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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by July 10, 2018, reflecting programming aired during the months of April, May, and June 2018.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) and the FCC rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their online public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that has occurred to ensure that its online public inspection file is complete. The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398. They must, however, maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation available that demonstrates its efforts to meet the needs of children.

Commercial Television Stations

Commercial Limitations

The FCC’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend. In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits. In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. Program promos also qualify as “commercial matter” unless they promote (i) children’s educational/informational programming, or (ii) other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.

For commercial stations, proof of compliance with these commercial limitations must be placed in the online public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired. Consequently, this proof of compliance should be placed in your online public inspection file by July 10, 2018, covering programming aired during the months of April, May, and June 2018.

Documentation to show that the station has been complying with this requirement can be maintained in several different forms:

  • Stations may, but are not obligated to, keep program logs in order to comply with the commercial limits rules. If the logs are kept to satisfy the documentation requirement, they must be placed in the station’s public inspection file. The logs should be reviewed by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rules.
  • Tapes of children’s programs will also satisfy the rules, provided they are placed in the station’s public inspection file and are available for viewing by those who visit the station to examine the public inspection file. The FCC has not addressed how this approach can be utilized since the advent of online public inspection files.
  • A station may create lists of the number of commercial minutes per hour aired during identified children’s programs. The lists should be reviewed on a routine basis by responsible station personnel to be sure they reflect compliance with both the numerical and content requirements contained in the rule.
  • The station and its network/syndicators may certify that as a standard practice, they format and air the identified children’s programs so as to comply with the statutory limit on commercial matter, and provide a detailed listing of any instances of noncompliance. Again, the certification should be reviewed on a routine basis by responsible station officials to ensure that it is accurate and that the station did not preempt programming or take other action that might affect the accuracy of the network/syndicator certification.
  • Regardless of the method a station uses to show compliance with the commercial limits, it must identify the specific programs that it believes are subject to the rules, and must list any instances of noncompliance. As noted above, commercial limits apply only to programs originally produced and broadcast primarily for an audience of children ages 12 and under.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by July 10, 2018, reflecting information for the months of April, May, and June 2018.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A television station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file. The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ public inspection files by July 10, 2018, covering the period from April 1, 2018 through June 30, 2018.

  • Stations should maintain routine outreach to the community to learn of various groups’ perceptions of community issues, problems, and needs. Stations should document the contacts they make and the information they learn. Letters to the station regarding community issues should be made a part of the station’s database.
  • There should be procedures in place to organize the information that is gathered and bring it to the attention of programming staff with a view towards producing and airing programming that is responsive to significant community issues. This procedure and its results should be documented.
  • Stations should ensure that there is some correlation between the station’s contacts with the community, including letters received from the public, and the issues they have identified in their Quarterly Lists. A station should not overlook significant issues. In a contested license renewal proceeding, while the station may consider what other stations in the market are doing, each station will have the burden of persuading the FCC that it acted “reasonably” in deciding which issues to address and how.
  • Stations should not specify an issue for which no programming is identified. Conversely, stations should not list programs for which no issue is specified.
  • Under its former rules in this area, the FCC required a station to list five to ten issues per Quarterly List. While that specific rule has been eliminated, the FCC has noted that such an amount will likely demonstrate compliance with the station’s issue-responsive programming obligations. However, the FCC has noted that some licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth. Conversely, the FCC has noted that other broadcasters may address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly Lists should reflect a wide variety of significant issues. For example, five issues affecting the Washington, DC community might be: (1) the fight over statehood for the District of Columbia; (2) fire code violations in DC school buildings; (3) clean-up of the Anacostia River; (4) reforms in the DC Police Department; and (5) proposals to increase the use of traffic cameras on local streets. The issues should change over time, reflecting the station’s ongoing ascertainment of changing community needs and concerns.
  • Accurate and complete records of which programs were used to discuss or treat which issues should be preserved so that the job of constructing the Quarterly List is made easier. The data retained should help the station identify the programs that represented the “most significant treatment” of issues, e.g., duration, depth of presentation, frequency of broadcast, etc.
  • The listing of “most significant programming treatment” should demonstrate a wide variety in terms of format, duration (long-form and short-form programming), source (locally produced is presumptively the best), time of day (times of day when the programming is likely to be effective), and days of the week. Stations should not overlook syndicated and network programming as ways to address issues.
  • Stations should prepare each Quarterly List in time for it to be placed in their public inspection file on or before the due date. If the deadline is not met, stations should give the true date when the document was placed in the public inspection file and explain its lateness.
  • Stations should show that their programming commitment covers all three months within each quarter.

