Articles Posted in FCC Enforcement

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:

Broadcaster Agrees to Pay $100,000 Fine for Filing Applications Under False Names
FCC Proposes $13,000 Fine for Late License Renewal Application and Unauthorized Operation
Failure to Register with the FCC Results in $100,000 Fine for Telecom Provider

Catch Me If You Can: Broadcaster Settles Long-Running Investigation into the Use of Pseudonyms in FCC Applications

The FCC entered into a Consent Decree with a radio broadcaster to resolve an investigation into whether the broadcaster filed numerous applications using fake names and refused to cooperate with FCC investigations.

Section 1.17 of the FCC’s Rules requires that written and oral statements to the FCC be truthful and accurate. Section 1.65 of the Rules requires applicants to amend applications as needed for continuing accuracy and completeness. In addition, Section 73.1015 requires applicants to respond to FCC inquiries regarding broadcast applications.

The Consent Decree explains that, since 1982, there has been a “cloud of unanswered questions” about whether applications filed by the broadcaster were accurate. In 1993, the FCC sent the broadcaster a letter inquiring into: (1) his role in certain entities; (2) apparent misrepresentations he made to the FCC; (3) his prior failure to respond to certain site availability allegations; and (4) the operation of several FM translators. The broadcaster never responded to the letter, and since that time, the broadcaster’s real name has not appeared in any FCC application as a principal of any applicant. Instead, the broadcaster used pseudonyms, as well as the names of his wife, mother, and grandmother.

In addition, the Consent Decree states that a 1997 complaint filed by another broadcaster was never answered or disclosed by the broadcaster. The complaint alleged that the broadcaster was the real party in interest behind a certain licensee, and that the broadcaster had violated several other FCC Rules.

Under the terms of the Consent Decree, the broadcaster admitted to being the real party in interest on numerous applications for which he had used pseudonyms, and admitted to several other violations of FCC Rules. The broadcaster agreed to (1) pay a $100,000 fine; (2) the cancellation of licenses for an AM station and two low power FM stations; and (3) the dismissal of petitions for reconsideration involving two dismissed FM applications. In return, the FCC agreed to grant the license renewal applications for another AM station and seven FM translator stations, each with a shortened license term of one year so that the FCC can closely monitor the licensee’s operation of the stations in the future.

FCC Proposes $13,000 Fine for Unauthorized Operation Caused by Late License Renewal Application

The FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) against an Ohio FM licensee for failing to timely file its license renewal application and for continuing to operate the station after its license had expired. The FCC proposed a fine for the violations and simultaneously issued a Memorandum Opinion and Order regarding the licensee’s license renewal application.

Section 301 of the Communications Act provides that “[n]o 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 in that behalf granted under the provisions of [the Act].” Section 73.3539(a) of the FCC’s Rules requires that broadcast licensees file applications to renew their licenses “not later than the first day of the fourth full calendar month prior to the expiration date of the license sought to be renewed.”

In this case, the station’s license expired on October 1, 2004, rendering the license renewal application due by June 1, 2004. The licensee, however, did not file the renewal application until July 30, 2004. The FCC dismissed the application due to the licensee’s “red light” status for owing a debt to the FCC. Red light status prevents the FCC from providing any government benefit to a licensee, including license renewal. The licensee did not seek reconsideration of the dismissal and, as a result, the station’s license expired on October 1, 2004.

In January 2011, the FCC staff was told that the station was off the air. On January 12, 2011, the FCC wrote a letter to the former licensee inquiring into the operating status of the station, and requested a response within 30 days. The station did not respond until March 25, 2011, and stated that it was on-air as of the date of the FCC letter. However, the station explained that it had in fact suspended operations on February 23, 2011, after its transmitter was damaged during the theft of its copper feed lines.

In May 2011, the licensee filed a request for Special Temporary Authority (“STA”) to resume operations, stating that its transmitter repair was almost complete. The licensee also noted that it was unaware its 2004 license renewal application had been dismissed, and that it would file another license renewal application “once it [could].” The licensee submitted a license renewal application in July 2011, and the FCC subsequently granted the station’s STA request through March 2012.

