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:

  • New Hampshire Presidential Primary Deepfake Robocalls Lead to Enforcement Action Against Call Originator
  • TV Broadcaster Faces $720,000 Fine for Failure to Negotiate Retransmission Consent in Good Faith
  • Statutory Maximum Penalty of $2,391,097 for Pirate Radio Operator

Telecommunications Company Accused of Originating Illegal Robocalls That Used President Biden’s Voice

A Michigan-based telecommunications company received a Notice of Suspected Illegal Traffic (“Notice”) from the FCC’s Enforcement Bureau accusing it of originating illegal robocall traffic related to the New Hampshire Presidential Primary election.

Two days before voting began in the Primary, New Hampshire residents believed to be potential Democratic voters began receiving calls purportedly from President Joe Biden telling them to “save” their vote for the November general election and not vote in the Primary.  The caller ID information indicated the call came from the spouse of a former state Democratic Party chair who was running a super PAC urging state Democrats to write in President Biden’s name in the Primary.  The call was not authorized by President Biden or his campaign or an authorized committee, nor did it include a legitimate message from the president but instead was a so-called deepfake using the President’s voice.  The caller ID information was spoofed.

Following widespread news reporting of the calls, the FCC investigated the matter together with the New Hampshire Attorney General, the Anti-Robocall Multistate Litigation Task Force and USTelecom’s Industry Traceback Group (“ITG”).  This group determined that the telecommunications company was the originating provider of the robocalls at issue, and the ITG provided identifying call data to the company for the suspect calls.  In response, the company identified another entity as the party that initiated the calls and told the ITG that it had warned the initiating entity as to the illegality of the calls.  According to the Notice, both the company and the apparent initiating entity have been previous subjects of illegal robocall investigations.

It is illegal under federal law to “knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value” and the law requires originating providers to protect their networks by taking “affirmative, effective measures to prevent new and renewing customers from using its network to originate illegal calls, including knowing its customers and exercising due diligence in ensuring that its services are not used to originate illegal traffic.”  Failure by a provider to protect its network can lead to downstream providers permanently blocking all of the upstream provider’s traffic.  In this case, the FCC believed the caller knowingly transmitted misleading and inaccurate caller ID information to deceive and confuse call recipients and apparently intended to harm prospective voters by using the President’s voice to tell them to not participate in the Primary.  The company also signed the calls with A-Level Attestation, an authentication designation that signals to downstream providers that the company has a direct relationship with the customer and that the customer legitimately controls the phone number in the caller ID field.

Transmittal of the Notice triggered several obligations for the company, including that it investigate the illegal traffic identified by the FCC and block or cease accepting all of the illegal traffic within 14 days of the Notice if the company’s investigation determines that it was part of the call chain for the identified traffic or substantially similar traffic.  Failure to respond to the Notice or to comply with additional obligations could result in temporary or permanent blocking of all traffic from the company, removal of the company from the Robocall Mitigation Database, which would cause all intermediate and terminating providers to immediately cease accepting the company’s telephone traffic, and more.  The FCC also issued a Public Notice notifying all U.S.-based voice service providers of the suspected illegal traffic coming from the company and authorizing the providers, at their discretion, to block or cease accepting traffic from the company without liability under the Communications Act of 1934 if the company failed to effectively mitigate the illegal calls. 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:

  • TV Broadcaster Faces $150,000 Fine for Failure to Negotiate Retransmission Consent in Good Faith
  • Sponsorship ID and Political File Violations Lead to $500,000 Consent Decree for Radio Broadcaster
  • $26,000 Fine for Georgia Radio Station EEO Rule Violations

 FCC Finds That TV Broadcaster Failed to Negotiate Retransmission Consent in Good Faith

Responding to a complaint by a cable TV provider, the Federal Communications Commission found that a broadcaster failed to negotiate retransmission consent for its New York TV station in good faith.  The enforcement action involves a Notice of Apparent Liability for Forfeiture (NAL) proposing a $150,000 fine against the broadcast licensee.  The licensee was represented in the negotiations by another broadcaster who provides services to the station at issue.

