Articles Posted in FCC Enforcement

Pillsbury’s communications lawyers have published the 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:

LPFM Station Fined $15,000 for Airing Commercial Advertisements
FCC Issues Notices to the Landowners of Sixteen Pirate Radio Sites
Telecommunications Carrier Pays $227,200 To Resolve 911 Outage Investigation

Published on: March 27, 2023

FCC Enforcement Monitor March 2023

By Scott R. Flick, Elizabeth Craig and Adam J. Sandler

Pillsbury’s communications lawyers have published the 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:

Repeated Failure to Pay Annual Regulatory Fees Puts Texas Station License in Jeopardy
FCC Proposes First-Ever PIRATE Act Fines, Including $2 Million-Plus Statutory Maximum
Failure to File License Renewal Applications Brings $13,500 Proposed Fine for Utah Television Translator Stations

Published on: February 28, 2023

FCC Enforcement Monitor February 2023

By Scott R. Flick, Elizabeth Craig and Adam J. Sandler

Pillsbury’s communications lawyers have published the 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:

Failure to File License Renewal Application Results in Cancelled License
Call Provider Receives Cease-and-Desist Letter From FCC for Apparently Transmitting Illegal Robocalls
New York Broadcaster Agrees to Consent Decree for Violations Relating to the Public Inspection File

Published on: January 30, 2023

FCC Enforcement Monitor January 2023

By Scott R. Flick, Elizabeth Craig and Adam J. Sandler

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 Network Draws Proposed Fine of $504,000 for Transmitting False EAS Tones
FCC Cites Equipment Supplier for Marketing Unauthorized Devices
FCC Proposes $62 Million Penalty Against Wireless Provider for Excessive Connected Devices Reimbursement Claims

Published on: December 29, 2022

FCC Enforcement Monitor December 2022

By Scott R. Flick, Elizabeth Craig and Adam J. Sandler

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:

Violations of Environmental, Historic Preservation, and Tribal Notification Rules Lead to $950,000 Penalty
Proposed $300 Million Fine Follows Largest-Ever FCC Robocall Investigation
Deceased Licensee’s Estate to Pay $7,000 Penalty for Failing to File Required Applications and Documents

Wireless Provider Pays $950,000 for Violating Environmental, Historic Preservation, and Tribal Notification Rules

A national wireless provider entered into a consent decree with the FCC’s Enforcement Bureau, agreeing to pay $950,000 for violating the FCC’s environmental and historic preservation rules, as well as rules requiring entities to coordinate with relevant state governments and tribal nations in the construction of communications sites.

To resolve the FCC’s investigation, the company admitted to prematurely constructing wireless facilities before completing the required environmental and historic preservation reviews and by constructing wireless facilities without onsite monitoring as requested by the affected tribes. Under Section 1.1307(a)(4) of the FCC’s Rules, applicants and licensees must assess whether proposed facilities may significantly affect the environment and whether the proposed facilities may affect districts, sites, buildings, structures, or objects that are listed (or eligible for listing) in the National Register of Historic Places, or may affect Native American religious sites. Applicants must also follow other rules set out by the Advisory Council on Historic Preservation or the National Historic Preservation Act Review Process, as applicable.

By early 2020, the company began deploying newer wireless technology, commonly known as small cells. Small cell antennas are used to improve wireless service and can be mounted to streetlight poles, utility poles, or even traffic control structures. During the summer of 2020, the company began constructing the small cell antennas that are the subject of the Consent Decree. After the company reported concerns regarding its compliance with the environmental rules to the FCC, the Commission opened an investigation and issued a Letter of Inquiry (“LOI”) to the company in January 2022. The company filed several responses to the LOI throughout 2022. Ultimately, the Commission determined that the company began and or/completed building wireless facilities in three states prior to, or without completing, the required review process and Tribal notification process. The FCC also concluded that the company failed to comply with Tribal notification procedures in two states. While some of the noncompliant construction was found to have been caused by a miscommunication between the company and its third-party contractors, other violations were the result of a company employee who lacked expertise on the National Environmental Policy Act and National Historic Preservation Act requirements. Before and during the FCC’s investigation, the company stated that it had begun the process of removing any wireless facilities found to have an adverse effect on historic streets. Continue reading →