In February 2012, the licensee filed another STA request to operate with reduced facilities, stating that the damage to the transmitter was far worse than previously thought, and would cost more than the value of the station to repair. The licensee also stated that the landlord of its transmitter site had declined to renew the station’s lease, but it had found an alternative, temporary location from which it could operate the station. The FCC granted the STA, and set an expiration date of August 2012. The licensee continued to operate under the STA facilities even after the August 2012 expiration date. The licensee did not file a request to extend the STA until February 2013. That request was granted as a new STA in March 2013, and the licensee has operated under a series of extensions to that STA ever since.

Based on the facts of this case, the FCC proposed the full base fine amount of $3,000 for failure to file a required form, and the full base fine amount of $10,000 for unauthorized operations. The FCC explained that while it typically assesses fines of $7,000 for unauthorized operations, the length of the first unauthorized period in this case—over six years—followed by a second unauthorized period, warranted a $10,000 fine.

The FCC stated that it would grant the station’s license renewal application upon the conclusion of the forfeiture proceeding “if there are no issues other than the apparent violation that would preclude grant of the applications.”

FCC Fines Prepaid Calling Card Company $100,000 for Failing to Register as Service Provider

The FCC fined a New Jersey provider of international prepaid calling card services $100,000 for failing to register as a telecommunications service provider and adhere to all registration requirements.

Section 64.1195(a) of the FCC’s Rules requires that companies providing interstate telecommunications services file an FCC Form 499-A, also known as the Annual Telecommunications Reporting Worksheet, with the Universal Service Administrative Company prior to providing service. The Form 499-A instructions state that “[w]ith very limited exceptions, all intrastate, interstate, and international providers of telecommunications in the United States must file this Worksheet.”

According to the FCC, compliance with the registration requirement is critical to determining a provider’s payment obligations to the Universal Service Fund, Telecommunications Relay Service Fund, and numbering support mechanisms. The FCC further stated that registration is a way to recover costs, and is a central repository for important details about providers.

Calling it a “dereliction of its responsibilities,” the FCC determined that the provider willfully operated for years without filing a Form 499-A, giving the provider an unfair economic advantage over its competitors. The FCC stated that the misconduct started when the provider began providing service in 1997 and continues until the provider files its initial Form 499-A. The FCC proposed a $100,000 fine for the provider’s transgressions.

In addition to the fine, the FCC instructed the provider to immediately register as a telecommunications provider, and to come into full compliance with all of its federal regulatory obligations. The FCC also warned that the fine was “a very limited action that does not reflect the full extent of [the service provider’s] potential forfeiture liability and that does not in any way preclude the Commission from imposing additional forfeitures … in the future.”

A PDF version of this article can be found at FCC Enforcement Monitor November 2016.

Published on: October 31, 2016

FCC Enforcement Monitor ~ October 2016

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: October 5, 2016

Keep Calm and Broadcast On: Broadcasters as Hurricane First Responders

By Scott R. Flick

While some debate endlessly which content best serves the public interest, there is universal agreement that the content broadcasters air during emergencies is vital to their communities. Whether it comes in the form of tracking a developing storm so the public can prepare, or disseminating evacuation orders and alerts, broadcasters continue to serve as the bedrock of the nation’s warning system in emergencies. As Hurricane Matthew approaches the East Coast, TV and radio stations are hurrying to make sure they are in position to warn and inform their audiences of new developments.

Curiously, the growth of alternative information sources has only served to emphasize that in a true emergency, there is no substitute for local broadcasts. While the last decade has brought progress in making communications infrastructure more resilient in emergencies, cable and Internet service is often disrupted in disasters, and cell phone networks, where they don’t fail outright, become overwhelmed by increased usage during a disaster.

That is why nearly a dozen states have laws on the books granting broadcast personnel First Responder/First Informer status. These laws allow broadcasters access to crisis areas, both for reporting on a disaster and maintaining station operations throughout. This includes granting priority to broadcasters for scarce fuel supplies (and emergency access for vehicles transporting fuel to stations). That fuel keeps stations’ emergency generators, and the transmitters they power, running during emergencies.