Under Section 325 of the Communications Act of 1934, as amended (the Act), TV stations and multichannel video programming distributors (i.e., cable and satellite TV providers) have a duty to negotiate retransmission consent agreements in good faith.  In a 2000 Order, the FCC adopted rules relating to good faith negotiations, setting out procedures for parties to allege violations of the rules.  The Order established a two-part good faith negotiation test.  Part one of the test is a list of objective negotiation standards, the violation of any of which is deemed to be a per se violation of a party’s duty to negotiate in good faith.  Part two of the test is a subjective “totality of the circumstances” test in which the FCC reviews the facts presented in a complaint to determine if the combined facts establish an overall failure to negotiate in good faith.

In this case, the cable provider complained that the broadcaster, through its negotiator, proposed terms for renewal of the parties’ agreement that would have prohibited either party from filing certain complaints with the FCC after execution of the agreement.  For its part, the broadcaster did not dispute that it proposed the terms in question, but argued that (1) “releasing FCC-related claims or withdrawing FCC complaints is not novel,” (2) “parties typically agree to withdraw good faith negotiation complaints once retransmission consent agreements have been reached,” and (3) no violation could have occurred since the proposed term was not included in the final agreement reached.

The FCC disagreed, stating that its 2000 Order made clear that proposing terms which foreclose the filing of FCC complaints is a presumptive violation of the good faith negotiation rules.  The FCC also disagreed with the broadcaster’s contention that terms not included in a final agreement could not violate the good faith rules.  Finally, while the licensee argued that it was not responsible for actions taken by the party negotiating on its behalf, the FCC reiterated that licensees are responsible for the actions of their agents, and the licensee in this case delegated negotiation of the agreement to its agent.

Relying upon statutory authority and its Forfeiture Policy Statement, the FCC arrived at a proposed fine of $150,000.  The Forfeiture Policy Statement establishes a base fine of $7,500 for violating the cable broadcast carriage rules, and the FCC asserted that the alleged violations continued for 10 days (the time period from first proposing the terms at issue and the signing of the agreement without them), yielding a base fine of $75,000.  The FCC then exercised its discretion to upwardly adjust the proposed fine to $150,000, asserting that the increase was justified based on the licensee’s financial relationship with a large TV company, its prior rule violations, and the FCC’s view that a larger fine was necessary to serve as a meaningful deterrent against future violations.

Repeated Violations of Sponsorship ID and Political File Rules Lead to $500,000 Consent Decree

A large radio station group entered into a consent decree with the FCC’s Media Bureau, agreeing to pay a $500,000 civil penalty for two of its stations’ violations of sponsorship identification laws and the Political File rule.

Section 317(a)(1) of the Act and Section 73.1212(a) of the FCC’s Rules require broadcast stations to identify the sponsor of any sponsored content broadcast on the station.  This requirement applies to all advertising, music, and any other broadcast content if the station or its employees received something of value for airing it.  The FCC has said that the sponsorship identification laws are “grounded in the principle that listeners and viewers are entitled to know who seeks to persuade them . . . .” Continue reading →

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If there was any doubt that the late-2023 confirmation of Anna Gomez as the fifth commissioner would bring a flurry of FCC activity in 2024, the FCC has laid those questions to rest. In addition to a $150,000 good faith NAL, $500,000 sponsorship ID consent decree, $26,000 EEO report NAL, and some public file NALs, the FCC this week released two Notices of Proposed Rulemaking of potential interest to broadcast licensees.

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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:

  • Mobile Service Provider Enters $23.5 Million Consent Decree to Resolve Lifeline and Emergency Broadband Benefit Program Investigation
  • Texas TV Station Receives $13,000 Penalty for Unauthorized Operation and Late License Application
  • Radio Station License Revoked Over Eight Years of Unpaid Regulatory Fees

Investigation Into Lifeline and Emergency Broadband Benefit Program Violations Leads to $23.5 Million Penalty for Mobile Phone Provider

A major mobile virtual network operator and mobile wireless telecommunications services provider entered into a Consent Decree with the FCC’s Enforcement Bureau (the “Bureau”) resolving an investigation into whether the provider violated the Commission’s rules for its Lifeline and/or Emergency Broadband Benefit (EBB) programs by claiming credit for subscribers that were ineligible for these programs.  These programs federally subsidize the cost of providing various services to qualifying subscribers.  The company provided Lifeline telephone service as an Eligible Telecommunications Carrier (ETC) and broadband internet access service under the EBB program.

