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You can almost hear Agent Maxwell Smart’s trademark “Missed it by that much!”  The FCC quietly announced just after C.O.B. today that “[b]idding in the forward auction has concluded for Stage 1 without meeting the final stage rule and without meeting the conditions to trigger an extended round. The incentive auction will continue with Stage 2 at a lower clearing target.”

When the FCC wrote in its 2014 Spectrum Auction Report and Order that “[w]e are designing the forward auction for speed, so that reverse auction participants need not await its outcome for week or months,” it wasn’t kidding.  The forward auction took just two weeks to conclude, but only because it yielded a highly disappointing $23.1 billion (netting $22.5 billion after auction discounts), a mere quarter of the $88.4 billion the FCC was targeting.  The result is surely disappointing for those intent upon repurposing a big chunk of TV broadcast spectrum for what we were told was an insatiable appetite for mobile broadband spectrum, but even more so for broadcasters that had been told by the FCC that their spectrum was far more valuable for purposes other than broadcasting.

So what’s next? The FCC’s Public Reporting System states that a public notice is on the way, which will announce “details about the next stage, including the clearing target for Stage 2, and the time and date at which bidding in Stage 2 of the reverse auction will begin.”  Given the large mismatch between the amount of spectrum sought by the FCC in Stage 1, and the rather paltry demand revealed by Stage 1, the FCC will have some thinking to do about how many stages of the auction it is willing to endure to achieve equilibrium between spectrum supply and demand.

In the meantime, broadcasters remain subject to the FCC’s rules prohibiting certain communications (a/k/a the “quiet period”) until the FCC releases a public notice announcing the successful completion of the auction.  It looks like that may be a while.

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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:

  • Spoofed Calls Lead to Multiple $25,000 Fines and Ongoing Criminal Case
  • Amateur Radio Licensee Fined $25,000 for Intentional Interference
  • Failure to Timely Request STA Results in $5,000 Fine and Shortened License Term

Spoofing’s No Joke: Two Men Face $25,000 Fine Each for Harassing Phone Call Scheme

The FCC proposed to fine two New York men for apparently using false caller ID numbers – a practice commonly known as “spoofing” – to place harassing phone calls to the ex-wife of one of the men.

The Truth in Caller ID Act of 2009, as codified in Section 227(e) of the Communications Act and Section 64.1604 of the FCC’s Rules, prohibits any person, in connection with any telecommunications service or IP-enabled voice service, to knowingly cause, directly or indirectly, any caller ID service to transmit or display misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value.

In September 2015, the National Network to End Domestic Violence contacted the FCC on behalf of one of their clients and explained that someone was using spoofing services to stalk and harass her. The FCC subsequently opened an investigation into the matter.

Using information and call logs provided by the woman, the investigation found that between May 2015 and September 2015, 31 harassing phone calls were made. It found that the callers used a spoofing service provider to make the woman believe she was answering calls from sources such as local jails and prisons, the school district where her child attends school, and her parents’ home. In addition, it found that the callers used a voice modulation feature of the spoofing service to disguise their voices, and conveyed threatening and bizarre messages. For example, calls that spoofed the caller ID information of Sing Sing correctional facility threatened “we are waiting for you.” Other calls referenced personal information specific to the woman and her minor child.

FCC staff subpoenaed call records for the cell phone of a friend of the woman’s ex-husband after the woman told staff that she believed her ex-husband – against whom she had a restraining order during the time period in question – and his close friend were behind the calls. The woman explained to FCC staff that for some of the calls she had used a third-party “unmasking” service to reveal that the true caller ID was that of her ex-husband’s friend, with whom she had no independent relationship. The call records showed that each time the friend called the spoofing service, the woman received a spoofed call. The parent company of the spoofing service confirmed that the friend used its service to make spoofed calls to the woman.

The FCC also found that the ex-husband was directly involved in at least some of the calls. For example, the FCC found that the friend made a spoofed call moments after he was called by the ex-husband, and while he was still on the phone with the ex-husband. The FCC explained that the fact that the ex-husband “did not dial the spoofed calls himself does not absolve him of liability for the harassment and stalking of his ex-wife.”

