Articles Posted in FCC Enforcement

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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 Proposes Forfeitures Against South Carolina Stations for Failure to Maintain Public Inspection File
  • Noncommercial Station and FCC Settle Dispute Over Promotional Announcements
  • Brooklyn-based Bitcoin Miner Warned Over Harmful Interference
  • FCC Issues Notice to Security Camera Manufacturer for Device ID Violations

FCC Proposes Fine Against Licensee of South Carolina Stations for Failure to Maintain Complete Public Files

In two separate Notices of Apparent Liability for Forfeiture (“NALs”) released on the same day, the FCC found two commonly owned radio stations apparently liable for repeated violations of its public inspection file rule.

Section 73.3526 of the FCC’s Rules requires stations to maintain a public inspection file that includes various documents and items related to the broadcaster’s operations.  For example, subsection 73.3526(e)(11) requires TV stations to place in their public inspection file Quarterly Issues/Programs Lists describing the “programs that have provided the station’s most significant treatment of community issues during the preceding three month period.”

In their respective license renewal applications, the stations disclosed that they had failed to locate numerous Quarterly Issues/Programs Lists from the 2003 to 2010 time period.  According to the licensee, the gaps in its reporting were due to several personnel changes at all levels of the stations as well as computer and software changes made over the past ten years.

Between the two NALs, the FCC found a total of 38 missing Lists (21 for one station, and 17 for the other station), which it considered a “pattern of abuse.” Pursuant to the FCC’s forfeiture policies and Section 1.80(b)(4) of its Rules, the base forfeiture for a violation of Section 73.3526 is $10,000.  The FCC can adjust the forfeiture upwards or downwards depending on the circumstances of the violation.  Here, the FCC proposed a $12,000 forfeiture in response to the station with 21 missing Lists and a $10,000 forfeiture for the station with 17 missing Lists.  Visit here to learn more about the FCC’s Quarterly Issues/Programs List requirements.  For information on maintaining a public inspection file, check out Pillsbury’s advisory on the topic.

“Ad” Nauseam: FCC Resolves Investigation Into Underwriting Rules Violation

The FCC entered into a Consent Decree with the licensee of two noncommercial educational (“NCE”) radio stations in Arizona and California after receiving complaints that the stations aired commercial advertising in violation of the Communications Act and the FCC’s Rules (together, the “Underwriting Laws”).

Section 399B of the Communications Act of 1934 prohibits noncommercial stations from making their facilities “available to any person for the broadcasting of any advertisement.” Section 73.503(d) of the FCC’s Rules prohibits an NCE station from making promotional announcements “on behalf of for profit entities” in exchange for any benefit or payment.  Such stations may, however, broadcast “underwriting announcements” that identify but do not “promote” station donors.  Such identifications may not, among other things, include product descriptions, price comparisons, or calls to action on behalf of a for-profit underwriter.  The FCC recognizes that it is “at times difficult to distinguish between language that promotes versus that which merely identifies the underwriter,” and expects licensees to exercise good faith judgment in their underwriting messages.

In response to complaints from an individual who alleged that the stations had repeatedly violated the Underwriting Laws, the FCC sent the licensee multiple letters of inquiry regarding questionable underwriting messages between August 2016 and March 2017.  According to the FCC, the licensee did not dispute many of the facts in the letters, and the parties entered into the Consent Decree shortly thereafter.  Under the Consent Decree, the licensee (1) admitted that it violated the Underwriting Laws; (2) is prohibited from airing any underwriting announcement on behalf of a for-profit entity for one year; (3) must implement a compliance plan; and (4) must pay a $115,000 civil penalty.

Brooklyn Bitcoin Mining Operation Draws FCC Ire Over Harmful Interference

The FCC issued a Notification of Harmful Interference (“Notification”) to an individual it found was operating Bitcoin mining hardware in his Brooklyn, New York home.

