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Pillsbury’s communications lawyers have published the 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:

  • Unauthorized Oregon Radio Station Transfers Yield $16,000 Penalty
  • Consent Decree Over Upgrade of EAS Equipment Includes $1.1 Million Payment
  • Chinese Video Doorbell Manufacturer Draws Proposed Fine of $734,872 for Equipment Authorization Rule Violations

All in the Family: Unauthorized Oregon Station Transfers Between Mother, Daughter, and Sisters Result in Consent Decree and $16,000 Civil Penalty

The licensee of an Oregon AM station and its companion FM translator entered into a Consent Decree with the FCC’s Media Bureau to resolve the Bureau’s investigation into unauthorized transfers of control of the stations.  The Consent Decree follows a September 2024 Notice of Apparent Liability for Forfeiture (NAL) and requires the licensee to pay a $16,000 civil penalty.

Under Section 310(d) of the Communications Act and Section 73.3540 of the FCC’s Rules, voluntary transfers of control of a broadcast license require prior approval by the FCC.  To determine whether control of a broadcast license has changed, the FCC considers “actual or legal control, direct or indirect control, negative or affirmative control, and de facto as well as de jure control.”  An analysis of de facto control, which is analyzed by the FCC under a totality of the circumstances test, looks at, among other things, the exercise of control over a station’s programming, personnel, and finances.  Surrendering control over programming, personnel, or finances transfers de facto control of a station.  The de facto control analysis also considers whether the other person or entity in question has held itself out to the public, the station staff, or both as being in control of the station.

In 2014, the sole member of the licensee LLC entered into a purchase agreement to sell the station to her daughter.  The agreement stipulated that the daughter would pay the purchase price through “sweat equity,” defined by the parties as providing accounting and administrative services.  Between September 2016 and February 2021, the daughter delivered enough “sweat equity” services to satisfy the purchase price, after which the licensee LLC filed Articles of Organization with Oregon listing the daughter as the sole member/manager of the licensee LLC.

In October 2021, the mother and daughter amended the purchase agreement to acknowledge that the daughter had fully performed under the agreement, but that “the purpose of the Purchase Agreement has been frustrated by the mutual mistake of the Parties, who acknowledge that the sale and transfer of the FCC licensee and the Station[s’] FCC license[s] should have been subject to the prior approval by the FCC in accordance with 47 U.S.C. § 310 and regulations promulgated thereunder.”  The amendment stated that transfer applications would be filed within ten business days of execution of the purchase agreement amendment, but the applications were not filed until February 2022. Continue reading →

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Beginning January 1, 2025, the FCC’s audio description requirements will expand to commercial television stations affiliated with ABC, CBS, FOX, or NBC in 10 additional Nielsen Designated Market Areas (DMAs): Johnson City-Bristol-Kingsport, Reno, Greenville-New Bern-Washington, Davenport-Rock Island-Moline, Tallahassee-Thomasville, Lincoln & Hastings-Kearney, Evansville, Fort Wayne, Johnstown-Altoona-State College, and Augusta-Aiken.  Audio-described programming is intended to make video programming more accessible to blind or visually impaired consumers by inserting “audio narrated descriptions of a television program’s key visual elements into natural pauses between the program’s dialogue.”

In October 2023, the FCC adopted the Audio Description Second Report and Order, which expanded the audio description requirements to all television markets.  As set out in the Order, 10 additional DMAs will be phased in each year through 2035 until all DMAs are subject to the audio description rules.

Under Section 79.3 of the FCC’s Rules, stations subject to the audio description requirements must provide at least 50 hours of audio-described programming per quarter during primetime or children’s programming, and an additional 37.5 hours of programming per quarter aired between 6 a.m. and 11:59 p.m. local time.  The requirement applies to any of a station’s programming streams, whether primary or multicast, if the stream is affiliated with ABC, CBS, FOX, or NBC.