The Bureau investigated whether the phone service provider (a) improperly sought and/or obtained Lifeline or EBB financial support from the government for ineligible subscribers, or failed to de-enroll subscribers who lacked eligibility documentation or whose applications were supported by falsified tax forms; (b) sought and/or obtained Lifeline support/EBB support for subscribers who didn’t use a Lifeline-supported/EBB-supported service; and (c) directly or indirectly compensated field enrollment representatives based on earning a commission, rather than being paid on an hourly basis.

Under the Commission’s Lifeline rules, ETCs must satisfy specific requirements to be eligible to receive federal Lifeline dollars, and may only receive such support “based on the number of actual qualifying low-income customers listed in the National Lifeline Accountability Database that the eligible telecommunications carrier serves directly as of the first of the month.”  Similarly, EBB providers may claim government financial support for providing discounted broadband internet access service during the emergency period of the EBB program based on the number of qualifying low-income households that the provider serves each month.

As part of these programs, participating providers were required to develop policies and procedures to ensure that their EBB households were indeed eligible to receive the discount benefit.  For example, two criteria for EBB qualification are whether the household income falls below a certain threshold or whether at least one member of the household has experienced a documented substantial loss in income during the emergency period.

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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:

  • Fourteen Years of Unpaid Regulatory Fees Could Lead to License Revocation
  • $6 Million in Fines Imposed on Three Pirate Radio Operators
  • Florida and Washington Television Stations Fined for Late Issues/Programs Lists

License of Missouri FM Could Be Revoked If Years of Regulatory Fees Remain Unpaid

The licensee of a Missouri FM station must either pay its overdue regulatory fees or show cause why the fees are inapplicable or should otherwise be waived or deferred.  The FCC’s Media Bureau and Office of Managing Director assert that the licensee failed to pay regulatory fees for fourteen years (2010-2023) and that it owes the U.S. Treasury nearly $26,000 in fees, interest, penalties, and other charges.

Under Section 9 of the Communications Act of 1934 (the Communications Act) and Section 1.1151 of the FCC’s Rules, the FCC each year assesses regulatory fees upon its regulatees to cover the costs of operating the agency.  The fees are typically due during the last two weeks of September so that the agency is fully funded at the start of the federal government’s fiscal year on October 1.  When payments are late or incomplete, the Communications Act and FCC Rules impose a penalty of 25% of the fees owed plus interest.  When regulatory fees or interest go unpaid, the FCC is authorized to revoke affected licenses and authorizations.  The licensee defaulted on a payment plan it had previously arranged with the Treasury.

In an Order to Pay or Show Cause, the FCC gave the licensee 60 days to file with the Media Bureau documentation showing all outstanding regulatory fee debts had been paid or to show cause why the fees are inapplicable or should be waived or deferred.  The Media Bureau noted in the Order that failure to provide evidence of payment or to show cause within the time permitted could result in revocation of the station’s license.  The Order followed letters to the licensee demanding payment without result.

License revocation normally requires the licensee first be given a hearing, but only if the licensee presents a substantial and material question of fact as to whether the fees are owed.  In the case of a hearing, the licensee bears the burden to introduce evidence and provide proof.  Where a hearing is conducted to collect regulatory fees, the FCC can require the licensee to pay for the costs of the hearing if the licensee does not ultimately prevail.

