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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:

  • FCC Issues Six Notices of Apparent Liability to Pirate Radio Operators Across Massachusetts
  • Affordable Connectivity Program Provider Faces $8 Million Fine and Removal from the Program
  • FCC Proposes $3,000 Fine Against Massachusetts Class A Television Station for Public File Issues

FCC Targets Pirate Radio Operators in the Boston Area

The Communications Act prohibits the transmission of radio signals without prior FCC authorization because such signals can interfere with licensed communications and pose a danger to the public by interfering with licensed stations that carry public safety messages, including Emergency Alert System transmissions.  Over the past few years, the FCC has been focusing more attention on the owners and operators of illegal broadcast radio (colloquially known as “pirate radio”) facilities, targeting several in New York (as we discussed here and here) and Florida (as discussed here).  Last month, it issued six Notices of Apparent Liability for Forfeiture (NAL) proposing fines against Massachusetts pirate radio operators under the Preventing Illegal Radio Abuse Through Enforcement Act (PIRATE Act).  The PIRATE Act gave the FCC enhanced enforcement authority against radio pirates and has led to the recent increase in such fines.

In the Massachusetts NALs, the FCC proposed fines of $597,775, $120,000, $40,000, $40,000, $40,000, and $20,000, respectively, against the six pirate radio operators.

With regard to the largest proposed fine—$597,775—the FCC noted in the NAL that the facility’s owner had a long history of unauthorized operation.  In 2004, FCC field agents traced radio transmissions to a residence in Randolph, MA.  The transmissions exceeded the power limits for operation under Part 15 of the FCC’s Rules, which permits use of certain low power radio frequency devices without an FCC license.

Over the years, FCC field agents issued verbal and written warnings to cease pirate operations, but the self-admitted owner/operator repeatedly failed to do so.  In early 2005, agents found him to be transmitting above the Part 15 power limits, resulting in a $10,000 fine in 2006.  In 2017, acting on a complaint, FCC agents took field strength measurements of a new signal connected with the same operator and found it also exceeded the limits for unlicensed operation, resulting in the agents issuing an on-scene Notice of Unlicensed Operation.

Then, over the course of five days during June and July 2023, agents traced unauthorized radio transmissions to three locations in Brockton, Mattapan, and Randolph, MA.  After taking field strength measurements, the agents determined that all three facilities exceeded the power limits for operation under Part 15 of the FCC’s Rules.  Further investigation confirmed no authorizations had been issued for operation of an FM broadcast station at or near any of the three locations, and that the same owner/operator was connected to all three pirate sites.

In the NAL against this operator, the FCC concluded that he willfully and knowingly violated the Communications Act by operating a pirate radio station, and proposed the base fine for pirate operation ($20,000) for each of the five days of observed illegal activity, which would have resulted in a total proposed fine of $100,000.  Given the operator’s history of warnings and prior violations, however, the FCC found that an upward adjustment was warranted, and it proposed the maximum permissible penalty—$119,555—for each of the five instances of operation, leading to a proposed total fine of $597,775.  The operator has thirty days to either pay the fine or file a request presenting grounds for its reduction or cancellation.

FCC Alleges Wireless Company Violated Affordable Connectivity Program Rules and Federal Wire Fraud Statute

The FCC issued an NAL and Order Initiating Removal Proceeding to a wireless company and its principal for apparently willfully and repeatedly violating the FCC’s Rules for the Affordable Connectivity Program (ACP) and the federal wire fraud statute.  The NAL proposes an $8,083,992 joint fine against the company and its principal. Continue reading →

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June 1 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, New Mexico, Nevada, Ohio, Utah, Virginia, West Virginia, and Wyoming to place their Annual EEO Public File Report in their Public Inspection File and post the report on their station website.

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, June 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.  LPTV stations are also subject to the broadcast EEO Rule, even though LPTV stations are not required to maintain a Public Inspection File.  Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request.  Therefore, if an LPTV station has five or more full-time employees, or is otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in its station records file. Continue reading →

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On April 23, 2024, the U.S. Department of Labor published final regulations under the Fair Labor Standards Act (“FLSA”) that ultimately raise the minimum salary necessary to be exempt from federal overtime rules by 65%. These changes affect all businesses subject to the FLSA, but broadcasters and other media employers may particularly feel the impact given that they rarely operate on a 9am-to-5pm schedule. The increase will occur in two steps, with the first going into effect on July 1, 2024, and the second occurring on January 1, 2025. While these increases are certain to be challenged in court, the outcome of any appeals is difficult to predict. Employers need to prepare now to adapt to minimize the impact of these changes on their operations.

