Articles Posted in FCC Enforcement

Paul A. Cicelski

February 2013

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 Takes Action Against Interference and Unlicensed Operations
FCC Assesses $25,000 Fine for Unresponsiveness

Licensee Cannot Escape Fine for Intentional Jamming and Unlicensed Operations
In a rather odd chain of events, the FCC recently issued a Memorandum Opinion and Order (“Order”) against an individual in Thousand Oaks, California stemming from a 2009 investigation and a 2011 Forfeiture Order. The Order rejected a petition for reconsideration of the earlier Forfeiture Order and affirmed the FCC’s decision to fine the individual for unlicensed radio operations, intentional interference with radio operations, and refusal to allow an inspection of radio equipment.

In March 2009, an agent from the FCC’s Enforcement Bureau investigated radio interference at a shopping center. The agent located an unlicensed repeater transmitter operating from a secure radio communications facility on Oat Mountain with a beam antenna pointed in the direction of the shopping center. The repeater was transmitting pulsating signals on 461.375 and 466.375 MHz, the land mobile frequencies licensed to the shopping center for its own operations. These transmissions were jamming the shopping center’s licensed land mobile operations.

During the investigation, an unidentified individual communicated with shopping center personnel on a different set of frequencies, telling them they had “plenty of warning”, that he was jamming their licensed frequencies to force them to cease use of those frequencies, and that they needed to apply to the FCC to cancel their current land mobile license and apply for a new license to operate on different frequencies. He then began transmitting NOAA weather radio on the licensed frequencies to block any use of those frequencies by the shopping center.

Published on: January 31, 2013

FCC Enforcement Monitor

By Scott R. Flick and Paul A. Cicelski

Paul A. Cicelski

January 2013

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 Assesses $8,000 Fine for EAS Equipment Installation Problems
Notice of Violation Issued against FM Station for a Variety of Reasons

FCC Proposes Fine for Operational, But Not Fully Functional, EAS Equipment

The FCC has often noted the importance of the national Emergency Alert System (“EAS”) while taking enforcement action against broadcast stations whose EAS equipment is not functioning or who otherwise fail to transmit required EAS messages. In a slightly atypical case, the FCC this month issued a Notice of Apparent Liability for Forfeiture and Order (“NAL”) for $8,000 against the licensee of an FM radio station in Puerto Rico because, even though the station’s EAS equipment was fully operational, the manner of installation made it incapable of broadcasting the required EAS tests automatically.

In April 2012, agents from the FCC’s Enforcement Bureau inspected the station’s main studio and discovered that the EAS equipment was installed in such a way that it was not able to automatically interrupt programming to transmit an EAS message. Section 11.35 of the FCC’s Rules requires that all broadcast stations have EAS equipment that is fully operational so that the monitoring and transmitting functions are available when the station is in operation. The Rules further require that broadcast stations be able to receive EAS messages, interrupt on-air programming, and transmit required EAS messages. When a facility is unattended, automatic systems must be in place to perform these functions. During the inspection, the station’s director admitted that the EAS equipment was not capable of transmitting an EAS message without someone manually reducing the on-air programming volume. He further admitted that the equipment had been in this condition since at least September 2011, if not earlier.

The station broadcast programming 24 hours a day, but was only staffed from 6:00 am to 7:00 pm. As a result, when the station was unattended, it could not interrupt programming to transmit EAS messages. The base forfeiture for failing to maintain operational EAS equipment is $8,000, which the FCC thought was appropriate in this case. The FCC also directed the licensee to submit a written statement indicating that the EAS equipment is now fully operational at all times, particularly when unattended, and otherwise in full compliance with the FCC’s rules.

FM Station Receives Notice of Violation for an Assortment of Violations

At the end of last month, the FCC issued a Notice of Violation (“NOV”) against the licensee of an FM radio station in Texas based upon an October 2012 inspection by an agent from the Enforcement Bureau. The agent concluded that the licensee was violating a number of FCC rules.

