Articles Posted in Low Power FM & Translators

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Today the Federal Communications Commission released its annual Public Notice setting the deadline for paying annual regulatory fees.  Payments can be made via the FCC’s Commission Registration System (CORES) beginning today through 11:59 p.m. Eastern Time on September 20, 2023.

In addition to marking this deadline on their calendars, broadcasters should note with some satisfaction that despite the FCC’s overall budget increasing by more than $8,000,000, regulatory fees for broadcasters decreased by between 5 and 8%.  That decrease results from years of effort by broadcasters’ state and national trade associations, who have repeatedly argued that the FCC’s methodology for allocating regulatory fees does not accurately reflect how the work of the FCC has changed since the regulatory fee regime was instituted more than 30 years ago.

The FCC’s fee-setting methodology divides its workforce into what it calls direct and indirect FTEs (“Full Time Employees” or “Full Time Equivalents”).  Direct FTEs are those who work directly for one of the four “core” licensing bureaus: the International Bureau, the Wireless Telecommunications Bureau, the Wireline Competition Bureau, and the Media Bureau.  (The core bureaus will be updated next year to reflect the creation of the new Space Bureau.)  Indirect FTEs are all other FTEs of the FCC, which are treated the same as FCC “overhead” (e.g., rent) in setting fees.

The FCC allocates its budget among the regulatees of each of the four core licensing bureaus in proportion to the number of direct FTEs working in that particular bureau.  Since the Media Bureau houses approximately 32% of all the direct FTEs, its regulatees, including broadcasters, have to pay 32% of all agency overhead (which includes indirect FTEs) as well.

In recent years, only about one-quarter of the agency’s total FTEs have been considered direct, while the remaining three-quarters are considered indirect.  As a result, the determination as to which regulatees must pay the lion’s share of the FCC’s total budget is based on the categorization of those relatively few direct FTEs.  This impact is further exacerbated by the existence of indirect FTEs that are housed outside of the four core licensing bureaus, but whose work benefits specific industries.  Since they do not work in one of the core bureaus, they are not treated as a direct cost of the industries their work actually benefits, but as just more FCC overhead to be paid for by broadcasters and other industries that do not benefit from their work.

So, what changed this year?  In response to an influx of comments the FCC received in response to a Notice of Inquiry and a Notice of Proposed Rulemaking, the FCC reexamined the work performed by FTEs in certain of its indirect bureaus and offices, including the Office of Economics and Analytics, the Office of General Counsel, and the Public Safety and Homeland Security Bureau.  Based on this review, the FCC reallocated a large number of these previously indirect FTEs to direct FTE status. 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 $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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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 →

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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

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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 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.

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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:

  • 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 →

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The FCC released its Report and Order adopting the final amounts that regulatees must pay in annual regulatory fees for FY2022, and opened the filing window for making those payments. The window closes at 11:59 p.m. Eastern Time on September 28, 2022.

If paying the fees wasn’t challenging enough, as part of its continuing rollout of the Commission Registration System (CORES), the FCC has retired the familiar Fee Filer system that regulatees previously used to make these payments. As a result, regulatory fee payments must now be made through CORES, meaning that payors will have to contend with a new fee filing system for this year’s regulatory fees. Given the initial reactions of some that attempted to submit their regulatory fees since the window first opened, regulatees would be wise to start the process early, ensuring they have enough time to deal with the inevitable filing hiccups and still meet the September 28, 2022 deadline.

In the past, a party owing regulatory fees signed into the FCC’s Fee Filer system using the Federal Registration Number (FRN) of the licensee and the password established for that FRN. If a filer lost either the FRN or password they had used in prior years to pay the station’s fees, they could create a new account or reset the password on the spot to get their payments on file in a timely manner. The new filing system, however, uses a more cumbersome two-step process that is not conducive to overcoming last-minute issues involving a lost FRN or password, and has the potential to trip up those unaccustomed to it.

This is the same two-step process that broadcasters first had to navigate to file their Forms 1, 2 and 3 in the EAS Test Reporting System (ETRS) in connection with nationwide tests of the EAS, which we wrote about back in 2017. That two-step process proved difficult for many and prevented some broadcasters from timely making their required filings, so we are describing the individual steps in detail below. However, stations should also be aware that if their engineer or lawyer completed this process in connection with the ETRS filings in 2017, they may now be considered by the FCC’s system as the Administrator of the licensee’s FRN.  If so, they will need to be consulted to get the station’s regulatory fees on file this year.