The Communications Act and the FCC’s Rules authorize a fine of up to $10,000 for each spoofing violation, or three times that amount for each day of a continuing violation, up to a statutory maximum of $1,025,000. The FCC may adjust a fine upward or downward depending on the circumstances of the violation. Citing the “egregious” nature of the violation, the FCC proposed to fine the ex-husband and the friend $25,000 each. The friend was also arrested and charged with stalking and aggravated harassment after the woman filed a complaint with local police.

Haters Gonna Hate: Amateur Radio Licensee Fined $25,000 for Racial Slur-Filled Interference

A California amateur radio licensee received a $25,000 fine from the FCC for intentionally interfering with the transmissions of other amateurs radio operators and transmitting prohibited communications, including music.

Section 333 of the Communications Act states that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any stations licensed or authorized by or under the Act or operated by the United States Government.” Similarly, Section 97.101(d) of the FCC’s Rules states that “[n]o amateur operator shall willfully or maliciously interfere with or cause interference to any radio communication or signal.” In addition, Section 97.113(a)(4) of the Rules states that “[n]o amateur station shall transmit . . . [m]usic using a phone emission except as specifically provided elsewhere in this section.”

After receiving multiple complaints of interference, primarily from the Western Amateur Radio Friendship Association (“WARFA”), FCC field agents, with assistance from the FCC’s High Frequency Direction Finding (“HFDF”) Center, conducted investigations to find the source of the interference. On August 25 and 27, 2015, between 7:45 p.m. and 9:45 p.m., the agents observed at least 12 instances of the licensee intentionally transmitting on top of, and interrupting, WARFA amateurs. The interruptions lasted from 30 seconds to at least 4 minutes, and included noises, recordings, music, and talking over WARFA users. The transmissions included racial, ethnic, and sexual slurs. The licensee ended his transmissions each night when WARFA members ended their transmissions.

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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 Cancels $3,000 Proposed Fine After Discovering TV Licensee Overwrote Children’s Programming Reports
  • Educational FM Licensee Agrees to Pay Reduced Fine of $2,250 for Multiple Violations
  • Failure to Understand FCC’s Filing System Nets $1,500 Fine

Licensee’s Discovery Leads FCC to Cancel $3,000 Proposed Fine

The FCC cancelled a $3,000 proposed fine against a New York TV station after the licensee discovered that it inadvertently overwrote three Children’s Television Programming Reports. The FCC had previously proposed to fine the licensee for the untimely filing of the three Reports.

Section 73.3256 of the FCC’s Rules requires each commercial broadcast station to maintain a public inspection file containing specific information related to station operations. Subsection 73.3526(e)(11)(iii) of the rule requires licensees to prepare and place in their public inspection files a Children’s Television Programming Report for each calendar quarter showing, among other things, the efforts made during that three-month period to serve the educational and informational needs of children.

On January 30, 2015, the licensee filed a license renewal application in which it admitted that it failed to file in a timely manner Children’s Television Programming Reports for three quarters between 2012 and 2013. The licensee argued that it was unable to timely upload the Reports because of problems with the FCC’s website and computer servers.

The FCC rejected the licensee’s claim that FCC server problems prevented timely filing, and issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a $3,000 fine for the late filings. The FCC explained that it was unaware of any server problems that would have prevented timely filing during the quarters at issue, and the licensee failed to provide any evidence to support its claim.

In its response to the NAL, the licensee asserted that after looking into the matter further, it found that it had in fact timely filed the Children’s Television Programming Reports. The licensee included with its response a declaration signed by the employee in charge of filing such reports. The employee stated that the three reports in question were timely filed, but inadvertently overwritten later. Upon discovering that the reports had been overwritten, the station refiled the reports, causing them to appear as though they were filed late. The licensee noted that it had since implemented safeguards to prevent reports from being overwritten in the future.

Based on the new information, the FCC was persuaded that the reports had been timely filed, and therefore rescinded the NAL and cancelled the proposed $3,000 fine.

FCC Reduces $18,000 Fine to $2,250 in Consent Decree With Educational FM Station

The FCC entered a Consent Decree with a North Carolina noncommercial educational (“NCE”) FM licensee, terminating the investigation of the licensee’s multiple alleged violations. The alleged violations included: (1) failure to notify the FCC that the station had gone silent for ten or more days and failure to seek special temporary authority (“STA”) when four of those periods of silence lasted more than 30 days; (2) failure to retain all required documentation in the station’s public inspection file; and (3) failure to file biennial ownership reports. Under the terms of the Consent Decree, the licensee agreed to pay a $2,250 fine and abide by a compliance plan.