Section 73.1350 of the FCC’s Rules requires that licensees establish monitoring procedures to ensure that the equipment used by a station complies with FCC rules. Upon inspection, the FCC agents found no records indicating that the licensee had established or implemented such monitoring procedures, and the station’s chief engineer had difficulty monitoring the equipment’s output when asked to do so by the agent. Sections 73.1870 and 73.3526 also require that a chief operator be designated, that designation be posted with the station’s license at the main studio, and a copy of the station’s current authorization be kept in the station’s public inspection file. At the time of the inspection, the NOV indicated there was no written designation of the chief operator and the station’s license renewal authorization was not at the station’s main studio.

During the inspection, the agent also found that the FM station’s EAS equipment was unable to send and receive tests and was not properly installed to transmit the required weekly and monthly tests. The licensee also did not have any EAS logs documenting the tests sent and received and, if tests were not sent or received, the reasons why those tests were not sent or received, all in violation of Section 11.35 of the FCC’s Rules.

Finally, pursuant to Section 73.1560 of the FCC’s Rules, if a station operates at reduced power for 10 consecutive days, it must notify the FCC of that fact. Operation at reduced power for more than 30 days requires the licensee to obtain a grant of Special Temporary Authority from the FCC for such operation. In this instance, the FM station had been operating at reduced power for 14 consecutive days, and the FCC found no indication that it had been notified by the licensee of the station’s reduced power operations.

As a result of the NOV, the licensee must submit a written response, explaining each alleged violation and providing a description and timeline of any corrective actions the licensee will take to bring its operations into compliance with the FCC’s rules. The FCC may elect to assess a fine or take other enforcement action against the station in the future if it ultimately determines the facts call for such a response.

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

Published on: December 27, 2012

FCC Enforcement Monitor

December 2012

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 Issues Multiple Forfeitures for Unauthorized Marketing of Transmitters
FCC Proposes $35,000 in Fines for Unauthorized Radio Operations

Three Years Later, FCC Pursues Unauthorized Marketing of Transmitters

This month, the FCC issued Forfeiture Orders against two companies for marketing unauthorized transmitters, with both orders following up on Notices of Apparent Liability for Forfeiture (NAL) issued in 2009.

In one instance, the FCC issued a Forfeiture Order for $18,000 against a company that marketed an unauthorized FM broadcast transmitter in the U.S. and provided incorrect information to the FCC “without a reasonable basis for believing that the information was correct.” The FCC first issued an NAL against this company in 2009, after an in-depth investigation by the Spectrum Enforcement Division, alleging that the company was marketing several FM transmitters, including one model of transmitter that was not verified to comply with FCC regulations. The FCC’s rules prohibit the manufacturing, importation, and sale of radio frequency devices that do not comply with all applicable FCC requirements, and Section 73.1660 of the FCC’s Rules requires that transmitters be verified for compliance. If a transmitter has not complied with the verification requirements of Section 73.1660, then the transmitter is considered unauthorized and may not be marketed in the United States.

In response to multiple Letters of Inquiry, the company attempted to demonstrate the transmitter’s compliance with FCC regulations by submitting verification information for a component part of the transmitter. The FCC concluded, however, that “[b]ecause transmitters are a combination of several functional components that interact with one another … verification of [one part] incorporated into a transmitter is insufficient to verify the final transmitter.”

Published on: November 30, 2012

FCC Enforcement Monitor

November 2012

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 Punishes the Operators of an Unlicensed FM Station
FCC Investigates Antenna Structure Violations

Recurrent Unlicensed Operations Lead to Large Forfeitures

Last month, we wrote about a case in which the FCC fined the renter of a property after discovering an unlicensed radio transmitter, even though the renter claimed the equipment was operated by a third party. This month, the FCC again went after the renters of a property on which there was an unlicensed transmitter, issuing two $20,000 Forfeiture Orders. In this case, however, the renters left little doubt that they were directly responsible for the operation of the unlicensed radio station.