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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:

  • Media Bureau Hits Michigan Radio Station for Low Power Snafu
  • Online Retailer Faces $2,861,128 Forfeiture for Selling Unauthorized Drone Parts
  • Enforcement Bureau Issues Advisory on Drone Accessories

Weathering the Storm: Media Bureau Proposes Fine for Botched Low Power Operation

The FCC’s Media Bureau issued an $18,000 Notice of Apparent Liability for Forfeiture (“NAL”) to a Michigan radio licensee accused of omitting material facts from an FCC application and operating its station at variance from its license.

Under Section 312(g) of the Communications Act of 1934 (“Act”), a broadcast station’s license automatically expires after the station fails to broadcast for 12 consecutive months.  Section 73.1745(a) of the FCC’s Rules requires a station to broadcast according to the “modes and power” specified by its license, and Section 73.1765 permits licensees to request special temporary authority (“STA”) to operate at variance from their license for a limited time.

The licensee originally applied for renewal of its license in May of 2012.  Section 309(k) of the Act provides several criteria that the FCC must consider when reviewing license renewal applications.  The FCC will grant an application if: (1) “the station has served the public interest, convenience, and necessity;” (2) the licensee has not committed any serious violations of the Act or the FCC’s Rules; and (3) the licensee has not committed any other violations of the Act or the FCC’s Rules that, taken together, would indicate a pattern of abuse.

In February 2015 (while the renewal application was still pending), the licensee requested an STA to remain silent, claiming that his facilities would require significant repair after a broken water main flooded the studio.

The following month, the licensee of several religious broadcast stations filed an objection to the license renewal application, alleging that the broadcaster was “untruthful” about the circumstance of the flood.  It also claimed that the licensee had broken a contract between the two parties, “attempted to extort money” from a Texas broadcaster, and failed to pay money to another broadcaster.

In May 2016, the Media Bureau inquired into the length of time the licensee’s station had been silent.  The licensee responded that the station had returned to air shortly after the STA was filed, but a “clerical error” had prevented the licensee from notifying the FCC.  As evidence, the licensee provided sworn declarations, as well as bills and ad orders for another one of the licensee’s stations.  The licensee also indicated that the station was operating with a lower-powered transmitter than specified in the license due to a lightning-related power surge the previous year.

Unsatisfied, the Media Bureau sent the licensee a second letter demanding more information about the station’s operations.  The licensee responded with more information relating to the station in question, including a letter from an engineer which confirmed that while the station was licensed to operate at 50 kW, it was only operating at 1.4 kW.

That same day, the licensee requested an STA to operate at that reduced power level, stating that the station was “currently operating at the reduced power level of 1.4 kW” and needed to continue at this reduced power for the next 180 days.  The requested STA was not granted until over a year later.

The Media Bureau ultimately concluded that the station was operating with a “non-conforming” transmitter and at significant variance from its 50 kW authorization.  The Bureau also found that the licensee failed to timely request an STA to operate at that reduced power, and failed to disclose a material fact in its second STA request when it said that it was “currently operating” at the lower level despite having operated at that reduced power for over a year.  The NAL also indicated that it was “at best misleading” to suggest that the station would be back to full power within 180 days.  Section 1.17(a)(1) of the FCC’s Rules prohibits individuals from intentionally providing incorrect “material factual information” or intentionally omitting “material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading.”

As a result, the Media Bureau proposed: (1) a fine of $10,000 for operating without the appropriate authorization for the service; (2) an additional $3,000 fine for failing to file a required form; and (3) a $5,000 fine for failing to disclose a material fact in the STA request.

Fortunately for the licensee, the Media Bureau did not find these acts to be “serious violations” or a pattern of abuse, and therefore granted the station’s license renewal application in a separate action.  In doing so, the Media Bureau denied the religious licensee’s objections, noting that the FCC does not adjudicate private contractual disputes.

Flight Delay: Online Drone Retailer Dinged for Marketing Dozens of Noncompliant Drone Parts

The FCC proposed a $2,861,128 penalty against a group of commonly-owned companies in the United States and Hong Kong for marketing unauthorized drone equipment.

