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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:

  • FCC Fires Broadside at Pirate Stronghold: Nearly Half of November Pirate Radio Notices Go to NY/NJ/CT Area
  • Sorry About That: Wireless Broadband Manufacturer Pays $95,000 to End Investigation of Failure to Prevent Harmful Manipulation of Its Products
  • Not Too Bright: FCC Proposes $25,000 Fine for Marketing Unlabeled Fluorescent Lights

No Parlay for Pirates: FCC Turns Up the Heat on Dozens of Alleged Pirate Radio Operators

In its most recent salvo against pirate radio operators, FCC field agents issued dozens of Notices of Violation (“NOV”) or Notices of Unauthorized Operation (“NOUO”) against alleged operators of unlicensed radio stations, particularly in New York, New Jersey, and Connecticut.

Under Section 301 of the Communications Act, transmission of radio signals without FCC authorization is prohibited.  Unlicensed radio operators risk seizure of their equipment, heavy fines, and criminal sanctions.

On just two consecutive days in October, agents from the New York field office investigated no fewer than eight pirate radio operations in New York and New Jersey, and the past month saw half a dozen NOUOs issued for Connecticut pirate radio operations.

In a similar show of force to the south, the FCC warned a dozen Florida residents of potential violations. The FCC also handed out a Notice of Apparent Liability for Forfeiture (“NAL”) to an alleged California pirate, proposing a $15,000 fine.

For many years, broadcasters complained bitterly about both the interference from multiplying pirate stations and the FCC’s glacial response to these illegal operations. Too often, the FCC’s response was to shrug its bureaucratic shoulders and note that it had limited resources. Broadcasters thus became even more disheartened when the FCC greatly reduced its field offices and staffing in 2016, making it harder for FCC personnel to quickly reach and investigate pirate operations, even if given authority to do so.

Fortunately, Commissioner O’Rielly took up the cause early in his tenure at the FCC, and under Chairman Pai, the FCC has made prosecution of unauthorized radio operations a priority. While broadcasters are certainly appreciative of the change, the sudden uptick in enforcement actions by a reduced number of field offices and agents has made clear that it was never a matter of resources, but of regulatory will. If you want to hunt pirates, you have to leave port.

Consent Decree Ends FCC Investigation Into Company’s Modifiable Wireless Broadband Devices

The FCC entered into a Consent Decree with a wireless device manufacturer after investigating whether the company violated various rules pertaining to the authorization and marketing of devices that emit radio frequency (“RF”) radiation.

In particular, the FCC looked into the manufacturer’s U-NII (Unlicensed National Information Infrastructure) devices. These devices are commonly used for Wi-Fi and other broadband access technology. However, U-NII devices that operate in the 5 GHz radio band risk interfering with certain weather radar systems. As a result, the FCC regulates how manufacturers make these devices available to the public. Continue reading →

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This Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

December 1, 2017 is the deadline for broadcast stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by December 1, 2017.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397—the Broadcast Mid-Term EEO Report.

Exempt SEUs—those with fewer than five full-time employees—do not have to prepare or file Annual or Mid-Term EEO Reports.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, December 1, 2017 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules, even though LPTV stations are not required to maintain a public inspection file. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file. Continue reading →

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The FCC today released an Order waiving, at least for this year, the requirement that full power, Class A and low power television stations file what has traditionally been known as a Form 317 report by December 1.  More formally known as the DTV Ancillary/Supplementary Services Report, and due each December 1 for the past two decades, the reports are now actually filed on Form 2100, Schedule G rather than on the discontinued Form 317 (small wonder that everyone still refers to it as the Form 317 report).

The purpose of the report is to inform the FCC if a TV station has used its spectrum to provide non-broadcast services during the past year, and if so, to submit a payment to the government equivalent to 5% of the gross revenues derived from that service.  Ancillary or supplementary services are all services provided on any portion of a DTV station’s digital spectrum that is not necessary to provide the single free over-the-air program stream required by the FCC.  Any video broadcast service that is provided with no direct charge to viewers is exempt.  According to the FCC, examples of services that are considered ancillary or supplementary include “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”  If the station charges a fee for such a service, it must pay the government 5% of the gross revenues derived from that service when it files its report.