In October 2011, agents from the Miami office of the Enforcement Bureau identified the source of radio frequency transmissions on the 101.1 MHz frequency as an FM antenna mounted to a structure on a property in Florida. The signal strength exceeded that permitted for unlicensed broadcasting, and the agents later determined that no authorization had been issued for the operation of an FM broadcast station at that location. In addition, the agents were able to hear live broadcasts from the station and found that the on-air DJ was promoting the station on several web sites and Facebook pages.

During a subsequent February 2012 visit, the agents inspected the property and found radio transmitting equipment installed in a storage room. The property owner indicated that the space was rented by two men, and provided contact information for the renters to the agents. The agents called one of the renters, who asked the agents what would happen to the radio transmitting equipment. The renter contacted by the agents then called the other renter, who went to the station, told the agents the equipment was his, and removed the equipment from the location.

In July 2012, the FCC issued two $20,000 Notices of Apparent Liability for Forfeiture (NALs) for operating without FCC authorization – one against the renter identified as the DJ of the station, and one against the renter who admitted it was his equipment. The base forfeiture for operating without authorization is $10,000. However, the FCC determined an upward adjustment of $10,000 was warranted for each of the renters because both had previously been involved in operating an unlicensed station on a different frequency in a different part of the state, and the FCC had issued previous Notices of Unlicensed Operation to the renters for that station.

Having not heard back from the renters in response to the July NALs, the FCC followed up the NALs by issuing two $20,000 Forfeiture Orders against the renters this month.

Faded Antenna Structures Garner Notices of Violations

Six towers in Oklahoma and one in New Mexico were the subject of Notices of Violation (NOVs) earlier this month after FCC agents noted that the paint on the towers was faded and chipped. Some of the NOVs also noted that the respective structure owners had failed to post the Antenna Structure Registration Number (ASRN) at the gate of the surrounding fence, and that any signage at the base of the structure was not visible from the gate of the fence.

In accordance with the rules of the FCC, owners of antenna structures must regularly inspect those structures to ensure the structures continue to comply with all FCC requirements. Indeed, the rules require owners to inspect the antenna structure’s lights (manually or by automatic indicator) at least once every 24 hours, and to inspect all lighting control devices, indicators and alarms every three months. Owners must also maintain a record of any lighting malfunctions, including the nature of the malfunction, the date and time of the malfunction, the date and time of FAA notification, and the date, time and nature of repairs.

As this month’s NOVs explicitly note, the FCC is free to take further steps against the tower owners, including issuing fines, and often does. Tower owners should therefore be careful to ensure that:

The ASRN is conspicuously displayed so that it is readily visible from the base of the structure;
Materials used to display ASRN are weather-resistant and large enough to be easily seen from the base of the structure;
Where the tower is surrounded by a fence, the ASRN is posted where it will be readily visible from the fence gate;
Antenna structures exceeding 200 feet are painted and lighted according to FAA specifications; and
Antenna structures are cleaned or repainted as often as is necessary to maintain good visibility.

Published on: November 7, 2012

Randall Terry Focuses His Campaign on the FCC

While most presidential candidates were concentrating yesterday on last minute campaign events aimed at swaying undecided voters, independent presidential candidate Randall Terry was instead focused on winning votes at the FCC, filing multiple election day political advertising complaints against broadcast stations.

I wrote last week of an FCC decision holding that a DC-area station had failed to provide Terry reasonable access to airtime as required by Section 312 of the Communications Act. According to the FCC, Terry, an independent presidential candidate known for seeking to air visually disturbing political ads prominently featuring aborted fetuses, was entitled as a federal candidate to purchase airtime because he was on the ballot in West Virginia. While Terry was apparently not on the ballot in DC, Maryland, or Virginia, the area primarily served by the station, the FCC concluded that the station’s Noise Limited Service Contour covered nearly 3% of the population of West Virginia, making Terry a legally qualified candidate for purposes of demanding airtime on the DC-area station.