FCC Proposes Over $6 Million in Fines on Three Pirate Radio Operators

The FCC recently issued Notices of Apparent Liability for Forfeiture (NAL) proposing fines against three New York pirate radio operators under the Preventing Illegal Radio Abuse Through Enforcement Act (PIRATE Act).  In the NALs, the FCC proposed fines of $1,780,000, $2,316,034, and $2,316,034, respectively, against radio operators in Brooklyn, the Bronx, and Mount Vernon, New York.  The PIRATE Act gave the FCC enhanced authority to take enforcement action against the pirates themselves and against landlords and property owners who knowingly and willfully allow pirates to broadcast from their properties.  Illegal broadcast operations can interfere with licensed communications and pose a danger to the public by interfering with licensed stations that carry public safety messages, including Emergency Alert System transmissions. 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:

  • Seven-Figure Fine Imposed on Pirate Radio Brothers
  • $25,000 Fine Proposed for Kansas Radio Station EEO Rule Violations
  • Satellite Company Enters $150,000 Consent Decree for Orbital Debris

FCC Affirms Largest-Ever Pirate Radio Fine

The FCC affirmed a $2,316,034 fine against two brothers operating a pirate radio station in Queens, New York.  The penalty followed a March 2023 Notice of Apparent Liability for Forfeiture (NAL), which we wrote about here.

In the NAL, the FCC set out the details of the brothers’ pirate radio activities, including that they had been illegally operating since 2008.  The Preventing Illegal Radio Abuse Through Enforcement Act (known as the PIRATE Act and enacted in 2020) expanded the FCC’s authority to take enforcement action against radio pirates, and the fine proposed in March was the first issued under the FCC’s newly-expanded authority.  Illegal broadcast operations can interfere with licensed communications and pose a danger to the public by interfering with licensed stations that carry public safety messages, including Emergency Alert System transmissions.

In this case, the FCC’s investigation documented 184 days of pirate broadcasts.  With a $20,000 base fine for each willful and knowing violation, plus upward adjustments for intentional conduct and a history of rule violations, the FCC arrived at a fine of $21,307,568, but then reduced it to the statutory maximum of $2,316,034.  The brothers are jointly and severally liable for the fine, which means that each brother is responsible for paying the full fine and the FCC can recover the total fine from either brother or both.  Payment of the penalty is due within 30 days of the release date of the Forfeiture Order.

Kansas Radio Licensees Face $25,000 Fine for EEO Violations

Two related radio companies, licensees of a combined nine Kansas radio stations, received an NAL for various violations of the FCC’s Equal Employment Opportunity (EEO) rules.  The NAL proposed a $25,000 fine.

The FCC’s EEO rules prohibit broadcasters from discriminating in hiring on the basis of race, color, religion, national origin, or gender and, in many cases, require broadcasters to conduct and document broad job vacancy recruitment efforts.  The nine stations are run by the same two principals and operate as two Station Employment Units.  A Station Employment Unit (SEU) is a “a station or a group of commonly owned stations in the same market that share at least one employee.”  The FCC Enforcement Bureau’s investigation into the SEUs’ EEO compliance appears to have stemmed from the FCC’s processing of the stations’ license renewal applications, during which FCC staff reviews a station’s compliance with the FCC’s various rules throughout the station’s license term. Continue reading →

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others.  This month’s issue includes:

  • FCC Proposes $116,156,250 Robocalling Fine for Over 20,000 Calls to Toll Free Numbers
  • Illinois Class A TV Station Pays Nearly Six-Figure Penalty for FCC Violations
  • FCC Proceeds with $4,000 Civil Penalty Against Alaska Broadcaster Following Investigation

Robocaller Fined Over $116 Million for TCPA Violations

The FCC issued a Forfeiture Order imposing a $116,156,250 penalty against one individual and three related companies (the Companies) for making 9,763,599 illegal robocalls to toll free numbers without the called party’s prior express consent.  The robocalls claimed to be a “Public Service Announcement” warning toll free customers about the dangers of illegal robocalls, and would repeat for up to ten hours unless the receiving party terminated the call.  This is one of the largest Telephone Consumer Protection Act (TCPA) robocall fines ever issued by the FCC.

As we discussed here, in July 2022 the FCC adopted a Notice of Apparent Liability for Forfeiture (NALF) in which it proposed a $116 million penalty.  The individual contested it, stating that he struggled to find anything in the NALF that is accurate, but offering no counterarguments to the FCC’s findings.  The individual asserted that he was not the party the FCC was after, that the calls were permissible because they were made in good faith, that he did not violate the TCPA “with intent” because he was purportedly advised by a lawyer that the robocalling operation did not violate the TCPA, and that the FCC should have issued a warning prior to releasing the NALF.

