconds to at least 4 minutes, and included noises, recordings, music, and talking over WARFA users. The transmissions included racial, ethnic, and sexual slurs. The licensee ended his transmissions each night when WARFA members ended their transmissions.

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Those trying to keep up with the news surrounding the upcoming nationwide test of the Emergency Alert System (“EAS”) know that a lot has been happening in a short period of time.  Below, we pull together the many recent FCC actions regarding EAS in one place for ease of reference.

Let’s start with the basics.  The FCC announced that the nationwide test will take place on Wednesday, September 28, 2016, at 2:20 pm Eastern Time, and that, if necessary, the secondary test date will be October 5, 2016.  The test will start when FEMA sends the alert message, which will be in both English and Spanish.  As we wrote last year, the alert will use a new nationwide test event code, NPT, and a new nationwide geographic zone code, 000000.  As of July 30, 2016, all EAS Participants were required to have equipment in place capable of receiving and passing these codes.  Irritated viewers and listeners will be pleased to know that the test will last less than a minute.

Next, all EAS participants must submit three forms to the FCC regarding the test.  Unlike the last nationwide test, which took place in November 2011, participants must make these filings online through the EAS Test Reporting System (ETRS), and do not have the option of filing paper copies.  Note that FM Translators, FM Boosters, LPTVs that operate as translators, satellite stations that rebroadcast all of a main station’s programming, and international stations do not have to file.

The first form, aptly named Form One, is a registration form that identifies the participant, and must be filed by August 26, 2016.  Participants then have until September 26, 2016, to “update or correct any errors” in the Form One.  This does NOT mean that you can wait until September 26th to complete and file the Form One.  According to senior FCC staff, participants that do not register by August 26th will be deemed out of compliance—the purpose of the extra month is only to allow for cleaning up minor errors.

Information regarding the registration process can be found in this June 27, 2016 Public Notice, and more detailed instructions with screenshots on how to fill out all three forms can be found in this April 18, 2016 Public Notice.  You can also contact the FCC for assistance at ETRS@fcc.gov.

But there are a few things to be aware of when you register, as ETRS has caused aggravation among many using the system.  First, the “Geographic Zone of Service” field will not necessarily prepopulate with a correct list of geographic zones unless other participants have already added those to the system.  Participants will need to consult their state EAS plan to find the correct geographic zone to list, and may have to choose the “add” option to add that zone to the system if it does not appear as an option in the drop-down list.  While this step tripped up a lot of early registrants, who then just made up the area they felt they served (e.g., listing the “tri-state area” rather than “EAS Zone 10”), a number of the state broadcasters associations have been working with the FCC to prepopulate the system with the correct EAS zones for their state.

Second, if you filled out the registration form between June 27, 2016, when ETRS became operational, and July 8, 2016, you should go back and double check that your coordinates are correct in the “Latitude” and “Longitude” fields.  Some of the coordinates are prepopulated by the system, and for a time the system was relying on incorrect location data.  So if you get an error message about your coordinates being wrong, that might be the source of your problem.

Third, don’t sweat the “Tasks” feature too much.  It probably seemed like a neat feature to have when the system was being designed, but the execution leaves something to be desired.  It tends to be more confusing than helpful, generating a new “to do” item every time you sign in.  As a result, it is not uncommon to have four duplicates of the exact same task listed, such as “File Your Form One.”

Once September 28, 2016 rolls around and the test has (hopefully) occurred, participants have only a few hours to file Form Two, Day of Test Reporting, which is comprised of “day of test” information, and is due before 11:59 pm Eastern Time on the same day as the test itself.  This gives participants less than 10 hours after the test to file Form Two, which has raised some eyebrows.  The relevant FCC rule says that participants must file “within 24 hours . . . or as otherwise directed” by the FCC.  No explanation has been provided as to why participants were given significantly less than 24 hours to file, but one must imagine that the FCC is confident that filing Form Two will be a snap, and that ETRS can handle the load of all participants using the system at the same time.

Form Three, Detailed Test Reporting, which is comprised of more detailed post-test questions, must be filed on or before November 14, 2016 using the ETRS.

In addition to the nationwide test, there continue to be other developments which EAS participants need to know about.  At the request of the National Weather Service, the FCC last month added three new EAS event codes and slightly revised the territorial boundaries for two of its location codes.  EAS uses three-character event codes to describe the nature of the alert (e.g. “TOR” for tornado), and six-digit location codes to identify the geographic area(s) to which an alert applies.

The three new codes are designed to alert the public to extreme wind and storm surge conditions in the days and hours ahead of a hurricane making landfall, when appropriate preparations can be made and loss of life is most preventable.   The first of the three new event codes is “Extreme Wind Warning” (EWW), which the National Weather Service has used for years but which was not an official EAS code.  As a result, other warning codes have been used in high wind scenarios, causing incorrect risk avoidance advice to be disseminated.  The remaining two codes relate to storm surge.  “Storm Surge Watch” (SSA) is to be used 48 hours in advance of a storm surge  and “Storm Surge Warning” (SSW) is to be used 36 hours in advance.  The two location code modifications apply to location codes 75 and 77, which correspond to offshore marine areas in the Atlantic and the Gulf of Mexico.  The modifications move the end points for both zones from Bonita Beach, Florida to Ocean Reef, Florida and are considered important to the efficiency and safety of marine operations.  More information about these changes can be found in a July 11, 2016 FCC Order.

EAS equipment manufacturers are required to integrate the new event codes and location codes into equipment yet to be made or sold, and to offer software upgrades for existing equipment, no later than six months from the effective date of the rule amendments.  The effective date of those new rules will be 30 days after publication of the rule amendments in the Federal Register, which has not yet occurred.

While use of these new codes is voluntary, EAS participants in coastal areas will be highly motivated to install upgrades to their existing equipment once those are made available by equipment manufacturers.  The manufacturers indicated to the FCC that in many cases the upgrade can be accomplished easily through a software update the manufacturers will release.  EAS participants have the option of electing precisely when to implement those upgrades.  However, beginning one year after the effective date of the new rules, any EAS participant that replaces its equipment must do so with equipment that is capable of complying with the new codes (i.e., no purchasing used equipment that does not comply).  Given the pace of EAS changes and fixes such as these, broadcasters and other EAS participants should remain alert for notifications from their equipment manufacturers reflecting when software updates or equipment upgrades become available.

While August is often a slow time for many, the increasing number of terrorist attacks around the globe has put the federal government on a fast track for ensuring the functionality of EAS in an emergency.  That urgency is now being relayed to broadcasters and other EAS participants who are at the front lines of the effort to quickly notify the public of emergency information.  For those charged with maintaining and operating EAS equipment, the next two months will be busy ones.