Articles Posted in Cable/Satellite TV

Published on:

By and

This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2017. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by July 31, 2018.

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems. Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund. Stations that do not file claims by the deadline will not be able to collect royalties for carriage of their signals during 2017.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2017. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2017 by a satellite provider are also eligible to file royalty claims. A station’s distant signal status should be evaluated and confirmed by communications counsel.

Both the cable and satellite claim forms may be filed electronically or in paper form. Paper forms may be downloaded from https://www.crb.gov/cable; however, with the recent introduction of the Copyright Royalty Board’s new online filing system, eCRB, claimants are strongly encouraged to file claims online. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account at https://app.crb.gov. To submit claims, stations are required to supply the name and address for the filer and for the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming). Claimants should keep copies of all submissions and confirmations of delivery, including certified mail receipts.

Those filing paper forms should be aware that detailed rules as to how the claims must be addressed and delivered apply. Claims that are hand-delivered by a local Washington, D.C. commercial courier must be delivered between 8:30 am and 5:30 pm (those hand-delivered by a private party must arrive by 5:00 pm). Claims may be sent by certified mail if they are properly addressed, postmarked by July 31, 2018, and include sufficient postage. Claims filed via eCRB must be submitted by 11:59 pm (EDT) on July 31. The Copyright Royalty Board will reject any claim filed prior to July 1, 2018 or after the deadline. Overnight delivery services such as Federal Express cannot be used. Stations filing paper claims should verify the proper procedures with communications counsel.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

Published on:

By

If trying to maintain the required paperwork for political advertising aired by your station gives you a headache, prepare for a migraine of biblical proportions.

With the departure of Commissioner Rosenworcel leaving the FCC in a 2-2 partisan split, there are really only two types of broadcast orders coming out of the FCC these days—those having the unanimous support of all four remaining commissioners, and those that can be done by the Media Bureau on delegated authority with or without the support of the two Republican commissioners.  That was evidenced twice last week.  The first was the Media Bureau’s rejection of various petitions seeking reconsideration of increased ownership reporting requirements for noncommercial stations.  That action generated an immediate response from Republican commissioners Pai and O’Rielly, who released a joint statement chiding the Media Bureau for taking the action right before the FCC changes control, and encouraging the rejected petitioners to appeal the decision to the full Commission for reversal:

The Commission’s ruling no longer enjoys the support of the majority of Commissioners—nor is there a majority that supports today’s Media Bureau decision—so it was wrong for the Bureau to bypass Commissioners and reaffirm these reporting requirements unilaterally. . . . The good news is that today’s decision need not be the final word. We encourage public broadcasters to file an application for review so that the newly constituted Commission will have an opportunity to revisit this matter. It is pointless to require board members of NCE stations to report sensitive personal information (like the last four digits of individual Social Security numbers) to the Commission and will only serve to discourage these volunteers from serving their communities.

We might now be headed down a similar path with the political file.  This past Friday evening, the Media Bureau released an Order expanding the recordkeeping associated with airing political advertising.  Perhaps simply an error, but contributing to the appearance that the Order was rushed out to beat the change in administrations, is the fact that the formatting and text of the Friday night version deteriorates badly in the last third of the Order, with no text at all in the last 49 footnotes, the paragraph numbering changing, and the text of some paragraphs being in bold type and/or all capitals.  The cleaned up version can now be found here.  The Order responds to complaints filed by activist groups against eleven different stations owned by a Who’s Who of television broadcasters, with the FCC admonishing nine of the eleven stations for political ad recordkeeping violations.  A separate order admonishing a twelfth station in response to a more recent complaint was also released Friday night.

But why would an order admonishing stations for alleged recordkeeping violations (which originated from complaints sitting at the FCC since mid-2014) need to be rushed out?  Perhaps because it also “clarifies” that the admittedly vague rules on political ad recordkeeping require much more expansive political file records than most anyone has previously suggested (at least anyone who wasn’t trying to use the records for other than their intended purpose; for example, as a proxy for overall political ad expenditures).  The clarifications apply not just to broadcasters, but to cable, DBS, and satellite radio providers as well.