When the FCC assesses fines, it considers the “nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.”  After fully considering the individual’s responses to the NALF, the FCC affirmed the fine, stating that it was in accordance with Section 503(b) of the Communications Act of 1934 (the Act), Section 1.80 of the Commission’s Rules, and the FCC’s Forfeiture Policy Statement (Forfeiture Policy).

The TCPA, Section 227(b)(1)(A)(iii) of the Act, and Section 64.1200(a)(1)(iii) of the FCC’s Rules prohibit making prerecorded voice calls to numbers for which the called party is charged for the call (including toll free numbers) unless there is an emergency, or the recipient has given prior express consent to receive the call.  The FCC found that the Companies made 9,763,599 illegal robocalls to toll free numbers, and the FCC’s Enforcement Bureau (the Bureau) staff verified at least 20,650 of those calls were violations of the TCPA.

The FCC dismissed the individual’s ‘mistaken identity’ argument as meritless, explaining that its investigation identified the Companies as the source of the 20,650 verified robocalls.  In October 2020, an industry group tasked by the Bureau with tracing illegal robocalls alerted the Bureau that a caller was apparently targeting toll free services with robocalls.  The calls were traced to a competitive local exchange carrier (CLEC) which identified the sources of the calls as two of the Companies.  The CLEC supplied records showing that the individual signed a service agreement with the CLEC in July 2020 for several thousand direct inward dial telephone numbers and VoIP service.  Additionally, call records produced by the CLEC showed millions of calls to toll free numbers originating from the Companies’ account between January and March 2021.  The CLEC paid one of the Companies $0.0001 (one ten thousandth of a cent) for each minute of outbound calls that it made to toll free numbers.  The individual then used the revenue from the robocalls to fund telephone denial of service (TDoS) attacks against other companies. The individual offered no evidence to refute these findings, and the FCC concluded that the Companies made the calls identified in the NALF.

The FCC also dismissed the argument that the calls were permissible because the toll free customers receiving them were not charged for calls.  The FCC reviewed a number of the toll free service providers’ publicly available billing practices, and found that the providers do indeed charge their toll free customers on a per call basis or in bundles of minutes.  Thus, the robocalling scheme resulted in actual financial losses to the toll free customers receiving the calls.  Finally, the FCC explained that there is no “good faith” or “public safety doctrine” exception in the TCPA that would permit the calls, rejecting the individual’s claim that he “acted in good faith.”

Section 227(b)(4)(E) of the Act provides that the statute of limitations is four years (rather than one year) if the violation was committed “with the intent to cause such violation.”  In the NALF, the FCC stated that the Companies made prerecorded calls with the intent to violate the TCPA because the Companies (1) targeted protected toll free numbers; and (2) had no reasonable basis to believe they had consent for the calls.  The FCC noted that the individual’s response refuted neither of those findings, as he did not contest that he targeted toll free numbers, and merely argued that reliance on legal advice constituted a defense against liability.  The FCC disagreed, and cited the Companies’ complex calling scheme as further evidence of intentionality.

Despite the individual’s claim that he was entitled to a warning, the Commission noted that the TRACED Act allows the FCC to issue a Notice of Apparent Liability for violations of Section 227(b) of the Act without first issuing a warning citation.  The FCC affirmed its decision in the NALF, concluding that the $116,156,250 fine was warranted due to the Companies’ egregious conduct.  After considering the relevant factors and its Forfeiture Policy, the FCC found that the proposed base fine and upward adjustments applied in the NALF were consistent with the FCC’s rules.  The Commission therefore found the individual and Companies jointly and severally liable, and the $116,156,250 fine must be paid within 30 calendar days after the release of the Forfeiture Order.

Rule Violations by Illinois Class A TV Station Result in Consent Decree and $97,000 Penalty

In the course of processing the license renewal application of an Illinois Class A TV station, the FCC’s Media Bureau determined that (1) the license renewal application was filed nearly a month after the filing deadline; (2) the applicant certified that there had been no violations by the licensee of the Act or the rules or regulations of the FCC during the preceding license term; and (3) the applicant certified that all required documentation had been uploaded to the station’s Public Inspection File when required.  According to the Media Bureau, however, the licensee failed to timely upload 28 issues and programs lists, all of its records concerning commercial limits compliance in children’s programming, 23 children’s television programming reports, and copies of documents related to a 2014 forfeiture order issued to the licensee.