Published on: November 30, 2022

FCC Enforcement Monitor November 2022

By Scott R. Flick, Elizabeth Craig and Adam J. Sandler

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:

Broadcaster Receives $518,283 Fine for Local TV Ownership Rule Violation
Ohio LED Sign Manufacturer Enters $47,600 Consent Decree for Marketing Unauthorized Devices
FCC Reduces Fine to $3,400 for Washington LPTV Licensee’s Unauthorized Operation and Untimely License Applications

TV Broadcaster Receives Statutory Maximum Fine for Violating FCC Multiple Ownership Rule

A large multi-market television company (the “Company”) was fined $518,283 for violating the FCC’s rule prohibiting one entity from owning two top-four rated TV stations in the same Nielsen Designated Market Area (“DMA”). This Forfeiture Order follows a July 2021 Notice of Apparent Liability (“NAL”), which we wrote about here.

In July 2020, the Company acquired the non-license assets and network affiliation of a top-four rated station in the Anchorage, Alaska DMA and placed the network’s programming on a non-top-four rated station that was already owned by the Company. At the time of the transaction, the Company owned one top-four station in the market and one that it claimed organically improved its ratings to join the top four and therefore was not in violation of 47 C.F.R. 73.3555, which includes the Local Television Ownership Rule (the “Rule”). The Rule prohibits an entity from owning two full-power television stations in the same DMA if both commonly owned stations are ranked among the top-four rated stations in the market. However, the Rule permits a top-four duopoly if one of the stations was outside the top four and organically improved its ratings to join the top four. Note 11 (the “Note”), which was added to the Rule in 2016, bars the common ownership of two top-four stations with overlapping contours in the same DMA through the acquisition of a network affiliation and says:

An entity will not be permitted to directly or indirectly own, operate, or control two television stations in the same DMA through the execution of any agreement (or series of agreements) involving stations in the same DMA, or any individual or entity with a cognizable interest in such stations, in which a station (the “new affiliate”) acquires the network affiliation of another station (the “previous affiliate”), if the change in network affiliations would result in the licensee of the new affiliate, or any individual or entity with a cognizable interest in the new affiliate, directly or indirectly owning, operating, or controlling two of the top-four rated television stations in the DMA at the time of the agreement.

The FCC found that the transaction—acquiring the network affiliation and placing that programming on a lower-rated station—was the functional equivalent of a license transfer or assignment and effectively turned the station into a top-four station in violation of the Rule. The Forfeiture Order noted that the Company had not sought a waiver of the Rule or contacted FCC staff about the permissibility of the transaction.

In response to the NAL, the Company argued that (1) because one of its stations had improved its ratings and already achieved top-four status prior to the transaction, the “plain language” of the Note was not implicated by the transaction; (2) the Company lacked notice that the Note prohibits purchases of network affiliations, rather than just affiliation swaps; and (3) the FCC’s interpretation of the Note constitutes impermissible regulation of the Company’s content choices for its station. The FCC rejected these arguments. It found that the relevant ratings showed the station as the fifth-ranked (not top four, as the Company contended) station in the market before the network’s programming caused it to enter the top four. It also found that the Company could not rely on an exemption to the Rule that allows a network to offer an affiliation to a duopoly owner (one top-four station and one non-top-four station) if the network is unhappy with its current affiliate and the proposed affiliate has “demonstrated superior station operation.” In this case, the Company indicated it declined an offer from the network to acquire the affiliation and instead bought the affiliation from the current affiliate. The FCC also pointed to its Second Report and Order that provided more detail on affiliation acquisitions as notice of permissible transactions and stood by its finding that the Rule and accompanying Note 11 do not regulate a Company’s content choices, but merely market concentration.

The FCC concluded that the appropriate fine would be $8,000 for each day the violation persisted, which would result in a total fine of $1,720,000. However, the statutory cap on fines for a single violation is $518,283. As a result, the Commission reduced the proposed fine to that amount and indicated it did not see a justification for any further reduction when considering the nature and duration of the violation and the Company’s ability to pay.