Read without an understanding of the current political ad landscape, the clarifications probably seem dryly mundane.  They include the following: Continue reading →

Published on:

By and

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 Revokes Company’s Authorizations for Failure to Pay Regulatory Fees
  • Failure to Disclose Felonies in License Applications Yields $175,000 Fine
  • Cable Operator Settles Investigation into Unlawful Billing for $2.3 Million

Pay Up or Shut Down: Failure to Pay Regulatory Fees Leads to License Revocation 

In a rare move, the FCC revoked the domestic and international 214 authorizations of a Florida telecommunications company to provide facilities-based and international telecommunications services.

Section 9 of the Communications Act directs the FCC “to assess and collect regulatory fees” to recover costs of certain FCC regulatory activities. When a required payment is not made or is late, the FCC will assess a monetary penalty. Further, Section 9(c)(3) of the Act and Section 1.1164(f) of the FCC’s Rules permits the FCC to revoke authorizations for failure to make timely regulatory fee payments. Under Section 1.1917 of the Rules, a non-tax debt owed to the FCC that is 120 days delinquent is transferred to the Secretary of the Treasury for collection.

In December 2008, the company was authorized to provide facilities-based and resold international telecommunications services. In October 2014, the FCC sent the company a Demand Letter notifying the company of delinquent regulatory fees for fiscal year 2014 and demanding payment. The company failed to respond to the Letter and, as required by Section 1.1917 of the Rules, the FCC transferred the FY 2014 debt to the Secretary of the Treasury. As of July 1, 2016, the company had unpaid regulatory fees of $711.40 for FY 2014, and $3,025.34 for FY 2012. According to the FCC, the company does not appear to have any current customers.

In July 2016, the FCC issued an Order to Pay or Show Cause, instructing the company to demonstrate within 60 days that it paid the regulatory fees and penalties in full, or show why the payment was inapplicable or should be waived or deferred. The Order also explained that failure to comply could result in revocation of the company’s international and domestic authorizations. The company neither responded to the Order nor made any payments.

Citing the company’s failure to either pay its regulatory fees or show cause to remove, waive, or defer the fees, the FCC revoked the company’s international and domestic authorizations. The Revocation Order explicitly stated that such revocation did not relieve the company of its obligation to pay the delinquent fees or “any other financial obligation that has or may become due resulting from the authorizations held until revocation.”

Companies Settle Investigation Into Subsidiaries’ Failure to Disclose Felony Convictions in Wireless Applications With $175,000 Fine

Two engineering corporations, on behalf of themselves and their subsidiaries, entered into a Consent Decree with the FCC to end an investigation into the subsidiaries’ failure to disclose two corporate felony convictions in several wireless license applications. Continue reading →

Published on:

By

The era of newsgathering drones is upon us.  Since new Federal Aviation Administration rules allowing limited commercial operation of drones (also known as unmanned aircraft systems or UAS) weighing 55 lbs. or less took effect a little over a month ago, media organizations have moved quickly to utilize the technology.

Sinclair Broadcast Group, which operates or provides services to 173 television stations across the country, recently announced it was going “all in” on newsgathering drones.  It plans to have 80 trained and certified UAS pilots working in 40 markets by the end of 2017, and already has launched UAS teams for newsgathering in Washington, DC; Baltimore, MD; Green Bay, WI; Columbus, OH; Little Rock, AR; and Tulsa, OK.  Providing an example of the benefits drones can bring to newsgathering, Sinclair released footage taken over the Cedar River in Cedar Rapids, IA, showing an aerial perspective of a newly constructed flood wall as the city braced for flooding.

Sinclair’s announcement comes on the heels of CNN’s launch of CNN Aerial Imagery and Reporting (CNN AIR), a unit with two full-time drone operators dedicated to integrating aerial imagery and reporting across CNN networks.

Broadcasters and other organizations with newsgathering operations are increasingly taking advantage of the FAA’s new “Part 107” rules, which took effect on August 29, 2016.  The small drones authorized under the rules offer broadcasters and other news organizations a cost-effective way to gather aerial footage, especially as compared to the cost of using helicopters.  While the Part 107 rules have paved the way for widespread use of newsgathering drones, broadcasters and other potential UAS operators should keep in mind that some requirements must be met before UAS operations can commence.