Section 15 of the FCC’s Rules regulates the use of unlicensed equipment that emits radio frequency energy (“RF devices”), a broad category of equipment that includes many personal electronics, Bluetooth and WiFi-enabled devices, and even most modern light fixtures.  Such devices must not interrupt or seriously degrade an authorized radio communication service.  The FCC’s rules require a device user to cease operation if notified by the FCC that the device is causing harmful interference. 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:

Headlines:

  • FCC Revokes Licenses After Alleged Failure to Report Felony Drug Conviction
  • Car Dealership Receives Citation for Interference-Creating Outdoor Lighting
  • License Renewal Hearing Ordered for Near-Silent Virginia Stations
  • FCC Commissioner Criticizes Local Colorado News Site Over Pirate Radio Station Article

LA Business Stripped of Licenses for Alleged Misrepresentations About Drug Conviction

In a rare Order of Revocation, the FCC revoked all of a Los Angeles communication equipment provider’s licenses after the licensee failed to respond to an inquiry into whether its manager lied about a 1992 felony drug conviction in dozens of Commission filings.

The Order rescinds the licensee’s eleven Private Land Mobile Radio (“PLMR”) and microwave station licenses and dismisses all of the licensee’s pending modification and license renewal applications.

Section 312(a) of the Communications Act authorizes the FCC to revoke a license “for false statements knowingly made … in the application” or when it finds that conditions “warrant it in refusing to grant a license[.]”  Pursuant to Section 1.17(a)(1) of the FCC’s Rules, no person may “intentionally provide material factual information that is incorrect or intentionally omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading.”  The FCC heavily weighs any misrepresentation or lack of candor when it determines whether a party is fit to become or remain a licensee.

The FCC began looking into the licensee’s fitness in 2015, when a different Los Angeles business alleged that the licensee had knowingly lied on an at least one FCC application when it replied “No” to a question that asked whether any of the licensee’s controlling parties had ever been convicted of a felony.  As it turns out, the manager (who is also the licensee’s sole shareholder) had been convicted of possession for sale of cocaine and sentenced to serve two years in California State Prison over two decades ago.  The FCC would later learn that the licensee had misrepresented the manager’s criminal history in at least 50 separate FCC filings.

In response, the FCC sent the licensee a Letter of Inquiry (“LOI”) seeking information about the manager’s role with the company and any criminal history.  When the licensee did not respond to the LOI, the FCC commenced a proceeding with an Administrative Law Judge (“ALJ”) to determine whether the licensee had engaged in misrepresentation before the Commission, whether it was qualified to remain a licensee, and what the FCC should do with the licensee’s various outstanding applications.  When the licensee failed to respond to the ALJ’s request to file a written appearance, and failed to appear for a status conference, the ALJ ordered a hearing, which the licensee also ignored.

The FCC determined that the company was unqualified to remain a Commission licensee, revoked all of its licenses, and denied with prejudice all of the licensee’s pending applications.

Light’s Out: FCC Issues Citation to Car Dealership That Fails to Address Harmful Interference

The FCC issued a citation to a North Dakota car dealership for its continued use of outdoor lighting that interferes with a wireless service provider’s nearby cell site.

Pursuant to Section 302(a) of the Communications Act, the FCC regulates all radio frequency energy-emitting devices (“RF devices”) that are capable of causing “harmful interference to radio communications.”  Section 15 of the FCC’s Rules regulates intentional and unintentional radiators of RF emissions, ranging from garage door openers to sophisticated computer components.  Section 18 regulates equipment that generates or uses RF energy for industrial, scientific, and medical (“ISM”) purposes.  If ISM equipment causes harmful interference with an authorized radio service, Section 18.111(b) of the Rules requires its operator to take “whatever steps may be necessary to eliminate the interference.”  Similarly, Section 18.115(a) requires the operator to “promptly take appropriate measures to correct the problem.” 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:

Headlines:

  • FCC Proposes $20,000 Fine for Decade-Old EEO Violations
  • FCC Goes After Small North Carolina Radio Station for Absence During Inspection
  • Drone Company Agrees to $180,000 Settlement for Non-Compliant A/V Equipment

“Hire” Education: FCC Pursues South Carolina Radio Stations for EEO Violations

The FCC proposed a $20,000 fine against the operator of five radio stations near Myrtle Beach for allegedly failing to observe the Commission’s Equal Employment Opportunity (“EEO”) recruitment rules from 2008 through 2010.

The stated goal of the FCC’s EEO Rule is to promote equal access to employment opportunities in the communications industry while deterring discrimination in the hiring process.  Pursuant to the EEO Rule, the FCC requires broadcast stations to follow certain procedures before filling each full-time vacancy.  Among other things, the EEO Rule requires stations to use outside recruitment sources to publicize vacancies, notify interested third party referral sources of vacancies, and generate and retain in-depth recruitment reports.

