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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:

  • Pennsylvania AM Radio Station’s Tower Marking and Lighting Violations End With Consent Decree
  • Unauthorized Transfer of Control Costs Nevada FM Radio Licensee $8,000
  • Arizona Translator Station Violates Construction Permit Terms and Receives $15,000 Penalty

AM Station Enters Into Consent Decree to Settle Tower Marking and Lighting Case

The Enforcement Bureau entered into a Consent Decree with a Pennsylvania AM radio licensee and tower owner to resolve a years-long investigation into violations of the Commission’s tower lighting and marking rules.

Under Part 17 of the FCC’s Rules and in accordance with Federal Aviation Administration (FAA) requirements, tower owners must comply with various painting, lighting, and notification requirements.  These rules are critical to maintaining air traffic safety, and the FCC imposes    strict requirements regarding tower painting and lighting maintenance.  Specifically, the FCC’s rules require that tower owners: (1) clean and repaint tower structures as frequently as is necessary to maintain good visibility; (2) ensure tower structures conform to the painting and lighting requirements prescribed in their FCC registration; and (3) notify the FAA of any lighting outages.

In response to an anonymous complaint, FCC investigators made several on-site visits in late 2015 and early 2016 to inspect a broadcaster’s antenna structures located in Pennsylvania, and observed faded paint markings and lighting outages on two of the four structures.  In February 2016, the FCC issued a Notice of Violation for the station’s failure to: (1) clean and paint the antenna structures so that their colored markings were sufficiently visible;  (2) keep the structures lit in accordance with the terms of their FCC registration; and (3) timely notify the FAA of the lighting outage.

When presented with the Notice of Violation, the station responded by acknowledging that it was aware of the lighting outage issues and was taking steps to make the needed painting and lighting repairs.  It also claimed that it had tried to notify the FAA about the lighting outage only to find that the FCC investigators had already filed a notification.

Returning for a reinspection several months later, FCC investigators found that the station had still not remedied any of the violations.  As a result, the FCC issued a Notice of Apparent Liability (NAL) in December 2016  proposing a $25,000 fine, and instructed the station to either pay the amount in full or submit to the Enforcement Bureau justification for a reduction or cancellation of the fine.

The station followed up with numerous filings at the FCC, including a submission to the Commission’s Office of Managing Director seeking reconsideration of the NAL, but the filings failed to properly respond to the Enforcement Bureau, as directed in the NAL.  In July 2019, the FCC issued a Forfeiture Order, noting these procedural failures and ordering payment of the full $25,000 fine.  The station submitted a petition seeking reconsideration of the Forfeiture Order in August 2019.

To finally resolve the matter, the FCC entered into a Consent Decree with the station owner under which the station will pay a reduced $1,900 penalty, certify that each of its antenna structures complies with Part 17 of the FCC’s Rules, and adopt a comprehensive compliance plan to prevent future violations.

Nevada FM Licensee Hit with $8,000 Penalty for Improper Transfer of Control

In a recently adopted Consent Decree, the Media Bureau settled an investigation into an FM radio licensee for conducting a transfer of control without prior Commission approval.

Section 310(d) of the Communications Act prohibits the transfer of control of a station license without first obtaining FCC approval.  Under Section 73.3540 of the FCC’s Rules, a licensee seeking such approval must file an application on FCC Form 315 at least 45 days before the anticipated effective date of the transfer of control. Continue reading →

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This Pillsbury Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights upcoming deadlines for compliance with the FCC’s EEO Rule.

October 1 is the deadline for broadcast stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, the Mariana Islands, Missouri, Oregon, Puerto Rico, the Virgin Islands, and Washington to place their Annual EEO Public File Report in their Public Inspection File and post the report on their station website.  In addition, certain of these stations, as detailed below, must submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal application submissions due by October 1. 

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements.  Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances,[1] (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term.  These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the Public Inspection Files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application.  The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities.  As discussed below, nonexempt SEUs must submit to the FCC their two most recent Annual EEO Public File Reports when they file their license renewal applications.