To protect the public, the Part 107 rules come with a number of operational limitations on UAS operation.  However, if a party can demonstrate the ability to operate safely while deviating from a specific limitation, the FAA may grant a waiver of one or more of the specific limitations found in its rules.  With regard to newsgathering operations, the most relevant limitations (and therefore good candidates for waiver requests) include the prohibitions on flights above people not participating in the UAS operation, flights beyond visual line of sight, flights above 400 feet (or more than 400 feet above a building or other structure), and nighttime flights.  The FAA has added a portal to its website for waiver applications, and has recorded a standard-issue government YouTube video on the subject.  For an example of a waiver that has been granted, take a look at CNN’s waiver for flights over non-participants.

In addition, the Part 107 rules require those operating small drones to either hold a “remote pilot certificate” or be under the supervision of a person who holds such a certificate.  To qualify for a certificate, the applicant must be at least 16 years old, be vetted by the Transportation Security Administration, and pass an aeronautical knowledge test at an FAA-approved testing center.  The FAA offers a free online preparation course for the knowledge test.  In addition to pilot certification, Part 107 requires that all drones used for commercial purposes be marked and registered.  Drones can be registered through the FAA’s website.

Pillsbury launched one of the nation’s first UAS legal teams long before commercial operations were possible, and being a part of these developments has been fascinating.  Because of the myriad issues UAS operations involve, Pillsbury’s UAS practice consists of an interdisciplinary team of lawyers from our Aviation, Communications, Privacy, and Transportation practices.  Those contemplating entering the world of UAS operations for newsgathering or other purposes will find the UAS team’s blog and advisories an excellent place to start.

It’s time to stop reading about drones in the news, and start reading news brought to us by drones.

Published on:

By

TV broadcasters know that every July 31st, they need to file with the Copyright Royalty Board (CRB) to claim a share of the royalty fund for out-of-market carriage of their programming by cable and satellite TV systems.  The details can be found in the Pillsbury Advisory we published earlier this month, which also noted that since July 31st is a Sunday this year, the filings may be made until 5pm (EDT) on August 1.

Under the Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems.  The CRB divides the royalties among those copyright owners who claim shares of the royalty fund.  Stations that do not file claims by the deadline will not be able to collect royalties for carriage of their signals during 2015.

However, a lot of filers wait until the last minute to file, and cross their fingers that the system won’t crash or become overwhelmed by the rush of last minute filings.  The risk of such an approach went up markedly this afternoon, when the CRB released the following notice:

ATTENTION CABLE AND SATELLITE ROYALTY CLAIMS FILERS: ONLINE CLAIMS FILING TO BE TEMPORARILY UNAVAILABLE TO ACCOMMODATE SCHEDULED MAINTENANCE

The Architect of the Capitol will be conducting scheduled maintenance on the Capitol Hill campus from Friday, July 29, through Sunday, July 31, resulting in power outages that will cause an interruption in the online claims filing service. The CRB website, www.loc.gov/crb, will be unavailable from 5 p.m., Eastern Daylight Time, on July 29 through midnight, Eastern Daylight Time, July 31. The CRB website is scheduled to be available again on August 1. The deadline for filing 2015 cable and satellite claims is August 1 this year because July 31 falls on a nonbusiness day. Filers who planned to file this weekend may want to consider completing a paper claim following the instructions on the fillable PDF form on the CRB website. For more details, go to http://www.loc.gov/crb/claims/ before 5 p.m. on July 29.

In other words, if your don’t have your claim on file by 5pm EDT tomorrow, Friday, July 29th, your only window to file electronically runs from midnight Sunday night until 5pm EDT on Monday—a period of just seventeen hours.  Worse, a lot of filers who didn’t learn of this announcement and find themselves unable to file this weekend will also be rushing to get on file on Monday.

Providing a little added drama is the phrase “scheduled to be available again on August 1,” which those of us used to dealing with federal filing systems know is not at all the same as “will be available again on August 1.”  Should there be a delay in getting the filing system up and running, that seventeen-hour filing window will shrink further.  As a result, TV broadcasters would do well to complete their filings before 5pm EDT tomorrow.  Failing that, they should be prepared to take the CRB’s advice and file a paper claim rather than risk missing the August 1 deadline.  The deadline is statutory, so it can’t be waived by the CRB.