The next deadline, January 1, 2025, will apply to DMAs 101 to 110, with markets 111 to 210 phased in through 2035 according to the below schedule. Continue reading →

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Many television broadcasters were left scratching their heads last month when a longtime waiver associated with the FCC’s emergency information accessibility rules expired on November 26.  That confusion was resolved today, when the Media Bureau granted the National Association of Broadcasters’ (“NAB”) request for a retroactive extension of the waiver of the “audible crawl” rule for inherently graphical non-textual information.

As we’ve previously detailed, the “audible crawl” rule requires TV stations and other video programming distributors to use a secondary audio stream to aurally present any emergency information that is presented visually (e.g., in an on-screen crawl) in non-newscast programming.  Ever since the rule went into effect on May 26, 2015, however, the FCC has granted a limited waiver for inherently graphical information—think Doppler radar and weather maps—acknowledging it is not yet technologically feasible for broadcasters to aurally convey such information.

On November 15, 2024, the National Association of Broadcasters (“NAB”) filed a Petition for Rulemaking asking the FCC to amend the rule and clarify that the requirement to audibly present inherently graphical non-textual emergency information applies only if a station is not already displaying a text crawl that shares the same or similar information depicted in the on-screen graphic (which the station would, under existing rules, be required to make aurally available).  The FCC issued a public notice seeking comment on NAB’s petition on November 25, 2024.  The public notice did not extend the existing waiver, which subsequently expired on November 26, leaving broadcasters to decide whether to continue airing such inherently graphical information without providing an audible crawl, or to cease airing such information altogether. Continue reading →

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At its final Open Meeting of 2024, the FCC on December 11 adopted a Notice of Proposed Rulemaking (“NPRM”) seeking comment on the elimination or updating of several rules applicable to broadcast stations, as well as other changes intended to clarify ambiguities and to make the rules consistent with current procedures.

The NPRM covers minor rule updates, including:

  • Replacing references to the Consolidated Database System (CDBS), with references to the Licensing Management System (LMS);
  • Updating Form Names;
  • Updating inconsistent terminology referring to the Table of Assignments/Allotments;
  • Removing obsolete television Incentive Auction rule language; and
  • Consolidating rules for petitions to deny under Section 73.3584.

The FCC is also proposing to codify existing Commission interpretations and practices into the rules.  For example, the NPRM proposes to:

  • Codify the current practice of interpreting Section 73.870(e) to mean that LPFM minor modification applications received on the same day will be treated as simultaneously filed;
  • Update Section 73.807 to reflect the existing interpretation of the term “authorized” station as including construction permittees in addition to licensees;
  • Codify when applicants for new NCE FM, NCE TV, or LPFM construction permits must give local public notice of their applications; and
  • Codify the existing interpretation of the “Signature Rule” (Section 73.3513) allowing “directors” of corporations to sign FCC applications, and to expand the universe of who may sign an FCC application on behalf of a corporation, partnership, or unincorporated association to include a “duly authorized employee.”

With respect to more substantive revisions, the NPRM is proposing to: Continue reading →

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Pillsbury’s communications lawyers have published the 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:

  • Late License Application Leads to $8,500 Consent Decree for Digital Replacement Translator Licensee
  • Hawaii TV Station’s Late Uploads Lead to Proposed $20,000 Fine
  • Key West LPTV Station Faces $6,500 Fine for Failure to File a License Application and Unauthorized Operation

Indiana Broadcaster Agrees to $8,500 Consent Decree for Unauthorized Operation and Untimely License Applications

The FCC’s Media Bureau and the licensee of a Digital Replacement Translator (DRT) for a television station entered into a Consent Decree to resolve an investigation into whether the licensee failed to file a timely license application for the DRT and subsequently engaged in unauthorized operation of it.

Section 73.3598 of the FCC’s Rules specifies that construction permits are valid for three years and requires that a license application must be filed upon completion of construction.  Section 73.1745 of the Rules requires a station to hold an FCC license to operate.