Section 73.3526 of the FCC’s Rules lists the materials a Class A TV station must upload to its Public Inspection File and the deadlines for making those submissions.  Under Sections 73.3514(a) and 1.65(a) of the FCC’s Rules, applications filed with the FCC must include all information called for by the application form, and the applicant must ensure the continuing accuracy and completeness of its application by making any necessary amendments within 30 days of a response becoming inaccurate.

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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 $12,500 Fine for False Certification That FM Translator was Constructed as Authorized
  • Telecommunications Company Warned Over Apparent Transmission of Illegal Robocalls
  • Station Licenses in Danger Over Lack of Candor and Intentional Misrepresentation Claims Before the FCC

False Certification Brings $12,500 Proposed Fine for Louisiana FM Translator Station

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to the licensee of a Louisiana FM translator for falsely certifying to construction as authorized (but without intent to deceive), failing to file a required form to obtain consent to change antennas, and for constructing and operating with an unauthorized antenna for approximately two months.  The violations alleged were raised by a third party Petition for Reconsideration (Petition) asking the FCC to reconsider the grant of a license to the new FM translator station.  The Commission found that the station apparently violated its rules and proposed a $12,500 fine.

In April 2018, the licensee applied for a permit to construct a new FM translator, proposing to use a directional antenna mounted 150 meters above ground level.  The FCC granted a construction permit in May 2018, requiring completion by May 2021.  The licensee completed construction in time and filed a license application in August 2019 certifying that the translator had been constructed as authorized.  Fifteen days after the FCC issued a public notice for the application, the license was granted in September 2019.  However, the Petition was filed in October, alleging that material in the license application was false, and that the translator had been constructed with an omnidirectional (rather than directional) antenna, and mounted at a height of 145 meters above ground level (5 meters lower than authorized).

In opposing the Petition, the licensee acknowledged it used an omnidirectional antenna for approximately two months in 2019, explaining that the authorized directional antenna had arrived damaged, and it was eager to commence operations.  The licensee explained that it operated the facilities at a much lower power level than authorized to minimize any potential for interference from using an omnidirectional antenna.  It further explained that it had no intent to deceive but did not know the significance of the antenna substitution, so it did not mention this to legal counsel who prepared the license application.  In October 2019, the translator began operating with the repaired authorized antenna, but it was mounted at 146.6 meters.  In December 2019, the Licensee filed an application for a minor modification, proposing to operate the antenna 143 meters above ground level and changing the translator’s community of license.  The Commission granted a construction permit for this modification, and an application to license the modified facilities was filed in January 2020.  The license was granted in February 2020.

Among other requirements, petitioners filing a petition for reconsideration must have either participated in the initial proceeding or show good reason why it was not possible for them to have participated earlier.  In this case, the FCC found that the Petitioner had ample time to file an informal objection during the 15-day period that the license application was on public notice before it was granted.  As such, the Commission dismissed the Petition as unacceptable under § 1.106(b) of its Rules.  Nevertheless, the FCC acknowledged the licensee’s admissions and considered on its own motion an appropriate response.

Section 74.1251(b)(2) requires FM translator licensees to request and receive permission prior to making any changes to their antenna systems.  Section 1.17(a)(1) of the FCC’s Rules prohibits individuals from intentionally providing incorrect “material factual information” or intentionally omitting “material information.”  The Commission explained that “intent to deceive” is an essential element of “misrepresentation” and “lack of candor,” and thus submitting inaccurate information due to carelessness or gross negligence is not misrepresentation or lack of candor.  However, Section 1.17(a)(2) of the Rules prohibits submission of incorrect information, even without deceptive intent.

The FCC found no evidence of deceptive intent and thus no misrepresentation or lack of candor.  However, the FCC determined that the licensee acted negligently when it failed to tell its legal counsel that the antenna was not constructed as authorized and when it failed to review the application thoroughly before filing.  The FCC found that the licensee apparently violated Section 1.17(a)(2) of the Rules because it had no reasonable basis to certify that the translator was constructed as authorized, Section 74.1251(b) by failing to file an application to alter an antenna system, and Section 74.1251(b)(2) by constructing and operating with an unauthorized antenna at an unauthorized height.