To begin the process, the individual making the regulatory fee payment on behalf of the licensee must create a personal account in CORES here using their email address and a password of their choosing. This account is personal to the filer, not the licensee, and identifies who is making the filing on the licensee’s behalf.

Next, the filer must sign in to CORES here using that new account and choose the option to “Associate Username to FRN” on the main screen to be able to make filings under the licensee’s FRN. As noted, if someone else has already done this, that person will be the Administrator and must grant the “associate” request before the submission can proceed, delaying the regulatory fee filing until that person responds to a request to approve the association (assuming they respond at all if they have retired, departed, etc.).

Once the filer’s account is associated with the licensee’s FRN, the filer must sign into CORES and select the “Manage Existing FRNs/FRN Financial/Bill and Fees” option on the main screen.

On the next screen, they must select the “Regulatory Fee Manager” option.

Finally, they need to select the licensee’s FRN from a dropdown list of all FRNs associated with the account and click the “Find Assessments” button. The next screen should display the licensee’s name and a total fee due amount.

Licensees should click the link labeled “View” to see the details of what stations and fees are included in the total shown. Errors in importing prior year data are common, especially where a licensee has used multiple FRNs in the past, and early reports indicate that the system-generated fee totals are sometimes missing stations, putting those licensees at risk of interest and penalties if they do not add the missing stations/fees before filing. If fees or stations are missing, the licensee must click the button labeled “Add More Manually” to add the missing stations/fees. If all fees are accounted for, the filer clicks on the “Continue to Pay” button to complete the payment process.

As for the fee amounts themselves, broadcasters can review the Commission’s Media Services Regulatory Fees Factsheet summarizing the fees due in each Media Service category and look up the fees due for individual broadcast call signs here. The FCC notes that “[i]n some instances, it may be necessary to clear your browser before logging onto the website” to look up fees. Fees for authorizations in other services such as transmit earth stations can be found in the Factsheets for those services on the FCC’s regulatory fee page here. Information about seeking deferrals or exemptions from paying the fees (for those who might qualify) can be found here.

The bottom line is that broadcasters should act quickly to begin the FY2022 regulatory fee payment process because it will look very different from how it appeared in the past, and late or missed payments can incur significant interest and penalties.

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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:

  • Turning Away FCC Inspectors Leads to a Notice of Violation for Florida Low Power FM Station
  • Texas FM Stations Receive Short-Term License Renewals After Extended Silence
  • FCC Proposes $116 Million Robocalling Fine for TCPA Violations

West Palm Beach LPFM Station Turns Away FCC Inspectors, Receives Notice of Violation

The FCC Enforcement Bureau issued a Notice of Violation to the licensee of a West Palm Beach, Florida low power FM station after two FCC enforcement agents were denied entry to conduct an inspection.

Under Section 73.1225(a) of the FCC’s Rules, “[t]he licensee of a broadcast station shall make the station available for inspection by representatives of the FCC during the station’s business hours, or at any time it is in operation.”  In this case, two agents visited the station to conduct an inspection and were denied access to the station by on-site station personnel.  The station owner was reached by phone during the visit and also refused to make the station available for inspection, even after the agents reminded the owner of the FCC’s rule for station inspections.

The Notice of Violation requires that within 20 days, the station licensee: (1) fully explain the violation, including all relevant facts and circumstances; (2) include in its response a statement of the specific action(s) taken to correct each violation and preclude recurrence; and (3) include a timeline for completion of any pending corrective actions.  An authorized officer of the licensee with personal knowledge of the representations made in the response must also submit an affidavit verifying the truth and accuracy of the provided information.  Though the Notice of Violation itself carried no monetary penalty, the Enforcement Bureau can take additional action in the future, including issuing a fine.

Extended Silent Periods Result in Shortened License Renewal Terms

Seven Texas FM stations licensed to the same company were given one-year license renewal terms after extended periods of silence during their last license term.  In all instances, the license renewal applications were filed on time, but the stations were silent for at least 25% of their license term and, in the case of six of the seven stations, silent for at least 40% of the extended term that included the time the license renewal applications were pending.  Under FCC precedent, broadcast station silence is considered a fundamental failure to serve the station’s community since a silent station is not airing public service programming.  Even turning on the signal between long periods of silence is thought by the FCC to be of little value, as the listening public will not be accustomed to tuning into the station.