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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 Refuses TV Licensee’s Request to Defer $15,000 Fine Until After Incentive Auction
  • FCC Proposes $20,000 Fine for Radio Licensee’s Violation of Multiple Ownership Rule
  • FCC Imposes $12,000 Fine and Short-Term License Renewal for Failure to Maintain Public Inspection File and File Ownership Reports

Red Light Blues: FCC Refuses TV Licensee’s Request to Defer Fine Collection Until After Incentive Auction

The FCC’s Media Bureau rejected a Kansas TV licensee’s request to defer a $15,000 fine for failing to timely file fourteen Children’s Television Programming Reports, and for failing to disclose the violations in its license renewal application.

Section 73.3256 of the FCC’s Rules requires each commercial broadcast licensee to maintain a public inspection file containing specific information related to station operations. Subsection 73.3526(e)(11)(iii) of the rule requires licensees to prepare and place in their public inspection files a Children’s Television Programming Report for each calendar quarter showing, among other things, the efforts made during that three-month period to serve the educational and informational needs of children.

In addition, Section 73.3514(a) of the FCC’s Rules requires licensees to include all information requested by an application form when filing it with the FCC. The license renewal application form requires licensees to certify that they have complied with Section 73.3526 and have timely filed their Children’s Television Programming Reports with the FCC.

In April 2016, the FCC issued a Notice of Apparent Liability (“NAL”) to the licensee, asserting that since 2011 the licensee had filed fourteen Children’s Television Programming Reports late, and had subsequently failed to report those violations in its license renewal application. After determining that these actions constituted violations of Sections 73.3526(e)(11)(iii) and 73.3514(a), the FCC proposed a fine of $12,000 for the fourteen late reports and another $3,000 for failing to disclose the violations in the license renewal application—for a total proposed fine of $15,000.

The licensee did not dispute the violations. Instead, it requested a waiver of the FCC’s red light rule, which bars stations from receiving certain benefits if they have an outstanding balance owed to the FCC. In October 2015, the FCC waived the red right rule to allow broadcasters that owed debts to the FCC to participate in the Spectrum Auction.

In requesting a waiver of the red light rule and deferral of the fine until after the Auction concludes, the licensee argued that while it did not owe money to the FCC when it filed its reverse auction application, the current $15,000 fine could make it subject to the red light rule in the near future because it is unable to pay that fine. The licensee explained that if it were a winning bidder in the Auction, it would then be able to pay the fine. Alternatively, the licensee requested a 30 day extension to pay the proposed fine in the event that it was unsuccessful in the Auction.

The FCC rejected the licensee’s requests. In doing so, it first noted that the FCC waived the red light rule for only a very limited purpose at the start of the Auction. Second, it stated that since the licensee admitted that it was not subject to a red light restriction when it filed its reverse auction application and is not currently subject to one, and given that the licensee had provided no documentation showing its inability to pay the fine, any request for a waiver would be prospective and speculative.

The FCC indicated the licensee therefore had two options: (i) pay the proposed fine in full, or (ii) seek a reduction or cancellation. Because the licensee did neither, and instead merely provided a statement about its inability to pay the fine without any supporting documentation, the FCC ordered the licensee to pay the $15,000 fine.

Too Soon? Radio Licensee Faces $20,000 Fine for Premature Implementation of Time Brokerage Agreement

The FCC proposed to fine a New York radio licensee $20,000 for implementing a Time Brokerage Agreement (“TBA”) that violated the Commission’s multiple ownership rule before the FCC had an opportunity to rule on the licensee’s waiver request. Continue reading →

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May 2016

On May 18, 2016, the U.S. Department of Labor published final regulations under the Fair Labor Standards Act (“FLSA”) that more than double the minimum salary level necessary to be exempt from the Act’s overtime rules.  While the changes affect all businesses subject to the FLSA, broadcasters in particular may feel the impact of the changes given the staffing models used by many TV and radio stations. The new requirements will go into effect on December 1, 2016, and broadcasters need to take steps to adapt to, and minimize the impact of, those changes prior to that deadline.