LED Sign Manufacturer Settles Equipment Marketing Investigation for $47,600

The FCC entered into a Consent Decree with an Ohio-based sign manufacturer, resolving an investigation into whether the manufacturer unlawfully marketed light-emitting diode (“LED”) signs in the United States. The entity manufactures, advertises, and sells fully assembled LED signs. The investigation found, and the manufacturer admitted, that it marketed several unauthorized LED signs without the required FCC equipment authorization, labeling, and user manual disclosures and failed to retain required test records in violation of the Communications Act and the FCC’s Rules. Continue reading →

Published on: October 26, 2022

FCC Enforcement Monitor October 2022

By Scott R. Flick, Elizabeth Craig and Adam J. Sandler

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 Seeks $20,000 Fine for Long-Term Unauthorized Operations at California AM Station
Failure to File License Applications Brings $13,000 Proposed Fine for Washington LPTV Stations
FM Translator’s Violation of Program Origination Rules Leads to $1,500 Fine

AM Station’s Years-Long Unauthorized Modification of Nighttime Facilities Results in $20,000 Proposed Fine

The FCC’s Media Bureau issued a $20,000 Notice of Apparent Liability for Forfeiture (“NAL”) to the licensee of a California AM station for the station’s ongoing operation outside its licensed parameters. This action comes as the FCC is evaluating the station’s August 2021 license renewal application. That evaluation requires the FCC to consider whether during its license term: (1) the station has served the public interest, convenience, and necessity; (2) there have been any serious violations by the station of the Communications Act or FCC Rules; and (3) there have been any other violations by the station which, taken together, constitute a pattern of abuse. The alleged violations at issue were not disclosed in the station’s license renewal application.

Since 1970, the station has been authorized to operate a directional signal at night at a power level of 5 kW. In 1993, the licensee received special temporary authority (“STA”) from the FCC to operate the station at night in non-directional mode at a reduced power of 1 kW. That authority was last extended in late October 1996, with a warning that the station needed to “return to licensed operation or to file FCC Form 301 for modification of its nighttime facilities.” The licensee did not return to licensed operation or file a Form 301. Following a 2016 complaint and an admission by the licensee, the Enforcement Bureau learned that the station had continued to operate non-directionally at night at 1 kW. The FCC again warned the licensee that it had to either apply for an STA and then return the station to licensed operation, or apply to modify the station’s license to reflect its actual operation. The licensee did not request an STA or apply to modify the station’s license.

Four years later, another complaint against the station alleged that the station had been operating non-directionally at 1 kW for more than 30 years. When contacted, the licensee confirmed this and said that directional operation causes significant loss to the station’s coverage area and that, because the station had not received any consumer or broadcaster complaints, it would not be in the public interest, convenience and necessity for its signal to not cover roughly 75% of the population it seeks to serve. The licensee also highlighted the public safety role the station has played since it went on the air almost 75 years ago.

Last month, the licensee requested an STA to continue operating non-directionally at night with reduced power. The Media Bureau denied the request due to the licensee’s lack of justification for needing to operate with an alternate antenna system and at reduced power. The STA request also did not include any engineering studies proving the proposed facility would protect co-channel and first adjacent stations. An FCC interference study found that the proposed facility would in fact interfere with multiple stations. In the STA denial, the Media Bureau ordered the station to immediately terminate its unauthorized non-directional nighttime operation and either resume its licensed directional operation at night or file an application to modify its nighttime operation so as to eliminate the interference being caused by its unauthorized nighttime operation.

The FCC cited several rules it believed the station had violated. Section 301 of the Communications Act and Sections 73.1350(a), and 73.1745(a) of the FCC’s Rules each require licensees to operate according to their FCC-granted authorizations. Section 73.1560(a)(1) requires AM stations to maintain their antenna input power “as near as practicable to the authorized antenna input power” and “not [] less than 90 percent nor greater than 105 percent of the authorized power,” which the station would have violated by operating at reduced power without authorization. The NAL stated that the licensee also violated Sections 73.1635 and 73.1690(b) of the FCC’s Rules, which set out the circumstances under which a station must request an STA to operate at variance and when it must apply for a construction permit to alter the station’s facilities.