The Fair Labor Standards Act 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 that requirement. On April 23, 2024, the Department of Labor issued a Final Rule that increases the minimum salary required for certain types of employees to be exempt from the FLSA’s overtime rules and changes the methodology that will be used to determine the applicable salary thresholds in the future. As a result, many currently exempt employees whose salaries are below the new thresholds will soon become eligible for overtime pay, requiring their employers to either increase those employees’ salaries to meet the new thresholds, or begin paying them overtime.

The Department of Labor projects the change will impact an estimated four million workers, with an additional direct cost to employers (from overtime pay and increases in salaries to maintain exempt status) of $1.5 billion.

Although the FLSA applies to most employers, the law contains exemptions for certain types of employees, including some at small-market broadcast stations. The Final Rule does not affect these broadcast industry-specific exemptions, but will affect many other currently exempt employees in the broadcast and media 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 who also meet specific “white collar” duties tests. The Department of Labor’s Final Rule increases the minimum salary required 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. 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:

  • FCC Proposes $8,000 Fine for Contest Rule Violations
  • Business Communications Company Settles Business Radio Investigation by Agreeing to Compliance Plan and $100,000 Penalty
  • FCC Issues $16,500 Fine to Alabama FM Translator for Multiple Rule Violations

California FM Station Receives $8,000 Proposed Fine for Contest Rule Violation

The FCC proposed a fine of $8,000 against the licensee of a California FM radio station for violating the FCC’s Contest Rule.  Specifically, the FCC issued a Notice of Apparent Liability for Forfeiture (NAL) asserting that the licensee failed to conduct the contest substantially as announced.

Section 73.1216 of the FCC’s Rules requires a licensee to “fully and accurately disclose the material terms” of a contest it conducts or promotes and to conduct the contest “substantially as announced and advertised.”  Material terms include, among other things, eligibility restrictions, the means of selecting winners, and the extent, nature, and value of prizes.  Prizes must also be awarded promptly, and in the past the FCC has found Contest Rule violations where a station failed to award prizes in a manner consistent with the advertised rules.

The FCC received a complaint alleging that the station did not award a cash prize to the winner of a contest conducted in October 2019.  To investigate the complaint, the FCC issued a Letter of Inquiry (LOI) to the station.  In response, the station admitted that there had been “undue delay,” with the prize being awarded after the announced timeline.  The station’s contest rules indicated prizes were to be awarded to winners “within thirty (30) business days of the date the winner completes all required Station documents.”  The station acknowledged that it received all required documentation on January 16, 2020, and thus it should have issued the prize by March 2, 2020, but did not issue the prize until May 2021.  The station cited three separate events as the cause of the undue delay: (1) difficulty accessing necessary files after the COVID-19 pandemic led to employees working from home; (2) a ransomware attack that affected corporate IT systems between October 2020 and March 2021; and (3) a lack of staff after the ransomware attack that prevented the station from completing work in a timely manner.

Despite these defenses, the FCC found that the station apparently willfully violated Section 73.1216 of the FCC’s Rules when it failed to award the prize in accordance with the advertised contest rules, and therefore failed to conduct the contest “fairly and substantially as represented to the public.”  The FCC explained that “timely fulfillment of the prize” was a “material term of the Licensee’s own contest rules” and the station delayed issuing the prize for over a year.  The FCC disagreed with the station’s justifications for the delay, finding that they did not excuse the failure to award the prize in compliance with the announced contest rules.  In particular, the FCC pointed out that the station’s first justification for the delay (the pandemic transition to work-from-home) occurred in mid-March 2020 – after the station should have already issued the prize by March 2, 2020.

The FCC’s base fine for violations pertaining to licensee-conducted contests is $4,000.  In this case, the FCC found a single violation of Section 73.1216 of the FCC’s Rules resulting from the station’s failure to issue the prize within the timeframe established by the contest rules.  However, considering the totality of the circumstances, and in line with the FCC’s Forfeiture Policy Statement, the FCC determined an upward adjustment was warranted, emphasizing that “large or highly profitable companies should expect to pay higher forfeitures for violations of the Act and the Commission’s rules” to ensure that the fine is an “effective deterrent and not simply a cost of doing business.”  The FCC therefore concluded that an upward adjustment of the proposed fine from $4,000 to $8,000 was appropriate.  The station has 30 days from release of the NAL to pay the fine or file a written statement seeking reduction or cancellation of it.