Unlike communications infrastructure that requires wired connections over a broad area, or numerous short-range towers and repeaters, broadcast stations just need an upright tower or tall building for their antenna, fuel for their generator, and access for their employees to be able to reach the station’s facilities. That resilience in extreme conditions is, however, only part of the reason local broadcast stations are critical in emergencies. Also important is the fact that broadcast receivers are ubiquitous and easy to power. Some estimates place the number of radios in the U.S. at nearly 600,000,000, almost double the population of the U.S. Many of those radios are powered by replaceable batteries. As a result, they don’t need access to the power grid for recharging like smartphones do. A box full of batteries will bring radio service for the duration of most any emergency.

Speaking of smartphones, in part because of the importance of accessing local broadcast signals during emergencies, the big 4 wireless providers have now activated the FM chip in at least some of their smartphones. While there are a lot of radios out there, people aren’t generally walking around with a transistor radio in their hand at all times. Being able to access emergency broadcast information via the smartphone in your pocket ensures that even when the cell phone network has ceased to function, you still have immediate access to important local information. In fact, even where the cell phone system is still operating and not overwhelmed by traffic, there are two good reasons for utilizing a phone’s FM receiving capability. First, it consumes a fraction of the battery power that streaming data does, ensuring the longest battery life possible—an important factor if you don’t know where your next charge is coming from. Second, and taking a broader perspective, utilizing the FM capability is helpful to the community at large, as the more individuals that are obtaining information by radio, the less likely the wireless network will become overwhelmed, ensuring it is available for coordination of relief efforts and other vital functions.

Because televisions have far greater power needs than radios, the typical pattern in a disaster is for people to rely on local TV to track and prepare for an impending disaster, and then switch to radio when the power goes out. However, with people scurrying about in their cars to buy storm supplies, the portability of radio (and its universal availability in cars), makes it a big part of storm preparations too. Conversely, those lucky enough to have power after a storm (whether by generator or good fortune) can follow the storm recovery on their TVs. The promise of ATSC 3.0 to make broadcast television signals more accessible to mobile devices can only increase that availability in adverse conditions.

And that’s where life gets even more complicated for television broadcasters. It’s tough enough to continue operations during a hurricane, with employees sleeping in the studio while wondering if their house is still standing. TV stations are also required to ensure that all of their viewers, regardless of hearing or vision challenges, are able to receive the emergency information being relayed. As a result, emergency information presented on-air aurally must also be made available visually, and emergency information presented visually must also be made available aurally. In past disasters, the FCC has proposed fines of up to $24,000 ($8,000 per “incident”) to TV stations that effectively said “run for shelter” but didn’t air a crawl or other graphic at that time conveying the same information.

Last year, the FCC created additional obligations for relaying emergency information to all segments of the public. The “Audible Crawl Rule”, as it has come to be known, requires TV stations to aurally present on a secondary audio stream (“SAS”) any emergency information that is provided visually in non-newscast programming. The station must insert an aural tone (both on the main video stream and the SAS) before transmitting emergency information on the SAS to differentiate that information from normal audio. This alerts the viewer to turn on the SAS and focus on the emergency content. Think that sounds complicated? It is, which is why stations have been working on automating the process as much as possible.

Preventing a person’s hearing or vision impairment from becoming the cause of their death or injury is certainly a worthy goal, but it isn’t hard to understand the frustration of a station employee that hasn’t slept in 24 hours trying to get emergency information out to viewers as quickly as possible, but needing to pause to ensure the appropriate graphics and SAS information is prepared and aired in order to avoid an FCC fine. To help stations simplify that process when preparing for last year’s hurricane season, we drafted a detailed summary of the FCC’s emergency information accessibility rules titled Keep Calm and Broadcast On: A Guide for Television Stations on Airing Captions and Audible Crawls in an Emergency. Stations whose communities will be affected by Hurricane Matthew should review it, both as a refresher on what they will need to do in the next few days, and on how best to do it.

While these rules add to a station’s challenges during an already challenging time, the FCC is doing its part as well. Earlier today, the FCC released a Public Notice reminding broadcasters, among others, that:

The Federal Communications Commission (FCC) will be available to address emergency communications needs twenty-four hours a day throughout the weekend, especially relating to the effects that Hurricane Matthew may have on the Southeastern United States.

