FCC Enforcement Monitor ~ August 2017

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:

• TV Station Agrees to $17,500 Consent Decree for Failure to Properly Identify Children’s Programming and Other Violations
• FCC Proposes $22,000 Fine Against Store for Operating Cell Phone Jammer
• Marketing of Unauthorized Radio Frequency Devices Leads to $30,000 Civil Penalty

Failure to Properly Identify Children’s Programming and Related Violations Lead to $17,500 Settlement with FCC

The FCC entered into a Consent Decree with a New Jersey commercial TV station to resolve an investigation into whether the station failed to properly identify children’s programming on-air, failed to provide publishers of program guides with necessary children’s programming information, failed to report these violations in its license renewal application, and failed to provide complete and accurate information in its Children’s Television Programming Reports.

The Children’s Television Act of 1990 introduced an obligation for television broadcast stations to offer programming that meets the educational and informational needs of children, known as “Core Programming.” Section 73.671(c)(5) of the FCC’s Rules expands on this obligation by requiring that broadcasters identify Core Programming by displaying the “E/I” symbol on the television screen throughout the program. Section 73.673 of the Rules requires a commercial broadcast television station to provide the publishers of program guides with “information identifying programming specifically designed to educate and inform children,” including the age group of the intended audience. Finally, Section 73.3526 of the FCC’s Rules requires each commercial broadcast station to prepare and place in its public inspection files a Children’s Television Programming Report for each calendar quarter showing, among other things, the efforts made during that three-month period to serve the educational and informational needs of children.

The station’s license renewal application was filed in January 2015. In reviewing the application, the FCC looked at the station’s previously filed Children’s Television Programming Reports and learned that the station’s second quarter 2010 report indicated that certain Core Programming failed to display the “E/I” symbol. The FCC subsequently sent an informal inquiry to the station requesting an explanation, which eventually led to the station filing an amended license renewal application.

In its amended application, the station conceded that it: (1) failed to display the “E/I” symbol during certain Core Programming aired on its multicast streams between the fourth quarter of 2009 and the second quarter of 2015; (2) failed to provide the publishers of program guides the necessary children’s programming information between the second quarter of 2007 and the third quarter of 2016; and (3) failed to provide complete and accurate Children’s Television Programming Reports between the second quarter of 2007 and the fourth quarter of 2016. The amended application also revealed that the station failed to disclose these violations in its 2015 license renewal application.

To resolve the investigation of these violations, the station subsequently entered into a Consent Decree with the FCC under which the station: (1) admitted liability for the violations; (2) agreed to make a $17,500 settlement payment; and (3) agreed to implement a three-year compliance plan to ensure future compliance. The FCC stated that it would grant the station’s license renewal application conditioned upon the station “fully and timely satisfying its obligation to make the Settlement payment….”

Texas Store Faces $22,000 Fine for Operating Cell Phone Jammer

The FCC proposed a $22,000 fine against a Texas store for operating a cell phone jammer.

Section 301 of the Communications Act bans the use or operation of “any apparatus for the transmission of energy or communications or signals by radio” without a license. Section 302(b) of the Act states that “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to this section.” And Section 333 of the Act provides that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government.”

For its part, the FCC prohibits, with limited exceptions, operation of radio frequency devices prior to equipment authorization. Sections 15.1(c) and 15.201(b) state that intentional radiators cannot be operated unless they have been authorized through the FCC’s certification process. Signal jammers fall under the FCC’s definition of “intentional radiator,” because they “intentionally generate[] and emit[] radio frequency energy by radiation or induction.” The FCC has determined that such devices cannot be authorized under the FCC’s certification procedures (and therefore cannot be operated lawfully by consumers in the United States) because their primary purpose is to block authorized communications.

In April 2017, the FCC received a complaint from an AT&T representative that an AT&T base station was receiving interference that appeared to be from a signal jammer. The representative indicated the interference was likely emanating from a store in Dallas, which he had previously visited to request that the store stop operating a signal jammer. When an FCC agent arrived at the store, he was informed by the AT&T representative present there that the store’s security personnel had noticed the representative, and that that the jammer ceased operating soon after.

When confronted by the FCC agent, the store’s owner admitted to using a jammer to prevent the store’s employees from using mobile phones at work. The owner then confirmed that the AT&T representative had warned her adult son about using a jammer, and that she had “disposed” of the jammer just before the agent arrived. The owner refused to surrender the device to the agent and refused to tell the agent where she had disposed of it. The owner instead offered to sell the jammer to the agent. After refusing the offer, the agent issued the store a Notice of Unlicensed Radio Operation stating that operation of the jammer was illegal.

The base fine for operating a radio frequency device without an instrument of authorization is $10,000, and the base fine for causing interference to authorized communications is $7,000. The FCC may adjust its fines upward or downward after taking into account the particular facts of each case. Here, noting that the store owner refused to voluntarily surrender the jammer—and instead offered to sell it to the FCC agent—the FCC found that the store’s actions constituted “egregious conduct” and warranted an upward adjustment of $5,000, for a total proposed fine of $22,000.

Company Agrees to pay $30,000 Civil Penalty for Marketing Unauthorized Radio Frequency Devices

The FCC entered into a Consent Decree with a Texas company to resolve an investigation into whether the company marketed unauthorized radio frequency (“RF”) devices.

As discussed above, Section 302(b) of the Communications Act prohibits the manufacture, import, sale or offer for sale, and use of devices or home electronic equipment and systems that fail to comply with FCC regulations adopted to ensure RF devices meet certain technical standards and limit interference. Section 2.803(b) of the FCC’s Rules forbids, with limited exceptions, the marketing of RF devices that have not been authorized, identified, and labeled in accordance with the FCC’s equipment authorization procedures.

The company at issue sold remote control transmitters for remote keyless entry (“RKE”) alarm systems. RKE devices are intentional radiators, and therefore must comply with the FCC’s equipment authorization requirements and technical rules.

Following reports that the company was marketing several RKE devices in violation of the FCC’s equipment authorization requirements, the FCC sent a Letter of Inquiry to the company in February 2017. In the course of its investigation, the FCC discovered that the company had knowingly marketed such devices without the proper equipment authorization for more than a year. The company had, however, resolved its equipment authorization and marketing noncompliance issues prior to receipt of the FCC’s letter.

To obtain the FCC’s agreement to terminate the investigation, the company entered into a Consent Decree with the FCC under which the company: (1) admitted to marketing certain RKE devices in violation of the FCC’s equipment authorization procedures; (2) agreed to pay a $30,000 penalty; and (3) agreed to implement a three-year compliance plan to ensure there would be no repeat violations.

A PDF version of this article can be found at FCC Enforcement Monitor – August 2017.