Apparently buoyed by that success, Terry yesterday filed complaints against five Florida television stations arguing that he has once again been denied reasonable access rights. What makes these filings odd is that, although dated November 5th, they were not filed with the FCC until November 6th, election day. Even if Terry actually intended to file them on November 5th, that would still be too late for the FCC to take any meaningful action before the election was over. That means Terry has already begun the process of positioning himself for the next election, and is perhaps looking to establish friendly FCC precedent now that can be used against stations then.

What also makes Terry’s Florida filings notable is that he is not seeking reasonable access as a candidate for president (presumably because he was not on the presidential ballot in Florida). Instead, his reasonable access complaints are based upon being on the ballot as a candidate for the U.S. House of Representatives, representing South Florida’s 20th Congressional District. Terry alleges in his complaints that all five stations cited Section 99.012(2) of the Florida Statues as a reason for not accepting his ads. That Section provides that “No person may qualify as a candidate for more than one public office, whether federal, state, district, county, or municipal, if the terms or any part thereof run concurrently with each other.” Since Terry was on the ballot in a number of states running for president, the stations argued that the Florida Statute prevented him from also appearing on a ballot in Florida as a candidate for the U.S. House of Representatives. The stations’ argument is that Terry was therefore not a legally qualified candidate for federal office in Florida, and thus not entitled to reasonable access.

Terry’s response to that argument cites no caselaw, FCC or otherwise, but argues by analogy that stations did air Romney/Ryan ads in Florida despite Ryan also being on the ballot in Wisconsin to keep his House seat. That is not a particularly strong argument, however, as I suspect that stations in Florida were actually airing Romney ads, and Romney was unquestionably a legally qualified candidate on the ballot. If Ryan also appeared in those ads, that would not alter a station’s obligation to provide reasonable access to Romney for his ads, and the “no censorship” provision of the Communications Act means that Romney is free to present anyone else he wants in his ads without interference.

Since the FCC is not generally in the business of interpreting state election laws, the central question in these complaints is whether the FCC will defer to a licensee’s reasonable judgment as to who is a legally qualified candidate in the licensee’s own state. If not, broadcasters will find that once simple reasonable access analysis is growing steadily more complex and dangerous. As foreshadowed by last week’s post, reasonable access issues seem destined to become a growing part of future elections. Yesterday’s Terry complaints appear to be an effort to turn up the heat on stations, even where there is no useful remedy available to a candidate whose multiple campaigns have already concluded.

Copies of the Terry complaints can be found here.

Published on: October 31, 2012

Randall Terry Pushes the FCC’s Political Envelope

The FCC today released a political advertising decision that, while perhaps not surprising, will still alarm many broadcasters. Back in February, I wrote a pair of posts (here and here) about Randall Terry, who was then seeking airtime during the Superbowl to air ads featuring graphic footage of aborted fetuses, ostensibly in support of his effort to become the presidential nominee of the Democratic Party. It appears that the Democratic Party didn’t want him, as the Democratic National Committee sent stations a letter asserting that Terry was not a candidate for the Democratic nomination and was not entitled to the broadcast airtime benefits legally qualified federal candidates receive.

In my first post in February, I noted that Section 312 of the Communications Act, which requires broadcast stations to grant “reasonable access” to airtime for federal candidates, was growing increasingly susceptible to a First Amendment challenge, and that the situation presented by the Terry ads — broadcasters being forced to air visually repugnant material that they would otherwise never subject their audience to, regardless of their own political bent — represents just the kind of scenario that might motivate broadcasters to challenge this statutory requirement. It certainly gives a judge or Congress an appealing set of facts to consider overturning or reforming the current law.

