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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:

Headlines:

  • Ownership Questions Lead to Hearing Designation Order for LPFM Licensee
  • NC Man Hit with $40,000 Fine for Unauthorized Transmissions Over Public Safety Radio
  • FCC Issues Notice to Hospital Paging System Licensee for Harmful Interference

FCC Launches Hearing in Response to LPFM’s Undisclosed Foreign Ownership

The FCC has designated for hearing a Low Power FM (“LPFM”) licensee’s modification application after an investigation into whether the licensee misrepresented the makeup and citizenship of its ownership in various Commission filings.

Under Section 309 of the Communications Act (“Act”), the FCC must first determine that the public interest will be served before it can grant a station license or modification application.  If there is a substantial question that prevents the Commission from making that determination, it must designate the application for a hearing before an Administrative Law Judge (“ALJ”).  The FCC can revoke the license if an ALJ determines that the applicant lacks the “requisite qualifications” to be a licensee, taking into consideration the applicant’s record, character, and truthfulness in dealings with the FCC.

The Act also prohibits entities with greater than 20% alien ownership or voting control from holding a broadcast license where the FCC finds such foreign ownership is not in the public interest.  Many FCC filings require the licensee to identify all officers, directors, and entities with attributable ownership interests in the licensee, including their citizenship.

According to the Hearing Designation Order (“HDO”), the Missouri-based licensee initially applied for a construction permit for a new LPFM station in 2013.  In that application, the licensee listed five individuals as board members and identified all of them as U.S. citizens.  In two separate modification applications in January and November 2017, the licensee identified the same board members as U.S. citizens.

The Enforcement Bureau began its investigation after another licensee alleged that four of the five listed board members were not actually U.S. citizens.  The Bureau discovered that one of the board members had, only weeks before the licensee’s January application, lost an appeal before a federal court to reopen his deportation order to Guatemala.  The court decision referred to him as a Guatemalan citizen.  His wife, another board member, had already been deported to Guatemala.  These revelations indicated that foreign ownership and control of the licensee not only exceeded 20 percent, but that the licensee had also falsely certified the U.S. citizenship of the two board members.

In addition to questions of citizenship, the Bureau also found evidence that the licensee may not have even identified all individuals with attributable interests in the licensee.  Specifically, in documents filed with the Missouri Secretary of State, the licensee listed several officers and board members that it had not disclosed to the FCC.

According to the FCC, these discoveries raised a “substantial and material question of fact” as to whether the licensee misrepresented to the Commission both the makeup and the citizenship of its attributable owners.

The FCC sent the licensee two Letters of Inquiry seeking information about the licensee’s board members, but never received any response.  Failure to respond to a Commission inquiry is also a violation of the FCC’s Rules.

As a result, the FCC commenced an administrative hearing to determine whether the licensee: (1) made misrepresentations in its applications; (2) violated the Commission’s foreign ownership rules; (3) failed to maintain the accuracy of its pending application; and (4) failed to respond to the FCC’s inquiries.

In light of these questions, the ALJ must also examine the facts to determine whether granting the licensee’s pending application is in the public interest, and whether the licensee is even qualified to hold an FCC license at all.

FCC Proposes $40,000 Fine for Impersonating a Firefighter

In a Notice of Apparent Liability (“NAL”), the FCC found a North Carolina man apparently liable for transmitting on a frequency licensed to local first responders while impersonating a member of the local Volunteer Fire Department. Continue reading →

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For nearly 80 years, the FCC’s Rules have required broadcasters to file paper copies of various types of documents relating to the control and operation of their stations.  Section 73.3613 of the FCC’s Rules requires broadcasters to file with the FCC certain contracts and instruments relating to network affiliations, present or future ownership or control, and some personnel agreements, as well as local marketing agreements (“LMAs”) and joint sales agreements (“JSAs”).  Today, the FCC voted unanimously to eliminate this requirement.

The rule was originally created in the 1930s to make these documents more accessible to both FCC staff and the public.  However, the advent of the online public inspection file has effectively rendered this octogenarian obligation obsolete.  By March 1, 2018, all full-power TV, Class A TV, AM and FM broadcasters should have transitioned to the online public inspection file (“OPIF”), where they must either (i) upload all Section 73.3613 documents, or (ii) maintain an up-to-date list of those documents and provide a copy of any listed contract requested by a party within seven days of that request.  Similarly, stations are required to list all Section 73.3613 documents in their Ownership Reports, which are then automatically linked by the FCC to station OPIFs.

