Articles Posted in FCC Enforcement

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I wrote a while back about the Downside of Downsizing, in which I noted an increasing number of calls from broadcasters who had trimmed their staffs to the bare minimum, only to belatedly discover that the remaining employees lacked either the experience or the time to ensure the station’s compliance with FCC and other regulations. This afternoon, the FCC released seven Notices of Apparent Liability announcing the financial damage that taking your eye off the regulatory ball can have.

The seven NALs (1, 2, 3, 4, 5, 6, 7) all involved Children’s Television violations, with the proposed fines ranging from $25,000 to $70,000. The FCC’s grand total for the afternoon was $270,000 in proposed Children’s Television fines. While the simultaneous release of the forfeiture orders may be meant to send a message about the seriousness with which the FCC views violations of the Children’s Television rules, the FCC has been working hard on Chairman Genachowski’s watch to clear out backlogs of enforcement proceedings of all types, and it may be that these particular cases are merely the latest result of that effort.

What is certainly not a coincidence, however, is the hefty size of these fines. These NALs appear to confirm a recent FCC trend of imposing heavier fines for a variety of regulatory offenses. While cynics might argue that the government just needs the money at the moment, there does seem to be a concerted effort at the FCC to “update” its fine amounts to make violations sufficiently painful that licensees will not view them as merely a cost of doing business. It is also worth noting that while the seven NALs involve a variety of kidvid violations (exceeding commercial limits, program length commercials, failure to notify program guide publishers of the targeted age range of educational programs, failure to place the appropriate commercial certifications in the public inspection file, failure to publicize the existence and location of the station’s Children’s Television reports), they all have one other feature in common: each of the stations confessed its transgressions in its license renewal application.

In addition to giving no quarter for the licensees having confessed their own sins, the NALs are quite stern in assessing the severity of the violations. Noting that human error, inadvertence, and subsequent efforts to prevent the recurrence of such violations are not grounds for reducing the punishment imposed, the NALs apply a strict liability standard, cutting stations no slack even where the violation was based upon a misapplication of the rule (e.g., assessing compliance with children’s commercial time limits based upon a programming hour (4:30-5:30pm) rather than a clock hour (5:00-6:00pm)), where a program-length commercial was caused by a fleeting and tiny/partial glimpse of a program character during a commercial, or where the program-length commercial was caused by network content.

To be clear, the FCC staked out no new legal ground in these decisions, which for the most part apply existing precedent, and the NALs do indicate that some of the stations involved had over 100 kidvid violations. What catches the eye, however, is not just the size of the fines, but the terse manner in which the violations are listed, the defenses rejected, and the fine imposed, with each NAL noting that the base fine for a kidvid offense is $8,000, but that an upward adjustment is merited in this particular case, with the ultimate amount often appearing to have been plucked out of the air. The impression licensees are left with is that the FCC has lost patience in plowing through the backlog of enforcement cases, and there will be little or no room for error in FCC compliance going forward.

It’s good that the broadcast advertising market has begun to resuscitate, as now would be a good time to rehire those FCC compliance personnel, particularly the ones that prescreen children’s television content.

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For those tired of having their dinner conversations interrupted by others’ cell phone calls, or watching movies in a theater by the light coming off the screens of nearby texters, technology has provided a solution. Unfortunately it is illegal.

In a recent decision, the FCC fined a company called Phonejammer.com $25,000 for marketing jamming equipment in the U.S. through its website, www.Phonejammer.com. The FCC discovered the violations when its field agents, responding to complaints from a cellphone service provider in Dallas, and a County’s Sheriff’s office in Florida, traced the interference in each case to a local business, and discovered that the proprietor had purchased and was operating a Phonejammer unit acquired through the website. Unfortunately, the FCC’s decision does not indicate the type of businesses that were using the Phonejammer, so it is not clear if they were restaurants, theaters, or just businesses tired of their employees texting their friends all day.