Some may find copyright law to be a dull subject, but the CRB has certainly found a way to inject some real excitement into an otherwise mundane process.  Ladies and gentlemen, start your engines…

Published on:

By

In a Public Notice released today, the FCC has taken the next steps towards implementing the expanded online public inspection file, which is set to go live on June 24th.  Specifically, the FCC announced that on June 13, 2016 at 1:00 p.m. Eastern Time, it will hold an online demonstration on using the new online public file.  In addition, the FCC publicized the Internet address for the new online public file, which licensees must use to create the required link from their websites to the online public file.

As we previously described in Neither Sleet Nor Snow Can Keep the Radio Public File from Going Online and All New Online Public File for TV, Radio, Cable and Satellite Coming June 24th, the FCC adopted a Report and Order in January 2016 extending the online public inspection file requirement to broadcast and satellite radio licensees and cable and satellite television operators.  That requirement is currently applicable only to full power and Class A television stations.  Pursuant to a phased-in schedule, commercial radio stations that have five or more employees and are located in the Top 50 Nielsen Audio markets, as well as satellite radio licensees, cable systems with 1000 or more subscribers, and DBS operators, must begin using the new system on June 24, 2016.  While commercial radio stations not included in this group as well as all noncommercial radio stations are exempt from the new online public file requirement until March 1, 2018, they are allowed to voluntarily commence use of the new system sooner.  Because these exempt stations are permitted to transition early, the demonstration should be of interest to all radio station licensees.  The demonstration will take place in the Commission Meeting Room, but can be viewed live at https://www.fcc.gov/news-events/events/2016/06/demonstration-expanded-online-public-inspection-file-interface.

Today’s Public Notice also notes that the website address where the new online public file will be hosted will be https://publicfiles.fcc.gov/.  Once a station has transitioned to the online public file, it must provide a link to the new online public inspection file from the home page of the station’s website, if it has one.  Full power and Class A television stations that already have such a link will need to update that link to reflect the new website address.

Published on:

By

Television broadcasters have had to comply with an online Public Inspection File requirement since 2012.  This past January, the FCC announced that it would expand the online Public File requirement to certain broadcast radio, satellite radio, cable system, and DBS operators.  Today, the FCC released a Public Notice announcing the effective date of that new obligation.  It also announced that it has established a new filing system, the Online Public Inspection File (“OPIF”), for use by these newly-covered entities, as well as by television broadcasters who until now have been using the existing online Broadcast Public Inspection File (“BPIF”).

The entities that are newly covered by the online Public File requirement will begin use of the new system in two “waves,” with larger entities going first and having a phase-in period, and smaller entities going later, but having no phase-in period.  There are lots of dates to keep track of, which include:

  • To Be Announced:  FCC Webinar Demonstrating Use of OPIF
  • June 24, 2016:  Public Inspection File documents (including Political File documents) created on or after this date must be uploaded to OPIF by the “first wave” of newly-covered entities:
    • Commercial radio stations that have five or more full-time employees and are located in the Top 50 Nielsen Audio markets
    • DBS providers
    • SDARS licensees
    • Cable systems with 1,000 or more subscribers (except with respect to the Political File, for systems with fewer than 5,000 subscribers)
  • June 24, 2016:  OPIF use by full-power and Class A television stations becomes mandatory and BPIF use is disabled
    • The FCC says it will transition television stations’ existing documents from the BPIF to the OPIF automatically by this date
  • December 24, 2016:  Public Inspection (but not Political) File documents created prior to June 24, 2016 must be uploaded to the OPIF by the “first wave” entities listed above
  • March 1, 2018:  A “second wave” of newly-covered entities must begin use of OPIF for all newly created Public Inspection and Political File documents and upload all existing Public Inspection (but not Political) File documents.  The “second wave” consists of:
    • All NCE radio stations
    • Commercial radio stations that have fewer than five full-time employees and are located in the Top 50 Nielsen Audio markets
    • Commercial radio stations located outside of the Top 50 Nielsen Audio markets, regardless of staff size
    • Cable systems with between 1,000 and 5,000 subscribers, with respect to newly-created Political File documents only

Commercial broadcast licensees must continue to retain letters and emails from the public at their main studios; the FCC will not let them be posted in the online public file.  However, as we noted last week, the FCC is circulating a Notice of Proposed Rulemaking that proposes eliminating such letters and emails from the public file entirely.