It is also worth noting that broadcasters are not allowed to channel such ads into parts of the day when children are less likely to be in the audience. This inability to channel such ads away from children has always been curious, as a candidate can hardly complain about being unable to reach an audience that is too young to vote anyway (and the candidate is of course free to reach out to them with more age-appropriate ads in any event). Indeed, the FCC, which has done a respectable job over the years of applying the Communications Act’s political ad requirements in the real world, once held that broadcasters could choose to shift such ads away from kid-friendly hours. The FCC was rebuffed in court, however, in a decision that focused entirely on how such channeling could infringe upon a candidate’s freedom of expression, seemingly oblivious to the freedom of expression of stations unwilling to subject their child viewers to such content.

As I wrote in my second post, the FCC was able to avoid a confrontation over recent Terry ads for a bit longer when it ruled in February that Terry was not a legally qualified presidential candidate on the Illinois ballot (where the station being challenged was located). It also ruled that even had that not been the case, the station was reasonable in turning down a request for Superbowl ad time since it is a uniquely popular event in which the station might well find it impossible to accommodate ads from competing candidates demanding “equal opportunities” under the Communications Act to air their ads in the Superbowl as well.

Knowing how attractive the plum of guaranteed ad time at a station’s lowest unit charge is to anyone wishing to get their message out there, it came as no surprise when the Terry campaign, now running Terry as an independent candidate, filed another complaint, this time against Washington, DC station WUSA(TV). Terry sought access on the basis of being a legally qualified candidate in West Virginia, a small portion of which, he asserted, falls within WUSA(TV)’s signal.

The station rejected Terry’s ads, noting that Terry was not a legally qualified candidate in its DC/Maryland/Virginia service area. When challenged at the FCC, it submitted a Longley-Rice signal contour map, which takes blocking terrain (e.g., mountains) into account, and which indicated that the station’s actual coverage of West Virginia was slim to none (“de minimis” in FCC parlance).

In determining where reasonable access must be granted, the FCC looks at a station’s “normal service area”, and for TV, it has generally considered a station’s Grade B contour to be the “normal service area”. The transition to digital TV, however, has eliminated the analog concept of a Grade B contour. In reaching today’s decision, the FCC concluded that since the FCC considers a digital station’s Noise Limited Service Contour (NLSC) to be the equivalent of an analog Grade B contour in other FCC contexts, it is appropriate to use the NLSC as the appropriate “normal service area” for purposes of reasonable access complaints. While engineers readily acknowledge that Longley-Rice contour analysis is a more accurate predictor of actual signal reception than the NLSC, Longley-Rice analysis can be complex, and it appears the FCC opted for the simplicity and bright line certainty of using the NLSC. While the NLSC represents a somewhat hypothetical coverage area, NLSC coverage maps are widely available, including on the FCC’s own website, making it an easier tool for candidates to utilize in planning their media buys.

Since, according to the FCC, WUSA(TV)’s NLSC covers nearly 3% of West Virginia’s population, the FCC concluded in today’s decision that the station was unreasonable in rejecting Terry’s ads. While the FCC’s decision is a pragmatic one, it adds more kindling to the reasonable access fire, as stations are now forced to offend their audiences with content from candidates that are legally qualified in any area that is within their NLSC service area, whether or not actual TV reception exists. This not only increases the number of reasonable access requests stations may face, but will further antagonize their viewers, who might understand why a station has to air ads for a candidate that is on the ballot in their area, but will be particularly perplexed as to why a station is airing offensive content from a candidate they have never heard of and cannot vote for or against. When Congress drafted the reasonable access and “no censorship of political ads” provisions of the Communications Act, it probably assumed that extreme content would not be a problem since a candidate was unlikely to air such content if he or she wanted to be elected. However, that logic evaporates when the viewing audience doesn’t even have the opportunity to vote against such a candidate.

While the FCC appears to have been concerned that a more complex contour analysis could be gamed by a broadcaster, the result instead unfortunately encourages issue activists of every persuasion to game the system for their own gain. In the present case, it is pretty obvious that buying very expensive airtime in the nation’s capital is not a cost-effective way of reaching less than 3% of the voters in West Virginia, and that the real audience is the large DC-area population for which Terry was apparently unable to qualify to be on the ballot. That became even more obvious when WUSA(TV) provided the Longley-Rice contour map indicating that the station actually had little or no coverage in West Virginia, but the Terry campaign nonetheless continued to press for airtime on the station.