Ultimately, the FCC decided an upward adjustment of the $13,000 base fine to $20,000 was appropriate, pointing to the station’s prolonged and intentional unauthorized operation and the licensee’s argument that it, not the FCC, is better positioned to judge how the station can best serve the public interest. In situations where violations have occurred over many years, the FCC is generally prohibited by the Communications Act from considering any violation that occurred prior to the station’s current license term, which here began in late 2013. Once this enforcement action is resolved, the FCC indicated it intends to renew the station’s license for two years instead of the typical eight-year term. This shorter renewal term will give the Commission an opportunity to review the station’s rule compliance and determine whether it is operating in the public interest two years from now.

FCC Proposes $13,000 Fine for Washington LPTV Licensee That Failed to File License Applications for Modifications

A Washington state broadcaster failed to timely file license to cover applications and allegedly engaged in unauthorized operation of two low power televisions stations as a result. In response, the FCC’s Media Bureau issued an NAL proposing a $13,000 fine.

The stations’ digital channels were displaced in the Broadcast Spectrum Incentive Auction, and they were granted construction permits for new displacement channels in June 2018. The licensee was also granted STAs to begin temporary operations on the displacement channels. The displacement permits expired in June 2021. While the stations claimed to have completed construction to operate on their new channels by October 2018 and December 2018, respectively, both stations failed to file applications for licenses to operate permanently on their new channels before their permits expired.

Published on: September 26, 2022

FCC Enforcement Monitor September 2022

By Scott R. Flick, Elizabeth Craig and Adam J. Sandler

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:

Tower Owners Cited for Unsafe and Improperly Registered Tower
FCC Fines LPFM for Unauthorized Operation, Failure to Admit FCC Agents, and EAS Violations
Violations of Environmental, Historic Preservation, and Antenna Structure Registration Rules Lead to $38,000 Fine

FCC Cites Owners of Improperly Lit Tower

Owners of an Illinois tower were cited for failing to maintain required obstruction lighting, failing to check the structure’s lighting visually at least once every 24 hours or use an automatic alarm system to detect a lighting outage, failing to notify the FAA of lighting outages, failing to repaint the structure to maintain good visibility, and failing to notify the FCC of a change in ownership of the tower. Such failures violate Part 17 of the FCC’s Rules, which governs antenna construction, marking, and lighting. The FCC noted that it may only impose monetary fines against non-regulatees after issuing a citation (as it did here), the violator is given a reasonable opportunity to respond, and the violator subsequently still engages in the conduct described in the citation. If the owners are later found to remain in violation of the rule provisions detailed in the citation, the FCC may consider both the conduct that led to the citation and the conduct following the citation in assessing a fine.

Following a 2018 complaint reporting a lighting outage for the tower, the FCC asked the FAA to issue a 90-day NOTAM (Notice to Air Missions) alerting pilots of the hazard. Chicago FCC agents contacted the then-owner of the structure and were told the lighting issues would be corrected. A field inspection revealed that the structure was over 200 feet in height, that the structure was being used for radio transmissions, that it lacked the required flashing red light, and that the remaining obstruction lighting was extinguished. The FCC again contacted the structure’s owner and followed up with a Notice of Violation (“NOV”). There is no record that the owner responded to the NOV. Future field inspections revealed that the paint on the tower was severely faded and chipped. An entity leasing the tower and two FCC licensees collocated on it were subsequently contacted in an effort to bring the tower into compliance.

By 2022, the parcel of land on which the tower sits was sold to the current owners. Two months prior to that sale, an FCC agent again visited the site and observed that the structure had not been repainted and that all of the red obstruction lights were extinguished. The agent also concluded that no licensees or users were operating from the tower. Under the applicable FAA advisory, the structure, because it exceeds 200 feet in height, must be painted and have at its top at least one red flashing beacon to ensure an unobstructed view of at least one light by a pilot, along with two or more steady burning red lights mounted at the one-fourth and three-fourth levels of the overall height of the tower, and two red flashing beacons at the mid-level of the structure. The tower must also be marked with alternate sections of aviation orange and aviation white paint and repainted as necessary. These safety requirements must be met until the structure is dismantled, even if the tower is no longer being used for transmissions. The FCC noted that any lighting outage must be reported to the FAA, and that failing to update the tower’s Antenna Structure Registration interferes with the FCC’s ability to identify the owner when attempting to remedy lighting outages.