The Fair Labor Standards Act (“FLSA”) is the federal law governing wage and hour requirements for employees.  Pursuant to the FLSA, employers must pay employees a minimum wage and compensate them for overtime at 1.5 times their regular rate of pay for any time worked exceeding 40 hours in a workweek unless those employees are exempt from the requirement. On May 18, 2016, the Department of Labor issued a Final Rule that effectively doubled the minimum salary threshold for certain types of employees to be exempt from the FLSA’s overtime rules, and significantly raised the salary threshold for other types of employees. As a result, many currently exempt employees whose salaries are below the new thresholds will soon be eligible for overtime pay. The White House projects the change will impact over four million previously exempt American employees.

Although the FLSA applies to almost all employers, it contains exemptions for certain types of employees at small-market broadcast stations. The Final Rule does not affect these specific broadcast industry exemptions, but will affect many other currently exempt employees in the broadcast industry who, unless they receive salary raises, will soon become eligible for overtime pay.

This Advisory only addresses federal law. Some state laws impose stricter standards than federal law as to which employees are exempt from overtime pay. Employers must ensure that they also meet the requirements of any applicable state or local employment laws.

Overview

The FLSA requires employers to pay non-exempt employees an overtime rate of 1.5 times their regular rate for all hours worked over 40 hours per workweek. However, the FLSA exempts from its overtime rules certain classes of employees who are paid on a salary basis and meet specific “white collar” duties tests. The Department of Labor’s Final Rule increases the minimum salary necessary for these classes of employees to be deemed exempt from the FLSA’s overtime rules, but does not alter the duties tests for those exemptions.  (Continued…)

A PDF version of this entire article can be found at A Broadcaster’s Guide to the U.S. Department of Labor’s New Overtime Exemption Requirements.

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This Advisory is designed to aid commercial and noncommercial radio and television stations comply with the FCC’s public inspection file rules, including the online public inspection file requirements. See 47 C.F.R. §§ 73.3526 and 73.3527.  This Advisory discusses the public access, content, retention, and organizational requirements of these regulations. Previous editions of this Advisory are obsolete, and should not be relied upon.

For decades, the FCC required that public inspection files be kept at a station’s main studio in paper or electronic form. In a 2012 push to “modernize” the broadcast disclosure rules, the FCC modified this requirement by requiring stations to make most public file information available online in a Commission-hosted database. In January of 2016, the FCC extended the online public file requirement to broadcast radio stations,
starting with commercial radio stations in the Top 50 Nielsen Audio markets that have five or more full-time employees. Beginning on June 24, 2016, this “first wave” of radio stations must upload their public file materials created on or after that date to the online public inspection file. These stations have until December 24, 2016 to upload all public file documents (with a few exceptions discussed below) created prior to June 24.

All other radio stations (i.e., all non-commercial educational radio stations, commercial radio stations in the Top 50 Nielsen Audio markets with fewer than five full-time employees, and all commercial radio stations located outside of the Top 50 Nielsen Audio markets) will be required to upload their public inspection file documents to the online public inspection file by March 1, 2018, and then use the online public file going forward. This “second wave” of radio stations may continue to maintain their public inspection files exclusively at their main studio until that time, or can voluntarily transition to the online file early. Once a station has transitioned to the online public inspection file, it must provide a link to that file from the home page of that station’s website, if it has one. Beginning on June 24, 2016, online public inspection files will be hosted at https://publicfiles.fcc.gov/.  Full power and Class A TV stations that already have a link on their stations’ websites to the FCC’s “old” public file database will need to verify that the link redirects to this new website address for online public inspection files and update the link on their station website, if they have one, to their current EEO Public Inspection File report in the online public file, which will not be redirected automatically.

With the following two exceptions, all content and retention requirements are the same for local and online public inspection files. First, the FCC does not require station licensees to make letters and email from the public available online due to privacy concerns. As of the date of this publication, each station must continue to maintain these documents in paper or electronic form in a local file at the station’s main studio. The FCC is considering eliminating altogether the requirement that correspondence from the public be kept in the public inspection file, and has released a Notice of Proposed Rulemaking proposing that change. However, until the FCC actually changes the requirement, stations must continue to retain such correspondence in a file located at their main studio.

