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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:

  • Big-4 Network, Among Others, Settles With FCC Over Emergency Alert Tone Violations
  • Despite Self-Disclosure, Sponsorship ID Violations Land $233,000 Proposed Fine
  • Topeka TV Licensee Enters Into Consent Decree Over Late-Filed KidVid Reports

False Alarm: FCC Enters Into Multiple Consent Decrees Over Emergency Alert Tone Violations

In a single day last week, the FCC announced four separate Consent Decrees in response to unauthorized uses of the Emergency Alert System (“EAS”) tone across various media outlets.  The parent companies of a Big-4 broadcast network and two cable channels, as well as the licensee of two southern California FM stations, each agreed to significant payments to settle investigations into violations of the FCC’s EAS rules.  According to the Consent Decrees, unauthorized emergency tones have reached hundreds of millions of Americans in the past two years alone.

The Emergency Alert System is a nationwide warning system operated by the FCC and the Federal Emergency Management Agency that allows authorized public agencies to alert the public about urgent situations, including natural disasters and other incidents that require immediate attention.  Once the system is activated, television and radio broadcasters, cable television operators, and other EAS “participants” begin transmitting emergency messages with distinct attention tones.  These tones consist of coded signals that are embedded with information about the emergency and are capable of activating emergency equipment.  Wireless Emergency Alerts (“WEA”), which deliver messages to the public via mobile phones and other wireless devices, also use attention signals.

Emergency tones may not be transmitted except in cases of: (1) actual emergencies; (2) official tests of the emergency system; and (3) authorized public service announcements.  In an accompanying Enforcement Advisory published on the same day as the Consent Decrees, the FCC’s Enforcement Bureau noted that wrongful use of the tones can result in false activations of the EAS, as well as “alert fatigue,” in which “the public becomes desensitized to the alerts, leading people to ignore potentially life-saving warnings and information.”

For the Big-4 network, it all started with a joke.  Around the time of last year’s nationwide EAS test, a late-night network talk show parodied the test in a sketch that incorporated emergency tones.  According to the Consent Decree, the network’s programming reaches almost all US television households through hundreds of local television affiliates, as well as through the network’s owned and operated stations.  Shortly after the episode aired, the company removed the offending portions of the program from its website and other streaming sites and did not rebroadcast the episode.  Despite these remedial actions, the damage was already done; in response to the Enforcement Bureau’s investigation, the network’s parent company agreed to pay a $395,000 “civil penalty.”

The parent companies of two major cable channels entered into similar agreements.  In one instance from this past year, an episode of a popular show set in a zombie-infested post-apocalyptic world used simulated EAS tones on multiple occasions over the course of an hour.  That episode was transmitted on eight separate occasions over a two-month period.  According to the Consent Decree, within weeks of the episode’s debut, the Enforcement Bureau reached out to the network regarding the unauthorized uses of the tone and, after a brief investigation, the network’s parent company agreed to pay $104,000 to resolve the matter. Continue reading →

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The FCC has released its finalized schedule of annual Regulatory Fees for Fiscal Year 2019, and thanks to the collective efforts of all 50 State Broadcasters Associations and the National Association of Broadcasters, there is some good news for radio stations and satellite television stations.

But before we get to that, some information for you from the FCC’s Public Notice released today on filing requirements.  Fees will be due by 11:59 p.m. EDT on September 24, 2019.  You must file via the FCC’s Fee Filer system, which is available for use now.  You may pay online via credit card or debit card, or submit payment via Automated Clearing House (ACH) or wire transfer.  Remember that $24,999.99 is the daily maximum that can be charged to a credit card in the Fee Filer system.  As a result, many stations may have to pay their fees using the other methods.

Television broadcast stations will see an unfamiliar number in the “Quantity” box when they go to pay.  This relates to the FCC’s phase-in of a population-based methodology for calculating television station fee amounts.  It cannot be changed and should not be a cause for concern.  Regulatees whose total fee amount is $1,000 or less are once again exempt and do not need to pay.

In most years, the outcome of the annual Regulatory Fee battle ends with the FCC’s various regulatees rolling their collective eyes and murmuring “just tell me how much I have to fork over.”  This year’s Regulatory Fee proceeding had some surprises, however.  When the proposed fee amounts were first announced, they contained a dramatic increase in year-over-year fee amounts for most categories of radio stations.  Yet, the reason for this sudden increase was neither addressed by the FCC nor readily apparent from the FCC’s brain-numbing summary of its calculation process.

In response, all 50 State Broadcasters Associations and the NAB filed comments pressing the FCC to revisit its fee methodology and to explain or correct what appeared to be flawed data used to calculate broadcast Regulatory Fee amounts.  In particular, they pressed the FCC to explain why the estimated number of radio stations slated to cover radio’s share of the FCC’s budget had inexplicably plummeted between 2018 and 2019, resulting in each individual station having to shoulder a significantly higher fee burden.

In its regulatory fee Order, the Commission acknowledged that its estimate of the number of radio stations that would be paying Regulatory Fees in 2019 had been “conservative”, and failed to include 553 of the nation’s commercial radio stations.  Once these stations were added to the total number of radio stations previously anticipated to pay Regulatory Fees, the impact was to reduce individual station fees from those originally proposed by 9% to 13%, depending on the class of radio station.