Pursuant to Section 302 of the Act, the FCC regulates radio-frequency energy-emitting devices (“RF” devices) that can potentially interfere with radio communications.  The FCC sets limits on a device’s spurious emissions, transmission power, and on which bands it may operate.  Generally, noncompliant devices may not be imported, marketed or sold in the United States. Continue reading →

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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:

  • Louisiana Class A TV Station Settles Online Public File Violations for $50,000 Ahead of License Renewal
  • FCC and Michigan Teenager Enter Into Consent Decree After Misuse of Public Safety Communications System
  • Missouri Telco Agrees to $16,000 Settlement Over Unauthorized Transfers

When Violations Accumulate: Online Public File Violations Lead to $50,000 Settlement with the FCC

The FCC recently entered into a Consent Decree with a Louisiana Class A TV station licensee to resolve an investigation into the station’s failure to comply with its online Public Inspection File obligations.

Section 73.3526 of the FCC’s Rules requires licensees to timely place certain items in their online Public Inspection File relating to a station’s programming and operations.  For example, Section 73.3526(e)(11)(i) requires stations to place an issues/programs list in their Public Inspection File each quarter.  That document must list programs aired during the preceding quarter that are responsive to issues identified by the station as important to its community.  Section 73.3526(e)(11)(ii) requires broadcasters to quarterly certify their compliance with the commercial limits on children’s television programming.

Also on a quarterly basis, Section 73.3526(e)(11)(iii) requires stations to file a Children’s Television Programming Report detailing their efforts to air programming serving the educational and informational needs of children.  Section 73.2526(e)(17) similarly requires Class A TV stations to provide documentation demonstrating continued compliance with the FCC’s eligibility and service requirements for maintaining their Class A status.

When the broadcaster filed its license renewal application in February 2013, it disclosed that it had failed to comply with certain Public File requirements during its most recent license term.  Over the next year and a half, the FCC sent letters to the broadcaster requesting that it (1) upload the missing and late-filed documents and (2) provide an explanation for its failure to comply with the Rules.  The FCC did not receive a response until, in 2015, the broadcaster uploaded the required documents to its online Public File.

The broadcaster subsequently admitted that, since 2005, it had not prepared and would be unable to recreate 16 quarters worth of issues/programs lists.  The broadcaster also stated that it had failed to timely file dozens of other issues/programs lists, Class A certifications, Children’s Television Programming Reports, and children’s programming commercial limits certifications.

Under the terms of the Consent Decree, the broadcaster agreed to (1) admit its violations of the Rules; (2) pay a $50,000 civil penalty to the United States Treasury; and (3) implement and maintain a compliance plan to avoid future violations.  The compliance plan must remain in effect until the FCC finalizes its review of the broadcaster’s next license renewal application.  In return for the station’s timely payment, the FCC will end the investigation and grant the station’s pending license renewal application for a term ending in June 2021.

The next application cycle for broadcast license renewals begins in June 2019, and the FCC’s license renewal application form requires stations to certify that their Public Inspection File has been complete at all times during the license term, in compliance with Section 73.3526 (or Section 73.3527 in the case of noncommercial stations).

As the last radio stations moved their Public Files online in March of this year, missing and late-filed documents now can be easily spotted by the FCC, increasing the likelihood of penalties not just for Public File violations, but for falsely certifying Public File compliance in the license renewal application.  With that in mind, the FCC recently encouraged licensees to address Public File compliance issues as soon as possible to reduce the impact on upcoming license renewals.

Sounds Like Teen Spirit: Traffic Stop Results in Michigan Teenager’s Consent Decree for Misuse of a Public Safety Network

The Enforcement Bureau entered into a Consent Decree with a 19-year old amateur radio licensee who made unauthorized radio transmissions on the Michigan Public Safety Communications System (MPSCS).  The agreement concludes an investigation that began when Michigan State Police discovered a cloned radio device during a routine traffic stop.

Section 301 of the Act prohibits the transmission of radio signals without prior FCC authorization, Section 333 of the Act prohibits willful or malicious interference with licensed radio communications, and Section 90.20 of the Rules establishes the requirements to obtain authorization to use frequencies reserved for public safety uses.  In addition, Sections 90.403, 90.405, and 90.425 of the Rules set operating requirements for using these public safety frequencies. Continue reading →

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CommLawCenter readers may recall that the FCC adopted a rule in 2013 requiring broadcasters to present aurally on a secondary audio stream (“SAS”) all emergency information provided visually during programming other than during regularly-scheduled newscasts and newscasts that interrupt regular programming.