Under the Communications Act, it is illegal to sell jamming equipment because of the harm done, both intentionally and otherwise, to electronic communications. While putting an end to loud cell phone calls in upscale restaurants, or to students texting in class, might sound appealing to managers of such places, the interference to communications cannot easily be confined to just that location. Of course, the problems with jamming are not limited to just unintentional interference to nearby areas. There are similar issues affecting the business location seeking to jam calls. You can imagine what would happen if a patron had a heart attack on the premises and the emergency response was delayed when other patrons’ cell phone calls to 911 couldn’t get through.

Because of these concerns, the U.S. has always strictly prohibited the marketing of jamming devices, and not even police are permitted to use jammers. To appreciate the extent of the government’s concern with jamming, note that jamming equipment is not permitted even in prisons, where smuggled cellphones have caused unrelenting headaches for prison officials, with some inmates continuing to manage criminal enterprises via cell phone while still in prison.

That may be about to change, however. The Senate last year passed S.251, the Safe Prisons Communications Act of 2009, to permit targeted jamming of cell phone service within prisons. While it has not yet been approved by the House of Representatives, support for the idea has been strong. As with most well-intentioned ideas, however, the question is what unintended consequences will be involved, particularly if the jammers are not carefully monitored and regulated. For example, will a highway that passes a prison inevitably be a cellular dead zone for passing commuters, or will the technology, once permitted, be refined to largely eliminate unintended interference (if that is possible)? Again, it may be a minor annoyance to lose a call when driving by a prison, but a serious traffic accident in that area can make reliable cell phone service a life and death issue.

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Like many other FCC license holders, broadcast stations constantly navigate numerous laws and regulations while filing a multitude of reports and applications by required deadlines. Many of these are required quarterly, but some are annual, biennial, quadrennial, or octennial (once every eight years, and the only time I’ll get to use that word this year). While stations are usually very good about completing their quarterly reports, the less frequent reports require a special level of attention or they can be forgotten in the rush of business.

In the past few months, I have noticed a surge in calls from stations wanting to talk to a lawyer because they have belatedly discovered that they failed to create multiple reports over the past few years. I’ve received these types of calls regularly for more than two decades, but the accelerated pace of these calls definitely caught my attention. When a station calls the lawyer in a panic after making this discovery, the lawyer’s first job is to talk them down off the ledge. In the case of small station groups, you are often talking directly to the owner, who is rightly concerned about the direct financial impact of fines and license renewal challenges. With larger groups, it is often a GM worried about his or her future employment if the problem spins out of control. Fortunately, if addressed promptly, the damage can be greatly limited or avoided.

What is interesting, however, is that the common thread in nearly every one of these calls was the downsizing of the station employee “who did all that” before the problem commenced. While the recent “mega-recession” resulted in downsizing in nearly every industry, the precipitous drop in advertising revenues caused tremendous downsizing in the media industry. As downsizing usually requires that one person do the work formerly handled by multiple people, it is not surprising that a report that is required to be filed once a year, or only during odd-numbered years, gets lost in the mix. Of course, the loss of institutional memory is always a problem when an employee departs. However, the problem is intensified in a downsizing, where the departing employee is not too happy with the soon-to-be-former employer, and is probably not feeling very enthusiastic about training their successor.

As a result, while it is always wise to vigilantly monitor regulatory due dates and keep them on a multi-year calendar, it is equally important to ensure after a downsizing that there remains one employee who is clearly charged with ensuring that the required reports/filings are timely completed. You also need to ensure that employee has not just the responsibility of getting the job done, but the training and resources to make it happen. A top-notch conscientious employee who has no idea what an EEO Midterm Report is, and when that particular station’s report is due, is of little use.

Focusing a little bit of attention on that issue now will save you loads of distraction later when you try to undo the damage. Keep in mind that where a missed report may result in a fine, a missed license renewal application (the “once in eight years” filing for broadcasters) has caused the FCC to delete the station from its database and charge the licensee with illegal operation for the time it operated the station after its license expired. It’s best not to find that out firsthand.