This adjustment prevented what would have otherwise been a roughly $3 million dollar overpayment by radio stations nationwide, significantly exceeding the FCC’s cost of regulating radio stations in FY 2019.  The fact that the FCC listened to the concerns of broadcasters, investigated the discrepancy between 2019 station data and that of prior years, and made appropriate changes to fix the problem, is heartening, particularly given that stations’ only options are paying the fees demanded, seeking a waiver, or turning in their license.

Terrestrial satellite TV stations also received a requested correction to their fee calculations.  As noted above, the FCC is transitioning from a DMA-based fee calculation methodology to a population-based methodology for TV stations.  To phase in this new methodology, the Commission proposed to average each station’s historical and population-based Regulatory Fee amounts and use that average for FY 2019 before moving to a fully population-based fee in FY 2020.

In calculating the average of the “old” and “new” fees, however, the FCC neglected to use the reduced fee amount historically paid by TV satellite stations, which is much lower than that paid by non-satellite TV stations in the same DMA.  As a result, a TV satellite station might have seen its 2019 fees jump by tens of thousand of dollars over FY 2018, only to see them drop again in FY 2020.  The FCC acknowledged that its intent in adopting the phase-in was not to unduly burden TV satellite stations in FY 2019, and it therefore recalculated those fees using the lower historical fee amounts traditionally applied to such stations.

While these reductions are a rare win against ever-increasing regulatory fees, there remain big picture issues that Congress and the FCC need to address in the longer term.  Significant among these is the FCC’s reliance on collecting the fees that support its operations from the licensees it regulates (a burden not a benefit), while charging no fees to those that rely on the FCC’s rulemakings to launch new technologies on unlicensed spectrum or obtain rights against other private parties via the FCC’s rulemaking processes (a benefit not a burden).  Such a narrow approach to funding the FCC makes little sense, particularly where it unduly burdens broadcasters, who, unlike most other regulatees, have no ability to just pass those fees on to consumers as a line item on a bill.

We live in a time of disruption.  Disruption affects all areas of the economy, but surely the most affected has to be the communications sector.  If any government agency can claim to be the regulator of this disruption, it must surely be the FCC.  Yet despite the FCC’s position at the forefront of these changes, its Regulatory Fee process is mired in a system in which broadcasters are left holding the bag for more than 35% of the FCC’s operating budget (once again, burden not benefit).  Even as the FCC spends more of its time and resources on rulemakings, economic analysis, and technical studies surrounding new technologies and new entrants into the communications sector whose main goal is to nibble away at broadcasters’ spectrum, audience, and revenue, it still collects regulatory fees only from the licensees and regulatees of its four “core” bureaus – the International Bureau, Wireless Telecommunications Bureau, Wireline Competition Bureau, and Media Bureau.  It’s an old formula, and it no longer works.

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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 Station’s “Shenanigans” in Connection With Tower Violations Lead to $25,000 Fine
  • Georgia and North Carolina Radio Station Licenses at Risk Due to Unpaid Fees
  • FCC Cites New Jersey Vehicle Equipment Vendor for Programming Transmitters with Unauthorized Frequencies

Pennsylvania Station’s Tower “Shenanigans” Lead to $25,000 Fine

In a recent Forfeiture Order, the FCC fined a Pennsylvania AM radio licensee for various tower-related violations after the licensee failed to sufficiently respond to a 2016 Notice of Apparent Liability for Forfeiture (NAL).

Broadcasters must comply with various FCC and FAA rules relating to registration, lighting and painting requirements.  In particular, they must be lit and painted in compliance with FAA requirements, and any extinguished or improperly functioning lights must be reported to the FAA if the problem is not corrected within 30 minutes.  The FCC’s Rules require lighting repairs to be made “as soon as practicable.”

In 2015, FCC Enforcement Bureau agents responded to an anonymous complaint regarding a pair of radio towers.  Over multiple site visits, the agents determined that multiple mandatory tower lights and beacons were unlit and that the towers’ paint was chipping and faded to such a degree that the towers did not have good visibility.  In connection with the lighting problems, the licensee had also failed to timely file the required “Notice to Airmen” with the FAA, which informs aircraft pilots of potential hazards along their flight route.  The FCC cited these issues in a February 2016 Notice of Violation sent to the station.  The licensee responded by assuring the FCC that it would immediately undertake remedial actions.  However, a site visit from the FCC several months later revealed continuing violations, and the FCC subsequently issued the $25,000 NAL along with directions on how to respond.

At that point, the licensee’s woes expanded from substantive to procedural.  According to a Forfeiture Order, the licensee failed to file a “proper response” to the NAL.  Instead, in a bizarre series of events that the FCC chalked up to “shenanigans,” it noted that the licensee submitted a Petition for Reconsideration of the NAL, as well as a response to the NAL to the Office of Managing Director (OMD), instead of to the Enforcement Bureau.  OMD is a separate department within the FCC that deals with agency administrative matters, such as budgets, human resources, scheduling, and document distribution.  OMD subsequently returned the Petition and the NAL response to the licensee with a letter noting the licensee’s procedural misstep.