In eliminating the requirement to file such documents with the Commission, the FCC reasoned that the paper filing rule not only imposed unnecessary burdens on stations, but was redundant with the OPIF and Ownership Report requirements; as a result, the requirement did little to serve the public.  The FCC also observed that very few people actually visited its Reference Information Center, where all of these paper filings are maintained.  Members of the public will continue to be able to obtain copies of Section 73.3613 agreements directly from stations by requesting them.

For their part, stations must remain diligent and update their OPIF contract lists within 30 days of the execution, termination, or amendment of any Section 73.3613 document.  As we have previously discussed, timely filing is now particularly important because all OPIF uploads are timestamped, and late uploads are easy for FCC staff to spot at license renewal time.

Today’s Order also extends the FCC’s permitted redaction rules applicable to JSAs and LMAs to all Section 73.3613 documents.  Section 73.3613 currently only addresses redaction of confidential or proprietary information in the context of JSAs and LMAs.  In the past, stations have filed redacted copies of other contracts, as Section 0.459 of the FCC’s Rules allows certain materials to be withheld from public inspection.  The amended Part 73 redaction rule will explicitly allow limited redaction of all Section 73.3613 documents.

Though these changes will certainly save broadcasters time and resources in the long run, broadcasters should continue filing Section 73.3613 documents with the FCC for the moment.  Before the full rule change can go into effect, it must be approved by the Office of Management and Budget.  In the past, such approvals have typically taken many months, so this rule change may well not go into effect until sometime next year.

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We’ve said it before, and we’ll say it again:  If you wait until the last minute to submit an online FCC filing, be prepared to bang your head against your desk while you struggle to log in to a filing system that often melts down when thousands of filers simultaneously attempt access. Fortunately, the FCC appreciates the limitations of its filing systems, and has frequently granted extensions where the system collapse was sufficiently apparent. And so it was with today’s C-Band earth station registration deadline, which the FCC announced this afternoon would be extended to October 31, 2018.

As many of our readers are aware, the FCC issued a temporary freeze earlier this year on applications for new or modified fixed satellite service (FSS) earth stations and fixed microwave stations in the 3.7-4.2 GHz band (the “C-Band”) and concurrently opened a 90-day window during which entities that own or operate existing FSS earth stations in the C-Band could file to register their earth stations or modify their current registrations.  The purpose of the filing window was to give the FCC a better idea of whether and how to open up the band to other shared uses while giving those with constructed and operational (but currently unregistered or unlicensed) earth stations an opportunity to secure some degree of interference protection as the FCC moves to open the band.  In June, the FCC extended the filing window another 90 days, to today, October 17, 2018.

Then yesterday, things got (predictably) weird as IBFS experienced a “large influx of earth station applications filed near the deadline,” and the filing system “experienced intermittent difficulties that have prevented some applicants from filing for licenses or registrations.”  In response, the International Bureau earlier today extended the filing window for an additional two weeks, to October 31, 2018.

Consider yourself warned. If you’ve got any plans this Halloween, do not wait until the (new) last day to file.  The FCC is unlikely to treat you to any further extensions.

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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:

Headlines:

  • FCC Cracks Down on Call Spoofing Operations with Multimillion-Dollar Fine
  • New Jersey Utility Company Investigated for Improper Use of Private Land Mobile Radio
  • FCC Issues Repeated Notices to Florida LPFM Licensee Over Transmitter Issues

Call Me Maybe? FCC Proposes $37.525 Million Fine for Illegal Spoofing Operation

In response to the growing menace of ”spoofed” calls, the FCC issued a $37.525 million Notice of Apparent Liability for Forfeiture (“NAL”) to an Arizona telemarketer alleged to have made over 2.3 million spoofed calls over the past two years.