The current owners of the tower must respond to the citation within 30 days and provide a written statement describing how they acquired the tower, provide a copy of any agreements regarding conveyance of the structure, provide current antenna structure ownership information, describe the actions they have taken to prevent future violations of the FCC’s rules, and provide a timeline by which they will complete any corrective actions.

LPFM Station Fined $25,000 for Unauthorized Operation, Failure to Admit FCC Agents, and Violating EAS Rules

Following an October 2020 Notice of Apparent Liability for Forfeiture (“NAL”), a Florida low power FM licensee must now pay $25,000 after the FCC found no reason to change the originally proposed fine amount. The Commission found that the licensee violated Section 301 of the Communications Act (failing to operate a station in accordance with its license) and Sections 73.840 (operating a station outside of the permitted transmitter power output parameters), 73.845 (maintaining an LPFM station in compliance with the LPFM technical rules), 73.878(a) (making a broadcast station available for inspection by FCC representatives), and 11.11(a) (participation by broadcast stations in the Emergency Alert System (“EAS”)) of the FCC’s Rules. Continue reading →

Published on: August 24, 2022

FCC Enforcement Monitor August 2022

By Scott R. Flick, Elizabeth Craig and Adam J. Sandler

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:

Sponsorship ID Violations Lead to Consent Decree With $60,000 Payment
Unauthorized Station Transfers and Silent Stations Result in $25,000 Civil Penalty and Compliance Plan
Retailer Fined More Than $685,000 for Marketing Unauthorized Wireless Microphones

LPTV Station Fails to Identify Programming as Sponsored, Enters Into $60,000 Consent Decree

The licensee of an Arkansas low power TV station entered into a consent decree with the FCC’s Media Bureau, agreeing to pay a $60,000 penalty for violating sponsorship identification laws.

Broadcast stations are required under federal law (47 U.S.C. § 317(a)(1) and 47 C.F.R. § 73.1212) to identify the sponsor of any program the station has been paid to air. This requirement applies to advertising, music and any other broadcast content. 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 . . . .” Those who lived through the 1950s and 1960s or who followed the payola/plugola scandals of those decades may recall that the principal issue wasn’t the pay-to-play scheme itself, but rather disc jockeys’ failure to disclose to listeners that something of value had been given in exchange for playing a record.

In this case, in an effort to increase station revenue, an LPTV station urged political candidates to buy advertising packages. However, the packages being sold by the station included appearances for the candidate on the station’s daily news and public affairs program. Multiple candidates bought these packages and were subsequently interviewed live on the air. The station failed to disclose to its viewers that the interviewees were not chosen for their newsworthiness, but instead were interviewed merely because the station had been paid. While stations may conduct paid interviews, under the sponsorship identification laws, viewers/listeners must be told on-air that the station was paid to air the content, and the station must identify the sponsor.

Along with political candidates, the station accepted payments to interview spokespeople for several commercial entities on the program. In both cases, that station failed to disclose that the content was sponsored and by whom. The Media Bureau noted that these undisclosed appearances on a news and public affairs program misled the public into thinking that the interviewees were selected based on their newsworthiness and the station’s editorial judgment.

To resolve the FCC’s investigation, the station entered into a Consent Decree. Along with paying a $60,000 monetary penalty, the station must implement a compliance plan overseen by a compliance officer that includes written procedures, a compliance manual, and a training program for employees designed to prevent future violations of the sponsorship identification laws. The license must also file compliance reports with the FCC annually for the next five years, and must notify the FCC within 15 days of discovering any future violation of the sponsorship identification rules.

Family of Deceased Radio Owner Fails to File Necessary Transfer Applications, Agrees to Consent Decree With $25,000 Penalty

The family of a deceased radio owner failed to file the necessary FCC applications to transfer the owner’s stations after his death and also failed to timely request authority for two stations to be silent. These violations resulted in a Consent Decree with the FCC’s Media Bureau requiring payment of a $25,000 penalty.