The FCC reminds emergency communications providers, including broadcasters, cable service providers, wireless and wireline service providers, satellite service providers, emergency response managers and first responders, and others needing assistance to initiate, resume, or maintain communications operations during the weekend, to contact the FCC Operations Center for assistance at 202-418-1122 or by e-mail at FCCOPCenter@fcc.gov.

Here’s hoping that the FCC’s phone doesn’t ring much in the coming days.

Published on: September 28, 2016

FCC Enforcement Monitor ~ September 2016

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:

Florida AM Licensee Hit with $15,000 Fine for Failing to Maintain Public Inspection File and Provide Immediate Access to It
New York Amateur Radio Operator Fined $23,000 and Arrested for Unlicensed Operations and False Officer-in-Distress Call
Late-Filed License Renewal Nets Washington AM Station $1,500 Fine

FCC Fines AM Licensee $15,000 for Public Inspection File Violations

The FCC’s Media Bureau fined a Florida AM licensee $15,000 for failing to provide immediate access to the station’s public inspection file and for failing to maintain the file in accordance with FCC Rules. It also admonished the licensee for making a false certification to the FCC.

Under Section 73.3526 of the FCC’s Rules, each commercial broadcast station is required to maintain a public inspection file containing specific information related to station operations. Subsection 73.3526(e) lists the required information, and subsection 73.3526(c)(1) directs stations to make the file available for public inspection at all times during regular business hours.

In this case, the licensee filed a license renewal application on September 20, 2011 in which it certified that the public file had been maintained throughout the term in compliance with the FCC’s Rules. On December 27, 2011, however, a petition to deny the application was filed with the FCC. The petitioner claimed that on the morning of December 5, 2011, the station’s staff denied him immediate access to the public inspection file and treated him disrespectfully. The petitioner stated that he returned in the afternoon, as station staff requested, at which point he was allowed to view the file, but was not allowed to make copies of anything in the file. The petitioner further alleged that the file was missing information related to its authorization, applications filed with the FCC, the political file, all issues/programs lists, and the most recent ownership report. The petitioner claimed that the file was also missing letters and emails from the public, material related to FCC investigations or complaints, and certain agreements – but failed to demonstrate any basis for these claims.

In response, the licensee asserted that the petition was filed as “payback” for not hiring the petitioner as a station employee. The licensee also explained that the petitioner was not granted immediate access because the station was on-air at the time of his request. The station noted that access to the public file was subsequently granted, and that the file was “in order” for the inspection.

In response, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”), and determined that the licensee apparently violated subsections 73.3526(c)(1) and 73.3526(e). Specifically, the FCC was concerned that the licensee (1) conceded that it did not provide immediate access to the petitioner, (2) did not deny that it refused to allow the petitioner to make copies, and (3) provided only a brief and general response to the allegation that the public file was deficient. Most importantly, according to the FCC, the licensee never stated that the public file was properly maintained for the entire license term.

The FCC’s Rules establish a base fine of $10,000 for violating Section 73.3526, but because this was not the licensee’s first public inspection file violation, the FCC determined that an upward adjustment to $15,000 was warranted based on the licensee’s “pattern of abuse.” The FCC also admonished the licensee for falsely certifying in its license renewal application that it had properly maintained the public file. The FCC stated it would withhold grant of the license renewal application until the licensee paid the fine in full, and would then grant renewal for only a two-year term instead of the standard eight-year term.

False Police Distress Call Causes Arrest and Associated Distress for Unlicensed Amateur Radio Operator

The FCC proposed a fine of $23,000 against an amateur radio station operator for operating without FCC authorization and falsely transmitting an officer-in-distress call from his residence in New York. The FCC explained that such fraudulent transmissions potentially impact public safety and property, and place unnecessary strain on safety and rescue agencies. Continue reading →

Published on: August 23, 2016

FCC Enforcement Monitor ~ August 2016

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:

Spoofed Calls Lead to Multiple $25,000 Fines and Ongoing Criminal Case
Amateur Radio Licensee Fined $25,000 for Intentional Interference
Failure to Timely Request STA Results in $5,000 Fine and Shortened License Term

Spoofing’s No Joke: Two Men Face $25,000 Fine Each for Harassing Phone Call Scheme

The FCC proposed to fine two New York men for apparently using false caller ID numbers – a practice commonly known as “spoofing” – to place harassing phone calls to the ex-wife of one of the men.