This particular inquiry began in 2011 when the FCC randomly selected the stations’ employment unit for an EEO audit.  The audit revealed several alleged violations surrounding eleven vacancies over the preceding two-year period.  The FCC found that the licensee had either used no recruitment sources or only word-of-mouth when it recruited for six of the eleven vacancies.  Further, the licensee allegedly failed to contact a third party that had previously requested notification of full-time vacancies.

In addition, the FCC asserted that the licensee failed to keep adequate records of the number of interviewees or the referral source of most of the interviewees during that period.  As a result, this information was missing from both the licensee’s Annual EEO Public File Reports and its public inspection file.  The FCC concluded that this meant the licensee could not adequately “analyze its recruitment program … to ensure that it is effective…” as Section 73.2080(c)(3) of the FCC’s Rules requires.

As a result, the FCC issued a Notice of Apparent Liability (“NAL”) proposing to fine the stations.  While Section 503(b)(1)(B) of the Communications Act authorizes the FCC to penalize any person who violates the Act or the FCC’s Rules, neither the FCC’s Rules nor its forfeiture guidelines establish a base fine amount for specific EEO violations.  Instead, the FCC characterized the asserted violations as a “failure to maintain required records,” for which the forfeiture guidelines recommend a base fine of $1,000.  The FCC applied this fine to each of the six alleged violations of its recruitment rule and proposed an additional $2,000 fine for each of the other claimed EEO violations.  The FCC then added a $4,000 upward adjustment based on the licensee’s history of similar EEO violations at other owned stations, resulting in a total proposed fine of $20,000.

The NAL also proposed a reporting requirement under which the stations would need to report their recruitment and EEO activities directly to the FCC’s Media Bureau for each of the next three years.

Of particular interest to stations assessing their own EEO compliance, the licensee’s 2008-09 and 2009-10 recruitment reports indicated that the stations had lost much of their recruitment data to “unauthorized removal.” Specifically, the licensee subsequently reported that some of the records disappeared following the dismissal of the stations’ local business manager.  That explanation did not satisfy the FCC, which noted that the licensee’s loss of records “does not excuse it from having violated [the FCC’s] rules.”

This action is another reminder of the FCC’s strict enforcement of its EEO Rule.  Stations needing a refresher on these requirements should check out our EEO Advisory for more information, and our 2018 Broadcasters’ Calendar for important EEO-related deadlines coming up in the next year.

Out to Lunch: AM Broadcaster Notified of Station Inspection Violation

The Commission presented a Notice of Violation (“NOV”) to a small North Carolina broadcaster for failing to staff its station during lunch hour one day this past March.  In the same action, the FCC observed that the station was also transmitting from an antenna for which it was not licensed. 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:

Headlines:

  • FCC Fires Broadside at Pirate Stronghold: Nearly Half of November Pirate Radio Notices Go to NY/NJ/CT Area
  • Sorry About That: Wireless Broadband Manufacturer Pays $95,000 to End Investigation of Failure to Prevent Harmful Manipulation of Its Products
  • Not Too Bright: FCC Proposes $25,000 Fine for Marketing Unlabeled Fluorescent Lights

No Parlay for Pirates: FCC Turns Up the Heat on Dozens of Alleged Pirate Radio Operators

In its most recent salvo against pirate radio operators, FCC field agents issued dozens of Notices of Violation (“NOV”) or Notices of Unauthorized Operation (“NOUO”) against alleged operators of unlicensed radio stations, particularly in New York, New Jersey, and Connecticut.

Under Section 301 of the Communications Act, transmission of radio signals without FCC authorization is prohibited.  Unlicensed radio operators risk seizure of their equipment, heavy fines, and criminal sanctions.

On just two consecutive days in October, agents from the New York field office investigated no fewer than eight pirate radio operations in New York and New Jersey, and the past month saw half a dozen NOUOs issued for Connecticut pirate radio operations.

In a similar show of force to the south, the FCC warned a dozen Florida residents of potential violations. The FCC also handed out a Notice of Apparent Liability for Forfeiture (“NAL”) to an alleged California pirate, proposing a $15,000 fine.