Section 227(e) of the Communications Act (“Act”) generally prohibits “call spoofing,” the practice of causing a false number to appear on a caller ID display to disguise the caller’s identity.  Section 227(e) of the Act and Section 64.1604 of the FCC’s Rules make it unlawful to knowingly transmit misleading or inaccurate caller ID information “with the intent to defraud, cause harm, or wrongfully obtain anything of value.”  Further, the Telephone Consumer Protection Act (“TCPA”) and Section 64.1200 of the FCC’s Rules prohibit marketing calls to numbers listed in the National Do-Not-Call-Registry (“DNR”).  Consumers can add their home and mobile phone numbers to the DNR in order to avoid unwanted telemarking calls.

The FCC was tipped off to the Arizona company’s spoofing operation by a whistleblower who had formerly worked in the company’s telemarketing phone room.  According to the employee, the company purchased a call directory and plugged the directory’s numbers into a telemarketing platform that would dial the numbers.  The company then modified its caller ID information to display the phone numbers of prepaid phones it had purchased from a big box store.  To avoid suspicion, the company regularly searched the Internet for complaints associated with the prepaid phone numbers and removed from rotation any numbers that had garnered a large amount of complaints.  If a consumer tried returning a telemarketing call originating from a prepaid phone, company policy instructed employees to hang up on or otherwise avoid complaining customers.  In addition to the prepaid phones, the company also used unassigned numbers and numbers assigned to unrelated private citizens.  As an example, the NAL describes an innocent consumer whose number was spoofed by the company and who received several calls a day for months from consumers attempting to complain about the company’s calls.

The FCC began its investigation by subpoenaing the company’s call records from the telemarketing platform.  According to the NAL, the company made 2,341,125 calls using 13 separate phone numbers.  Unsurprisingly, none of the 13 numbers were actually assigned to the company.  However, the FCC was able to match these numbers to dozens of complaints filed with the Federal Trade Commission from DNR registrants who had received unwanted calls.

According to the whistleblower, the company’s illicit behavior earned it nearly $300,000 per month.  The FCC alleges that the company’s spoofing and sophisticated prepaid phone operation show the company knew that what it was doing was wrong and sought to evade law enforcement and civil suits by hiding its connection to the illegal marketing scheme.

Pursuant to Section 227(e) of the Act and Section 1.80 of the FCC’s Rules, the FCC may impose a fine of up to $11,278 for each spoofing violation.  Previously, the FCC has applied a base fine of $1,000 per call in large-scale spoofing operations.  Out of the total 2,341,125 spoofed calls, the Enforcement Bureau was able to specifically examine and confirm the nature of 37,525 calls, and thus proposed a fine of $37,525,000.

In addition to the NAL, the FCC also issued a separate Citation and Order that cites the company for violating the Telephone Consumer Protection Act, as many of the call recipients were registered with the DNR.  The FCC uncovered 45 instances where the company dialed DNR registrants; however, it may not impose a monetary fine against parties not regulated by the FCC until: (1) the FCC issues a citation to the violator; (2) the FCC provides the violator a reasonable opportunity to respond; and (3) the violator continues to engage in the cited conduct.  The Citation and Order warns the company that any future violations could result in hefty fines.

The past year has seen several enforcement actions aimed at large scale robocall and spoofing operations.  The FCC asks consumers to report any illegal calls or text messages, and advises against answering calls from unknown numbers or giving out personal information.

A Failure to Communicate: FCC Investigates New Jersey Utility Company for Private Land Mobile Radio Violations

The FCC’s Enforcement Bureau issued a Notice of Violation (“NOV”) to a large New Jersey utility company for operating its Private Land Mobile Radio (“PLMR”) in an unauthorized manner and failing to regularly transmit station identification information. Continue reading →

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2018, reflecting programming aired during the months of July, August, and September 2018.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) and the FCC rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their online public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that has occurred to ensure that its online public inspection file is complete. The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398. They must, however, maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation available that demonstrates its efforts to meet the needs of children. Continue reading →

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What do these three have in common?  Well, if you are planning to be at the Radio Show in Orlando next week, you probably already know about the Pillsbury Broadcast Finance sessions at the Radio Show, with this year’s session marking the event’s 28th year.  The 2018 edition is titled Pillsbury’s Broadcast Finance 2018: Radio’s Debt Cloud Finally Lifts—a reference to the packaged bankruptcies of iHeart and Cumulus that will lighten both companies debt load in 2019, and which will hopefully allow us to turn the page on investors’ perception of radio as a slow growth, high-debt industry.