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, in connection with any telecommunications service or IP-enabled voice service, to knowingly cause, 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.

In September 2015, the National Network to End Domestic Violence contacted the FCC on behalf of one of their clients and explained that someone was using spoofing services to stalk and harass her. The FCC subsequently opened an investigation into the matter.

Using information and call logs provided by the woman, the investigation found that between May 2015 and September 2015, 31 harassing phone calls were made. It found that the callers used a spoofing service provider to make the woman believe she was answering calls from sources such as local jails and prisons, the school district where her child attends school, and her parents’ home. In addition, it found that the callers used a voice modulation feature of the spoofing service to disguise their voices, and conveyed threatening and bizarre messages. For example, calls that spoofed the caller ID information of Sing Sing correctional facility threatened “we are waiting for you.” Other calls referenced personal information specific to the woman and her minor child.

FCC staff subpoenaed call records for the cell phone of a friend of the woman’s ex-husband after the woman told staff that she believed her ex-husband – against whom she had a restraining order during the time period in question – and his close friend were behind the calls. The woman explained to FCC staff that for some of the calls she had used a third-party “unmasking” service to reveal that the true caller ID was that of her ex-husband’s friend, with whom she had no independent relationship. The call records showed that each time the friend called the spoofing service, the woman received a spoofed call. The parent company of the spoofing service confirmed that the friend used its service to make spoofed calls to the woman.

The FCC also found that the ex-husband was directly involved in at least some of the calls. For example, the FCC found that the friend made a spoofed call moments after he was called by the ex-husband, and while he was still on the phone with the ex-husband. The FCC explained that the fact that the ex-husband “did not dial the spoofed calls himself does not absolve him of liability for the harassment and stalking of his ex-wife.”

The Communications Act and the FCC’s Rules authorize a fine of up to $10,000 for each spoofing violation, or three times that amount for each day of a continuing violation, up to a statutory maximum of $1,025,000. The FCC may adjust a fine upward or downward depending on the circumstances of the violation. Citing the “egregious” nature of the violation, the FCC proposed to fine the ex-husband and the friend $25,000 each. The friend was also arrested and charged with stalking and aggravated harassment after the woman filed a complaint with local police.

Haters Gonna Hate: Amateur Radio Licensee Fined $25,000 for Racial Slur-Filled Interference

A California amateur radio licensee received a $25,000 fine from the FCC for intentionally interfering with the transmissions of other amateurs radio operators and transmitting prohibited communications, including music.

Section 333 of the Communications Act states that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any stations licensed or authorized by or under the Act or operated by the United States Government.” Similarly, Section 97.101(d) of the FCC’s Rules states that “[n]o amateur operator shall willfully or maliciously interfere with or cause interference to any radio communication or signal.” In addition, Section 97.113(a)(4) of the Rules states that “[n]o amateur station shall transmit . . . [m]usic using a phone emission except as specifically provided elsewhere in this section.”

After receiving multiple complaints of interference, primarily from the Western Amateur Radio Friendship Association (“WARFA”), FCC field agents, with assistance from the FCC’s High Frequency Direction Finding (“HFDF”) Center, conducted investigations to find the source of the interference. On August 25 and 27, 2015, between 7:45 p.m. and 9:45 p.m., the agents observed at least 12 instances of the licensee intentionally transmitting on top of, and interrupting, WARFA amateurs. The interruptions lasted from 30 seconds to at least 4 minutes, and included noises, recordings, music, and talking over WARFA users. The transmissions included racial, ethnic, and sexual slurs. The licensee ended his transmissions each night when WARFA members ended their transmissions.

