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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.

April 1, 2018 is the deadline for broadcast stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas 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 April 2 (while the mid-point of the license renewal term for stations in the states listed below is April 1, because that date falls on a weekend, submission of FCC Form 397 may be made by April 2, 2018.)

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. Continue reading →

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People often conflate the term “FCC lawyer” with “Communications Lawyer,” thinking of an FCC Lawyer as someone who represents clients solely with regard to interactions with the FCC and its rules. A Communications Lawyer, however, represents communications clients in a variety of venues and on a variety of issues whose common thread is that they affect media or telecom companies in a unique or disproportionate way.  Communications Lawyers therefore find themselves not just before the FCC, but handling complex transactions, litigation, and legislative matters where the harm or benefit has little to do with the FCC, and much to do with how the action impacts a media or telecom client.

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others.  This month’s issue includes:

  • FCC Proposes Forfeitures Against South Carolina Stations for Failure to Maintain Public Inspection File
  • Noncommercial Station and FCC Settle Dispute Over Promotional Announcements
  • Brooklyn-based Bitcoin Miner Warned Over Harmful Interference
  • FCC Issues Notice to Security Camera Manufacturer for Device ID Violations

FCC Proposes Fine Against Licensee of South Carolina Stations for Failure to Maintain Complete Public Files

In two separate Notices of Apparent Liability for Forfeiture (“NALs”) released on the same day, the FCC found two commonly owned radio stations apparently liable for repeated violations of its public inspection file rule.

Section 73.3526 of the FCC’s Rules requires stations to maintain a public inspection file that includes various documents and items related to the broadcaster’s operations.  For example, subsection 73.3526(e)(11) requires TV stations to place in their public inspection file Quarterly Issues/Programs Lists describing the “programs that have provided the station’s most significant treatment of community issues during the preceding three month period.”

In their respective license renewal applications, the stations disclosed that they had failed to locate numerous Quarterly Issues/Programs Lists from the 2003 to 2010 time period.  According to the licensee, the gaps in its reporting were due to several personnel changes at all levels of the stations as well as computer and software changes made over the past ten years.

Between the two NALs, the FCC found a total of 38 missing Lists (21 for one station, and 17 for the other station), which it considered a “pattern of abuse.” Pursuant to the FCC’s forfeiture policies and Section 1.80(b)(4) of its Rules, the base forfeiture for a violation of Section 73.3526 is $10,000.  The FCC can adjust the forfeiture upwards or downwards depending on the circumstances of the violation.  Here, the FCC proposed a $12,000 forfeiture in response to the station with 21 missing Lists and a $10,000 forfeiture for the station with 17 missing Lists.  Visit here to learn more about the FCC’s Quarterly Issues/Programs List requirements.  For information on maintaining a public inspection file, check out Pillsbury’s advisory on the topic.

“Ad” Nauseam: FCC Resolves Investigation Into Underwriting Rules Violation

The FCC entered into a Consent Decree with the licensee of two noncommercial educational (“NCE”) radio stations in Arizona and California after receiving complaints that the stations aired commercial advertising in violation of the Communications Act and the FCC’s Rules (together, the “Underwriting Laws”).

Section 399B of the Communications Act of 1934 prohibits noncommercial stations from making their facilities “available to any person for the broadcasting of any advertisement.” Section 73.503(d) of the FCC’s Rules prohibits an NCE station from making promotional announcements “on behalf of for profit entities” in exchange for any benefit or payment.  Such stations may, however, broadcast “underwriting announcements” that identify but do not “promote” station donors.  Such identifications may not, among other things, include product descriptions, price comparisons, or calls to action on behalf of a for-profit underwriter.  The FCC recognizes that it is “at times difficult to distinguish between language that promotes versus that which merely identifies the underwriter,” and expects licensees to exercise good faith judgment in their underwriting messages.

In response to complaints from an individual who alleged that the stations had repeatedly violated the Underwriting Laws, the FCC sent the licensee multiple letters of inquiry regarding questionable underwriting messages between August 2016 and March 2017.  According to the FCC, the licensee did not dispute many of the facts in the letters, and the parties entered into the Consent Decree shortly thereafter.  Under the Consent Decree, the licensee (1) admitted that it violated the Underwriting Laws; (2) is prohibited from airing any underwriting announcement on behalf of a for-profit entity for one year; (3) must implement a compliance plan; and (4) must pay a $115,000 civil penalty.

Brooklyn Bitcoin Mining Operation Draws FCC Ire Over Harmful Interference

The FCC issued a Notification of Harmful Interference (“Notification”) to an individual it found was operating Bitcoin mining hardware in his Brooklyn, New York home.