For a detailed description of the EEO Rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters  published by Pillsbury’s Communications Practice Group.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by October 10, 2020, reflecting information for the months of July, August, and September 2020.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station.  The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the Public Inspection File a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.”  By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations.  The lists also provide important support for the certification of Class A television station compliance discussed below.  We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness.  Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during their license term.  Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs.  Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

The FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have complete Quarterly Lists in their Public Inspection File or which have failed to timely upload such lists when due.  The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the Public Inspection File by January 10, April 10, July 10, and October 10 of each year.  The next Quarterly List is required to be placed in stations’ Public Inspection Files by October 10, 2020, covering the period from July 1, 2020 through September 30, 2020. Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations, licensed to communities in Iowa and Missouri, and full power TV and Class A TV stations, as well as LPTV stations capable of local origination, licensed to communities in Florida, Puerto Rico, and the Virgin Islands, must file their license renewal applications by October 1, 2020.

October 1, 2020 is the license renewal application filing deadline for commercial and noncommercial radio and TV broadcast stations licensed to communities in the following states:

Full Power AM and FM, Low Power FM, and FM Translator Stations:
Iowa and Missouri

Full Power TV, Class A, LPTV, and TV Translator Stations:
Florida, Puerto Rico, and the Virgin Islands

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations.  Radio and TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation.  This includes familiarizing themselves with not only the filing deadline itself, but with the requirements for this important filing, including recent changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions.  The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct.  Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification.  The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.”  An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term.  If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term.  Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Stations can find more detail on the FCC’s license renewal application process in our most recent Advisory on the subject. 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:

  • More Stations Settle with FCC Over Political File Violations
  • FCC Fines Drone Retailer Nearly $3 Million for Marketing Unauthorized Devices
  • California FM Translator Fined for Operating Above Power Limits

Political Ad Troubles Continue: Dozens of Radio Stations Settle With FCC Over Political File Violations

As election season heats up, the FCC remains focused on broadcasters’ Political File recordkeeping.  In the past month alone, the Media Bureau has entered into scores of consent decrees with radio broadcasters stemming from violations of the Commission’s Political File rules.  This barrage of enforcement actions follows similar settlements reached last month (covered here).

This month’s consent decrees continue to involve obligations under Section 315(e)(1) of the Communications Act, which requires broadcasters to place in their Political File records of requests to purchase political advertising time made: (1) by or on behalf of a candidate for public office (i.e., federal, state, or local candidates); or (2) by a non-candidate third party whose ad communicates a message relating to a “political matter of national importance.”  Section 73.1943 of the FCC’s Rules requires stations to upload this documentation “as soon as possible,” which the FCC considers to be “immediately absent unusual circumstances.”  The FCC has repeatedly emphasized that these recordkeeping requirements are essential to a candidate’s ability to assert a right to equal time over the airwaves, as well as to keep the electorate informed so that they can evaluate the validity of political messages and hold political interests accountable.

The investigations arose from issues identified in each of the affected stations’ license renewal applications.  The license renewal application form requires stations to certify compliance with the FCC’s Public Inspection File rule, and the Political File is part of the Public Inspection File.  For stations that were unable to make this certification, further investigations uncovered deficient Political File records in a number of cases.

In particular, FCC staff indicated that failures to timely upload political file materials has been a recurring problem, and that when the rules say that records of a request to purchase airtime must be uploaded to the Public File “as soon as possible,” the FCC interprets that to mean within one business day of the date of the request.

The recent flood of consent decrees has increased awareness of broadcasters’ Political File obligations and has brought recordkeeping and other related compliance issues to the forefront for broadcasters both large and small.  While last month saw settlements involving six large radio broadcasters operating roughly 1,900 stations nationwide, recent actions have targeted licensees controlling just a handful of stations.

While the settlements to date have not included monetary payments, by entering into consent decrees, the licensees are now on the hook for additional compliance measures, including preparing and implementing comprehensive compliance plans, along with filing periodic FCC compliance reports.

Political File obligations continue to be some of the most nuanced and complicated rules the FCC enforces, and the FCC’s guidance in this area continues to evolve.  Stations are therefore advised to work closely with counsel to understand their obligations and develop procedures to ensure compliance.  Additional information on the political broadcasting rules is also available in our Advisory on the subject.