This “Audible Crawl Rule” went into effect on May 26, 2015, with a few exceptions.  Following a request from the National Association of Broadcasters, the FCC (1) temporarily waived the requirement to aurally convey information regarding school closings via the SAS pending further consideration in a Second Further Notice of Proposed Rulemaking and (2) extended the deadline to begin aurally describing inherently visual graphics, like Doppler Radar maps.  Consideration of the school closings requirement continues, and the FCC has twice extended the compliance deadline for inherently visual graphics.

In today’s Order, the FCC acknowledged that its aspirational reach continues to exceed the grasp of current technology, granting a joint petition from the American Council of the Blind, the American Foundation for the Blind, and the NAB for a five-year extension of the current waiver until May 26, 2023.  To monitor progress on achieving the desired visual-to-aural capabilities, the FCC also required that the NAB file a report with the Commission by November 25, 2020, the midpoint of the five-year extension period.  The report must “detail the extent to which broadcasters have made progress in finding accessible solutions or alternatives to providing critical emergency details generally delivered in a graphic format, as well as the extent to which this waiver continues to be necessary.”

The Media Bureau first granted an 18-month waiver of this requirement in May 2015, in response to an NAB request for a six-month waiver of the compliance deadline.  In 2016, the same coalition of organizations seeking this latest extension requested an additional 18 months to implement an automated approach for compliance with this part of the rule.  That extension would have expired tomorrow, May 26, 2018.

The FCC enacted the Audible Crawl Rule pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, which requires broadcasters to make emergency information available to blind or visually impaired individuals.  Originally adopted in April 2013, Section 79.2(b)(2)(ii) of the FCC’s Rules requires all visual emergency information presented outside of newscasts to be made available via SAS.  The rule applies to visual content that is textual (such as on-screen crawls) and non-textual (graphic displays).  According to the FCC, the aural description of visual but non-textual information must be intelligible and must “accurately and effectively convey the critical details regarding the emergency and how to respond to the emergency.”  Continue reading →

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May 2018

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

June 1 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming 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 an EEO Mid-Term Report on FCC Form 397 by June 1.

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 when they file their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with 11 or more full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the mid-point 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, June 1, 2018 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 Rule, 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 otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from June 1, 2017 through May 31, 2018. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before May 31, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period June 1, 2017 through May 21, 2018 for this year’s report (cutting it off up to ten days prior to May 31, 2018), then next year, the Nonexempt SEU must use a period beginning May 22, 2018 for its report. Continue reading →

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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:

  • FCC Proposes $235,668 Fine for Filing Untruthful Information
  • Major Phone Carrier Settles Dispute With FCC Over Rural Call Completion Issues for $40 Million
  • Repeat Pirate Nets $25,000 Fine

Tower Records: FCC Proposes Large Fine for Dozens of Falsified Tower Registrations

After a bizarre string of events involving unlit towers, falsified applications, and alleged theft, the FCC proposed a penalty of $235,668 against a Wisconsin holding company for providing false and misleading information on dozens of Antenna Structure Registration (“ASR”) applications and misleading an Enforcement Bureau agent.

Section 1.17 of the FCC’s Rules requires a party that is either (A) applying for an FCC authorization; or (B) engaging in activities that require such authorizations, to be truthful and accurate in all its interactions with the FCC.  Specifically, Section 1.17(a)(2) states that no person shall “provide material factual information that is incorrect or omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading….”

In December 2016, the Enforcement Bureau began investigating an unlit tower in Wisconsin after the Federal Aviation Authority (the “FAA”) forwarded a complaint from a pilot who had noticed the structure.  Unlit towers pose a serious danger to air navigation.  In the midst of the investigation, the tower’s ASR information was changed to show a new company had taken control of the tower.  When an FCC investigator reached out to the newly registered owner, the company’s CEO stated that his company had recently acquired the tower, knew of the lighting problem, and would make repairs as soon as the weather permitted.  In the meantime, the company also began changing the registration information for other towers, requested flight hazard review from the FAA for some of these towers, and filed an ASR application for construction of a new tower in Florida.

Several months later, the original owner of the unlit tower informed the FCC that the other company was not actually the owner and that the imposter company’s “CEO” had improperly changed the ownership information for several sites in the ASR system.  The true owner also claimed that the alleged fraudster had changed locks and stolen equipment from several of the real owner’s towers—including the new lighting equipment that the original owner bought to repair the extinguished tower lighting.