The event (September 26 from 8:30am to 10am) is often referred to as the “Radio Show Leadership Breakfast” because (1) the session panels feature some of the most influential CEOs in the radio business along with up-and-comers that will soon become the future of radio, and (2) our friends at Media Services Group are once again buying breakfast for everyone.  It’s a tough combination to beat, and perennially a standing room only event.

In addition to our CEO panelists—Caroline Beasley of Beasley Media Group, Ginny Morris of Hubbard, and Dhruv Prasad of Townsquare—Wells Fargo analyst J. Davis Hebert will be returning to launch this year’s event with his always head-turning presentation on the Financial State of the Radio Industry.  This economic snapshot (with bright colors and graphs!) provides a degree of insightful clarity rarely found in such a large and complex industry.

But what—for those of you that still remember the question that launched this post—does any of this have to do with political dollars?  Well (spoiler alert), one of the points Davis will be illustrating with his slides is a projection that 2018 will be by far the biggest political ad spending midterm election of the century, and an incredibly close second to the biggest political ad spending election of all, the 2016 general election ($2.9B vs. 2016’s $3B).  There are 34 Senate seats at stake, 11 of which are highly competitive races, 66 highly competitive House races, and 36 gubernatorial elections, with 16 states “potentially in play.”

Radio will have to fight for its share of those dollars, but in markets with highly competitive races, the influx of dollars from candidates and PACs can be so immense that ad buyers have trouble finding media that aren’t sold out as election time nears.  The competition to place ads can be so intense that I’ve been contacted by more than one noncommercial station trying to figure out how to deal with candidates that are insisting upon placing ads on their stations.

Which raises the less fun to contemplate, but equally important, matter of ensuring that your station’s political ad practices don’t leave you fighting off political advertising complaints once the election is over.  The political advertising rules for broadcasters are complex and so fact-sensitive that many an experienced broadcaster is left scratching their head trying to deal with a political ad buy.  I know those calls well, which often begin with something along the lines of “I’ve been doing this for 20 years, but I’ve never had something like this pop up before….”

That, along with the fact that stations’ Political Files are now online for political activists to scrutinize at any time, day or night, means broadcasters will again lose a lot of sleep this election season trying to ensure they are doing everything right.  In hopes of making their lives a little easier, Pillsbury released an updated version of its Political Broadcasting Advisory this year.

So if you’ve been clinging to the last edition like it’s your security blanket during election season, you can now toss it aside and get that warm and fuzzy feeling that comes from holding something that’s still warm from the laser printer (it’s much longer than you’ll ever want to read on a phone).  That way, you’ll have something to read on the plane ride to Orlando, where you will arrive well-versed in the intricacies of political ad rules compliance, and stoked for a great Radio Show.

We look forward to seeing you there!

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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, 2018 is the deadline for broadcast stations licensed to communities in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, and the Virgin Islands 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 electronically file an EEO Mid-Term Report on FCC Form 397 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, (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.  Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports when they file their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with 11 or more full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the mid-point of their eight-year license term along with FCC Form 397—the Broadcast Mid-Term EEO Report.

Exempt SEUs—those with fewer than five full-time employees—do not have to prepare or file Annual or Mid-Term EEO Reports.

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, October 1, 2018 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 October 1, 2017 through September 30, 2018.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before September 30, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period October 1, 2017 through September 20, 2018 for this year’s report (cutting it off up to ten days prior to September 30, 2018), then next year, the Nonexempt SEU must use a period beginning September 21, 2018 for its report.

Deadline for Performing Menu Option Initiatives

The Annual EEO Public File Report must contain a discussion of the Menu Option initiatives undertaken during the preceding year.  The FCC’s EEO Rule requires each Nonexempt SEU to earn a minimum of two or four Menu Option initiative-related credits during each two-year segment of its eight-year license term, depending on the number of full-time employees and the market size of the Nonexempt SEU. Continue reading →

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The Federal Emergency Management Agency (FEMA), in coordination with the FCC, announced this morning that the National Emergency Alert System (EAS) and Wireless Emergency Alerts (WEA) tests scheduled for this Thursday, September 20, have been postponed due to “ongoing response efforts to Hurricane Florence.”