Second, stations need only upload political file documentation on a going-forward basis. Thus, commercial radio stations in the Top 50 markets with five or more full-time employees that make up the “first wave” of radio stations subject to the online filing requirements may continue to maintain political file documentation that existed prior to June 24, 2016 in their local public file until the expiration of the two-year retention period. Similarly, radio stations moving to the online file as part of the “second wave” may continue to maintain political file documentation that existed prior to March 1, 2018 in their local public file until the expiration of the two-year retention period.

Public Access to the Public Inspection File

The FCC requires every applicant, permittee, or licensee of a full-power AM, FM, or TV station or of a Class A TV station to maintain a public inspection file. The purpose of this file, according to the Commission, is “to make information to which the public already has a right more readily available, so that the public will be encouraged to play a more active part in a dialogue with broadcast licensees.” Because the public file rules are part of the FCC’s commitment to responsive broadcasting, the Commission places great importance on the public’s ability to readily access all of the information required to be in the public file. (Continued…)

A PDF version of this entire article can be found at Special Advisory for Commercial and Noncommercial Broadcasters: Meeting the Radio and Television Public Inspection File
Requirements.

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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 Enforcement Bureau and Long-Distance Provider Agree to $100,000 Settlement for Violations of FCC’s Rural Call Completion Rules
  • FCC Cancels $3,000 Fine Against TV Licensee for Untimely Kidvid Filings, Upholds $10,000 Fine for Missing Issues/Programs Lists
  • FM Construction Permit Auction Winner Fined $3,000 For Late Application

Dropped Call of the Wild: Investigation of Rural Call Problems Ends With $100,000 Consent Decree

The FCC’s Enforcement Bureau entered into a Consent Decree with a Utah-based long distance carrier to resolve an investigation into whether the carrier failed to sufficiently respond to a rural customer’s complaints of poor call quality and failed to cooperate with the FCC’s resulting investigation.

The FCC has adopted several “Rural Call Completion Rules” in recent years to address poor call quality and call completion problems in rural and other high-cost areas. The Commission clarified in a 2012 declaratory ruling that a carrier violates Section 201 of the Communications Act of 1934 when it knows or should know that calls are not being completed to certain areas and fails to correct the problem or fails to ensure that its intermediate providers correct the problem.

The FCC has also determined that practices that allow lower quality service to rural or traditionally high-cost areas to persist constitute unjust or unreasonable discrimination (based on locality) in violation of Section 202 of the Communications Act. Further, the FCC has interpreted Section 208 of the Act and Section 1.717 of the Commission’s Rules to require that a carrier satisfy (or adequately explain why it cannot satisfy) any informal rural call completion complaints.

In December 2014, a consumer filed an informal complaint with the FCC detailing ongoing problems with receiving work calls. The calls were sent over the carrier’s long distance network to the consumer’s home office, which is served by an intermediate rural local exchange carrier. The carrier investigated the matter and explained in its response to the informal complaint that (1) the consumer had not responded to a follow-up email about the complaint, and (2) the consumer was not its customer.

The carrier took action in March 2015—after the FCC reminded the carrier of its obligations to address rural call quality problems—but the problem recurred. The consumer subsequently filed additional complaints alleging continued call problems in May and June of 2015. Finding that the carrier failed to sufficiently address and resolve the call quality problems with its intermediate provider until late July 2015, the FCC issued a Letter of Inquiry to the carrier and opened an investigation.

To settle the matter, the carrier entered into a Consent Decree with the FCC, wherein the carrier: (1) admitted that it failed to ensure call quality from its intermediate providers and that it did not cooperate with the FCC’s investigation; (2) agreed to pay a $100,000 civil penalty; and (3) agreed to implement a compliance plan going forward. As part of the plan, the carrier must establish operating procedures and training on the Rural Call Completion Rules, and file regular compliance reports with the FCC during the three-year compliance period.