In response, the Enforcement Bureau sent a Letter of Inquiry (“LOI”) to the claimed CEO’s physical and email addresses seeking more information about his various applications.  To date, the Bureau has not received any response.

In a Notice of Apparent Liability (“NAL”), the Enforcement Bureau determined that the CEO’s company became subject to Section 1.17 when it applied for the Florida tower registration, and also that the CEO was engaging in activities that require FCC authorization.  According to the NAL, the CEO apparently provided false and misleading information on 42 separate change in ownership applications and communicated false information to the investigating agent.  According to the Enforcement Bureau, the company also violated Section 403 of the Communications Act (the “Act”) by failing to respond to the LOI.

Under its statutory authority to penalize any party that “willfully or repeatedly fails to comply” with the Act or the FCC’s Rules, the FCC may issue up to a $19,639 forfeiture for each violation or each day of a continuing violation.  Accordingly, the FCC proposed a fine of $19,639 for each of the 10 apparently false applications filed in the past year, $19,639 for the company’s alleged misleading statements to the investigating agent, and an additional $19,639 for its failure to respond to the FCC’s questions, for a total of $235,688.

Missed Connections: Major Phone Carrier Agrees to Pay $40 Million After Investigation Into Rural Call Completion Issues

The FCC entered into a Consent Decree with a major phone carrier after an investigation into whether the carrier violated the Commission’s Rural Call Completion Rules.

According to the FCC, consumers in low-population areas face problems with long-distance and wireless call quality.  In an effort to address these problems, the FCC has promulgated a series of directives that prohibit certain practices it deems unreasonable and require carriers to address complaints about rural calling (“Rural Call Completion Rules”).

In 2012, the FCC’s Wireline Competition Bureau determined that a carrier may be liable under Section 201 of the Act for unjust or unreasonable practices if it “knows or should know that calls are not being completed to certain areas” and engages in practices (or omissions) that allow these problems to continue.  This includes (1) failure to ensure that intermediate providers (companies that connect calls from the caller’s carrier to the recipient’s carrier) are performing adequately; and (2) not taking corrective action when the carrier is aware of call completion problems. Continue reading →

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As those that receive our Pillsbury Client Advisories know (you can sign up for those here), April 10th was the deadline for placing various quarterly reports in your station’s public inspection file.  With many radio stations having shifted to an online public file on March 1st, this was the first quarterly deadline falling after that conversion.  As a result, consider this a friendly reminder that if you dutifully prepared your Quarterly Issues/Programs List a few weeks ago and then unthinkingly dropped it into the file drawer like you’ve done a hundred times before, you’ve got a problem.  The Quarterly Issues/Programs List that was required to be uploaded by April 10th details programming aired from January 1, 2018 through March 31, 2018 designed to serve the needs and interests of your station’s community.

If you generated a paper copy of the List, but forgot that it now must be uploaded, be sure to make a note of that fact and upload it as soon as possible.  Broadcasters are asked in their license renewal applications to certify that all documents have been timely placed in the public inspection file.  With the FCC’s public file database now logging the precise time a document is submitted, failing to properly disclose any late-filed documents is not only easy for the FCC to spot, but creates added risk for stations that falsely certify in their license renewal applications that the public file was complete at all times.  With license renewals occurring only once every eight years, even a few “oops” moments each year can soon begin to look like a “pattern of noncompliance” to the FCC.

There is, however, a very select group of stations that received a bye on the April 10 uploads.  The FCC announced this week that it was granting a small number of waiver requests filed by various stations seeking more time to meet the online public file deadline.  While these stations had sought relief from the requirement for varying periods of time, the FCC’s response was not so specialized.  It instead granted each of the stations seeking more time until June 23, 2018 (60 days from release of the Order) to comply with the online public inspection file requirement.

The FCC also made clear in the Order that it will not be providing such generalized relief in the future.  Going forward, any station seeking more time must provide information that demonstrates (1) the economic hardship the station would incur in complying with the online public file requirement; (2) the station’s technical inability to do so; or (3) another reason for a waiver as described in the 2016 Expanded Online Public File Order.

So if you are one of the select few stations that received a little extra time to move to an online public file, it’s your Second Quarter Issues/Programs List that will be the test of whether you have successfully moved to an online public file mindset.  For all other stations, your time is already up.