When considering whether to grant a station’s license renewal, the FCC looks at (1) whether the station has served the public interest, convenience, and necessity; (2) whether there have been any serious violations of the Communications Act or the Commission’s rules; and (3) whether there have been any violations which, taken together, constitute a pattern of abuse.  If the station fails to meet this standard, the Commission may either deny the license renewal application (with notice and an opportunity for a hearing) or, as it did in this case, grant a renewal for a term less than the standard eight-year 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 $34,000 Fine for Interrupting Emergency Communications During Wildfire
  • Late Programs/Issues Lists and Failure to Disclose Violation Causes $15,000 Proposed Fine for North Dakota Noncommercial Licensee
  • License Rescinded for Mississippi Station Not Built as Authorized

Amateur Ham Radio Operator Receives $34,000 Proposed Fine for Transmitting on Radio Frequency Used by Fire Suppression Aircraft

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to an amateur radio operator for interfering with the U.S. Forest Service while it and the Idaho Department of Lands were directing aircraft fighting a 1,000-acre wildfire outside of Elk River in northern Idaho. The FCC found that the individual violated Sections 301 and 333 of the Communications Act (the “Act”), and Sections 1.903(a) and 97.101(d) of the Commission’s Rules by operating on government frequencies without a license and causing intentional harmful interference to licensed radio operations.

On July 22, 2021, the FCC received a complaint from the U.S. Forest Service about an individual who had been transmitting on government frequencies, noting that the transmissions had caused interference to fire suppression aircraft operations. The complaint explained that on July 17th and 18th, firefighters working on the “Johnson Fire,” a 1,000-acre wildfire on national forest lands in northern Idaho, received several communications from an individual calling himself “comm tech.” He advised firefighters and aircraft of hazards at a radio repeater sight in Elk Butte and identified his location as the Elk River airstrip. On July 18th, the fire operations section chief drove to the airstrip and found an individual who admitted to transmitting on government frequencies as “comm tech.”

On July 22, 2021, a U.S. Forest Service Law Enforcement and Investigations Branch agent interviewed the individual about the incident. The individual admitted to operating on the government frequency and that he was not authorized to do so. On October 15, 2021, the FCC sent a Letter of Inquiry (LOI) to the individual. In the individual’s response, he again admitted to operating on the government frequency but argued that he was not trying to cause interference and instead was trying to provide information to the firefighters. He suggested a third party may have also been transmitting, and may have continued to do so after he spoke to the fire chief and ceased his own operations.

Section 333 of the Act states that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under the Act or operated by the United States government.” The legislative history of Section 333 describes willful and malicious interference as “intentional jamming, deliberate transmission on top of the transmissions of authorized users already using specific frequencies in order to obstruct their communications, repeated interruptions, and the use and transmission of whistles, tapes, records, or other types of noisemaking devices to interfere with the communications or radio signals of other stations.” Section 97.101(d) of the Commission’s Rules states that “[n]o amateur operator shall willfully or maliciously interfere with or cause interference to any radio communications or signal.” The FCC found that the individual violated Sections 333 of the Act and 97.101(d) of the Rules when he caused harmful interference by making repeated interruptions to the Forest Service’s communications. The unauthorized transmissions impeded legitimate communications and resulted in personnel being diverted away from the fire and to his location at the airstrip.

Section 301 of the Act states that “[n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . without a license granted by the Commission.” Section 1.903(a) of the FCC’s Rules requires that wireless licensees operate in accordance with the rules applicable to their particular service, and only with a valid Commission authorization. The FCC found that the individual violated those sections when he made eight separate radio transmissions on the government’s frequency, as he did not have a license to operate on that frequency. According to the FCC, his statements to the U.S. Forest Service and his written response confirmed his actions.

Section 1.80 of the FCC’s Rules establishes a base fine of $10,000 for operating without a license, and $7,000 for causing interference to authorized stations for each violation or each day of a continuing violation. Here, the Commission proposed a total fine of $34,000 – a $10,000 fine for each of the two days of unlicensed operations, and $7,000 for each of the two days of harmful interference. The FCC concluded that there were no mitigating factors supporting any downward adjustment of the proposed fines, and issued the NAL for the full $34,000.