For many years, broadcasters complained bitterly about both the interference from multiplying pirate stations and the FCC’s glacial response to these illegal operations. Too often, the FCC’s response was to shrug its bureaucratic shoulders and note that it had limited resources. Broadcasters thus became even more disheartened when the FCC greatly reduced its field offices and staffing in 2016, making it harder for FCC personnel to quickly reach and investigate pirate operations, even if given authority to do so.

Fortunately, Commissioner O’Rielly took up the cause early in his tenure at the FCC, and under Chairman Pai, the FCC has made prosecution of unauthorized radio operations a priority. While broadcasters are certainly appreciative of the change, the sudden uptick in enforcement actions by a reduced number of field offices and agents has made clear that it was never a matter of resources, but of regulatory will. If you want to hunt pirates, you have to leave port.

Consent Decree Ends FCC Investigation Into Company’s Modifiable Wireless Broadband Devices

The FCC entered into a Consent Decree with a wireless device manufacturer after investigating whether the company violated various rules pertaining to the authorization and marketing of devices that emit radio frequency (“RF”) radiation.

In particular, the FCC looked into the manufacturer’s U-NII (Unlicensed National Information Infrastructure) devices. These devices are commonly used for Wi-Fi and other broadband access technology. However, U-NII devices that operate in the 5 GHz radio band risk interfering with certain weather radar systems. As a result, the FCC regulates how manufacturers make these devices available to the public. 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:

Headlines:

  • Law and Disorder: FCC Fines New York City Man $404,166 for Interfering with NYPD Radio Frequencies
  • A Friendly Port: In Novel FCC Action, Property Owners Face a $144,344 Fine for Housing a Pirate’s Radio Operation
  • Continuous Unidentified Transmissions on a Shared Channel Leads to a $25,000 Fine

FCC Slaps NYC Individual with a $404,166 Fine for Interfering with NYPD Radio Frequencies

After a unique investigation involving a television host’s Twitter account, a New York Police Department investigation into criminal impersonation of a police officer, and a bomb threat to Times Square, the FCC fined a New York City man for operating on NYPD radio frequencies without authorization, malicious interference with officers’ communications, and transmission of false distress calls.

Section 301 of the Communications Act prohibits the unauthorized use of any device for radio transmission of energy, communications, or signals. Section 333 of the Act prohibits willful or malicious interference with any stations licensed, authorized, or operated by the United States Government.  The FCC has interpreted this to include repeated disruptions to public safety communications apparatus.  In addition, Section 325(a) prohibits the utterance or transmission of “any false or fraudulent signal of distress, or communication relating thereto.”

In August, 2016, the Enforcement Bureau responded to a TV host’s Twitter message that stated “A man hacked into the NYPD’s secure radio network to yodel repeatedly . . . .” Several weeks later, the NYPD arrested the individual, who admitted under interrogation to making the transmissions.  The transmissions, which went to several NYPD precincts over the course of four months, included a bomb threat to a Times Square pharmacy, threats to harm police officers, music, and profanity.

Several months after the initial arrest, the FCC issued a Notice of Apparent Liability proposing the statutory maximum of $19,246 for each of the 21 violations it found. The individual was found to have violated Section 301 and Section 333 for each of the nine calls he made, and the FCC found three violations of Section 325(a) (one for each of the false threats and distress calls).

Following the individual’s failure to respond to the Notice, the FCC issued a Forfeiture Order to make the proposed $404,166 fine a reality. The FCC stated in the Order that the man’s actions showed deliberate disregard for “the safety of NYPD officers and the public that they are called to serve and protect.”

FCC Proposes a $144,344 Fine Against Pirate Radio Operator and Property Owners

Taking a new approach, the FCC proposed a fine against not only the operator of a Florida-based unlicensed radio station, but against the owners of the property housing the station.

Section 301 of the Communications Act states that “No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with this Act and with a license [granted by the FCC].” In past pirate radio actions, the FCC tended to invoke Section 301 against only the pirate radio operator.  In this case, the FCC broadened the definition of a party that “use[s] or operate[s]” a station to include those who knowingly have control and access to the transmission equipment and pay for the station’s utility costs. 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:

Headlines:

  • Noncommercial TV Broadcaster Agrees to $5,000 Consent Decree for EEO Violations
  • Taxi Company Fined $13,000 for Failing to Operate a Private Land Mobile Radio Station on a Narrowband Basis and Other Violations
  • FCC Issues Notices of Unlicensed FM Station Operation to Five Individuals

EEO Violations Lead to $5,000 Settlement with FCC

The FCC entered into a Consent Decree with a Maryland noncommercial TV broadcaster to resolve an investigation into whether the broadcaster violated the FCC’s equal employment opportunity (“EEO”) Rules.