The obvious path for future issue activists is to declare their candidacy for federal office, but instead of doing the hard work of qualifying for the ballot in large population centers in order to be heard, taking the easier path of qualifying for the ballot in less populated surrounding areas that are just within the fringe coverage of a big market station’s predicted NLSC coverage. By following this formula, they get guaranteed access to airtime in front of a large market audience, and at much lower rates than commercial advertisers would pay, with the added benefit that the station cannot edit the ad or decline to air it no matter how offensive the content.

For those who make the not unreasonable argument that putting up with some questionable exploitation of the political ad rules is necessary to ensure that legitimate candidates can get their message out, consider the following: only federal candidates have a right of reasonable access. In this heated political season, particularly in the heavily contested large population centers, stations have been forced to preempt the spots of many of their normal commercial advertisers to make room for political spots for federal candidates (seen a car ad lately?), and local and state candidates have similarly suffered from having their ads pushed aside to make way for federal candidate ads. As a result, forcing broadcasters to air content that offends adult viewers, disturbs child viewers, and damages the relationship of trust between the broadcaster and its public harms more than just the broadcaster and its audience. It harms each and every local and state candidate that actually is on the ballot in a station’s market. They too would like to get their message out, but in their case, to people who can actually vote for them and that are affected by who is elected to represent them. To the extent that “all politics is local”, it make little sense to shunt aside these local and state candidates merely to guarantee access to those using the Communications Act’s “federal formula” to game the system for their own agendas.

While today’s decision is not one that will be welcomed by broadcasters, make no mistake, it is not the FCC’s fault that we have reached this point. The reasonable access requirements for federal candidates are encoded into the Communications Act, and there is only so much the FCC can do in applying the statute in a political landscape that is far more complex than those who drafted these provisions likely ever contemplated. With election season nearly over, and many stations sold out of airtime through the election, the immediate impact of today’s decision will be limited. It is a safe bet, however, that the underlying issue will continue to haunt future elections.

Published on: October 31, 2012

FCC Enforcement Monitor

October 2012

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 Takes Action against Illegal Jamming Devices
Unlicensed Transmitter Gets Renter into Trouble

FCC Goes After Marketing and Sale of Illegal Jamming Devices

The FCC’s enforcement efforts this month focused heavily on the marketing and sale of illegal signal jamming devices. The advertising, sale, or operation of devices which jam GPS, cell phone, or other wireless communications is prohibited under Section 301 of the Communications Act as well as under the FCC’s Rules. As the Commission has previously noted, it is unlawful to use a jammer, even on private property. In the span of a week this October, the FCC issued eight “Citation and Order” actions against companies and individuals it determined were unlawfully advertising jammers for sale on Craigslist.org.

In those orders, the FCC emphasized that it views unlawful operation of jammers as a public safety hazard. In several of the orders, the Enforcement Bureau wrote that it is “increasingly concerned that individual consumers who operate jamming devices do not appear to understand the potentially grave consequences of using a jammer. Instead these operators incorrectly assume that their illegal operation is justified by personal convenience or should otherwise be excused.” Because of this, the FCC cautioned that going forward, it “intend[s] to impose substantial monetary penalties, rather than (or in addition to) warnings, on individuals who operate a jammer.” The FCC added that “substantial monetary penalties” in these cases would mean up to $16,000 per violation, or, in the case of a single continuing violation, $16,000 per day up to a total of $112,500.

The Enforcement Bureau indicated that the FCC will continue to target individuals and companies involved in the illegal advertisement, sale, or operation of jammers. In fact, on October 15th, the Bureau launched a dedicated jammer tip line – 1-855-55-NOJAM – to make it easier for members of the public to report the use or sale of illegal jammers. It also released an Enforcement Advisory explaining the FCC’s “zero tolerance” policy regarding the unlawful sale and operation of jammers. Based on these recent actions by the FCC, we expect to see a growing number of signal jamming fines in the months ahead.