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Today the FCC publicly released a Report and Order eliminating TV stations’ annual obligation to report whether they have provided feeable ancillary or supplementary services on their spectrum during the past year unless they have actually provided such services.  The order was originally slated for discussion and a vote at next week’s FCC Open Meeting, but the Commission wound up adopting this widely supported change early, unanimously voting for it on circulation.

Previously, all digital television stations had to report by December 1 of each year whether they had provided feeable ancillary or supplementary services in the past year, what those services were, and then submit payment to the government of 5% of the gross revenue derived from such services.  Ancillary and supplementary services are any services provided on a TV station’s digital spectrum that is not needed to provide the single free over-the-air program stream required by the FCC.  The reason the word “feeable” is important is that broadcast video streams (i.e., multicast streams) do not trigger payment of the 5% fee.  Examples previously provided by the FCC of feeable ancillary and supplementary services include computer software distribution and data transmissions.

Observers had expected this rule change for a while.  In the spring of 2017, FCC Chairman Ajit Pai spearheaded the “Modernization of Media Regulation Initiative,” which aimed to institute a massive review of potentially outdated or irrelevant regulations affecting broadcasters, cable system operators, and satellite providers.  At Commissioner Michael O’Rielly’s urging, the Commission originally proposed today’s changes in a Notice of Proposed Rulemaking (NPRM) in October 2017.  The following month, the Media Bureau spontaneously waived the December 1, 2017 filing deadline for TV stations that had not provided feeable services over the prior twelve-month reporting period, signaling that the proposed rule change was likely coming.

Indeed, the FCC received broad support from commenters for the change.  In last year’s NPRM, the FCC noted that of 1,384 full-power commercial TV stations, fewer than 15 reported revenues from ancillary or supplementary services, netting the Commission around $13,000 in fees.

As a result, today’s Order amends Section 73.624(g) of the FCC’s Rules to require that only TV stations actually providing feeable ancillary or supplementary services need file the report in the future.  The FCC could find no justification for the immense expense incurred in having broadcasters submit, and the FCC collect and process, forms merely indicating the station hadn’t provided such services.  It wasn’t so much the FCC concluding that the expense outweighed the public interest benefit; it was the FCC being unable to point to a public interest benefit.

Which just makes you wonder just how this rule stayed in place for nearly 20 years, and no prior FCC bothered to ask that fundamental question.

 

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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 special issue takes a look at the government’s renewed efforts to scuttle Pirate Radio operations.

Since the government first began regulating the airwaves, it has struggled to eliminate unlicensed radio operators.  In its latest effort, the FCC is taking a hardline approach to this illegal behavior and is partnering with local and federal law enforcement, as well as Congress, to accomplish the task. While Chairman Pai has made clear that pirate radio prosecutions are once again a priority at the FCC, it is Commissioner O’Rielly who has been the most vocal on this front, calling for more aggressive action against unauthorized operators.  The continued prevalence of pirate radio operations has been chalked up to several factors, including insufficient enforcement mechanisms and resources, the procedural difficulties in tracking down unregulated parties, and lackadaisical enforcement until recently. Regulators and broadcast industry leaders have also expressed frustration with the whack-a-mole nature of pirate radio enforcement—shutting down one operation only to have another pop up nearby.

Real Consequences

Congress has also begun to take an interest in the issue, with the House Subcommittee on Communications and Technology holding a hearing last week discussing the subject.  One of the witnesses was David Donovan, president of the New York State Broadcasters Association.  In his testimony, he listed numerous risks that unlicensed operations present to the public, including failure to adhere to Emergency Alert System rules and RF emissions limits (which can be critically important where a pirate’s antenna is mounted on a residential structure).  Pirate operators also create interference to other communications systems, including those used for public safety operations, while causing financial harm to legitimate broadcast stations by diverting advertising revenue and listeners from authorized stations.

Despite these harms, pirate operations continue to spread.  This past month, the FCC issued a Notice of Unlicensed Operation (“NOUO”) to a New Jersey individual after the FCC received complaints from the Federal Aviation Administration (“FAA”) that an FM station’s broadcasts were causing harmful interference to aeronautical communications operating on air-to-ground frequencies.  FCC agents tracked the errant transmissions to the individual’s residence and confirmed that he was transmitting without authorization.

Days later, the FCC issued an NOUO to another New Jersey resident who was transmitting unlicensed broadcasts from a neighborhood near Newark Airport.  Once again, FCC agents were able to determine the source of the signal and found that the property owner was not licensed to broadcast on the frequency in question.

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