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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:

  • FCC Seeks $20,000 Fine for Long-Term Unauthorized Operations at California AM Station
  • Failure to File License Applications Brings $13,000 Proposed Fine for Washington LPTV Stations
  • FM Translator’s Violation of Program Origination Rules Leads to $1,500 Fine

AM Station’s Years-Long Unauthorized Modification of Nighttime Facilities Results in $20,000 Proposed Fine

The FCC’s Media Bureau issued a $20,000 Notice of Apparent Liability for Forfeiture (“NAL”) to the licensee of a California AM station for the station’s ongoing operation outside its licensed parameters.  This action comes as the FCC is evaluating the station’s August 2021 license renewal application.  That evaluation requires the FCC to consider whether during its license term: (1) the station has served the public interest, convenience, and necessity; (2) there have been any serious violations by the station of the Communications Act or FCC Rules; and (3) there have been any other violations by the station which, taken together, constitute a pattern of abuse.  The alleged violations at issue were not disclosed in the station’s license renewal application.

Since 1970, the station has been authorized to operate a directional signal at night at a power level of 5 kW.  In 1993, the licensee received special temporary authority (“STA”) from the FCC to operate the station at night in non-directional mode at a reduced power of 1 kW.  That authority was last extended in late October 1996, with a warning that the station needed to “return to licensed operation or to file FCC Form 301 for modification of its nighttime facilities.”  The licensee did not return to licensed operation or file a Form 301.  Following a 2016 complaint and an admission by the licensee, the Enforcement Bureau learned that the station had continued to operate non-directionally at night at 1 kW.  The FCC again warned the licensee that it had to either apply for an STA and then return the station to licensed operation, or apply to modify the station’s license to reflect its actual operation.  The licensee did not request an STA or apply to modify the station’s license.

Four years later, another complaint against the station alleged that the station had been operating non-directionally at 1 kW for more than 30 years.  When contacted, the licensee confirmed this and said that directional operation causes significant loss to the station’s coverage area and that, because the station had not received any consumer or broadcaster complaints, it would not be in the public interest, convenience and necessity for its signal to not cover roughly 75% of the population it seeks to serve.  The licensee also highlighted the public safety role the station has played since it went on the air almost 75 years ago.

Last month, the licensee requested an STA to continue operating non-directionally at night with reduced power.  The Media Bureau denied the request due to the licensee’s lack of justification for needing to operate with an alternate antenna system and at reduced power.  The STA request also did not include any engineering studies proving the proposed facility would protect co-channel and first adjacent stations.  An FCC interference study found that the proposed facility would in fact interfere with multiple stations.  In the STA denial, the Media Bureau ordered the station to immediately terminate its unauthorized non-directional nighttime operation and either resume its licensed directional operation at night or file an application to modify its nighttime operation so as to eliminate the interference being caused by its unauthorized nighttime operation.

The FCC cited several rules it believed the station had violated.  Section 301 of the Communications Act and Sections 73.1350(a), and 73.1745(a) of the FCC’s Rules each require licensees to operate according to their FCC-granted authorizations.  Section 73.1560(a)(1) requires AM stations to maintain their antenna input power “as near as practicable to the authorized antenna input power” and “not [] less than 90 percent nor greater than 105 percent of the authorized power,” which the station would have violated by operating at reduced power without authorization.  The NAL stated that the licensee also violated Sections 73.1635 and 73.1690(b) of the FCC’s Rules, which set out the circumstances under which a station must request an STA to operate at variance and when it must apply for a construction permit to alter the station’s facilities.

Ultimately, the FCC decided an upward adjustment of the $13,000 base fine to $20,000 was appropriate, pointing to the station’s prolonged and intentional unauthorized operation and the licensee’s argument that it, not the FCC, is better positioned to judge how the station can best serve the public interest.  In situations where violations have occurred over many years, the FCC is generally prohibited by the Communications Act from considering any violation that occurred prior to the station’s current license term, which here began in late 2013.  Once this enforcement action is resolved, the FCC indicated it intends to renew the station’s license for two years instead of the typical eight-year term.  This shorter renewal term will give the Commission an opportunity to review the station’s rule compliance and determine whether it is operating in the public interest two years from now.