On January 13, 2021, the controlling shareholder of a number of radio licensees passed away. Under Section 310(d) of the Communications Act and Sections 73.3540 and 7.3541 of the FCC’s transfer of control rules, involuntary transfer of control applications should have been filed within 30 days of the controlling shareholder’s passing. Those applications must apprise the FCC of the facts surrounding the involuntary transfer, and seek Commission consent to the transfer of control of the licenses from, for example, the decedent to the decedent’s estate/executor. Once the FCC approves the involuntary transfer, there will typically be a second set of applications to transfer the licenses out of the estate to the party inheriting the stations (or sometimes to a party buying the stations directly from the estate).

Here, the stations were also later placed into trusts created two months after the controlling shareholder’s death, but applications seeking FCC approval were not filed until several months after that. During that time, the former controlling shareholder’s son became the sole trustee of the trusts and assumed de facto control of the licensees and their radio licenses without having obtained the additional FCC approvals to do so.

Unrelated to these transfer issues, the license renewal applications for an AM station and FM translator formerly controlled by the deceased owner disclosed that the stations were off the air without FCC authorization. In the case of the AM station, special temporary authority (“STA”) to remain silent was not requested until two months after a previous STA to be silent had expired. With regard to the FM translator, it was silent for seven months before the licensee requested special temporary authority for it to be silent.

Under Section 73.1740(a)(4) (full power stations) and Section 74.1263(c) (FM translators) of the FCC’s Rules, licensees must notify the FCC within 10 days of a station going silent if it does not return to the air within that time. If that silence is expected to last more than 30 days, the licensee must obtain FCC authorization to be silent for longer than 30 days. Even where a station has received permission to remain silent for the maximum duration of an STA (six months), the licensee must seek renewal of that authorization every six months thereafter if the station continues to be silent. Absent a special finding by the FCC preventing it, the license of a station that has been silent for more than 12 consecutive months (even with the required STAs in place) automatically expires under Section 312(g) of the Communications Act.

To conclude the FCC’s investigation of the alleged violations, the licensees agreed to enter into a Consent Decree. Under the terms of the Decree, the licensees must pay a civil penalty of $25,000 and appoint a compliance officer to implement and administer a compliance plan. The compliance plan must include a compliance manual and training program to prevent future violations. The licensees must also submit a compliance report within 90 days, and then submit annual compliance reports for the next three years.

FCC Fines New York Retailer $685,338 for Marketing Noncompliant or Unauthorized Wireless Microphones

The FCC recently fined a wireless microphone retailer $685,338 after years of warning the company to obtain proper FCC authorizations for the wireless microphones it was selling. As we discussed in 2020, the FCC previously proposed the fine, asserting that the retailer had advertised 32 models of wireless microphones that did not comply with the Communications Act or the FCC’s equipment marketing rules.

Section 302(b) of the Communications Act prohibits, among other things, the sale or offering for sale of devices that fail to comply with the FCC’s radiofrequency (“RF”) equipment authorization regulations. Similarly, Section 2.803(b) of the FCC’s Rules prohibits, with limited exceptions, the marketing of an RF device unless the device has first been properly authorized, identified, and labeled in accordance with the FCC’s Rules. Section 74.851(f) of the FCC’s Rules requires devices emitting radiofrequency energy (such as wireless microphones) to be authorized in accordance with the FCC’s certification procedures to prevent interference before they can be marketed in the United States. As detailed in Pillsbury’s Primer on FCC Radio Frequency Device Equipment Authorization Rules, equipment authorization procedures differ depending on the type of equipment involved.

The Commission initially cited the company in 2011 (the “2011 Marketing Citation”) for marketing wireless microphones that did not comply with the FCC’s equipment marketing rules. Despite this citation, the retailer continued to market noncompliant microphones. In response to a 2016 complaint alleging the company was still marketing noncompliant microphones, the FCC issued a Letter of Inquiry (“LOI”) in 2017. This prompted a years-long investigation, during which the retailer never provided complete answers regarding the authorization status of its microphones. In many cases, the FCC ID numbers provided by the retailer did not match the microphone’s advertised descriptions and/or claimed operating frequencies.