The Public Notice announces that the OPIF will include a number of technical improvements not found in the BPIF system currently used by television licensees.  According to the FCC, these improvements are meant to allow stations to better manage their online files, including implementing APIs to enable the upload of multiple documents from a third-party website and permitting a document to be placed into multiple folders.  OPIF will also feature improved .pdf conversion software to speed uploads, and allow more flexibility to delete empty folders.

While radio stations have been nervously gearing up to face the new frontier of online public files, TV stations may be a bit surprised that the online file is changing for them as well.  Particularly surprised will be those TV stations who haven’t been following these developments and who try to log into the old public file system on July 10 to file their quarterly reports.  Whether you are a TV or radio broadcaster, or a cable, DBS, or SDARS provider, now is the time to start learning how OPIF will work; it’s not a BPIF world anymore.

Published on:

By

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.

Published on:

By

Despite a three-hour delayed opening of the federal government courtesy of the aftermath of Winter Storm Jonas, the FCC, in today’s Open Meeting, adopted rules requiring that radio broadcast stations, as well as satellite radio (i.e., Sirius/XM), direct broadcast satellite providers (i.e., DirecTV and DISH), and most cable television systems, migrate their public inspection files to an FCC-hosted online database.

The FCC has only published a brief Public Notice describing its action, but there will be more details available when the full Report and Order is released, perhaps as soon as tomorrow.  The Public Notice does however clarify that important exemptions that appeared to have gone missing when the Chairman wrote about the proposed requirement in a blog post a few weeks ago (which we discussed here) have since been added, due in  large part to the efforts of the NAB and state broadcasters associations pushing for such exemptions.  Importantly:

  • Only commercial broadcast radio stations that are in Top 50 radio markets and that have at least five full-time employees will need to comply with the new rules when they first become effective.
  • All other radio stations will have two years to commence complying with the new rules, although they are permitted to move online earlier if they wish to do so voluntarily.

The biggest news in the FCC’s Public Notice appeared to be the statement that the FCC would “permit entities that have fully transitioned to the online public file to cease maintaining a local public file, as long as they provide online access to back-up political file material via the entity’s own website if the FCC’s online file database becomes temporarily unavailable.”  For radio stations that have had to remain on constant alert to escort random station visitors inside their facilities to review the “paper” public file (with all the attendant security risks that represents for a media outlet), this regulatory relief was welcome, and had been championed in the proceeding by all 50 state broadcasters associations.

However, the celebration turned out to be potentially premature, as later in the day, the FCC released the commissioners’ individual statements, and Commissioner O’Rielly’s separate statement lamented that:

Unlike cable and satellite operators, commercial broadcast licensees will not have the immediate option of transitioning to an online-only public file, due to the Commission’s rule pertaining to the correspondence file that arguably cannot be made available online for privacy reasons. I very much appreciate the Chairman’s attention to this important issue and commitment to move forward on a proposal to eliminate correspondence file requirements so that broadcasters, too, can have an online-only option for public file requirements.

So it will take a bit longer before radio stations can say goodbye to their paper public files, but it looks those local files’ days may be numbered.

Another spot of relief is that political file material will need to be uploaded only on a going forward basis.  Historical political information can be retained in paper format until the expiration of the two-year retention period applicable to such documents.  However, stations must have a back-up political file, either in paper or on their websites, in case the FCC’s public file database goes down and the information becomes unavailable from the FCC.

As is the case for television stations, which began moving their public inspection files online in 2012, those covered by today’s order will only need to upload items that are not already electronically filed and available on the FCC’s website.  As a result, documents like ownership reports and most facility modification applications should be automatically loaded into a station’s online public file by the FCC.

The order will apparently include some accommodations for small cable systems as well.  Systems with fewer than 1,000 subscribers will be completely exempt from the online public file requirement, and systems with 1,000-5,000 subscribers will have a two-year phase-in period for their political file material.