Under Section 73.2080(c)(1)(ii) of the FCC’s Rules, licensees must provide notices of job openings to any organization that “distributes information about employment opportunities to job seekers upon request by such organization,” and under Section 73.2080(c)(3), must “analyze the recruitment program for its employment unit on an ongoing basis.” In addition, Section 1.17(a)(2) requires that licensees provide correct and complete information to the FCC in any written statement.

The FCC audited the broadcaster for compliance with EEO Rules for the reporting period June 1, 2008 through May 31, 2010. During the audit, the FCC asserted that the broadcaster filled 11 vacancies at its TV stations without notifying an organization that had requested copies of job announcements. The FCC then concluded that the notification failure revealed a lack of self-assessment of the broadcaster’s recruitment program. Finally, the FCC asserted that the broadcaster provided incorrect information to the FCC when it submitted two EEO public file reports stating that it had notified requesting organizations of vacancies, but later admitted those statements were incorrect.

The FCC subsequently issued a Notice of Apparent Liability for Forfeiture proposing a $20,000 fine. The broadcaster avoided the fine by instead entering into a Consent Decree with the FCC under which the company agreed to make a $5,000 settlement payment to the government, appoint a Compliance Officer, and implement a three-year compliance plan requiring annual reports to the FCC and annual training of station staff on complying with the broadcaster’s EEO obligations.

FCC Fines Taxi Company $13,000 for Failing to Operate a Private Land Mobile Radio Station on a Narrowband Basis and Other Violations

The FCC fined a California taxi company $13,000 for failing to operate a private land mobile radio (“PLMR”) station in accordance with the FCC’s narrowbanding rule, failing to transmit a station ID, and failing to respond to an FCC communication.

Section 90.20(b)(5) of the FCC’s Rules requires licensees to comply with applicable bandwidth limits, and Section 1.903 requires PLMR stations to be “used and operated only in accordance with the rules applicable to their particular service . . . .” In 2003, the FCC adopted a requirement that certain PLMR station licensees reduce the bandwidth used to transmit their signals from 25 kHz to 12.5 kHz or less by January 1, 2013. 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:

Headlines:

  • TV Station Agrees to $17,500 Consent Decree for Failure to Properly Identify Children’s Programming and Other Violations
  • FCC Proposes $22,000 Fine Against Store for Operating Cell Phone Jammer
  • Marketing of Unauthorized Radio Frequency Devices Leads to $30,000 Civil Penalty

Failure to Properly Identify Children’s Programming and Related Violations Lead to $17,500 Settlement with FCC

The FCC entered into a Consent Decree with a New Jersey commercial TV station to resolve an investigation into whether the station failed to properly identify children’s programming on-air, failed to provide publishers of program guides with necessary children’s programming information, failed to report these violations in its license renewal application, and failed to provide complete and accurate information in its Children’s Television Programming Reports.

The Children’s Television Act of 1990 introduced an obligation for television broadcast stations to offer programming that meets the educational and informational needs of children, known as “Core Programming.” Section 73.671(c)(5) of the FCC’s Rules expands on this obligation by requiring that broadcasters identify Core Programming by displaying the “E/I” symbol on the television screen throughout the program. Section 73.673 of the Rules requires a commercial broadcast television station to provide the publishers of program guides with “information identifying programming specifically designed to educate and inform children,” including the age group of the intended audience. Finally, Section 73.3526 of the FCC’s Rules requires each commercial broadcast station to prepare and place in its 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.

The station’s license renewal application was filed in January 2015. In reviewing the application, the FCC looked at the station’s previously filed Children’s Television Programming Reports and learned that the station’s second quarter 2010 report indicated that certain Core Programming failed to display the “E/I” symbol. The FCC subsequently sent an informal inquiry to the station requesting an explanation, which eventually led to the station filing an amended license renewal application.