Rule Violations by Business Communications Company Result in Consent Decree with Compliance Plan and Six-Figure Penalty

A nationwide business communications company settled an FCC investigation by admitting that it failed to seek approval from the FCC before transferring control of business radio licenses and that it conducted business radio operations without authorization.  The company entered into a consent decree that requires implementation of a compliance plan and payment of a $100,000 civil penalty. Continue reading →

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On Tuesday, the Federal Trade Commission announced a new rule banning employee non-compete agreements, treating them as harmful and an “unfair method of competition.”  This includes non-competes in the broadcast industry, where they serve a vital purpose that was given short shrift by the FTC.  Stations spend large sums of money and airtime promoting their on-air talent, building that employee’s brand with local viewers and listeners and conferring on them by association the public goodwill the station has built up in its community over many decades.  It becomes far more challenging to make that immense investment if your anchor can move across the street to a competitor and immediately transfer all of the goodwill associated with that tremendous multi-year investment to a competing station.

In adopting the ban, the FTC effectively treated non-competes as what lawyers call a “contract of adhesion”– one which a potential employee has no choice but to sign without negotiation, regardless of how draconian the terms.  That is, of course, a poor description of contracts with on-air personalities, which are often heavily negotiated with commensurate levels of compensation.  It is also worth noting that in adopting its one-size-fits-all ban, the FTC bemoaned the fact that a non-compete forces a departing employee to leave the area if they wish to continue doing the same type of work.  Of course, moving to a different market to advance a career is the norm rather than the exception in broadcasting, regardless of any non-competes, particularly given the small number of employers hiring on-air talent in any one market.

This was not an accidental oversight by the FTC.  It specifically discussed broadcasting in its Order adopting the new rule, quoting a commenter who said:

I am a professional broadcast journalist subject to a non-compete agreement with every employment contract I have ever signed, which is the industry standard.  I understand the need for contractual agreements with on-air talent and some off-air talent, but non-compete agreements have historically offered nothing to employees besides restricting where they work, and how much money they are able to earn . . . [while] knowing that employees would have to completely relocate if they wanted to seek or accept another opportunity.

Despite the fact that the comment quoted in the Order specifically acknowledges the need for non-competes with regard to “on-air talent and some off-air talent,” the FTC declined to make an exception for such non-competes, saying:

The Commission declines to exclude on-air talent from the final rule.  The Commission finds the use of non-compete agreements is an unfair method of competition as outlined in Part IV.B, and commenters do not provide evidence that a purported reduction in investment in on-air talent would be so great as to overcome that finding.  Specifically, the success of on-air talent is a combination of the employer’s investment and the talent of the worker, both of which benefit the employer.  As noted in Part IV.D, other less restrictive alternatives, including fixed duration contracts and competing on the merits to retain the talent, allow employers to make a return on their own investments. Moreover, as stated in Part II.F, firms may not justify unfair methods of competition based on pecuniary benefit to themselves.  Employers in this context do not establish that there are societal benefits from their investment in on-air talent, but only that the firms benefited.

That whooshing sound you hear is the FTC missing the point.

But broadcasters shouldn’t feel singled out, as pretty much the only exception the FTC did permit to its blanket ban on non-competes is to allow continued enforcement of existing non-competes for “senior executives” (those earning more than $151,164 annually who are in policy-making positions).  Oddly, however, the FTC Order still prohibits entering into any new non-competes with such senior executives after the new rule goes into effect.

Barring court intervention (and some appeals have already been filed), the rule will be effective 120 days after it is published in the Federal Register.  After that, broadcasters will have to abide by the new restrictions unless a court says otherwise.

That is not, however, all of the bad news for broadcasters and other employers.  In implementing the ban, the FTC is using a particularly broad definition of who qualifies as a “worker” and therefore can’t be asked for a non-compete.  It includes not just current and former employees, but anyone that “works or who previously worked, whether paid or unpaid, without regard to the worker’s title or the worker’ status under any other State or Federal laws, including but not limited to, whether the worker is an employee, independent contractor, extern, intern , volunteer, apprentice, or a sole proprietor who provides a service to [the business].”  So even outside parties simply rendering a service to the broadcaster cannot be asked to sign a non-compete once the new rule goes into effect.