Published on: July 29, 2016

FCC Enforcement Monitor ~ July 2016

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 Cancels $3,000 Proposed Fine After Discovering TV Licensee Overwrote Children’s Programming Reports
Educational FM Licensee Agrees to Pay Reduced Fine of $2,250 for Multiple Violations
Failure to Understand FCC’s Filing System Nets $1,500 Fine

Licensee’s Discovery Leads FCC to Cancel $3,000 Proposed Fine

The FCC cancelled a $3,000 proposed fine against a New York TV station after the licensee discovered that it inadvertently overwrote three Children’s Television Programming Reports. The FCC had previously proposed to fine the licensee for the untimely filing of the three Reports.

Section 73.3256 of the FCC’s Rules requires each commercial broadcast station to maintain a public inspection file containing specific information related to station operations. Subsection 73.3526(e)(11)(iii) of the rule requires 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.

On January 30, 2015, the licensee filed a license renewal application in which it admitted that it failed to file in a timely manner Children’s Television Programming Reports for three quarters between 2012 and 2013. The licensee argued that it was unable to timely upload the Reports because of problems with the FCC’s website and computer servers.

The FCC rejected the licensee’s claim that FCC server problems prevented timely filing, and issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a $3,000 fine for the late filings. The FCC explained that it was unaware of any server problems that would have prevented timely filing during the quarters at issue, and the licensee failed to provide any evidence to support its claim.

In its response to the NAL, the licensee asserted that after looking into the matter further, it found that it had in fact timely filed the Children’s Television Programming Reports. The licensee included with its response a declaration signed by the employee in charge of filing such reports. The employee stated that the three reports in question were timely filed, but inadvertently overwritten later. Upon discovering that the reports had been overwritten, the station refiled the reports, causing them to appear as though they were filed late. The licensee noted that it had since implemented safeguards to prevent reports from being overwritten in the future.

Based on the new information, the FCC was persuaded that the reports had been timely filed, and therefore rescinded the NAL and cancelled the proposed $3,000 fine.

FCC Reduces $18,000 Fine to $2,250 in Consent Decree With Educational FM Station

The FCC entered a Consent Decree with a North Carolina noncommercial educational (“NCE”) FM licensee, terminating the investigation of the licensee’s multiple alleged violations. The alleged violations included: (1) failure to notify the FCC that the station had gone silent for ten or more days and failure to seek special temporary authority (“STA”) when four of those periods of silence lasted more than 30 days; (2) failure to retain all required documentation in the station’s public inspection file; and (3) failure to file biennial ownership reports. Under the terms of the Consent Decree, the licensee agreed to pay a $2,250 fine and abide by a compliance plan.

Published on: June 30, 2016

FCC Enforcement Monitor ~ June 2016

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 Refuses TV Licensee’s Request to Defer $15,000 Fine Until After Incentive Auction
FCC Proposes $20,000 Fine for Radio Licensee’s Violation of Multiple Ownership Rule
FCC Imposes $12,000 Fine and Short-Term License Renewal for Failure to Maintain Public Inspection File and File Ownership Reports

Red Light Blues: FCC Refuses TV Licensee’s Request to Defer Fine Collection Until After Incentive Auction

The FCC’s Media Bureau rejected a Kansas TV licensee’s request to defer a $15,000 fine for failing to timely file fourteen Children’s Television Programming Reports, and for failing to disclose the violations in its license renewal application.

Section 73.3256 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) of the rule requires 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 addition, Section 73.3514(a) of the FCC’s Rules requires licensees to include all information requested by an application form when filing it with the FCC. The license renewal application form requires licensees to certify that they have complied with Section 73.3526 and have timely filed their Children’s Television Programming Reports with the FCC.

In April 2016, the FCC issued a Notice of Apparent Liability (“NAL”) to the licensee, asserting that since 2011 the licensee had filed fourteen Children’s Television Programming Reports late, and had subsequently failed to report those violations in its license renewal application. After determining that these actions constituted violations of Sections 73.3526(e)(11)(iii) and 73.3514(a), the FCC proposed a fine of $12,000 for the fourteen late reports and another $3,000 for failing to disclose the violations in the license renewal application—for a total proposed fine of $15,000.