The FCC then issued another LOI in 2019 asking for (i) the actual frequencies, (ii) the FCC IDs, and (iii) the authorized frequencies for 82 wireless microphone models that were available for sale on the retailer’s website. The retailer only provided answers for some of the wireless microphones. The FCC determined that 32 of the 82 microphone models advertised for sale were not properly authorized and issued a Notice of Apparent Liability for Forfeiture in April 2020 (the “2020 NAL”) proposing a $685,338 fine.

In the 2020 NAL, the FCC found that the retailer apparently willfully and repeatedly violated Section 302 of the Communications Act and Sections 2.803 and 74.851 of the Commission’s Rules when it marketed 32 models of wireless microphones that were noncompliant or unauthorized. The FCC also proposed a significant upward adjustment of the total “base fine” for such violations due to the retailer’s long record of repeated and continuous marketing violations and the egregious nature of the violations, specifically noting that the retailer marketed two microphones that apparently operated in the aviation band and thus had the potential to cause harmful interference to a critical public safety radio service.

The retailer responded to the 2020 NAL on July 10, 2020. First, it asserted that the 2020 NAL should be cancelled because it did not prove a violation occurred, and it claimed that screenshots of its website showing prices and a shopping cart do not prove that a specific microphone was available for purchase. The retailer also argued that to prove a violation, the FCC must show that the retailer had “the intention or ability to sell or lease” the microphones. The FCC reasoned that a website containing images, descriptions, prices, the word “shop” and a shopping cart, and an “add to cart” function clearly indicated the products were advertised for sale. The FCC further noted that the actual sale of an unauthorized device is not necessary to prove a marketing violation, and a website with thorough descriptions and pictures of the microphones is a clear indication that the retailer was marketing the microphones to the public.

Second, the retailer claimed the 2011 Marketing Citation provided insufficient and stale notice to support the 2020 NAL. In many cases, entities that violate a rule and do not hold an FCC authorization or license are entitled to a non-monetary citation before an NAL can be issued, but the FCC pointed out that there is no expiration date for a citation, and the 2017 LOI followed by the 2020 NAL kept the retailer on notice that the FCC was continuing to investigate. The FCC also rejected the claim that the rules cited in the Marketing Citation did not match the rules cited in the 2020 NAL, noting that the difference in the rule numbers was due to that rule section being reordered in 2013.

Third, the retailer argued that the proposed fine should be lowered because some microphones were authorized or should be grouped together and considered one model. The FCC rejected this argument, noting the company did not provide any technical documentation to prove the devices were identical and should be grouped together. The FCC also rejected the argument that some of the microphones had not been sold for more than a year prior to the 2020 NAL, explaining that a model does not have to be sold to be marketed. The FCC also rejected the argument that some of the models were actually authorized, instead showing that the frequencies authorized under the FCC ID for a particular model did not match the frequencies provided by the retailer in its 2020 NAL response.

Finally, the retailer claimed that the upward adjustments were excessive and unwarranted. The retailer argued that the fines for the microphones capable of operating in the aviation band should be eliminated or reduced because it was not proven that the models in fact operated in the aviation band. However, the FCC pointed out that the retailer never actually stated that the two models were not capable of operating in the aviation band and had not provided information to show the devices could not operate in that band. The retailer also claimed that there was no evidence of a continuing violation to support the upward adjustment. The FCC reaffirmed its conclusion that the facts supported an upward adjustment, noting that the 2011 Marketing Citation and the 2020 NAL both showed noncompliant wireless microphones being marketed on the retailer’s websites. In addition, the FCC rejected the retailer’s argument that it did not understand the FCC’s inquiries because it is not involved in the communications business. The FCC explained that the retailer received multiple citations and communications from the FCC and any continued ignorance of the law did not excuse or mitigate the violations. The Commission also noted that the retailer’s website continues to show many of the models at issue – a clear indication the company had no intent of complying with the FCC’s Rules.

A PDF version of this article can be found at FCC Enforcement ~ August 2022.

Published on: July 25, 2022

FCC Enforcement Monitor July 2022

By Scott R. Flick, Elizabeth Craig and Adam J. Sandler