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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:

  • Radio Skit Gone Wrong Draws $20,000 Proposed Fine for False Emergency Alert
  • Wireless Microphones Operating on Unauthorized Frequencies Generate Hefty Proposed Fine
  • FCC Issues Citation to Convenience Store Over Errant Surveillance Equipment

No Laughing Matter: Emergency Alert Parody Leads to Proposed $20,000 Fine Against New York FM Station

The FCC recently issued a Notice of Apparent Liability for Forfeiture proposing a $20,000 fine against a New York radio station for airing a false emergency alert.  As we have written in the past, the FCC strictly enforces its rules against airing false Emergency Alert System (“EAS”) tones, arguing that false alerts undermine public confidence in the alert system.

The EAS system is a public warning system utilizing broadcast stations, cable systems, satellite providers, and other video programming systems to permit the President to rapidly communicate with the public during an emergency.  Federal, state and local authorities also use the EAS system to deliver localized emergency information.  The FCC’s rules expressly forbid airing EAS codes, the EAS Attention Signal (the jarring long beep), or a recording or simulation of these tones in any circumstance other than in an actual emergency, during an authorized test, or as part of an authorized public service announcement.  Besides desensitizing the public to alerts in cases of real emergencies, the data embedded in the codes can trigger false activations of emergency alerts on other stations.

On October 3, 2018, FEMA, in coordination with the FCC, conducted a nationwide test of the EAS and Wireless Emergency Alert (“WEA”) systems.  Shortly afterwards, the FCC received a complaint that a New York FM station transmitted an EAS tone during an on-air skit lampooning the scheduled test.  The FCC issued a Letter of Inquiry to the station, demanding a recording of the program and sworn statements regarding whether the tone was, in fact, improperly transmitted.

In response, the station confirmed that it aired the EAS Attention Signal as part of a skit produced by a station employee.  When reviewing the skit before airing, the station spotted an improper EAS header code in it, and told the employee to delete it.  However, the employee merely replaced the header code with a one-second portion of the EAS Attention Signal.  The station then approved and aired the program.

In response, the FCC found that the segment violated its rules, noting that the “use of the Attention Signal in a parody of the first nationwide test of the EAS and WEA is specifically the type of behavior section 11.45 seeks to prevent.”  The FCC also noted that the brief duration of the tone aired was not a defense to a finding of violation.

As a result, the FCC proposed a $20,000 fine.  Although the base fine for airing a false EAS alert is $8,000, the FCC concluded that the circumstances surrounding this case warranted an upward adjustment.  In particular, the FCC stressed the gravity of the situation, noting that the broadcaster aired the false alert on one of the highest-ranking stations in New York City, which itself is the nation’s largest radio market.  Given these facts, the FCC proposed a $20,000 fine.  The station has thirty days to either pay the fine, or present evidence to the FCC justifying reduction or cancellation of it.

A Broad Spectrum of Violations Creates Problems for Wireless Microphone Retailer

In a recently-issued Notice of Apparent Liability for Forfeiture, the FCC proposed a $685,338 fine against a seller of wireless microphones, asserting that the retailer advertised 32 models of noncompliant wireless microphones.

The FCC allocates radiofrequency spectrum for specific uses, with particular attention given to the potential for harmful interference to other users.  The FCC has made certain bands available for use by wireless microphones, with technical rules varying depending on the particular band used.  For manufacturers and retailers, this means their devices must be designed to operate only within the permitted frequency bands.

Under Section 302(b) of the Communications Act, “[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 [FCC Rules]”.  Section 74.851(f) of the FCC’s Rules requires devices that emit radiofrequency energy (like wireless microphones) to be approved in accordance with the FCC’s certification procedures before being marketed and sold in the United States.  Such devices are also subject to identification and labeling requirements. Continue reading →

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On March 31, 2020, the FCC adopted a Report and Order to implement the COVID-19 Telehealth Program.  The Program was established in the CARES Act, and the FCC was appropriated $200 million to provide to eligible medical facilities to provide telehealth services to their patients.

A more detailed discussion of the FCC’s Report and Order creating the Program, and a discussion of the procedures to apply for funding, can be found here and here.  The Program’s intended purpose is to provide emergency funding for expenses arising from the COVID-19 pandemic that fall outside of the normal procurement process.  Under the new program, non-profit hospitals, teaching hospitals, rural health clinics and skilled nursing facilities can apply for funds from the FCC to be used for voice and internet service, remote patient monitoring platforms, and Internet-connected devices and equipment.

The window for submitting applications opened on Monday, April 13th, and the FCC announced today that the first wave of applications had been granted.  Below is a summary of each approved funding proposal:

  • Grady Memorial Hospital in Atlanta, Georgia, was awarded $727,747 to implement telehealth video visits, virtual check-ins, remote patient monitoring, and e-visits to patient’s hospital rooms, which it said would enable it to continue to provide high quality patient care, keep patients safe in their homes, and reduce the use of personal protective equipment during the COVID-19 pandemic.
  • Hudson River HealthCare, Inc., in Peekskill, New York, was awarded $753,367 for telehealth services to expand its COVID-19 testing and treatment programs serving a large volume of low-income, uninsured, and/or underinsured patients throughout southeastern New York State, encompassing the Hudson Valley, New York City, and Long Island.
  • Mount Sinai Health System, in New York City, was awarded $312,500 to provide telehealth devices and services to geriatric and palliative patients who are at high risk for COVID-19 throughout New York City’s five boroughs.
  • Neighborhood Health Care, Inc., in Cleveland, Ohio, was awarded $244,282 to provide telemedicine, connected devices, and remote patient monitoring to patients and families impacted by COVID-19 in Cleveland’s West Side neighborhoods, targeting low-income patients with chronic conditions.
  • Ochsner Clinic Foundation, in New Orleans, Louisiana, was awarded $1,000,000 for telehealth services and devices to serve high-risk patients and vulnerable populations in Louisiana and Mississippi, to treat COVID-19 patients, and to slow the spread of the virus to others.
  • UPMC Children’s Hospital of Pittsburgh was awarded $192,500 to provide telehealth services to children who have received organ transplants and are thus immune-compromised and at high risk for COVID-19.

The FCC will continue to process applications until the earlier of (i) granting proposals for the full $200 million budgeted; or (ii) the end of the national emergency.

Even though the FCC stated that it would likely not grant proposals for more than $1 million, considering the rapid processing and approval of the first seven applications, interested parties will want to move quickly to submit their applications.

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On April 4, 2020, the White House issued an Executive Order creating the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (the “Committee”). The Committee, chaired by the Attorney General, includes the Secretaries of Homeland Security and Defense, and any other executive department head so designated by the President, is seen as an attempt to formalize the long-standing “Team Telecom” review process that began in the 1990s. The Committee’s stated goal is similar to Team Telecom’s, i.e., to assist the Federal Communications Commission (“FCC”) in its public interest review of national security and law enforcement concerns that may be triggered by foreign investment in the US telecommunications sector. But there may be some notable differences. Continue reading →