Turning a Blind Eye to Illegal Operations Is Also a Violation of the FCC’s Rules

This month, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) against a property renter after finding that an unlicensed transmitter was being operated on his leased property. What makes the case interesting is that the renter claimed the equipment was not his, and was actually operated by unnamed third parties (the classic “not my stash” defense).

In September 2012, agents from the FCC’s Enforcement Bureau, responding to a complaint, used direction-finding equipment to locate the source of the suspect radio transmissions. They found an FM transmitting antenna mounted to the chimney of a residence. The antenna was emitting signals exceeding the FCC’s limits for unlicensed operation under Part 15 of the FCC’s Rules. Upon subsequent inspection of the FCC’s records, the agents determined there was no FCC authorization for the antenna, nor for any antenna near that address.

The following day, the agents returned to the property with the property owner and found a transmitter located in a locked basement room in the residence. The agents then questioned the renter of that room about the antenna, transmitter, and an accompanying computer which fed audio to the transmitter. The renter admitted to having installed the equipment, but denied that he was operating the unlicensed station. He claimed that unnamed individuals owned and operated the equipment and gave him money each month to pay the rent. The renter further claimed that the operators had not provided him with their names, but had informed him that the FCC might inspect the station and order him to cease operations because of unlawful operations.

Apparently not convinced by the renter’s defense, the FCC issued an NAL for $10,000 against the renter for operating a station without FCC authorization. The NAL clarified that “operating” a station means both the technical operation of the station and the “general conduct or management of a station as a whole.” Noting that the renter himself acknowledged that he had been told by the unnamed “operators” that the operation was illegal, the FCC indicated that “in spite of the warning, [the renter] nonetheless allowed the station to continue to operate in his basement.” Under the circumstances, the FCC concluded that the renter’s actions qualified as being involved in the general conduct or management of a station, defined to include “any means of actual working control over the operation of the [station].” The FCC therefore concluded that the renter did in fact “operate” the unlicensed radio station, justifying the proposed fine. In addition, the FCC noted that it had difficulty believing the renter’s claimed defense, indicating that “we find it implausible that [the renter] (or anyone for that matter) would install radio equipment, rent space, allow for unlawful operations in the rented space, and incur potential financial and other liability on behalf of complete strangers.”

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

Published on: September 28, 2012

FCC Enforcement Monitor

September 2012
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 Follows Up a $25,000 Fine With a $236,500 Fine
Two Tower Owners Fined for Fading Paint

FCC Issues Second Fine to Cable TV Operator for $236,500
As we previously reported in October 2011, the operator of a cable television system in Florida was fined $25,000 for a variety of violations of the FCC’s Rules, including failing to install and maintain operational Emergency Alert System (“EAS”) equipment, failing to operate its system within the required cable signal leakage limits, and failing to register the cable system with the FCC. This month, the FCC issued a second Notice of Apparent Liability for Forfeiture and Order (“NAL”) to the operator for continued violations of the FCC’s cable signal leakage and EAS rules and for failing to respond to communications from the FCC requiring that the operator submit a written statement of compliance.

In January 2011, agents from the Tampa Office of the FCC’s Enforcement Bureau inspected the cable system and discovered extensive signal leakage, prompting the issuance of a NAL in 2011. The FCC has established signal leakage rules to reduce emissions that could cause interference with aviation frequencies. Sections 76.605 and 76.611 of the FCC’s Rules establish a maximum cable signal leakage standard of 20 microvolts per meter (“µV/m”) for any point in the system and a maximum Cumulative Leak Index (“CLI”) of 64. If potentially harmful interference cannot be eliminated, the FCC’s Rules require that the system immediately suspend operations following notification from the FCC’s local field office. Normal operations cannot resume until the interference has been eliminated “to the satisfaction of” the FCC’s local field office.