Section 1.80(b) of the Rules sets a base fine of $3,000 for failure to file a required form and $10,000 for construction or operation without an instrument of authorization.  The guidelines do not list a base fine amount for a false certification.  Thus, the FCC considers the relevant statutory factors in Section 503(b)(2)(E) of the Communications Act, including “the nature, circumstances, extent and gravity of the violation, and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.”  In previous cases of false certifications by secondary stations without intent to deceive, the FCC has found a $5,000 fine appropriate.  Taking into consideration all relevant factors, especially that the translator is providing secondary service, the FCC decided to reduce the combined fine here for failing to file an application and unauthorized operation from $13,000 ($3,000 + $10,000 base fines) to $7,500.  With respect to false certification, the FCC proposed an additional fine of $5,000, consistent with the prior cases involving secondary stations.  Thus, the total proposed fine is $12,500 ($7,500 + $5,000). Continue reading →

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  • The Federal Trade Commission (FTC) and Federal Communications Commission (FCC) are partnering in “Operation Stop Scam Calls,” a multijurisdictional effort to stop illegal telemarketing calls.
  • Recent actions by the FCC expand robocall prevention efforts and step up enforcement of its rules.
  • Additionally, a Notice of Proposed Rulemaking seeks to clarify consumer consent requirements for receiving robocalls and text messages.

With an estimated four billion robocalls per month, it’s not surprising that unwanted and illegal robocalls are the FCC’s top consumer-protection priority, generating about 119,000 complaints in 2022 alone. Unwanted and illegal text messages—estimated at 225 billion in 2022—are increasingly prevalent and uniquely harmful to consumers by including legitimate-looking links designed to fool the recipient into providing personal and financial information. All of us experience on a daily basis the awkwardness of receiving a phone call or text message from an unknown telephone number and deciding whether to answer or reply. Unfortunately, some of these calls and texts are from bad actors and will result in fraud costing consumers billions of dollars.

Recent actions by the FCC are designed to decrease the number of unwanted and illegal phone calls and text messages that reach you. Below is a summary of recent developments in robocall and robotext regulation and open FCC proceedings that seek to eliminate harmful calls and texts. The FCC’s authority to regulate robocalls and robotexts stems from the Telephone Consumer Protection Act (TCPA), enacted in 1991, the Truth in Caller ID Act of 2009, enacted in 2010, and the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act), enacted in 2019. The Federal Trade Commission (FTC), through its authority under the Federal Trade Commission Act and Telemarketing and Consumer Fraud and Abuse Prevention Act, also plays a role in robocall reduction and enforcement. The FTC administers the National Do Not Call Registry and has brought more than 150 enforcement actions for “Do Not Call,” robocall and spoofed caller ID violations. The FTC and FCC are partners in “Operation Stop Scam Calls”—a multi-agency, multi-jurisdictional effort by federal and state law enforcement entities to stop illegal telemarketing calls.

As part of its most recent robocall prevention efforts, the FCC has acted to, among other things:

  • Require intermediate voice service providers to authenticate calls that are not authenticated by originating voice service providers;
  • Require all voice service providers to take reasonable steps to mitigate illegal robocalls and file their mitigation plans in the Robocall Mitigation Database by a to-be-announced date ;
  • Give its Enforcement Bureau enhanced tools to penalize bad actors, including the ability to revoke section 214 and other authorizations, licenses and certifications of repeat offenders and expel providers that commit certain rule violations from the Robocall Mitigation Database on an expedited timeline;
  • Adopt a maximum $23,727 per-call penalty for failure to block illegal calls;
  • Established STIR/SHAKEN obligations of satellite providers (STIR/SHAKEN is a framework adopted by the FCC and implemented by voice service providers to authenticate an originating caller’s right to use the telephone number displayed on caller ID and is meant to protect against spoofed robocalls);
  • Expand to all voice service providers its requirements to respond to call traceback requests within 24 hours and block illegal traffic when notified by the FCC; and
  • Expand to all voice service providers the “know your upstream provider” requirement.