Island Jam: Guam TV Station Successfully Appeals Proposed Fine for Late Kidvid Reports, But Remains on the Hook for Issues/Programs List Violations

The FCC’s Media Bureau cancelled a proposed $3,000 fine against a Guam TV licensee for failing to timely file five Children’s Television Programming Reports, but upheld a $10,000 fine against the licensee for failing to place fifteen Quarterly Issues/Programs Lists in the station’s public inspection file. The FCC also admonished the licensee for its failure to upload copies of its Quarterly Issues/Programs Lists that were in the station’s local file prior to August 2, 2012.

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The FCC released the tentative agenda for its May 25 Open Meeting today, and topping the agenda is an item that could lift a burden that has been on the shoulders of commercial broadcasters for half a century.  The FCC will vote on adopting a Notice of Proposed Rulemaking to eliminate the requirement that commercial broadcast stations retain copies of letters and emails from the public in their public inspection files.

That simple description understates, however, the actual impact the proposed change could have.  Letters and emails from the public may have at one time simply been one category of documents among many that broadcasters were required to keep in the public file, but when the FCC started requiring that public files be moved online, it recognized that “including these documents in the online file could risk exposing personally identifiable information and . . . requiring stations to redact such information prior to uploading these documents would be overly burdensome.”  As a result, the FCC decided that while it would require broadcasters to upload all other public file documents to the online file, broadcasters would not be permitted to upload letters or emails from the public and instead would have to continue to maintain those documents in the local public file at the station’s main studio.

In the rulemaking proceeding that resulted in the online public file requirement being expanded to radio, we filed comments on behalf of all 50 State Broadcasters Associations questioning the utility of maintaining a physical public file at the station solely to hold letters from the public:

If every part of the file is moved online except Letters from the Public, it’s hard to imagine anyone ever visiting a station solely for the thrill of reading its mail.  Still, station personnel must remain eternally vigilant for that one person who might show up to look at what will be the last vestige of a station’s local public file.

Those comments encouraged the FCC to take steps to eliminate the requirement, explaining that “as long as this single requirement effectively forces stations to maintain a local public file regardless of whether they also have an online public file, the burden of maintaining both files will for many small stations be a bridge too far.”  Commissioner O’Rielly added his support in a blog post this past September.

The biggest benefit of this change, if adopted, would be to allow stations to cease having to maintain a local “paper” public file and ensure that it is continuously available to the public during regular business hours (including lunchtime).  This would not only benefit stations struggling to ensure that there is always a staffer standing by to provide immediate access to the file, but increasingly important, eliminate a major security risk for broadcast stations seeking to prevent dangerous individuals from entering the building, as happened last week in Baltimore.

If the FCC ultimately eliminates the requirement to maintain letters and emails from the public in a local public file, access to the other content in the file will still be available to the public (online), and stations will no longer have to grant access to an individual just because he knows the “open sesame” phrase of American broadcasting: “I’m here to see the public file.”

In a blog post today (All That’s Old is New Again), Chairman Wheeler hinted that this rulemaking is unlikely to see much resistance, stating that elimination of this “outdated public file requirement[]” would be consistent with the agency’s “process reform initiative to review all Commission regulations and update or repeal outdated and unnecessary rules.” Broadcasters couldn’t agree more.

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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:

  • Class A TV Licensee Hit With $89,200 Fine for Dodging FCC Inspectors
  • Student-Run FM Station Faces $12,000 Fine and Shortened License Term for Public Inspection File Violations
  • Wireless Synchronized Clock Company Agrees to Pay $12,000 for Violating License Terms

FCC Throws the ($89,200) Book at Class A Licensee for Evading Main Studio Inspections

The FCC’s Enforcement Bureau imposed a fine of $89,200 against a Philadelphia Class A TV licensee for failing to (1) make its station available for inspection by FCC agents on multiple occasions, (2) maintain a fully staffed main studio, and (3) operate the station’s transmitter from its authorized location.

Section 73.1225(a) of the FCC’s Rules requires broadcast licensees to make a station “available for inspection by representatives of the FCC during the station’s business hours, or at any time it is in operation.” In addition, Section 73.1125(a) of the Rules has been interpreted by the FCC to require broadcast licensees to maintain a main studio with a “meaningful management and staff presence” during normal business hours. Finally, Section 73.1350(a) of the Rules requires a broadcast licensee to “maintain[] and operat[e] its broadcast station in a manner which complies with the technical rules . . . and in accordance with the terms of the station authorization.”