FCC Proposes $9,000 and $6,000 Fines for Minnesota and North Dakota Television Stations’ Late-Filed Programs/Issues Lists

The FCC issued proposed fines of $9,000 and $6,000 in response to allegations that two noncommercial television stations owned by a North Dakota licensee failed to timely upload all of their Quarterly Programs/Issues Lists to the stations’ Public Inspection Files. An FCC staff review of the stations’ Public Inspection Files as part of the license renewal process revealed that during the license term, both stations uploaded numerous Quarterly Programs/Issues Lists late and failed to properly disclose these violations in the stations’ license renewal applications.

Section 73.3527(e)(8) of the FCC’s Rules requires every noncommercial broadcast station to place in its Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the Public Inspection File within 10 days of the end of each calendar quarter. 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 Shifts Battle Against Pirates to Landowners of Pirate Radio Sites
  • Nevada Company Faces $100,000 Fine for Engaging in Prohibited Communications During FCC Auction
  • FCC Proceeds With $17,500 Fine Against Arkansas Broadcaster for Violations Discovered During License Renewal Review

FCC’s Pirate Radio Enforcement Targets Landowners

The Enforcement Bureau recently issued Notices of Illegal Pirate Radio Broadcasting to four property owners in Pennsylvania, Maryland, and Oregon after investigations of unauthorized radio broadcasts found radio signals emanating from their properties. The Communications Act prohibits the transmission of radio signals without prior FCC authorization, as they can, among other things, pose risks to public safety by interfering with licensed operations such as air traffic control.

The FCC has stepped up its efforts to combat illegal broadcast operations, colloquially known as “pirate radio,” in the wake of Congress’s passage of the PIRATE Act in early 2020. Under Section 511 of the PIRATE Act and Section 1.80 of the FCC’s Rules, the Commission may now impose fines of up to $2 million against individuals or entities that knowingly permit pirate radio operations on their property. Additionally, the PIRATE Act permits the FCC, without first having to issue a Notice of Unlicensed Operation, to propose a penalty against any person that “willfully and knowingly does or causes or suffers to be done any pirate radio broadcasting.” The FCC will issue a Notice of Illegal Pirate Radio Broadcasting where it has reason to believe a property owner or manager is permitting illegal broadcasts from its premises. This Notice provides the landowner a chance to remedy the situation before enforcement action is taken.

In response to complaints of illegal FM broadcast operations at four locations in Pennsylvania, Maryland, and Oregon, the Enforcement Bureau issued Notices of Illegal Pirate Radio Broadcasting to the respective landowners. The Notices indicated that FCC investigators had confirmed radio signals were emanating from those properties without an FCC license authorizing such transmissions. The landowners were also warned that they face a fine of up to $2 million if the FCC determines they continued to permit illegal broadcasts from their property.

While the FCC’s rules create exceptions from licensing requirements for certain extremely low-powered wireless devices, the Commission’s agents determined that the transmissions originating from the properties far exceeded those levels. The property owners have ten business days from the date of their respective Notices to (1) respond with evidence demonstrating that pirate radio broadcasts are no longer occurring on their property, and (2) identify the individual(s) involved in the illegal broadcasts. If the parties fail to respond to the Notice altogether, the FCC may still determine that the parties had sufficient knowledge of the illegal broadcasts to warrant enforcement action, including substantial fines.

FCC Proposes to Fine Wireless Company $100,000 for Violating Rules Against Communicating Bidding Strategies During FCC Auction

The FCC released a Notice of Apparent Liability for Forfeiture (“NAL”) proposing to fine a wireless broadband provider (the “Company”) $100,000 for engaging in prohibited communications of bidding and bidding strategies during the FCC’s Rural Digital Opportunity Fund Phase I Auction (Auction 904) and failing to timely report the prohibited communications.

Section 1.21002(b) of the FCC’s Rules forbids FCC auction applicants from conveying certain information to other auction applicants during the “quiet period.” This “quiet period” begins on the deadline for filing a short-form application to participate in the auction and ends on the deadline for winning bidders to submit long-form applications. The rule applies to any communication by an applicant regarding its own, or any other applicant’s, bids or bidding strategies. Continue reading →