The licensee’s “shenanigans” were still far from over, however.  More than a month after OMD returned the licensee’s submissions, the licensee sent a letter to the Enforcement Bureau seeking to arrange an installment plan for the $25,000 proposed fine.  This, too, was procedurally flawed, as the NAL specifically explained that any requests for payment plans must be directed to the FCC’s Chief Financial Officer, not to the Enforcement Bureau.  Though the Enforcement Bureau itself forwarded the request to the CFO’s office, no plan was ever put in place.

According to the Forfeiture Order, despite the licensee’s various filings, it failed to successfully submit a response to the NAL to the Enforcement Bureau.  The Forfeiture Order also noted that even had the licensee’s NAL response been sent to the Enforcement Bureau (instead of OMD), it would have been defective for being late-filed.  The Enforcement Bureau therefore affirmed the proposed fine and ordered the licensee to pay the $25,000 fine within 30 days.

Pay to Play: FCC Initiates Proceedings Against North Carolina and Georgia Radio Stations Over Delinquent Fees

In a pair of Orders to Pay or to Show Cause released on the same day, the FCC began proceedings to potentially revoke the AM radio license of a Georgia station and the FM radio license of a North Carolina station. 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 on August 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, (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. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

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

Consistent with the above, August 1, 2019 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, 2018 through July 31, 2019. 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, 2018 through July 22, 2019 for this year’s report (cutting it off up to ten days prior to July 31, 2019), then next year, the Nonexempt SEU must use a period beginning July 23, 2019 for its report. Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Florida, Puerto Rico, and the Virgin Islands must begin airing pre-filing license renewal announcements on August 1, 2019. License renewal applications for these stations, and for in-state FM translator stations, are due by October 1, 2019.

Full power commercial and noncommercial radio and LPFM stations must air four pre-filing announcements alerting the public to the upcoming renewal application filing. As a result, these radio stations must air the first pre-filing renewal announcement on August 1. The remaining pre-filing announcements must air once a day on August 16, September 1, and September 16, for a total of four announcements. At least two of these four announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.

The text of the pre-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 February 1, 2020. [Stations that have not received a renewal grant since the filing of their previous 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 February 1, 2020. We must file an application for renewal with the FCC by October 1, 2019. When filed, a copy of this application will be available for public inspection at www.fcc.gov. It contains information concerning this station’s performance during the last eight years [or other period of time covered by the application, if the station’s license term was not a standard eight-year license 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 January 1, 2020.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station][1] or may be obtained from the FCC, Washington, DC 20554, www.fcc.gov.

If a station misses airing an announcement, it should broadcast a make-up announcement as soon as possible and contact counsel to further address the situation. Special rules apply to noncommercial educational stations that do not normally operate during any month when their announcements would otherwise be due to air, as well as to other silent stations. These stations should also contact counsel regarding how to give the required public notice.

Post-Filing License Renewal Announcements

Once the license renewal application has been filed, full power commercial and noncommercial radio and LPFM stations must broadcast six post-filing renewal announcements. These announcements must air, once per day, on October 1, October 16, November 1, November 16, December 1, and December 16, 2019. 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 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.

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 February 1, 2020.

Our license will expire on February 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 January 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. 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:

  • Investigation Into Undisclosed Radio Station Owner With a History of Felonies Leads to Hearing Designation Order
  • FCC Settles With Alaskan Broadcaster After Disastrous Station Inspection
  • FCC Reinstates Licenses for Tennessee and Alabama Radio Stations, Then Immediately Threatens to Revoke Them

Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by July 10, 2019, reflecting information for the months of April, May and June 2019.

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 the 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.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their Public Inspection File.  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 July 10, 2019, covering the period from April 1, 2019 through June 30, 2019.

Stations should keep the following in mind: 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 Settles With Golf Club Operator Over Unauthorized Transfer of 108 Private Wireless Licenses
  • FCC Warns Traffic Management Company Over Unlicensed Radio Operations
  • Months-Long Tower Lighting Outage Leads to Warning

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Last week, the Federal Emergency Management Agency (FEMA) formally notified the FCC that FEMA has scheduled the next nationwide test of the Emergency Alert System (EAS) for August 7, 2019 at 2:20 p.m. FEMA states that this year’s test will differ from the nationwide tests that have been conducted over the past several years in that it will be issued through the National Public Warning System, composed of FEMA-designated Primary Entry Point facilities, to test the readiness of the EAS to function in the absence of Internet connectivity.

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The state-by-state license renewal cycle for radio stations that will take place over the next three years commenced on April 1, 2019. That was when the first batch of radio broadcasters (DC, MD, VA, and WV) began airing their pre-filing announcements ahead of the June 1, 2019[1] filing date for their license renewal applications. The cycle then repeats, with a license renewal application deadline (based on state) occurring on the first day of every other month until 2022, by which time all full power, FM translator, and LPFM stations should have filed applications seeking a new eight-year license term. Stations can determine their license renewal date by reviewing the FCC’s state-by-state license renewal timeline.

Continue reading →