In early September 2011, agents from the Enforcement Bureau conducted a follow-up inspection of the cable system. During the inspection, the agents discovered 33 leakages, 22 of which measured over 100 µV/m, and found that the CLI for the system was 86.97, well in excess of the maximum permitted. Two days after the inspection, the local field office issued an Order to Cease Operations, directing the cable system to cease operations until the leakages were eliminated and to seek written approval from the local field office prior to resuming normal operations. At the time of its issuance, the President of the cable system verbally consented to abide by the terms of the Order. However, the cable system operator never contacted the field office to seek approval to resume operations, and the field office has yet to approve further cable system operations.

Between September 2011 and March 2012, agents from the FCC inspected the cable system an additional five times. During those inspections, the agents found that not only had the cable system resumed operation without permission, but they once again observed numerous signal leakages during each inspection.

Published on: August 30, 2012

FCC Enforcement Monitor

July 2012
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 is a special issue regarding recent FCC actions that provide a detailed (and expensive) look at Section 73.1206, the prohibition on recording telephone calls for broadcast.

FCC Issues a Total of $41,000 in Fines for Broadcaster Airing Prank Telephone Calls

The close of August in Washington, D.C. has brought with it a surge of beautiful weather, baseball excitement (for the first time in recent memory), and … forfeiture orders related to the improper recording of telephone calls for broadcast. On August 22nd, the FCC issued two forfeiture orders assessing a combined $41,000 in fines against licensees owned by the same parent company for violations of the telephone broadcast rule.

The telephone broadcast rule, Section 73.1206 of the Commission’s Rules, requires that, “[b]efore recording a telephone conversation for broadcast, or broadcasting such a conversation simultaneously with its occurrence, a licensee shall inform any party to the call of the licensee’s intention to broadcast the conversation, except where such party is aware, or may be presumed to be aware from the circumstances of the conversation, that it is being or likely will be broadcast.” While the rule language only talks about providing notice to the calling party, the FCC has reiterated many times that when a station employee intends to record a call for broadcast or broadcasts the call live, the employee must also obtain the party’s consent before recording the call or going live.

Both orders released on August 22nd involved a finding that the licensee had violated this rule. The first order involved prank calls made in April 2006 by radio personalities to members of the public during a comedy segment of the station’s morning show. In one conversation, the caller pretended to be an intruder hiding under the bed of the person receiving the call; in another, the caller pretended to be a loan shark bent upon collecting a debt.

The FCC began investigating the prank calls after receiving a complaint from a station listener. During the investigation, the licensee indicated it was unable to confirm or deny whether the prank calls aired on its morning show, and could not provide a recording or transcript of the program. The licensee acknowledged, however, that the program identified in the complaint was aired on the station and was simulcast on two co-owned stations.

The second forfeiture order released on the 22nd also involved the broadcast of an alleged prank call in which the caller pretended to be a hospital employee who then informed the call recipient that the recipient’s husband had been in a motorcycle accident and died at the hospital. When questioned about the incident, the licensee told the FCC that its parent company had contracted with an outside vendor who made and recorded the call. The licensee admitted that it broadcast the call on multiple occasions.

In the first case, the FCC had proposed a $25,000 fine. In the second case, the FCC had proposed a $16,000 fine. In both cases, the licensee urged cancellation of the proposed fines, to no avail. In batting down a myriad of arguments raised by the licensees, the FCC affirmed not only its broad investigative powers to enforce Section 73.1206, but also the licensees’ responsibility to both adhere to and demonstrate their adherence to the Commission’s Rules.

These two decisions provide an excellent primer for broadcasters on the FCC’s enforcement of the telephone broadcast rule, as between them, the FCC addressed a multitude of defenses raised by the licensees, ultimately concluding that none of those defenses could prevent the imposition of very substantial fines. More specifically, the FCC shot down each of the following licensee arguments: