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[UPDATE:  The FCC just released its Report and Order defining the requirements for stations wishing to meet their contest disclosure obligations by posting their contest rules online.  The revised FCC rule requires a licensee to (i) broadcast the relevant website address periodically with information making it easy for a consumer to find the material contest terms online; (ii) establish a link or tab to material contest terms on the website’s home page; (iii) maintain contest terms online for a minimum of thirty days after the contest ends; and (iv) where applicable, within 24 hours of a material change in contest rules (and periodically thereafter), announce that the material terms have changed and direct participants to the website to see the changes. 

The FCC also noted that the “relevant website” for posting rules should be the station’s or licensee’s website or, if there is no station or licensee website, then any other website that is “designed to be accessible to the public 24/7, for free, and without any registration requirement.”

In the Report and Order, the FCC agreed with commenters that a literal interpretation of the “complete and direct” website announcement requirement would be unduly burdensome for broadcasters and confusing to the public.  It therefore concluded that broadcasters could satisfy the requirement by identifying the relevant address “through simple instructions or natural language (e.g., ‘for contest rules go to kxyz.com and then click on the contest tab’).”

The Report and Order did not, however, shine any light on how frequently a broadcaster must announce the web address.  Instead, the FCC decided that “the public interest would be better served by providing licensees with flexibility to determine the frequency with which they broadcast the website address where contest terms are made available to the public.”  The FCC cautioned, however, that if it finds “that licensees are failing to broadcast the website address with adequate frequency,” the Commission will revisit the issue in the future.]

[EARLIER POST BELOW]

As we wrote last month, the agenda for the FCC’s September open meeting included consideration of its proposal to modernize the 40-year-old broadcast contest rule. Today, after more than three and a half years of (unopposed) anticipation, the FCC adopted rules that “allow broadcasters to disclose contest rules online as an alternative to broadcasting them over the air.”

As the FCC has not released the text of its decision yet, the precise form of disclosure that will be required is not fully known.  However, it appears the FCC did hear the suggestions made by numerous commenters regarding how often a station must air the web address for contest rules. The FCC’s original proposal would have required that the online location of the full contest rules be mentioned every time the contest itself is mentioned.  Numerous parties complained that such an approach would clutter the airwaves with repetitive mentions of the website address where the rules could be found, and would be of little use to a public well-attuned to finding information on the Internet.

Today’s Public Notice hints that less frequent website mentions will be adequate, stating that broadcasters will be required only to “periodically announce over the air the website address where their contest rules can be found.”  Once the text of the rules is released, broadcasters will learn if the FCC has provided any guidance as to how often a “periodic” announcement must run.

Also left open until the text of today’s decision arrives is the issue of whether the FCC will stick with its original proposal that “the complete and direct” website address (e.g., “http://www.WXYZ.com/contest123/rules”) be aired, or if broadcasters will instead be allowed to use a shorter web address, such as the station’s main website, where a link to the contest rules can be found.  In either case, we would expect the FCC will require that a link to the contest rules be featured prominently on a station’s website.

While today’s action still permits broadcast stations to comply with the rules by airing the material terms of a contest on-air, it opens up an additional option that many stations will prefer to use, if for no other reason than to put an end to debates at the FCC about whether what a station aired constituted the “material terms” of a contest’s rules.  That has been a major subject of FCC enforcement decisions related to station-conducted contests, and one that should go away if the station has posted the full contest rules online.  As a result, the main focus of any FCC investigation involving a station contest will likely be limited to whether the station followed its published rules in conducting its contest.  That is a far more objective question, and should eliminate some of the risk that has been inherent in running a station contest for the past 40 years.

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As we wrote last month, the agenda for the FCC’s September open meeting included consideration of its proposal to modernize the 40-year-old broadcast contest rule. Today, after more than three and a half years of (unopposed) anticipation, the FCC adopted rules that “allow broadcasters to disclose contest rules online as an alternative to broadcasting them over the air.”

Continue reading →

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August 2015

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 Again Cracks Down on Wi-Fi Blocking at Conference Centers
  • Licensee Faces $27,000 Fine for Repeatedly Failing to File Kidvid Reports
  • Too Little Too Late: FCC Dismisses as Late (and Meritless) Antenna Structure Owner’s Petition for Reconsideration

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The FCC today released a tentative meeting agenda for its September 17, 2015 Open Commission Meeting.  The agenda includes consideration of a Report and Order granting broadcasters greater flexibility in making rule disclosures required by the FCC for station-conducted contests.

As we posted here and here, the Commission previously adopted a Notice of Proposed Rulemaking looking to “modernize” its nearly 40-year-old station-conducted contest rule.  The current rule requires broadcasters conducting a contest to “fully and accurately disclose the material terms of the contest” by airing them a “reasonable” number of times.  As readers of our Enforcement Monitor know, differing opinions on what is “material” and “reasonable” have led to numerous FCC enforcement actions, typically resulting in $4,000 fines.

The NPRM proposed to alleviate some of that confusion by allowing broadcasters to post contest rules on any publicly accessible website and then announce the web address on-air in lieu of broadcasting the rules themselves.  In addition to easing the burden on broadcasters, who must often resort to speed reading contest rules on-air to cover all material terms while putting their audiences to sleep in the process, the proposed rule will give audience members the opportunity to review the contest rules at a more leisurely pace and at their convenience on the Internet.

The key question that remains is what the Commission’s Report and Order will say regarding how often a station must air the web address for the contest rules.  The NPRM originally proposed including the contest rule web address with every mention of the contest, which could clutter the airwaves even more than the current rule’s requirement to air all of the material terms a reasonable number of times.  Commenters in the proceeding pushed back, suggesting less frequent website mentions, and asking the FCC to modify its NPRM proposal that each mention include “the complete and direct website address” to instead allow use of a shorter web address (e.g., the station’s main website) where a link to the contest rules can be found.

The Report and Order under consideration has been a long time coming.  The original petition for rulemaking was filed in January of 2012 and encountered no opposition, with all parties seeing the benefit of maximizing the respective strengths of broadcasting and the Internet in conducting a contest.  With the ability to easily post the full contest rules online, station licensees will no longer need to stress over which contest rules are “material”, and audience members will no longer have to be speed readers (or speed listeners) to participate in a station-conducted contest.

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July 2015

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:

  • Repetitive Children’s Programming Costs TV Licensee $90,000
  • It’s Nice to Be Asked: FCC Faults Red-Lighted Licensee’s Failure to Request STA
  • FCC Proposes $25,000 Fine for Hogging Shared Frequencies

“Repeat” Offender: Children’s Programming Reports Violations Cost Licensee $90,000

A licensee of several full power and Class A TV stations in Florida and South Carolina paid $90,000 to resolve an FCC investigation into violations of the Children’s Television Act (CTA) threatening to hold up its stations’ license renewal grants.

The CTA, as implemented by Section 73.671 of the FCC’s Rules, requires full power TV licensees to provide sufficient programming designed to serve the educational and informational needs of children, known as “Core programming”, and Section 73.6026 extends this requirement to Class A licensees. The FCC’s license renewal application processing guideline directs Media Bureau staff to approve the CTA portion of any license renewal application where the licensee shows that it has aired an average of 3 hours per week of Core programming. Staff can also approve the CTA portion of a license renewal application where the licensee demonstrates that it has aired a package of different types of educational and informational programming, that, even if less than 3 hours of Core programming per week, shows a level of commitment to educating and informing children equivalent to airing 3 hours per week of Core programming. Applications that do not satisfy the processing guidelines are referred to the full Commission, where the licensee will have a chance to prove its compliance with the CTA.

Among the seven criteria the FCC has established for evaluating whether a program qualifies as Core programming is the requirement that the program be a regularly scheduled program. The FCC has explained that regularly scheduled programming reinforces lessons from episode to episode and “can develop a theme which enhances the impact of the educational and informational message.” With this goal in mind, the FCC has stressed that the CTA intends for regularly scheduled programming to be comprised of different episodes of the same program, not repeats of a single-episode special.

Applying this criteria to each of the licensee’s 2012 and 2013 license renewal applications, the FCC staff questioned whether certain programming listed in the Children’s Television Programming Reports for the stations complied with the episodic program requirement. In particular, the staff looked at single-episode specials that the licensee counted repeatedly for the purpose of demonstrating the number of Core programs aired during each quarter—for example, the licensee listed one single-episode special as being aired 39 times in one quarter. After determining that it could not clear the renewal applications under the FCC’s processing guidelines, the staff referred the matter to the full Commission for review.

The FCC and the licensee subsequently negotiated the terms of a consent decree to resolve the CTA issues raised by the Media Bureau. Under the terms of the consent decree, the licensee agreed to make a $90,000 voluntary contribution to the U.S. Treasury. The licensee also agreed to enact a plan to ensure future compliance with the CTA, to be reflected in each station’s Quarterly Children’s Television Programming Reports. In light of the consent decree and after reviewing the record, the FCC concluded that the licensee had the basic qualifications to be an FCC licensee and ultimately granted each station’s license renewal application.

FCC Clarifies “Red Light” Policy Is a Barrier to Grants, Not a Road Block to Filing Requests

An Indiana radio licensee faces a $15,000 fine for failing to retain all required documentation in its station’s public inspection file and for suspending operation of the station without receiving special temporary authority (STA) to do so.

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We’ve all heard the warning: once you put something on the Internet, it will be there forever.  But an Oregon TV station learned the hard way that records in the FCC’s online public inspection file are easier to delete than you might like—and backdating restored files is not an option.

As detailed in our May Enforcement Monitor, the FCC hit the licensee with a proposed $9,000 fine for failing to timely upload Quarterly Issues/Programs Lists to the station’s online public inspection file—$3,000 for failing to post newly-created documents to the online file after the online file rule went into effect on August 2, 2012, $3,000 for failing to meet the February 4, 2013 deadline to populate the online public file with documents created before August 2012, and yet another $3,000 for failing to disclose these apparent violations in the station’s license renewal application.

But in its response to the FCC’s Notice of Apparent Violation (NAL), the licensee asserted that it had in fact timely posted its issues/programs lists to the online public file.  The licensee claimed that when it was notified that the license renewal of a co-owned LPTV station was granted, a station employee deleted all issues/programs lists for the preceding license term from the online public file of the licensee’s full power TV station, apparently confused about which station’s license renewal had been granted (both stations had the same four-letter call sign).  Recognizing the error, station employees promptly re-uploaded the lists to the public file less than 24 hours later.  The February 13, 2015 upload date, however, created the appearance that the licensee had missed the original due dates by more than two years.

As proof of the mishap, the licensee provided (i) a signed declaration under penalty of perjury from a station employee, and (ii) internal correspondence showing that the lists were inadvertently deleted following the LPTV station’s license renewal grant.  Satisfied with this evidence, the FCC rescinded the NAL and canceled the $9,000 fine.

So let this be a teachable moment—particularly as the FCC ponders expanding its online public file requirement to radio stations.

First, when intentionally deleting documents as no longer relevant, make sure you are in the right public file.  Second, where a public file document is accidentally deleted, repost it as soon as the error is spotted.  Third, when you do repost it, attach a brief explanation alerting the FCC (and any potential license renewal petitioners) of the original filing date and the reason for the subsequent “late” filing.  Finally, maintain contemporaneous records to document the mistake, providing evidence that will back up the station’s explanation when the FCC comes knocking.

Oh, and one last thing the FCC didn’t mention in its decision: don’t delete those public file documents until grant of the station’s license renewal becomes a final, unappealable order.  If the FCC rescinds a station’s license renewal as having been granted in error, the station will need to have those documents in its public file, and the FCC isn’t going to bother looking for them in the Google cache.

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June 2015

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:

  • Educational FM Licensee Receives $8,000 Fine for Unauthorized Operation
  • FCC Cancels $6,000 Fine for Late Filings due to Licensee’s Inability to Pay
  • Blaming Prior Legal Counsel, Telecommunications Provider Pays $2,000,000 Civil Penalty

Continued Unauthorized Operation Leads to $8,000 Fine

A New York noncommercial educational radio station received an $8,000 fine after repeatedly failing to operate its station in accordance with its authorization. Section 301 of the Communications Act prohibits the use or operation of any apparatus for the transmission of communications or signals by radio, except in accordance with the Act and with a license granted by the FCC. In addition, Section 73.1350(a) of the FCC’s Rules requires a licensee to maintain and operate its broadcast station in accordance with the terms of the station authorization.

In response to a complaint, an FCC agent discovered in October of 2012 that the licensee was operating the station from a transmitter site in Buffalo, New York, a location about 36 miles from the authorized site. The FCC made repeated attempts to contact the licensee. Ultimately, the president of the licensee confirmed the unauthorized operation and agreed to cease operating from Buffalo. The FCC then issued a Notice of Unlicensed Operation to the licensee, warning it that future unauthorized operations could result in monetary penalties.

After receiving another complaint, the FCC determined that the licensee had resumed unauthorized operation in November of 2012. In response, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability (NAL) proposing an $8,000 fine. The FCC explained in the NAL that although the base fine for operating at an unauthorized location is $4,000, the egregiousness of the licensee’s violation warranted an upward adjustment of an additional $4,000. The FCC based this decision on the fact that the licensee had moved the location of its transmitter to a significantly more populous area more than 30 miles from its authorized location in an effort to increase the station’s audience while potentially causing economic or competitive harm to radio stations licensed to that community.

Following the NAL, the licensee sought a reduction or cancellation of the fine, claiming that it made good faith efforts to remedy the violation, had a history of compliance with the FCC’s Rules, and was unable to pay the fine. The FCC concluded that the licensee took no remedial actions until after it was notified of the violation, and found that the licensee’s continued operation from the unauthorized location after receiving a Notice of Unlicensed Operation demonstrated a deliberate disregard for the FCC’s Rules. Finally, the licensee failed to provide any documentation supporting its inability to pay claim. Accordingly, the FCC rejected the licensee’s arguments and declined to cancel or reduce the $8,000 fine.

In Rare Decision, FCC Cancels Fine Based on Station’s Operating Losses

In October of 2014, the FCC’s Video Division proposed a $16,000 fine against the licensee of a Class A TV station for violating (i) Section 73.3539(a) of the FCC’s Rules by failing to timely file its license renewal application, (ii) Section 73.3526(11)(iii) for failing to timely file its Children’s Television Programming Reports for eight quarters, (iii) Section 73.3514(a) for failing to report those late filings in its license renewal application, and (iv) Section 73.3615(a) for failing to timely file its 2011 biennial ownership report. The FCC also noted a violation of Section 301 of the Communications Act because the station continued operating after its authorization expired. Continue reading →

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Beginning next Wednesday, July 1, 2015, TV stations affiliated with the Top Four networks (ABC, CBS, NBC, and Fox) in the top 60 markets will be required to provide 50 hours of video description per calendar quarter.

Currently, the video description requirement applies only to commercial TV stations affiliated with a Top Four network that are located in the top 25 markets. However, the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) requires the FCC to extend the video description requirements to Top Four-affiliated stations in markets 26-60 (a) after filing a report with Congress on the state of the video description market; and (b) not later than six years after the enactment of the CVAA.

In its 2011 Video Description Order, the FCC announced that the requirement for 50 hours of video description would expand to the 60 largest markets, as determined by the Nielsen 2014-2015 TV Household DMA rankings, on July 1, 2015.

In addition, the FCC noted that the video description rules require all stations to pass through video description when it is provided by their network if the station has the technical capability to do so.

The CVAA gives the FCC authority, beginning in 2020, to phase in the video description requirements for up to an additional 10 markets each year. Accordingly, the FCC will continue to assess the costs and benefits of video description to determine whether extending the requirements beyond the top 60 markets is appropriate.

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May 2015

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:

  • 404 Not Found: Missing Online Public File Documents Lead to $9,000 Fine
  • Wireless Providers Pay $158 Million to Settle Mobile Cramming Violations
  • Failure to Timely File License Renewal Application Results in $1,500 Fine

FCC Ramps up Enforcement of Online Public File Rule with $9,000 Fine and Multiple Admonishments

This month, the FCC proposed a $9,000 fine against one TV station licensee and admonished two others for violating the online public file rule. TV stations were required to upload new public file documents to the online public file on a going-forward basis beginning August 2, 2012, and should have finished uploading existing public file documents (with certain exceptions) by February 4, 2013. Until now, the FCC had taken relatively few enforcement actions against licensees for public file documents that exist but haven’t been uploaded to the station’s online public file, making three cases in one month stand out.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires that every commercial TV licensee place in its public file, on a quarterly basis, an Issues/Programs List that details programs that have provided the station’s most significant treatment of community issues during the preceding quarter. Section 73.3526(b)(2), which the FCC modified in 2012, requires TV station licensees to upload these and most other public file documents to the FCC-hosted online public file website.

On October 1, 2014, an Oregon TV licensee filed its license renewal application. An FCC staff inspection revealed that the licensee failed to upload to the online public file copies of its Issues/Programs Lists for its entire license term. The FCC concluded that the licensee missed both the August 2, 2012 and the February 4, 2013 deadlines by over two years, resulting in two separate violations. Additionally, the licensee did not disclose the online file violations in its license renewal application, creating an additional violation of the FCC’s Rules. Each violation cost the station $3,000, for a total proposed fine of $9,000.

Also this month, a Honolulu licensee and a different Oregon licensee caught the FCC’s attention for online public file violations. The FCC proposed fines of $9,000 and $3,000 respectively against the stations for failing to timely file all of their Children’s Television Programming Reports. In addition, the FCC admonished both licensees for failing to timely upload electronic copies of their quarterly Issues/Programs Lists by the February 4, 2013 deadline. The FCC determined that while the licensees uploaded the documents approximately 18-19 months late, they were at least uploaded prior to the filing of each station’s license renewal application. Because this preserved the public’s ability to undertake a full review of the stations’ public file documents in connection with potentially filing a petition to deny, the FCC concluded that admonitions rather than additional fines were an appropriate response.

FCC Continues Crack Down on Cramming Violations With Two Multi-Million Dollar Settlements

The FCC announced this month that, in coordination with the Consumer Financial Protection Bureau and the attorneys general of all 50 states and D.C., it has reached settlements with two large wireless carriers to resolve allegations that the companies charged customers for unauthorized third-party products and services, a practice known as “cramming.” Investigations revealed that the companies had included charges ranging from $0.99 to $14.00 per month for unauthorized third-party Premium Short Message Services (“PSMS”) on their customers’ telephone bills, and that the companies retained approximately 30-35% of the revenues for each PSMS charge they billed. Continue reading →

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As we’ve previously written, the FCC adopted an Audible Crawl Rule in April 2013 requiring TV stations, by today, May 26, 2015, to present aurally on a secondary audio program stream (“SAP”) any non-newscast emergency information that a station presents visually. On March 27, 2015, the National Association of Broadcasters (“NAB”) filed a petition urging the FCC to grant a six-month extension of this deadline. The NAB also requested that the FCC (i) waive the requirement that visual but non-textual emergency information be included in the audible crawl, and (ii) reconsider the utility of including school closing information in its list of emergency information to be included in the SAP. Today, the FCC released a Memorandum Opinion and Order announcing that it will grant each of the NAB’s three waiver requests, extending the general compliance deadline by six months to November 30, 2015.

As adopted, the rule would have required all emergency information presented visually to be fully conveyed verbally on the SAP twice, including weather maps and school closings. Unfortunately, certain inherently graphical information, such as a Doppler Radar map, does not contain text files that can simply be converted to speech—making compliance not only difficult, but arguably impossible (e.g., imagine describing a Doppler Radar map twice in the time it is onscreen.). The NAB also contended that the aural presentation of lengthy school closure lists “serves no real utility, [and] may in fact impede timely provision of emergency information to vision impaired viewers” that could obtain school closure information through more efficient means. The 50 State Broadcasters Associations and the Society of Broadcast Engineers were among commenters that filed in support of the waiver requests.

Balancing the challenges of implementation against the concerns stated in comments submitted by the American Council of the Blind and the American Foundation for the Blind, the FCC announced that it will waive the requirement to aurally describe visual but non-textual emergency information, but limit the waiver to 18 months. Broadcasters now have until November 2016 before the FCC will require them to “aurally describe the critical details regarding the emergency and how to respond to the emergency . . . including the critical details conveyed solely by a map or other graphic display.”

Lastly, as the NAB requested (and all commenters supported), the FCC will waive the requirement that school closing announcements and bus schedule changes be included in the audible crawl SAP pending FCC reconsideration of that issue as part of its Second Further Notice of Proposed Rulemaking (adopted May 21, 2015, but not yet released by the FCC).

As the compliance deadline was set to kick in today, many broadcasters were likely contemplating which was the better of two bad options—ceasing to visually provide any emergency information, or risking an enforcement action for failing to convert onscreen text (or graphics) into speech. Fortunately, today’s waiver grant avoids the need for broadcasters to make that Hobson’s choice, so better late than never!