In addition, businesses must identify those workers with which they have entered into non-competes and provide “clear and conspicuous notice to the worker, by the effective date, that the worker’s non-compete will not be, and cannot legally be, enforced against the worker.”  This notice “must be on paper delivered by hand to the worker, or by mail at the worker’s last known personal street address, or by email at an email address belonging to the worker, including the worker’s current work email address or last known personal email address, or by text message at a mobile telephone number belonging to the worker.”

For those interested in more specific details on the ban, and complying with these sweeping new requirements, I’d encourage you to read Pillsbury’s Alert on the subject (Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes).

While broadcasters and other employers should begin taking steps to prepare for the ban on the assumption it will go into effect as scheduled, there is reason for optimism that the courts will step in to block some or all of the new requirements.  The FTC’s Order is unusually broad for an agency order, with sweeping assertions that find limited support in the record.  Also notable is the fact that the FTC didn’t merely establish a presumption that non-competes are an “unfair method of competition” that might be rebutted in a particular factual situation; the new rule simply deems all non-competes to be a form of unfair competition regardless of the actual facts.

In truth, many non-compete provisions are the result of extensive negotiations, with the employee bargaining for greater compensation in return for agreeing to a non-compete clause.  The FTC’s treatment of all non-competes as simply agreements involuntarily forced on workers without any corresponding compensation or other benefit to the worker (like enjoying the unflinching promotional support and trust of the station) conflicts with reality.  Courts typically require stronger and more detailed proof than general assertions that non-competes are bad for competition in all circumstances, particularly given the extensive disruption that will be caused by suddenly making them unenforceable in a matter of months.  So as the saying goes, hope for the best, but plan for the worst.

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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:

  • Maine LPTV Licensee Agrees to Pay $2,500 for Closed-Captioning Violation
  • Georgia Broadcaster Loses FM Translator License, Faces Five-Figure Fine for Various Alleged Rule Violations
  • FCC Proposes $9,500 Fine for Missouri LPTV Licensee for Failing to File License Application and Renew Special Temporary Authority

Low Power Television Licensee Enters Into Consent Decree for Closed Captioning Violation

The Federal Communications Commission’s Enforcement Bureau and the licensee of a low power television station entered into a Consent Decree to resolve an investigation into whether the licensee violated the FCC’s Rules pertaining to closed captioning of video programming.  Under the Consent Decree, the licensee admitted to violating the FCC’s closed captioning rules, agreed to implement a compliance plan, and pay a $2,500 penalty.

The FCC’s closed captioning rules are designed to ensure that individuals with hearing disabilities have full access to video programming content.  The FCC’s Rules, among other things, require Video Programming Distributors to: (1) pass video programming with closed captioning to viewers with the original closed captioning data intact; (2) maintain their equipment and monitor their signal transmissions to ensure the closed captioning is reaching viewers; and (3) maintain records of their maintenance and monitoring activities.

In June 2021, a cable subscriber noticed that the station’s programming did not contain closed captioning and contacted their cable provider.  The cable provider told the viewer that the signal from the station did not contain closed captioning, so the viewer contacted the station directly in July 2021.  The station explained that it was getting new equipment which would fix the closed captioning problem, but after three months, the closed captioning was still missing from the programming.  After no further response from the station, the viewer filed a complaint with the FCC in October 2021.  Despite telling the FCC in November 2021 that it had identified the problem and was working to replace the deficient equipment, the licensee failed to timely respond to a December 2021 Letter of Inquiry (LOI) from the FCC.  A second LOI was issued in April 2022, prompting the licensee to respond in part to both LOIs.

After an investigation, the FCC determined that the licensee had failed to pass through closed captioning on its programming for a total of eight months.  Additionally, the FCC found that the licensee was not fully responsive to the viewer’s complaint or the FCC’s LOIs during the investigation, in violation of Section 1.17 of the Commission’s Rules.

To resolve the investigation, the licensee agreed to enter into a Consent Decree under which it will designate a compliance officer, implement a multi-part compliance plan, including implementing procedures to monitor its transmissions, routinely conduct equipment checks, and pay a $2,500 civil penalty.  The Consent Decree also indicates that in the event the licensee fails to comply with the requirements to monitor its transmissions and conduct equipment checks, it will pay an additional $12,500 civil penalty.