In this case, the Media Bureau granted a DRT construction permit in November 2019, with an expiration date in November 2022.  However, upon completion of construction, the licensee failed to file a license to cover application.  The licensee began operating the DRT in March 2020, but explained that it overlooked filing the application due to an “administrative oversight” that coincided with the beginning of the COVID-19 pandemic.  The licensee did not file a license to cover application until June 2024, more than four years after it began operating the facility and a year and a half after the construction permit expired.

The licensee filed a petition for reconsideration asking that its construction permit be reinstated and requesting permission to file a late license application.  The licensee explained that the facility was operating and providing viewers in the area improved reception of local news programming.  It asserted that terminating operation of the DRT would therefore not serve the public interest.

Acknowledging that the licensee had a history of compliance with the FCC’s rules, the Bureau agreed to enter into a Consent Decree with the licensee under which the licensee admitted that its actions were willful and repeated violations of the FCC’s rules, it agreed to pay a civil penalty of $8,500, and it committed to implement a multi-part compliance plan, including appointing a compliance officer, creating a compliance manual, training its employees, and submitting annual compliance reports to the Commission until the grant of its next license renewal application. Continue reading →

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December 1 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.

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.

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.

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

Consistent with the above, December 1, 2024 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.  Once the new Report is posted on a station’s website, the prior year’s Report may be removed from that website. Continue reading →

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Pillsbury’s communications lawyers have published the 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:

  • National Cable Sports Network Draws Proposed Fine of $146,976 for Transmitting False EAS Tones
  • For-Profit Arrangement Lands Michigan Noncommercial Radio Station in Hot Regulatory Water
  • California LPFM Station Agrees to $9,000 Consent Decree for Numerous Rule Violations

FCC Proposes $146,976 Fine Against National Cable Sports Network for Transmitting False EAS Tones

The Federal Communications Commission issued a Notice of Apparent Liability for Forfeiture (NAL) to a cable sports network for violating the Commission’s Emergency Alert System (EAS) rules.  Specifically, the NAL alleged violations of Section 11.45 of the FCC’s Rules, which prohibits the transmission of false or deceptive EAS tones.

The EAS is a nationwide public warning system designed to alert the public in case of emergencies, such as severe weather warnings or AMBER alerts.  To maintain the effectiveness of such emergency alerts, EAS tones may only be aired for specific uses, such as actual emergencies, authorized tests, and qualified public service announcements (PSAs).  Section 11.45 strictly prohibits airing an EAS tone, or simulations of it, except in connection with these permitted uses.  The FCC takes false EAS tone violations particularly seriously, asserting that violations desensitize the public to legitimate EAS alerts.

In October 2023, the FCC received complaints alleging a cable network had transmitted EAS tones during a sports promotional video.  In January 2024, the Commission’s Enforcement Bureau sent a Letter of Inquiry requesting information about the incident.  The network responded, providing video recordings of the sports-related promo video that had aired for three days and admitting that it contained an EAS tone.  While the network argued the promo video contained fewer than two seconds of EAS tone, it did acknowledge that the tone was not aired in connection with an actual emergency, authorized test, qualified PSA, or other permitted use.  The network also acknowledged that the promo video aired six times over three days on two different networks.

Based on the network’s admissions and the FCC’s review of the video, the FCC found six apparent violations of Section 11.45 of the Commission’s Rules.  The FCC noted that while the two-second duration was shorter than a full EAS tone, it was long enough for viewers to recognize the sound as an EAS tone. Continue reading →

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Pillsbury’s communications lawyers have published the 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:

  • Massachusetts Man Ordered to Cease Using Interfering Home TV Antenna
  • Unauthorized Transfers of Arkansas Radio Stations Lead to $8,000 Consent Decree
  • STIR/SHAKEN Rule Violations End With $1,000,000 Consent Decree

Interference From Home TV Antenna Moves FCC to Action

The FCC’s Enforcement Bureau recently issued a Notification of Harmful Interference (Notification) directing a Massachusetts man to cease using an indoor digital TV antenna in his home.