Drone Retailer Hit with Nearly $3 Million Fine for Marketing Unauthorized Devices

The FCC recently issued a $2,861,128 fine against a large online drone retailer for marketing unauthorized drone equipment and failing to fully respond to a Commission request for information in the course of the investigation.

Section 302 of the Communications Act restricts the manufacture, import, sale, or shipment of devices capable of causing harmful interference to radio communications.  In addition, under Section 2.803(b) of the FCC’s Rules, devices that emit radiofrequency (RF) energy must first undergo the Commission’s equipment authorization procedures before being marketed for sale in the United States.  Such devices must also adhere to strict identification and labeling requirements.

Following several complaints about the company’s marketing of noncompliant RF transmitters intended for use in operating drones, the FCC’s Spectrum Enforcement Division issued a Letter of Inquiry (“LOI”) in January 2016 seeking information and documents related to the allegations. Continue reading →

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On July 30, 2020, the FCC released a Public Notice and Final Cost Category Schedule for the C-Band Relocation, and established August 31, 2020 as the deadline for C-Band earth station licensees to submit their lump sum election notices.  We discussed the Public Notice and Schedule here.

In response to a request from the Society of Broadcast Engineers, the FCC announced today that the deadline for submitting election notices will be extended until September 14, 2020.  The FCC still has under review a separate request by ACA Connects to stay the deadline entirely while the FCC reviews an Application for Review filed by that organization.

In the meantime, C-Band earth station licensees have an additional two weeks to consider their options.

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The FCC took another significant step in the C-Band reallocation process, releasing its Final Cost Category Schedule for Relocation Expenses of C-Band (3.7-4.2 GHz) satellite licensees. The Public Notice accompanying the cost schedule also established August 31, 2020 as the deadline for C-Band earth station licensees to elect whether they wish to receive a lump sum reallocation payment.

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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 Settles with Six Major Radio Groups Over Political File Violations
  • Texas Radio Stations Face Proposed Fines for Contest Rule Violations
  • $15,000 Fine Proposed for LPFM Station Airing Commercial Ads

Continue reading →

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This Pillsbury Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights upcoming deadlines for compliance with the FCC’s EEO Rule.

August 1 is the deadline for broadcast stations licensed to communities in California, Illinois, North Carolina, South Carolina, and Wisconsin to place their Annual EEO Public File Report in their Public Inspection File and post the report on their station website.  In addition, certain of these stations, as detailed below, must submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal application submissions due by August 3. 

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements.  Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances,[1] (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term.  These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the Public Inspection Files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application.  The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities.  As discussed below, nonexempt SEUs must submit to the FCC their two most recent Annual EEO Public File Reports when they file their license renewal applications.

For a detailed description of the EEO Rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters  published by Pillsbury’s Communications Practice Group.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, August 1, 2020 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the Public Inspection Files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations.  LPTV stations are also subject to the broadcast EEO Rule, even though LPTV stations are not required to maintain a Public Inspection File.  Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request.  Therefore, if an LPTV station has five or more full-time employees, or is otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from August 1, 2019 through July 31, 2020.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before July 31, so long as they begin the next annual reporting period on the day after the cut-off date used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period August 1, 2019 through July 22, 2020 for this year’s report (cutting it off up to ten days prior to July 31, 2020), then next year, the Nonexempt SEU must use a period beginning July 23, 2020 for its report. Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations, licensed to communities in Illinois and Wisconsin, and full power TV and Class A TV stations, as well as LPTV stations capable of local origination, licensed to communities in North Carolina and South Carolina, must file their license renewal applications by August 3, 2020.

August 3, 2020 is the license renewal application filing deadline for commercial and noncommercial radio and TV broadcast stations licensed to communities in the following states:

Full Power AM and FM, Low Power FM, and FM Translator Stations:
Illinois and Wisconsin

Full Power TV, Class A, LPTV, and TV Translator Stations:
North Carolina and South Carolina

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations.  Radio and TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation.  This includes familiarizing themselves with not only the filing deadline itself, but with the requirements for this important filing, including recent changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions.  The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct.  Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification.  The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.”  An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term.  If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term.  Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Stations can find more detail on the FCC’s license renewal application process in our most recent Advisory on the subject.