Instead, the tests will be conducted on the previously announced backup date of October 3.  The Wireless Emergency Alerts test will commence at 2:18 p.m. EDT and the EAS test will commence at 2:20 p.m. EDT on that date.  FEMA has indicated that the purpose of the tests is to “assess the operational readiness of the infrastructure for distribution of a national message and determine whether improvements are needed.”

As we previously discussed on CommLawCenter, in preparation for the national test, all EAS Participants were required to file their Form 1 with the FCC by August 27, 2018.  They were then to file their Form 2 (day of test data) on September 20, 2018, with the final test report to be filed on Form 3 by November 5, 2018.

The Form 2 (and likely the Form 3) deadline will now shift to align with the new October 3 test date.  As of the publication of this post, the FCC had not yet announced new filing deadlines, but the Form 2 will likely be due on October 3, 2018, and since the FCC’s Rules require that EAS Participants “are required to file detailed post-test data 45 days following a nationwide EAS test,” the Form 3 deadline will most likely move to November 19, 2018.  Those are just predictions, however, and broadcasters and other EAS Participants should watch for a formal announcement from the FCC with the new filing deadlines.

[Editor’s Note: Subsequent to publication, the FCC did in fact release a Public Notice confirming the October 3 deadline for Form 2, and the November 19 deadline for Form 3.]

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Whether tracking a developing storm so the public can prepare, or disseminating evacuation orders and alerts, broadcasters continue to serve as the bedrock of the nation’s warning system in emergencies.  As Hurricane Florence approaches the East Coast, TV and radio stations are hurrying to make sure they are in position to warn and inform their audiences of new developments.

Continuing operations during a hurricane is tough enough with employees sleeping in the studio while wondering if their house is still standing, but TV stations are also required by the FCC to ensure that all viewers, regardless of hearing or vision challenges, are able to receive emergency information being relayed.  As a result, emergency information presented on-air aurally must also be made available visually, and emergency information presented visually must also be made available aurally.  In past disasters, the FCC has proposed fines of up to $24,000 ($8,000 per “incident”) for TV stations that effectively said “run for shelter” but didn’t air a crawl or other graphic at that time conveying the same information.

To help television stations in this week’s storm path meet their obligations, Pillsbury today published an updated edition of Keep Calm and Broadcast On: A Guide for Television Stations on Airing Captions and Audible Crawls in an Emergency.  Stations whose communities are near the path of Hurricane Florence should review it, both as a refresher on what they will need to do in the next few days, and on how best to do it.

While broadcasters are working to help their communities prepare for the storm, the FCC is also trying to do its part to help broadcasters.  Earlier today, the FCC released a Public Notice providing emergency contact info for various divisions of the FCC relevant to an emergency, as well as procedures for making emergency requests for Special Temporary Authority to operate at variance from normal license parameters where needed due to equipment damage, etc.  The Public Notice also states that licensees requiring emergency assistance or STAs outside of business hours can “call the FCC’s Operations Center, which is open 24 hours a day, 7 days a week, at (202) 418-1122 or by e-mail at FCCOPCenter@fcc.gov.”

State governments are doing their part as well—nearly a dozen states have adopted laws granting broadcast personnel First Responder/First Informer status.  During earlier hurricanes in Florida, dedicated broadcasters stayed at their stations rather than protect their homes, only to find their transmissions halted when the station generator ran out of fuel and government officials prevented fuel trucks from entering the disaster area to resupply stations.  First Responder/First Informer laws allow broadcasters access to crisis areas, both for reporting on a disaster and maintaining station operations.  This includes granting priority to broadcasters for scarce fuel supplies (and emergency access for vehicles transporting fuel to stations) to keep their stations’ emergency generators—and the transmitters they power—running during emergencies.

Recognizing the limitations of a state-by-state approach, in March of this year, Congress granted broadcasters First Informer status in federal disaster areas throughout the nation.  Hurricane Florence will serve as one of the first tests of broadcasters’ new federal First Informer status.