The FCC first adopted the requirement in 1999 as a result of a directive contained in the Telecommunications Act of 1996.  Since then, the rule has required digital full power commercial and noncommercial TV stations, and later Class A and low power television stations, to report annually “whether they provided ancillary or supplementary services in the 12-month period ending on the preceding September 30.”  The rule requiring the filing of these reports mandates that TV stations file them whether or not they have any non-broadcast services to report.  In fact, the rule pointedly says that failure to file “regardless of revenues from ancillary or supplementary services or provision of such services may result in appropriate sanctions.”  As a result, many thousands of these reports have been filed over the years despite the fact that very few stations have ever offered such services.

When the FCC this summer opened the door in its Modernization proceeding for suggestions as to how to eliminate unnecessary regulatory burdens, a chorus rang out in support of modifying this particular rule.  In one of those now glaringly obvious “how could someone not have thought of this twenty years ago?” moments, first Commissioner O’Rielly and then numerous commenters suggested modifying the rule to eliminate the requirement for all stations except those that actually provide such services.  That led to the FCC voting last month to issue a Notice of Proposed Rulemaking proposing to eliminate the filing requirement for all stations that do not offer ancillary or supplementary services.

Buried in a footnote to that NPRM was the answer to a question many of us had asked over the years; namely, what is the percentage of stations indicating they are actually providing such services?  Having been involved in the filing of well over a thousand of these reports over the years, we had yet to file one indicating a station has actually provided ancillary or supplementary services.  Now we know that, according to the NPRM, fewer than 15 stations nationwide offered such services in 2016, yielding a total payment to the government of roughly $13,000.  That’s fewer than fifteen out of more than 6600 reports filed in 2016 (0.2%).

Stated differently, if the FCC had just asked each of those 6600 stations to mail in $2.00 rather than a report, the government would have garnered more revenue while wasting far less station resources.  Of course, that doesn’t take into account the resources the FCC was forced to expend processing 6600 reports looking for the 15 that actually reported revenues, ensuring that fulfilling this congressional mandate currently costs the FCC more than it brings in.

For that reason, today’s Order waiving this year’s filing requirement for stations not offering such services will likely be welcome news not just for those broadcasters, but for FCC staff as well.  It does, however, remain a short-term fix.  The FCC’s proceeding to permanently change the rule is still underway, with the comment deadline not yet set.  Based on today’s waiver, the odds seem pretty good that by the time December 1, 2018 rolls around, a waiver will no longer be necessary as the change will have been incorporated into the rule.  In a time when even the most mundane proposals for change can generate fervent opposition, this may be the rare Commission rule that lacks a constituency to defend it to the death.

So the vast majority of stations that had been drafting their 2017 report can stop right now.  Of course, if your station is one of the lonely 15 that provided ancillary and supplementary services during the past year, the waiver doesn’t apply and you will still need to file the report and pay the FCC 5% of the gross revenues generated.  Then Congress can debate at length where to spend the $13,000.

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As Lauren Lynch Flick wrote here several weeks ago, the FCC announced in October that it would be lifting its 2013 freeze on certain TV station modification applications that would increase a station’s coverage area.  Lifting the freeze would let full-power and Class A TV stations that weren’t able to expand facilities in the just-ended modification windows for repacked stations (ie, stations that were not affected by the repack) to do so for the first time in nearly five years.

The purpose of the planned thaw is to let these stations implement desired modifications of their facilities long prohibited by the freeze, as well as to react to changes in coverage and interference coming from competing stations that were repacked.  By lifting the 2013 freeze before the FCC opens its planned Special Displacement Window for LPTV stations early next year, the FCC hopes to avoid having LPTV stations apply for and build out displacement facilities only to then be displaced again when these long-frozen full-power and Class A TV stations finally have a chance to modify their facilities.

The news released by the FCC this afternoon is that the thaw will commence on November 28, and will be quite short in duration, ending at 11:59 pm Eastern on December 7.  During this period, full-power and Class A TV stations that were not assigned a new channel in the repack will be able to file for minor modifications of their facilities.  Unlike other recent filing windows where applications filed at any time during the window were all treated as having been filed on the same day, applications filed in this window will be processed on a first come, first served basis.  That means there is a definite benefit to filing on the first day of the window.

While most stations that avoided being moved to a new channel in the repack were thrilled by that fact, being locked in place while those all around them modify and maximize facilities has been frustrating.  Now they have a chance to join other stations in nudging and jostling for position in a post-repack world.  They will need to move quickly, however.  Winter is coming.