Certifications for Full Power and Class A TV Stations Only

While there is significant overlap between the certifications included in both the radio and TV applications, an important portion of the license renewal application specific to full power and Class A TV stations concerns certifications regarding the station’s children’s television programming obligations.

The Children’s Television Act of 1990 provides that commercial full power and Class A TV stations must: (1) limit the amount of commercial matter aired during programming designed for children ages 12 and under, and (2) air programming responsive to the educational and informational needs of children ages 16 and under.  While stations have been required to submit Children’s Television Programming Reports and commercial limits certifications demonstrating their compliance with these requirements on a quarterly or annual basis,[1] the license renewal application requires applicants to further certify that these obligations have been satisfied and documented as required over the entire license term and to explain any instances of noncompliance.  Stations can find additional information on the children’s television programming and reporting obligations in our most recent Children’s Television Programming Advisory.

Although noncommercial TV stations are not subject to commercial limitations or required to file Children’s Television Programming Reports, such stations are required to air programming responsive to children’s educational and informational needs.  In preparation for license renewal, such stations should therefore ensure they have documentation demonstrating compliance with this obligation in the event their license renewal is challenged.

For Class A television stations, in addition to certifications related to children’s television programming, the application requires certification of compliance with the Class A eligibility and service requirements under Section 73.6001 of the FCC’s Rules.  Specifically, the Rules require such stations to broadcast a minimum of 18 hours a day and average at least three hours per week of locally produced programming each quarter to maintain their Class A status.  Applicants must certify that they have and will continue to meet these requirements.

Post-Filing License Renewal Announcements

In prior license renewal cycles, stations were required to give public notice of a license renewal application both before and after the filing of that application.  For the current cycle, the FCC eliminated the pre-filing public notices and modified the procedures for post-filing notices. These changes modify the timing and number of on-air announcements required and revise the text of the announcements themselves.  While these changes are subject to Office of Management and Budget (“OMB”) approval and therefore have not yet gone into effect, such approval could be received at any time.  Accordingly, stations should continue to follow the prior rule for the moment, but remain alert for an announcement that the new rules have gone into effect.

As such, full power radio and LPFM stations, and full power TV and Class A TV, as well as LPTV stations capable of local origination, must broadcast six post-filing license renewal announcements.  These announcements must air once per day on August 1,[2] August 16, September 1, September 16, October 1, and October 16, 2020.

For full power radio and LPFM stations, at least three of these announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.  At least one announcement must also air in each of the following time periods: between 9:00 am and noon, between noon and 4:00 pm, and between 7:00 pm and midnight.  For commercial stations not operating between either 7:00 am and 9:00 am or 4:00 pm and 6:00 pm, at least three of these announcements must air during the first two hours of operation.

For full power TV and Class A TV stations, at least three of these announcements must air between 6:00 pm and 11:00 pm (Eastern/Pacific) or 5:00 pm and 10:00 pm (Central/Mountain).  At least one announcement must also air in each of the following local time periods: between 9:00 am and 1:00 pm, between 1:00 pm and 5:00 pm, and between 5:00 pm and 7:00 pm.  LPTV stations capable of local origination must broadcast these announcements at these times or as close to the above schedule as their operating schedule permits.

The text of the post-filing announcement is as follows:

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until December 1, 2020.  [Stations that have not received a renewal grant since the filing of their previous license renewal application should modify the foregoing to read: “(Call letters) is licensed by the Federal Communications Commission to serve the public interest as a public trustee.”]

Our license will expire on December 1, 2020.  We have filed an application for renewal with the FCC.

A copy of this application is available for public inspection at www.fcc.gov.  It contains information concerning this station’s performance during the last eight years [or such other period of time covered by the application, if the station’s license term was other than a standard eight-year term].

Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the FCC by November 1, 2020.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station] or may be obtained from the FCC, Washington, DC 20554, www.fcc.gov.

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