In its amended application, the station conceded that it: (1) failed to display the “E/I” symbol during certain Core Programming aired on its multicast streams between the fourth quarter of 2009 and the second quarter of 2015; (2) failed to provide the publishers of program guides the necessary children’s programming information between the second quarter of 2007 and the third quarter of 2016; and (3) failed to provide complete and accurate Children’s Television Programming Reports between the second quarter of 2007 and the fourth quarter of 2016. The amended application also revealed that the station failed to disclose these violations in its 2015 license renewal application.

To resolve the investigation of these violations, the station subsequently entered into a Consent Decree with the FCC under which the station: (1) admitted liability for the violations; (2) agreed to make a $17,500 settlement payment; and (3) agreed to implement a three-year compliance plan to ensure future compliance. The FCC stated that it would grant the station’s license renewal application conditioned upon the station “fully and timely satisfying its obligation to make the Settlement payment….”

Texas Store Faces $22,000 Fine for Operating Cell Phone Jammer

The FCC proposed a $22,000 fine against a Texas store for operating a cell phone jammer.

Section 301 of the Communications Act bans the use or operation of “any apparatus for the transmission of energy or communications or signals by radio” without a license. Section 302(b) of the Act states that “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to this section.” And Section 333 of the Act provides that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government.” 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:

Headlines:

  • FCC Proposes $66,000 Fine Against Alaska Noncommercial FM Station for EAS and Other Violations
  • Man Faces $120 Million Fine for “Massive” Robocall Operation
  • FCC Proposes $1,500 Fine Against South Carolina AM Station for Late-Filed License Renewal

Alaska Noncommercial FM Station Faces $66,000 Fine for EAS and Other Violations

The FCC proposed a $66,000 fine against an Alaska noncommercial FM station for a number of violations, including actions that the FCC says “undermine the effectiveness of the Emergency Alert System (EAS).”

Section 11.15 of the FCC’s Rules requires that a copy of the EAS Operating Handbook be located “at normal duty stations or EAS equipment locations when an operator is required to be on duty.” In addition, Section 11.35(a) of the Rules states that EAS participants are responsible for ensuring that EAS equipment, such as encoders and decoders, are installed such that “monitoring and transmitting functions are available during the times the stations and system are in operation.” Also, Section 11.52(d)(1) requires EAS participants to monitor two EAS sources.

A June 2013 FCC inspection of the station’s main studio revealed several violations of the FCC’s EAS Rules. Specifically, the FCC agent found that the station (1) did not have an EAS Handbook; (2) did not have properly operating EAS equipment (because the programming and identification of the station’s EAS device was for another station); and (3) was only monitoring one EAS source.

In addition, the agent found numerous violations of the FCC’s other broadcast rules, including: (1) failure to post a valid license as required by Section 73.1230; (2) failure to maintain a public inspection file as required by Section 73.3527; (3) failure to retain the logs required by Section 73.1840; (4) failure to maintain a main studio staff under Section 73.1125(a); (5) inability to produce documentation designating a chief operator as required by Section 73.1870; and (6) failure to ensure that the station was operating in accordance with the terms of the station authorization or within variances permitted under the FCC’s technical rules, as required by Section 73.1400.

The FCC subsequently issued a Notice of Violation (“NOV”) to the station in August 2013. When the FCC did not receive a response from the station within the 20-day deadline specified in the NOV, the FCC sent a Warning Letter to the station in September 2013, and issued two additional NOVs in November 2013 and April 2016 directing the station “to provide information concerning the apparent violations described in the August 2013 NOV.” Despite signing a receipt for the April 2016 NOV, the station again failed to respond.

The base fine amounts for the apparent EAS violations, broadcast violations, and failures to respond to the NOVs total $11,000, $23,000, and $16,000 respectively. The FCC may adjust a fine upward or downward after taking into account the particular facts of each case. Here, citing the station’s failure to respond to FCC documents of four occasions, the FCC concluded that a 100 percent upward adjustment of the base fine for the failures to respond, or an additional $16,000, was warranted. As a result, the FCC proposed a total fine against the station of $66,000.

FCC Proposes $120 Million Fine for Caller ID Spoofing Operation

A Florida man’s spoofing campaign has earned him a proposed $120 million fine. The man apparently caused the display of misleading or inaccurate caller ID information (“spoofing”) on millions of calls to perpetrate an illegal robocalling campaign.