FCC Proposes $13,000 Fine for Washington LPTV Licensee That Failed to File License Applications for Modifications

A Washington state broadcaster failed to timely file license to cover applications and allegedly engaged in unauthorized operation of two low power televisions stations as a result.  In response, the FCC’s Media Bureau issued an NAL proposing a $13,000 fine.

The stations’ digital channels were displaced in the Broadcast Spectrum Incentive Auction, and they were granted construction permits for new displacement channels in June 2018.  The licensee was also granted STAs to begin temporary operations on the displacement channels.  The displacement permits expired in June 2021.  While the stations claimed to have completed construction to operate on their new channels by October 2018 and December 2018, respectively, both stations failed to file applications for licenses to operate permanently on their new channels before their permits expired.

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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:

  • FCC Shifts Battle Against Pirates to Landowners of Pirate Radio Sites
  • Nevada Company Faces $100,000 Fine for Engaging in Prohibited Communications During FCC Auction
  • FCC Proceeds With $17,500 Fine Against Arkansas Broadcaster for Violations Discovered During License Renewal Review

FCC’s Pirate Radio Enforcement Targets Landowners

The Enforcement Bureau recently issued Notices of Illegal Pirate Radio Broadcasting to four property owners in Pennsylvania, Maryland, and Oregon after investigations of unauthorized radio broadcasts found radio signals emanating from their properties. The Communications Act prohibits the transmission of radio signals without prior FCC authorization, as they can, among other things, pose risks to public safety by interfering with licensed operations such as air traffic control.

The FCC has stepped up its efforts to combat illegal broadcast operations, colloquially known as “pirate radio,” in the wake of Congress’s passage of the PIRATE Act in early 2020. Under Section 511 of the PIRATE Act and Section 1.80 of the FCC’s Rules, the Commission may now impose fines of up to $2 million against individuals or entities that knowingly permit pirate radio operations on their property. Additionally, the PIRATE Act permits the FCC, without first having to issue a Notice of Unlicensed Operation, to propose a penalty against any person that “willfully and knowingly does or causes or suffers to be done any pirate radio broadcasting.” The FCC will issue a Notice of Illegal Pirate Radio Broadcasting where it has reason to believe a property owner or manager is permitting illegal broadcasts from its premises. This Notice provides the landowner a chance to remedy the situation before enforcement action is taken.

In response to complaints of illegal FM broadcast operations at four locations in Pennsylvania, Maryland, and Oregon, the Enforcement Bureau issued Notices of Illegal Pirate Radio Broadcasting to the respective landowners. The Notices indicated that FCC investigators had confirmed radio signals were emanating from those properties without an FCC license authorizing such transmissions. The landowners were also warned that they face a fine of up to $2 million if the FCC determines they continued to permit illegal broadcasts from their property.

While the FCC’s rules create exceptions from licensing requirements for certain extremely low-powered wireless devices, the Commission’s agents determined that the transmissions originating from the properties far exceeded those levels. The property owners have ten business days from the date of their respective Notices to (1) respond with evidence demonstrating that pirate radio broadcasts are no longer occurring on their property, and (2) identify the individual(s) involved in the illegal broadcasts. If the parties fail to respond to the Notice altogether, the FCC may still determine that the parties had sufficient knowledge of the illegal broadcasts to warrant enforcement action, including substantial fines.

FCC Proposes to Fine Wireless Company $100,000 for Violating Rules Against Communicating Bidding Strategies During FCC Auction

The FCC released a Notice of Apparent Liability for Forfeiture (“NAL”) proposing to fine a wireless broadband provider (the “Company”) $100,000 for engaging in prohibited communications of bidding and bidding strategies during the FCC’s Rural Digital Opportunity Fund Phase I Auction (Auction 904) and failing to timely report the prohibited communications.