Unfortunately, the Public Notice does not indicate exactly when the rules will take effect—an important detail for licensees operating commercial radio stations in the Top 50 markets with five or more full-time employees.  When TV station public files went online, the FCC set the deadline at 30 days following publication of a notice in the Federal Register that the Office of Management and Budget had approved the information collection aspects of the rule.  If this order follows a similar timeline, the new rules wouldn’t likely become effective until sometime in the second quarter of this year.

Over the years, many have criticized the public file as being of little interest to the viewers and listeners it was originally meant to inform, noting that it has instead become merely a source of federal revenue due to the stiff fines imposed by the FCC for violations of the public file rule.  The FCC’s view, however, is that more members of the public will review the file if it can be accessed online, following the motto “upload it, and they will come.”  Whether that is true, the FCC commissioners clearly see the online public file requirement as an effort to move the FCC’s rules into the 21st century.  Broadcasters in particular are hoping that it is the beginning of a much broader effort to bring the FCC’s rules into the 21st century, and many would like to suggest that the FCC next move on to its multiple ownership rules.

Published on:

By and

November 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 Admonishes TV Licensee for Prior Station Owner’s Failure to Timely File Children’s Television Programming Reports
  • Inadequate Antenna Fencing and Signage Result in Proposed Fines of $60,000 and $25,000 for Two Broadband-PCS Licensees
  • Cable Company Settles Data Breach Investigation for $595,000

You Can’t Leave Your Troubles Behind: FCC Clarifies That Prior Violations Transfer Along with TV Station

The FCC’s Video Division admonished a New York TV licensee whose station failed to file Children’s Television Programming Reports in a timely manner for thirteen quarters between 2006 and 2010. The licensee acquired control of the station through a long-form transfer of control consummated in September 2010.

Section 73.3526 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) requires TV 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 2011, the FCC sent a letter to the licensee requesting that the licensee provide information concerning missing Children’s Television Programming Reports between 2006 and 2010. In response, the licensee explained that some of the missing reports had actually been filed under a “–FM” call sign, instead of the licensee’s “–CA” call sign, and admitted that the others had not been filed. The FCC later notified the licensee’s counsel that it had concluded its investigation into the Children’s Television Reports at issue in its 2011 letter, and did not impose a fine or other penalty for the violations at that time.

The violations resurfaced, however, after the station’s license renewal application filing in 2015 triggered an FCC review of the station’s online public inspection file. The FCC issued a Notice of Apparent Liability for Forfeiture to the licensee, proposing a $15,000 fine for its failure to timely file the 2006-2010 Children’s Television Programming Reports. The licensee argued that (i) the FCC had previously investigated the station’s public file and deemed it in compliance, and (ii) the licensee was not responsible for untimely report violations of the station’s prior owner, noting “existing regulations and a consistent line of published decisions and notices” to that effect. In particular, the licensee cited Section 73.3526(d) of the FCC’s Rules, which provides that “[i]f the assignment is consented to by the FCC and consummated, the assignee shall maintain the file commencing with the date on which notice of the consummation of the assignment is filed with the FCC.”

As even the licensee acknowledged, however, “assignments and transfers are dealt with in separate sub-sections of the rule, and the language about the limited responsibility of a new owner appears only in the assignment subsection.” On that basis, the FCC rejected the licensee’s argument, explaining that “[b]ecause the Licensee remains the same after a transfer of control, as a legal matter, liability remains with the licensee.”

Nevertheless, the FCC concluded that the licensee “had reason to believe it was in compliance at the time it submitted its license renewal application because it had filed previously missing reports in 2011 and 2013.” It therefore exercised its discretion to cancel the proposed fine and instead issue an admonishment. The FCC warned, however, that it would not rule out more severe sanctions for similar violations in the future, noting that the FCC takes the timely filing of Children’s Television Programming Reports “very seriously.”

Broadband-PCS Licensees Face Fines for Exposing the Public to Excessive Radiofrequency Levels

The FCC’s Enforcement Bureau proposed $60,000 and $25,000 fines against two broadband-PCS licensees for inadequate warning signs and fencing surrounding certain antennas in Phoenix, resulting in unprotected areas that exceeded what is permissible radiofrequency (“RF”) exposure for the general public. The violations were discovered on the same day as a result of a complaint from the owner of a nearby office building. Continue reading →