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

Headlines:

  • TV Broadcaster Agrees to $55,000 “Civil Penalty” for Airing False EAS Tones
  • Radio Broadcaster to Donate or Surrender Nine FM Stations to Resolve Investigation of Stations Being Silent for Extended Periods
  • FCC Proposes $6,000 Fine Against California TV Station for Public File and Related Violations

Broadcast of False EAS Tones Leads to $55,000 Settlement with FCC

The FCC entered into a Consent Decree with the parent company of a Florida TV station to resolve an investigation into whether the station transmitted Emergency Alert System (“EAS”) tones outside of an actual emergency.

Section 325(a) of the Communications Act prohibits any person from transmitting “any false or fraudulent signal of distress” or similar communication. Further, Section 11.45 of the FCC’s Rules prohibits transmission of “the EAS codes or Attention Signal, or a recording or simulation thereof,” unless it is “an actual National, State, or Local Area emergency or authorized test of the EAS” (emphasis added).

On August 9, 2016, the FCC received a complaint alleging that the station had “aired a commercial multiple times that improperly used the EAS data burst and tone.” The FCC subsequently began an investigation into whether the station had violated its rules governing EAS, and directed the station to respond to the allegations.  In its response, the station explained that it started airing an advertisement on August 6, 2016 for a professional football team which opened with EAS Tones, the sounds of wind and thunder, and a voiceover stating: “This is an emergency broadcast transmission. This is not a test. This is an emergency broadcast transmission. This is not a test. Please remain calm. Seek shelter.”

The station claimed that its policies and practices do not allow transmission of false EAS tones, but that it received the advertisement from an outside source and the station’s “employees apparently failed to screen the Promotion before airing it.” The station explained that when a senior member of the station’s staff saw the advertisement on August 8, 2016, he notified the general manager that it contained a prohibited use of an EAS tone, and told staff not to air it again.

The station’s parent company subsequently entered into a consent decree with the FCC to resolve the investigation, under which the company (1) admitted that the station aired material that contained simulated EAS tones absent an actual emergency or authorized test of the EAS, (2) agreed to pay a $55,000 civil penalty, and (3) agreed to implement a three-year compliance plan.

Radio Broadcaster Agrees to Donate or Surrender Nine FM Station Licenses for Failure to Operate Stations

The owner of a number of radio stations entered into a Consent Decree with the FCC to resolve an investigation into the company’s alleged failure to operate its stations during their most recent license terms.

Section 312(g) of the Communications Act prohibits extended periods of silence by licensed stations because of their obligation to serve the public by broadcasting on their allocated spectrum. Specifically, a station’s license will automatically terminate if it remains silent for twelve consecutive months unless the FCC acts to extend or reinstate the license where “the holder of the station license prevails in an administrative or judicial appeal, the applicable law changes, or for any other reason to promote equity and fairness.”  Additionally, the Act authorizes the FCC to revoke any station license for failure to operate substantially as set forth in that license, and Section 73.1740 of the FCC’s Rules establishes minimum operating requirements for broadcast stations. 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:

Headlines:

  • Former Broadcast Licensee Faces $144,344 Fine for Operating Kentucky LPTV Station Without a License for 18 Years
  • FCC Proposes $20,000 Fine Against California Noncommercial TV Station for Public File and Related Violations
  • FCC Agrees to Reduce Fines for Untimely Children’s Television Programming Reports Based on Inability to Pay

A “Harmless Chihuahua” No More: FCC Proposes Maximum Fine for Operating Low Power TV Station Without a License

Two individuals are facing a $144,344 proposed fine for operating a Kentucky low power TV (“LPTV”) station without a license for the last 18 years. Section 301 of the Communications Act prohibits any person from operating any apparatus for the transmission of energy, communications, or signals by radio within the United States without FCC authorization. Additionally, Section 74.765 of the FCC’s Rules requires licensees to ensure that a copy of the license is placed in the station’s records and is available for public inspection.

The FCC initially authorized construction of the station in 1987, and the station’s license application was granted in 1990. In April 1993, the FCC granted an application to renew the station’s license for a term expiring August 1, 1998. However, no subsequent license renewal application was ever filed for the station. In April 2004, the FCC sent a letter to the station stating it had not received a license renewal application, and set a 30 day deadline to prove that a renewal application had been filed before the FCC would update its CDBS database to reflect that the license had been cancelled. After receiving no response, the FCC updated CDBS to list the station’s license as “cancelled”.