 Variety of Alleged Rule Violations by Georgia AM Station Generate Proposed $16,200 Fine and License Cancellation for Its FM Translator

A Georgia broadcaster faces a Notice of Apparent Liability for Forfeiture (NAL) and a $16,200 fine for several alleged FCC rule violations, including operating a full-power AM radio station at variance from its license, discontinuing operation of the station without notifying the FCC or obtaining FCC authorization to do so, transferring control of the station and its FM translator to another party without FCC authorization, and failing to completely and fully respond to FCC inquiries.  The FCC also found that the translator’s license had automatically terminated after the translator failed to operate from its authorized location for more than a year. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by April 10, 2024, reflecting information for the months of January, February, and March 2024.

Content of the Quarterly List

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

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

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

The FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have complete Quarterly Lists in their Public Inspection File or which have failed to timely upload such lists when due.  The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the Public Inspection File by January 10, April 10, July 10, and October 10 of each year.  The next Quarterly List is required to be placed in stations’ Public Inspection Files by April 10, 2024, covering the period from January 1, 2024 through March 31, 2024. Continue reading →

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April 1 is the deadline for broadcast stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas 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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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:

  • New Hampshire Presidential Primary Deepfake Robocalls Lead to Enforcement Action Against Call Originator
  • TV Broadcaster Faces $720,000 Fine for Failure to Negotiate Retransmission Consent in Good Faith
  • Statutory Maximum Penalty of $2,391,097 for Pirate Radio Operator

Telecommunications Company Accused of Originating Illegal Robocalls That Used President Biden’s Voice

A Michigan-based telecommunications company received a Notice of Suspected Illegal Traffic (“Notice”) from the FCC’s Enforcement Bureau accusing it of originating illegal robocall traffic related to the New Hampshire Presidential Primary election.

Two days before voting began in the Primary, New Hampshire residents believed to be potential Democratic voters began receiving calls purportedly from President Joe Biden telling them to “save” their vote for the November general election and not vote in the Primary.  The caller ID information indicated the call came from the spouse of a former state Democratic Party chair who was running a super PAC urging state Democrats to write in President Biden’s name in the Primary.  The call was not authorized by President Biden or his campaign or an authorized committee, nor did it include a legitimate message from the president but instead was a so-called deepfake using the President’s voice.  The caller ID information was spoofed.

Following widespread news reporting of the calls, the FCC investigated the matter together with the New Hampshire Attorney General, the Anti-Robocall Multistate Litigation Task Force and USTelecom’s Industry Traceback Group (“ITG”).  This group determined that the telecommunications company was the originating provider of the robocalls at issue, and the ITG provided identifying call data to the company for the suspect calls.  In response, the company identified another entity as the party that initiated the calls and told the ITG that it had warned the initiating entity as to the illegality of the calls.  According to the Notice, both the company and the apparent initiating entity have been previous subjects of illegal robocall investigations.

It is illegal under federal law to “knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value” and the law requires originating providers to protect their networks by taking “affirmative, effective measures to prevent new and renewing customers from using its network to originate illegal calls, including knowing its customers and exercising due diligence in ensuring that its services are not used to originate illegal traffic.”  Failure by a provider to protect its network can lead to downstream providers permanently blocking all of the upstream provider’s traffic.  In this case, the FCC believed the caller knowingly transmitted misleading and inaccurate caller ID information to deceive and confuse call recipients and apparently intended to harm prospective voters by using the President’s voice to tell them to not participate in the Primary.  The company also signed the calls with A-Level Attestation, an authentication designation that signals to downstream providers that the company has a direct relationship with the customer and that the customer legitimately controls the phone number in the caller ID field.

Transmittal of the Notice triggered several obligations for the company, including that it investigate the illegal traffic identified by the FCC and block or cease accepting all of the illegal traffic within 14 days of the Notice if the company’s investigation determines that it was part of the call chain for the identified traffic or substantially similar traffic.  Failure to respond to the Notice or to comply with additional obligations could result in temporary or permanent blocking of all traffic from the company, removal of the company from the Robocall Mitigation Database, which would cause all intermediate and terminating providers to immediately cease accepting the company’s telephone traffic, and more.  The FCC also issued a Public Notice notifying all U.S.-based voice service providers of the suspected illegal traffic coming from the company and authorizing the providers, at their discretion, to block or cease accepting traffic from the company without liability under the Communications Act of 1934 if the company failed to effectively mitigate the illegal calls. Continue reading →

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February 1 is the deadline for broadcast stations licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma 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 →