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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:

  • Foreign Ownership Violation by Telecommunications Provider Leads to $50,000 Penalty and Four-Year Compliance Plan
  • Arizona LPFM Station Hit with $20,000 Penalty and $41,500 Suspended Penalty for Underwriting Violations
  • Unauthorized Station Transfers Result in $8,000 Consent Decree

Telecommunications Provider to Pay $50,000 and Implement Four-Year Compliance Plan After Foreign Ownership Violations

A Guam-based telecommunications provider (Telecom Provider) settled an investigation by the Federal Communications Commission (FCC) into its ownership structure by entering into a consent decree that requires a $50,000 payment to the government and implementation of a 48-month compliance plan.  The Telecom Provider holds domestic and international Section 214 authorizations, 84 wireless licenses, three submarine cable licenses, and an earth station satellite license.  The FCC’s investigation concerned the Telecom Provider’s ownership, which includes two foreign corporations and a foreign government’s finance ministry.

Section 310(b)(4) of the Communications Act of 1934, as amended (Act), places a 25 percent limit on ownership by foreign individuals, corporations, and governments in U.S.-organized entities controlling common carrier licensees.  Under the Act, the FCC may permit higher levels of foreign ownership of an FCC licensee if it determines it is not contrary to the public interest.  Since 2013, FCC approval has also been required for any foreign individual or entity not previously approved by the FCC to acquire more than a five percent equity or voting interest in the entity.  These public interest determinations by the FCC incorporate input from a federal Executive Branch review of national security, law enforcement, foreign policy, and trade policy concerns conducted by a multi-agency group known as Team Telecom.

In 2015, the FCC granted an application that allowed the Telecom Provider to have 100 percent foreign ownership consisting of a parent entity two steps up in the ownership chain (Indirect Parent Entity) (owning up to 65.15 percent of the equity and voting interests) and the finance ministry (owning up to 26.95 percent of the equity interests and 41.53 percent of the voting interests).  Five years later, the Indirect Parent Entity commenced a tender offer for outstanding shares in the parent entity directly above the telecom provider (Direct Parent Entity).  Two months later, the Indirect Parent Entity acquired the tendered shares, which increased its indirect ownership interests in the Telecom Provider to 91.46 percent.  At the end of 2020, the Indirect Parent Entity also acquired all shares of the Direct Parent Entity’s common stock held by the remaining minority shareholders, resulting in it owning 100 percent of the equity and voting interests of the Telecom Provider.  These transactions led to the finance ministry having an indirect ownership interest in the Telecom Provider (held through Indirect Parent Entity) of 33.93 percent equity and voting.  The result was higher levels of foreign ownership in the Telecom Provider than had previously been approved by the FCC.

The Telecom Provider attempted to correct the problem by filing a Petition for Declaratory Ruling seeking approval for the Indirect Parent Entity and finance ministry to exceed their previously approved foreign ownership limits.  In late 2021, the International Bureau granted the Petition, but the FCC’s Enforcement Bureau pursued the prior foreign ownership violation, resulting in a Consent Decree with the Telecom Provider.

In addition to paying a $50,000 civil penalty for exceeding the foreign ownership levels approved by the FCC, the Telecom Provider must implement a plan to ensure compliance with the terms of the Consent Decree, including developing a compliance manual, administering employee compliance training, and submitting compliance reports to the Commission for four years regarding foreign ownership compliance.  During that time, the Telecom Provider must also report instances of noncompliance with the FCC’s foreign ownership rules and the terms of the Consent Decree within 15 days of discovering them.

Violations of Noncommercial Broadcast Underwriting Laws Result in $20,000 Penalty and a $41,500 Suspended Penalty for Low Power FM Station

The FCC’s Enforcement Bureau entered into a Consent Decree with the licensee of an Arizona LPFM station to resolve an investigation into violations of the FCC’s rules regarding underwriting.  Under the Consent Decree, the licensee agreed to implement a compliance plan and pay a $20,000 civil penalty, with a suspended civil penalty of $41,500 to be levied in the event of default. Continue reading →