The FCC later came to learn through an unrelated Experimental STA application that the station was still operating. As a result, in August 2016, FCC agents traveled to the station’s formerly authorized antenna site, where a technician confirmed that the station was, in fact, still operating. The agents then traveled to the station’s studio and spoke with an individual who identified himself as the “operations manager”. The operations manager was unable to provide the agents with evidence of a valid license to operate the station, but asserted that the station’s license renewal application had been filed in 1993, implied that the FCC lost the 1993 filing, and that, as a result, the license remained in effect. The agents informed the operations manager that a current, valid license was necessary to operate the station and that, without one, the station’s transmissions must immediately stop. The agents also issued a Notice of Unlicensed Radio Operation (“NOURO”) stating in bold, capital letters: “UNLICENSED OPERATION OF THIS RADIO STATION MUST BE DISCONTINUED IMMEDIATELY.”

In response to the NOURO, the operations manager reiterated the argument he made to the FCC agents at the station. In addition to asserting that the station never received confirmation of grant of the 1993 renewal, the response stated the station operators had never received any other communication from the FCC about the station, and CDBS showed “that the [1993] renewal was granted on 7/27/1993 without an expiration.” The response argued that the failure to file a renewal application in 1998 should therefore be excused. Further, the response indicated that despite the NOURO’s “request” to cease operations, the station remained on air so as to not deprive its viewers of “their only source of news and other events.” FCC agents returned to the station’s antenna site in September and confirmed that the station was still transmitting.

Consequently, the FCC determined that the station operators had willfully and repeatedly violated Section 301 of the Act. According to FCC records, the Media Bureau mailed the 1993 license renewal to the station’s address of record. The FCC emphasized, however, that regardless of whether the license renewal was actually received, licensees are responsible for knowing their obligations, including their duty to seek timely license renewals. In this regard, the FCC noted that license renewal reminders are “merely provided as a courtesy.” The FCC also rejected the operators’ CDBS argument because (1) CDBS did not exist in 1998, so the station could not have relied on it at the time the license renewal was due, and (2) both CDBS and the 1993 renewal authorization state that the license expired August 1, 1998.

The FCC’s base fine for operation of a station without authorization is $10,000 for each violation or each day of a continuing violation. Citing the “egregious” and “longstanding” nature of the apparent violations, the FCC proposed to fine the station operators $10,000 for each of the 22 days between the day FCC agents spoke to the station’s operations manager in August 2016, and when agents confirmed that the station was still transmitting in September 2016, for a total proposed fine of $220,000. However, because the Communications Act sets the maximum fine amount for continuing violations arising from a single act or failure to act at $144,344, the FCC capped the proposed fine at $144,344. The FCC noted that, absent the statutory maximum, an upward adjustment would have been warranted because the station was operated for more than 18 years after its license expired, and more than 12 years after the FCC declared the station’s license cancelled.

In a separate statement, FCC Commissioner Michael O’Rielly supported the proposed fine, but was appalled that the station “[got] away with operating a pirate TV station for almost twenty years.” He lamented that under past leadership the FCC had “been reduced to a sometimes annoying, sometimes sleepy, but ultimately harmless Chihuahua when it came to protecting broadcast spectrum licenses,” but hoped that pirate operators were now on notice that the FCC “can and will turn that situation around.”

California Noncommercial TV Station Licensee Faces $20,000 Proposed Fine for Public Inspection File and Related Violations

The FCC proposed a $20,000 fine against a California noncommercial educational (“NCE”) TV station licensee for public inspection file and related violations.

Section 73.3527 of the FCC’s Rules requires NCE licensees to maintain a public inspection file containing specific types of information related to station operations, and subsection 73.3527(b)(2) requires NCE stations to upload most of that information to the FCC-hosted online public inspection file. Among the materials required to be in the file are a station’s Quarterly Issues/Programs Lists, which must be retained until final FCC action on the station’s next license renewal application. Issues/Programs Lists detail programs that have provided the station’s most significant treatment of community issues during the preceding quarter. Section 73.3527 also requires stations to keep in their public file for two years from the date of broadcast a list of donors that have supported specific programs. Continue reading →