Section 1.21002(b) of the FCC’s Rules forbids FCC auction applicants from conveying certain information to other auction applicants during the “quiet period.” This “quiet period” begins on the deadline for filing a short-form application to participate in the auction and ends on the deadline for winning bidders to submit long-form applications. The rule applies to any communication by an applicant regarding its own, or any other applicant’s, bids or bidding strategies. 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:

  • FCC Orders Dismantling of Unlit Arkansas Tower
  • New York Man Ordered to Cease Operating Interference-Causing Device
  • Louisiana Corporation Fined for Engaging in Prohibited Communications during FCC Auction

FCC Orders Unlit, Unmarked Tower Dismantled

In a recent Order, the FCC directed the owners of a parcel of land where an unlit tower in Arkansas sits to dismantle the structure because it is not lit or marked according to the FCC’s Rules or the Communications Act (the “Act”).  The Federal Aviation Administration had declared the structure to be a “menace to aviation.” Section 303(q) of the Act allows the FCC to require the painting and/or illumination of radio towers where those towers are a menace to air navigation. That provision also requires that when a tower ceases to be licensed by the FCC, the tower owner must continue to maintain the painting and/or lighting of the tower, and the FCC can order it dismantled if the FCC determines the tower is a menace to air navigation.

The tower “owner” may include an “individual or entity vested with ownership, equitable ownership, dominion or title to the [tower] structure.” The FCC has determined that if the title holder of the tower does not own the land where the structure is located (i.e., if the tower owner has leased the land), the title holder of the structure is deemed the owner until the landowner acquires possession of the structure. After that occurs, the landowner will be considered the owner of the structure.

This particular situation was unusual in that the tower owner could not definitively be determined. In 1990, the then-current landowner granted an easement allowing an individual to build the tower structure and required an annual $12,000 payment for the easement. The easement was to run with the land, but the landowner could terminate the easement if the payments were more than 45 days late. In subsequent years, the tower was sold several times. Ultimately, it was registered with the FCC in 1998, given an Antenna Structure Registration number, and required to have a steady-burning obstruction light at the top of the tower.

The tower and associated station were later sold to an entity that is no longer in existence. Through public property records in Arkansas, the FCC determined the identity of the owner of the land and sent a letter to the owner in 2017. In her response, the landowner told the Commission that she jointly owns the land with two other individuals, has never received any payments for the easement, and that the electricity to the tower was disconnected in 2005 at her request. She also expressed interest in quieting title to the structure and indicated a desire to have it dismantled. The FCC sent letters to the two other landowners identified, seeking to confirm that no landowner had received the annual fee for the easement, but received no response.

In the Order, the FCC indicated that the landowners possess the structure for the limited purpose of invoking Section 303(q) of the Act, and ordered them to dismantle the structure. In case another party comes forward to challenge the dismantling of the tower, the FCC held that any person having a “remaining interest in the Structure” is subject to the Order as well. The Commission ordered the structure to be dismantled within 90 days of the release of the Order.

New York Resident Ordered to Cease Operating Interference-Causing Equipment

The FCC recently issued a Citation and Order (“C&O”) directing a New York man to stop operating a device at his home that was causing harmful interference to a wireless provider’s licensed operations. The Commission warned him that he may be liable for fines of up to $22,021 per day if he does not comply with the order.

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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:

  • Broadcasters Fined for Late-Filed Issues/Programs Lists
  • Cable Sports Network Receives Proposed Fine of $20,000 for EAS Violation
  • FCC Enters Consent Decrees with Wireless Providers for Engaging in Prohibited Communications During Spectrum Auction

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On October 10, 2019, the FCC announced that it will hold a full-power FM Broadcast auction for 130 new construction permits starting on April 28, 2020.  For now, the FCC is seeking comment on the procedures for the auction, although it does not propose any significant changes from past FM broadcast auctions.  In connection with the auction, the FCC also announced a filing freeze prohibiting minor change applications, petitions, or counter-proposals directly affecting or failing to protect the construction permits to be auctioned.

A majority of the construction permits will be for lower-power Class A facilities, but there are 28 new facilities that are authorized to operate at 25 kW or higher.  For example, a Class B facility in Sacramento will be available, along with stations on the outskirts of major cities like Dallas and Seattle.  Overall, Texas is home to the most available permits (32), with numerous opportunities also available in Wyoming (11), California (10), and Arizona (8).

Parties seeking to file comments regarding the list of available construction permits and/or the auction procedures should submit them by November 6, 2019.  Reply comments are due November 20, 2019.  After reviewing the record, the FCC will release the final list of available permits and auction procedures, most likely in early January 2020.