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Topics include:

  • FCC Imposes a Reduced $17,500 Fine on Wyoming Commercial AM/FM Station Combo for Multiple Violations
  • Pennsylvania TV Station Fined $32,000 for Violating FCC’s Sponsorship ID Rule
  • Licensee Fined $13,000 for Antenna Structure Violations
  • FCC Fines California Noncommercial FM Station $9,000 for Failure to Properly Maintain a Public Inspection File

FCC Imposes a Reduced $17,500 Fine on Wyoming Commercial AM/FM Station Combo for Multiple Violations
The FCC has released a Forfeiture Order asserting that the licensee of a Wyoming AM/FM station combination failed to maintain an operational EAS system, failed to consistently prepare and include programs/issues lists in its public inspection file, and failed to operate a wireless radio service station from its authorized location. Specifically, the FCC’s Order cited Sections 11.35, 11.52(d), 11.61(a), 73.3526(e)(12), 1.903(a), 1.929 and 74.532(e) of the FCC’s Rules, which require broadcasters to use common EAS protocols, ensure operability of EAS equipment, conduct regular tests of a station’s EAS system to ensure such operability, prepare and include quarterly programs/issues reports in the public inspection file, and operate wireless radio service facilities as specified in their current authorizations.

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March 2009

FCC Fines a Michigan Radio Station for Broadcasting a Telephone Conversation Without Prior Notice.

FCC Fines Pennsylvania Noncommercial Educational Television Station $2,500 for Airing Advertisements.

FCC Fines AM Radio Station $6,000 for Conducting a Contest Without Describing All Material Terms.

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

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January 2009
In late December 2008, the Federal Communications Commission (“FCC”) released a series of six Notices of Apparent Liability for Forfeiture against broadcasters asserting violations of the FCC’s Equal Employment Opportunity rule (“EEO rule”). In a joint statement appended to each of the six cases, FCC Commissioners Michael J. Copps (now Acting FCC Chairman) and Jonathan S. Adelstein (the “Commissioners”) signaled their strong desire that enforcement of EEO matters be stepped up by the Commission. The Commissioners noted that “Commission enforcement of EEO rules has been inconsistent and, as one consequence, employment in broadcasting does not reflect America.” Specifically, the Commissioners noted that while 251 cases resulted in 86 forfeitures between 1994 and 1997, only 10 cases resulting in 8 forfeitures were released between 2004 and 2007.

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December 2008
Topics include:

  • FCC Fines Mississippi Radio Station $13,000 for Failure to Inform Federal Aviation Administration of Antenna Structure Lighting Malfunction and Failure to Maintain a Public Inspection File
  • Commission Fines Nevada Radio Licensee $5,600 for Failing to Enclose Tower With an Effective Locked Fence
  • FCC Fines New Mexico Radio Station $10,000 for Operating from an Unauthorized Location

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November 2008
Topics include:

  • FCC Upholds $9,000 Fine for Noncommercial FM Radio Station Airing Advertisements
  • FCC Fines New York AM Radio Station $12,800 for Failing to Sign Off at Sunset, Failing to Maintain Daytime Operating Power, Failing to Maintain an Operational Emergency Alert System, and Failing to Maintain a Complete Public Inspection File

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June 2008
Topics include:

  • Texas AM Radio Station Assessed $8,800 Fine for Failure to Maintain a Main Studio and Operation Above Authorized Power Level
  • FCC Fines Arizona Radio Station $6,400 for Emergency Alert System Violation
  • FCC Proposes Fine of $10,000 to Hawaii Radio Station for Violating Radio Frequency Radiation Limits

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May 2008
Topics include:

  • Virginia Radio Licensee Assessed $8,000 Fine for Enforcing Format Restriction Provision in Non-Compete Agreement
  • FCC Proposes to Fine Texas TV Licensee $20,000 for Children’s Television Violations
  • FCC Fines Ohio Non-Commercial Radio Station $9,000 for Airing Prohibited Advertising
  • FCC Fines Mississippi AM Radio Station $1,500 for Operating from Unauthorized Location at Excessive Power Level

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