Over a two-day period in April 2024, an agent of the FCC’s Boston field office investigated an interference complaint.  The agent determined that unauthorized radio emissions in the 813-817 MHz band were interfering with the Massachusetts State Police public safety communications system.  The agent ultimately tracked the interference to an indoor digital TV antenna located in a condominium.  His suspicions were confirmed when the interference ceased after the device was unplugged.

The Communications Act of 1934 requires devices operating on certain frequencies, including the 800 MHz band, to be licensed by the FCC.  Section 15.5(b) of the FCC’s Rules creates a limited exception to this restriction for low power devices where no harmful interference is caused.  Section 15.3(m) defines harmful interference as “[a]ny emission, radiation or induction that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunications service….”

In September 2024, the Bureau sent a Notification warning to the condominium owner that the TV antenna was causing harmful interference in violation of FCC rules, and should he continue to operate it, he would be subject to severe penalties, including fines, seizure of the equipment, or even imprisonment.

The Notification directed the resident to respond to the FCC within 10 days to describe his operation of the antenna and the steps being taken to ensure no further interference is caused.  The FCC indicated it would then determine what enforcement action is warranted to ensure no future violations occur.

Unauthorized Transfers of Control of Arkansas Radio Stations Net $8,000 Consent Decree

The licensee of an AM station and three FM stations in Arkansas failed to obtain required FCC approvals before transferring the licensee’s voting stock from one trust to another, and then transferring a 50% controlling interest in the licensee from the second trust to an individual.  To resolve the investigation, the licensee entered into a Consent Decree with the FCC’s Media Bureau which required, among other things, payment of an $8,000 civil penalty. Continue reading →

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October 1 is the deadline for broadcast stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, the Mariana Islands, Missouri, Oregon, Puerto Rico, the Virgin Islands, and Washington to place their Annual EEO Public File Report in their Public Inspection File and post the report on their station website.

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.

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. Continue reading →

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The FCC’s rules require that all Emergency Alert System (EAS) Participants update their identifying information in the EAS Test Reporting System (ETRS) annually.  Accordingly, all EAS Participants must update and submit their ETRS Form One for 2024 by Friday, October 4, 2024.

For broadcasters, EAS Participants include full power radio and TV broadcast stations, low power FM stations, and Class D noncommercial educational FM stations.  Low power TV stations, unless they are operating as a TV translator station, must also submit a Form One.  Stations must file a Form One even if they are silent pursuant to a grant of Special Temporary Authority.

The following types of stations are exempt from this filing requirement:

  • TV translator stations
  • FM translator or booster stations that entirely rebroadcast the programming of a local broadcast radio station
  • Stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point). Note that the hub station (or common studio or control point) must file a Form One.

While the FCC often ties the deadline for filing the annual Form One to the occurrence of a nationwide EAS test, the Federal Emergency Management Agency and FCC have not announced a national test this year.  As a result, the Form One must be filed independently to satisfy the annual filing obligation.  The most recent nationwide test was held October 4, 2023.  That test was largely successful, with nearly 97 percent of EAS Participants receiving the test message and about 94 percent of Participants successfully relaying the message.  These numbers represent a seven percent increase over the receipt and relay success rates reported for the 2021 test (the last nationwide test conducted prior to 2023).

Form One filers should review the FCC’s Public Notice concerning this filing requirement, as well as the FCC’s ETRS Form One Filing Guide and Frequently Asked Questions for information about using the ETRS, and consult their state’s EAS Plan before responding to the EAS operational area and monitoring assignments prompts.

Filers should be sure to have on hand the FCC username and password associated with the FCC Registration Number(s) (FRN) of the entity(ies) for which they are filing.  Users who have not previously created a username may do so by visiting the User Registration System.  Filers should visit the main ETRS page to file their Form One in advance of the October 4 deadline in case they encounter any filing portal errors and need time to resolve them before the deadline.