While the last decade has brought progress in making communications infrastructure more resilient in emergencies, cable and Internet service is often disrupted in disasters, and cell phone networks, where they don’t fail outright, become overwhelmed by increased usage during a disaster.  Unlike communications infrastructure that requires wired connections over a broad area, or numerous short-range towers and repeaters, broadcast stations just need an upright tower or tall building for their antenna, fuel for their generator, and access for their employees.  That resilience in extreme conditions—and the ubiquity of radios and TVs—is critical in emergencies.

It’s time for broadcasters to once again weather the storm, and to help their communities survive it.

 

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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:

Headlines:

  • International Hotel Company Agrees to $504,000 Settlement for Overlooked Wireless License Transfers
  • Media Bureau Fines AM Licensee for Years-Old Unauthorized Transfers
  • Suburban Elementary School Busted as Pirate Radio Operator

Approval Needed: International Hotel Chain Settles with the FCC for $504,000 Over Unauthorized Transfers

The FCC recently entered into a Consent Decree with a global hotel company for violating the FCC’s rules governing transfers of control.  The company admitted to transferring dozens of private wireless licenses without prior FCC approval in the midst of its multi-billion dollar acquisition of another international hotel group.

In addition to regulating the transfer of broadcast licenses, Section 310 of the Communications Act (“Act”) prohibits the transfer of control of a private wireless license holder without prior FCC approval.  Under Section 1.948 of the FCC’s Rules, parties seeking consent to a transfer of control of such a license must first file FCC Form 603 and await Commission approval before completing the transfer.

At issue in this case were the transfers of 65 wireless licenses controlled by entities owned or operated by the acquired company.  Unlike commercial wireless services such as wireless broadband, private wireless licenses are generally used for internal communications, like those associated with company operations or security.  According to the late-filed transfer applications, these wireless licenses were used for “operational efficiency and safety of employees and guests” at the company’s various properties.  Prior to the transaction, the acquired company’s employees controlled the use of the licenses as part of their regular operational duties.  Though the day-to-day use of the licenses did not change as a result of the company’s acquisition, ultimate control of the licenses did.

In February 2017, several months after the deal was completed, the hotel company voluntarily disclosed the violations to the FCC, chalking up the missing applications to “administrative oversight … during a larger transaction.”  By January 2018, applications for transfer of control of all 65 licenses were submitted to the FCC’s Wireless Bureau.  Those applications remain pending.

To resolve the FCC’s investigation of the violations, the acquiring company entered into a Consent Decree with the Commission.  Under the terms of the Consent Decree, the hotel company agreed to (1) admit liability for violations of the FCC’s unauthorized transfer rules; (2) develop and implement a compliance plan to prevent further violations of the FCC’s Rules; and (3) pay $504,000 to the United States Treasury.

Trust Issues: “Ridiculously Complicated” Estate Planning Leads to $8,000 Fine

The Media Bureau entered into a Consent Decree with the licensee of three Georgia AM radio stations to resolve an investigation into an unauthorized transfer of control of the station licenses.

Section 310 of the Act and Section 73.3540 of the FCC’s Rules prohibit transfers of control of broadcast licensees from one individual, entity, or group to another without prior FCC approval.  In the case of full-power broadcast stations, parties must file FCC Form 315 applications and receive FCC consent before a transfer of control can be consummated.

The applications ultimately leading to the Consent Decree were filed with the FCC in March 2018, but the licensee’s problems began nearly two decades earlier when the licensee’s sole owner created an irrevocable trust and named two of his sons as co-trustees.  That same day, the FCC approved the licensee’s acquisition of the Georgia stations.  The following day, the licensee’s owner, functioning as de facto trustee of the irrevocable trust (and without his sons’ knowledge), transferred 90% of his equity in the licensee to the trust in the form of non-voting shares.  When the station acquisition was consummated a few days later, the licensee failed to report the existence of the trust to the FCC and did not subsequently report it until earlier this year.

In 2010, the trust was divided into sub-trusts for each of the father’s six children—each of whom was then unaware that they were to serve as trustee of their respective sub-trust.  Shortly before their father’s passing in 2013, the children assumed control of the overall trust (as trustees of the individual sub-trusts).  They converted the trust’s stock in the licensee to voting shares and cancelled all other shares of licensee stock, resulting in a transfer of control of the licensee to the children as trustees of the trust. Continue reading →