The licensee did not dispute the violations. Instead, it requested a waiver of the FCC’s red light rule, which bars stations from receiving certain benefits if they have an outstanding balance owed to the FCC. In October 2015, the FCC waived the red right rule to allow broadcasters that owed debts to the FCC to participate in the Spectrum Auction.

In requesting a waiver of the red light rule and deferral of the fine until after the Auction concludes, the licensee argued that while it did not owe money to the FCC when it filed its reverse auction application, the current $15,000 fine could make it subject to the red light rule in the near future because it is unable to pay that fine. The licensee explained that if it were a winning bidder in the Auction, it would then be able to pay the fine. Alternatively, the licensee requested a 30 day extension to pay the proposed fine in the event that it was unsuccessful in the Auction.

The FCC rejected the licensee’s requests. In doing so, it first noted that the FCC waived the red light rule for only a very limited purpose at the start of the Auction. Second, it stated that since the licensee admitted that it was not subject to a red light restriction when it filed its reverse auction application and is not currently subject to one, and given that the licensee had provided no documentation showing its inability to pay the fine, any request for a waiver would be prospective and speculative.

The FCC indicated the licensee therefore had two options: (i) pay the proposed fine in full, or (ii) seek a reduction or cancellation. Because the licensee did neither, and instead merely provided a statement about its inability to pay the fine without any supporting documentation, the FCC ordered the licensee to pay the $15,000 fine.

Too Soon? Radio Licensee Faces $20,000 Fine for Premature Implementation of Time Brokerage Agreement

The FCC proposed to fine a New York radio licensee $20,000 for implementing a Time Brokerage Agreement (“TBA”) that violated the Commission’s multiple ownership rule before the FCC had an opportunity to rule on the licensee’s waiver request. Continue reading →

Published on: May 31, 2016

FCC Enforcement Monitor ~ May 2016

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 Enforcement Bureau and Long-Distance Provider Agree to $100,000 Settlement for Violations of FCC’s Rural Call Completion Rules
FCC Cancels $3,000 Fine Against TV Licensee for Untimely Kidvid Filings, Upholds $10,000 Fine for Missing Issues/Programs Lists
FM Construction Permit Auction Winner Fined $3,000 For Late Application

Dropped Call of the Wild: Investigation of Rural Call Problems Ends With $100,000 Consent Decree

The FCC’s Enforcement Bureau entered into a Consent Decree with a Utah-based long distance carrier to resolve an investigation into whether the carrier failed to sufficiently respond to a rural customer’s complaints of poor call quality and failed to cooperate with the FCC’s resulting investigation.

The FCC has adopted several “Rural Call Completion Rules” in recent years to address poor call quality and call completion problems in rural and other high-cost areas. The Commission clarified in a 2012 declaratory ruling that a carrier violates Section 201 of the Communications Act of 1934 when it knows or should know that calls are not being completed to certain areas and fails to correct the problem or fails to ensure that its intermediate providers correct the problem.

The FCC has also determined that practices that allow lower quality service to rural or traditionally high-cost areas to persist constitute unjust or unreasonable discrimination (based on locality) in violation of Section 202 of the Communications Act. Further, the FCC has interpreted Section 208 of the Act and Section 1.717 of the Commission’s Rules to require that a carrier satisfy (or adequately explain why it cannot satisfy) any informal rural call completion complaints.

In December 2014, a consumer filed an informal complaint with the FCC detailing ongoing problems with receiving work calls. The calls were sent over the carrier’s long distance network to the consumer’s home office, which is served by an intermediate rural local exchange carrier. The carrier investigated the matter and explained in its response to the informal complaint that (1) the consumer had not responded to a follow-up email about the complaint, and (2) the consumer was not its customer.

The carrier took action in March 2015—after the FCC reminded the carrier of its obligations to address rural call quality problems—but the problem recurred. The consumer subsequently filed additional complaints alleging continued call problems in May and June of 2015. Finding that the carrier failed to sufficiently address and resolve the call quality problems with its intermediate provider until late July 2015, the FCC issued a Letter of Inquiry to the carrier and opened an investigation.