In August 2011, FCC agents attempted to inspect the station’s main studio. After observing that the main studio was inaccessible due to a locked gate, the agents called the station manager and requested access to inspect the main studio. Ten minutes later, the station manager emerged and informed the agents that he could not facilitate the inspection because he was leaving for a medical appointment, and requested that the agents return the next day. When asked about staffing, the station manager said that no one else was available to facilitate the inspection. One of the agents called the sole principal of the station and advised him that the station manager had failed to make the station available for inspection, and asked the principal to call the agent back. The principal did not return the phone call.

Over one month later, in September 2011, the agents returned to the station to inspect the main studio. The station manager appeared at the locked gate, and asked the agents to wait as he returned to the building. After waiting for ten minutes, the agents left. The agents returned that afternoon and found that the gate was still locked. An agent called the station manager, who said the gate was locked for security purposes and that the public must contact the station to obtain access. However, the agents noted that there was no contact information on the gate. An agent called the sole principal about the second failed attempt to inspect the studio, and again did not receive a return phone call.

In addition to the two failed inspection attempts, FCC agents found in March 2012 that the station’s antenna was actually 0.2 miles from the site listed in the station’s license. The agents determined that the station had operated from the unauthorized location for approximately eight years.

The FCC subsequently issued a Notice of Apparent Liability (“NAL”), proposing an $89,200 fine against the station. The base fine for failing to make a station available for inspection is $7,000. However, due to the “unacceptable” conduct of the station, the FCC used its discretion under Section 503(b)(2)(A) of the Communications Act to adjust the proposed fine upward to the maximum amount allowed under the Act: $37,500 for each of the two failed inspections. The FCC also proposed an upward adjustment of the base fine for operating the station from an unauthorized location, from $4,000 to $7,200. In addition, the FCC proposed a $7,000 fine (the base fine amount) for the violation of the main studio rule, for a total fine of $89,200.

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The FCC’s video description rules require covered broadcasters and MVPDs to provide audio-narration of the key visual elements of a program during pauses in the dialogue so as to make it more accessible to individuals who are blind or visually impaired. Under the current rules (which Congress in 2010 directed the FCC to reinstate after a court struck them down in 2000), broadcast stations affiliated with ABC, CBS, Fox, or NBC that are located in the top 60 television markets are required to provide 50 hours of programming with video description per calendar quarter. The top five non-broadcast networks on Pay-TV systems serving 50,000 or more subscribers (currently USA, TNT, TBS, History, and Disney Channel, as of July 1, 2015) are also subject to this requirement.

In addition to directing the FCC to reinstate its video description rules in the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Congress gave the FCC authority to adopt additional video description rules if the benefits of doing so would outweigh the costs. At today’s Open Meeting, the FCC tentatively concluded that the substantial benefits of adopting additional video description requirements would outweigh the costs of the proposed requirements, and therefore adopted a Notice of Proposed Rulemaking recommending an update to and expansion of its video description rules.

The FCC’s additional proposed requirements include increasing the required amount of video-described programming on each covered network from 50 hours per calendar quarter to 87.5 hours, and expanding the number of networks subject to the rules from four broadcast and five non-broadcast networks to five broadcast and ten non-broadcast networks.

The NPRM will also seek comment on a “no-backsliding rule”, which would keep covered networks subject to the requirements even if they fall below the top-five (broadcast) or top-ten (non-broadcast) ranking.

Dissenting in part, Commissioners Pai and O’Rielly voiced concern that the FCC’s proposals exceed the Commission’s statutory authority, which had been the downfall of the earlier rules. In particular, both commissioners warned that the proposals far exceed the 75% increase of the total hour requirement permitted under the CVAA:  Commissioner Pai’s “conservative estimate” was that the proposed additional requirements would increase the total hours requirement by 192% (before taking into account the no-backsliding rule).  With respect to the no-backsliding rule, Commissioner Pai described the proposal as the “Hotel California” approach to regulation, and accused the FCC of Orwellian speak and “reinvent[ing] math”—where the “top five broadcast networks can mean more than five networks.”

The text of the NPRM and comment deadlines have yet to be released, but it’s already sounding like the FCC will be in for a lively debate.