To settle the matter, the carrier entered into a Consent Decree with the FCC, wherein the carrier: (1) admitted that it failed to ensure call quality from its intermediate providers and that it did not cooperate with the FCC’s investigation; (2) agreed to pay a $100,000 civil penalty; and (3) agreed to implement a compliance plan going forward. As part of the plan, the carrier must establish operating procedures and training on the Rural Call Completion Rules, and file regular compliance reports with the FCC during the three-year compliance period.

Island Jam: Guam TV Station Successfully Appeals Proposed Fine for Late Kidvid Reports, But Remains on the Hook for Issues/Programs List Violations

The FCC’s Media Bureau cancelled a proposed $3,000 fine against a Guam TV licensee for failing to timely file five Children’s Television Programming Reports, but upheld a $10,000 fine against the licensee for failing to place fifteen Quarterly Issues/Programs Lists in the station’s public inspection file. The FCC also admonished the licensee for its failure to upload copies of its Quarterly Issues/Programs Lists that were in the station’s local file prior to August 2, 2012.

Published on: April 30, 2016

FCC Enforcement Monitor ~ April 2016

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:

Class A TV Licensee Hit With $89,200 Fine for Dodging FCC Inspectors
Student-Run FM Station Faces $12,000 Fine and Shortened License Term for Public Inspection File Violations
Wireless Synchronized Clock Company Agrees to Pay $12,000 for Violating License Terms

FCC Throws the ($89,200) Book at Class A Licensee for Evading Main Studio Inspections

The FCC’s Enforcement Bureau imposed a fine of $89,200 against a Philadelphia Class A TV licensee for failing to (1) make its station available for inspection by FCC agents on multiple occasions, (2) maintain a fully staffed main studio, and (3) operate the station’s transmitter from its authorized location.

Section 73.1225(a) of the FCC’s Rules requires broadcast licensees to make a station “available for inspection by representatives of the FCC during the station’s business hours, or at any time it is in operation.” In addition, Section 73.1125(a) of the Rules has been interpreted by the FCC to require broadcast licensees to maintain a main studio with a “meaningful management and staff presence” during normal business hours. Finally, Section 73.1350(a) of the Rules requires a broadcast licensee to “maintain[] and operat[e] its broadcast station in a manner which complies with the technical rules . . . and in accordance with the terms of the station authorization.”

In August 2011, FCC agents attempted to inspect the station’s main studio. After observing that the main studio was inaccessible due to a locked gate, the agents called the station manager and requested access to inspect the main studio. Ten minutes later, the station manager emerged and informed the agents that he could not facilitate the inspection because he was leaving for a medical appointment, and requested that the agents return the next day. When asked about staffing, the station manager said that no one else was available to facilitate the inspection. One of the agents called the sole principal of the station and advised him that the station manager had failed to make the station available for inspection, and asked the principal to call the agent back. The principal did not return the phone call.

Over one month later, in September 2011, the agents returned to the station to inspect the main studio. The station manager appeared at the locked gate, and asked the agents to wait as he returned to the building. After waiting for ten minutes, the agents left. The agents returned that afternoon and found that the gate was still locked. An agent called the station manager, who said the gate was locked for security purposes and that the public must contact the station to obtain access. However, the agents noted that there was no contact information on the gate. An agent called the sole principal about the second failed attempt to inspect the studio, and again did not receive a return phone call.

In addition to the two failed inspection attempts, FCC agents found in March 2012 that the station’s antenna was actually 0.2 miles from the site listed in the station’s license. The agents determined that the station had operated from the unauthorized location for approximately eight years.

The FCC subsequently issued a Notice of Apparent Liability (“NAL”), proposing an $89,200 fine against the station. The base fine for failing to make a station available for inspection is $7,000. However, due to the “unacceptable” conduct of the station, the FCC used its discretion under Section 503(b)(2)(A) of the Communications Act to adjust the proposed fine upward to the maximum amount allowed under the Act: $37,500 for each of the two failed inspections. The FCC also proposed an upward adjustment of the base fine for operating the station from an unauthorized location, from $4,000 to $7,200. In addition, the FCC proposed a $7,000 fine (the base fine amount) for the violation of the main studio rule, for a total fine of $89,200.

Published on: March 31, 2016

FCC Enforcement Monitor ~ March 2016