Section 15 of the FCC’s Rules regulates the use of unlicensed equipment that emits radio frequency energy (“RF devices”), a broad category of equipment that includes many personal electronics, Bluetooth and WiFi-enabled devices, and even most modern light fixtures.  Such devices must not interrupt or seriously degrade an authorized radio communication service.  The FCC’s rules require a device user to cease operation if notified by the FCC that the device is causing harmful interference. Continue reading →

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

February 1 is the deadline for broadcast stations licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma 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 their EEO Mid-Term Report on FCC Form 397 by February 1, 2018.

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 with 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 midpoint 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, February 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 rules, 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 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 February 1, 2017 through January 31, 2018.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before January 31, 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 February 1, 2017 through January 21, 2018 for this year’s report (cutting it off up to ten days prior to January 31, 2017), then next year, the Nonexempt SEU must use a period beginning January 22, 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 rules require 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.

  • Nonexempt SEUs with between five and ten full-time employees, regardless of market size, must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, located in the “smaller markets,” must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, not located in “smaller markets,” must earn at least four Menu Option credits over each two-year segment.

The SEU is deemed to be located in a “smaller market” for these purposes if the communities of license of the stations comprising the SEU are (1) in a county outside of all metropolitan areas, or (2) in a county located in a metropolitan area with a population of less than 250,000 persons.

Because the filing date for license renewal applications varies depending on the state to which a station is licensed, the time period in which Menu Option initiatives must be completed also varies.  Radio and television stations licensed to communities in the states identified above should review the following to determine which current two-year segment applies to them:

  • Nonexempt radio station SEUs licensed to communities in Kansas, Nebraska, and Oklahoma must have earned at least the required minimum number of Menu Option credits during the two year “segment” between February 1, 2017 and January 31, 2019, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Arkansas, Louisiana, Mississippi, New Jersey, and New York must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between February 1, 2016 and January 31, 2018, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Arkansas, Louisiana, Mississippi, New Jersey, and New York must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between February 1, 2017 and January 31, 2019, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Kansas, Nebraska, and Oklahoma must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between February 1, 2016 and January 31, 2018, as well as during the previous two-year “segments” of their license terms.

Deadline for Filing EEO Mid-Term Report (FCC Form 397) for Radio Stations Licensed to Communities in New Jersey and New York and Television Stations Licensed to Communities in Kansas, Nebraska, and Oklahoma.

February 1, 2018 is the mid-point in the license renewal term of radio stations licensed to communities in New Jersey and New York and television stations licensed to communities in Kansas, Nebraska, and Oklahoma.  If a station in one of these respective groups belongs to a radio SEU with 11 or more full-time employees or a television SEU with five or more full-time employees, it must electronically file the Form 397 Report by February 1.  Licensees subject to this reporting requirement must attach copies of the SEU’s two most recent Annual EEO Public File Reports to their FCC Form 397 Report.

  • Note that SEUs that have been the subject of a prior FCC EEO audit are not exempt and must still file FCC Form 397 by the deadline.  Electronic filing of FCC Form 397 is mandatory.  A paper version will not be accepted for filing unless accompanied by an appropriate request for waiver of the electronic filing requirement.

Recommendations

It is critical that every SEU maintain adequate records of its performance under the EEO Rule and that it practice overachieving when it comes to earning the required number of Menu Option credits.  The FCC will not give credit for Menu Option initiatives that are not duly reported in an SEU’s Annual EEO Public File Report or that are not adequately documented.  Accordingly, before an Annual EEO Public File Report is finalized and made public by posting it on a station’s website or placing it in the public inspection file, the draft document, including supporting material, should be reviewed by communications counsel.

Finally, note that the FCC is continuing its program of EEO audits.  These random audits check for compliance with the FCC’s EEO Rule, and are sent to approximately five percent of all broadcast stations each year.  Any station may become the subject of an FCC audit at any time.  For more information on the FCC’s EEO Rule and its requirements, as well as practical advice for compliance, please contact any of the attorneys in the Communications Practice.

A PDF of this article can be found at EEO Public File Report Deadline.

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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 Revokes Licenses After Alleged Failure to Report Felony Drug Conviction
  • Car Dealership Receives Citation for Interference-Creating Outdoor Lighting
  • License Renewal Hearing Ordered for Near-Silent Virginia Stations
  • FCC Commissioner Criticizes Local Colorado News Site Over Pirate Radio Station Article

LA Business Stripped of Licenses for Alleged Misrepresentations About Drug Conviction

In a rare Order of Revocation, the FCC revoked all of a Los Angeles communication equipment provider’s licenses after the licensee failed to respond to an inquiry into whether its manager lied about a 1992 felony drug conviction in dozens of Commission filings.

The Order rescinds the licensee’s eleven Private Land Mobile Radio (“PLMR”) and microwave station licenses and dismisses all of the licensee’s pending modification and license renewal applications.

Section 312(a) of the Communications Act authorizes the FCC to revoke a license “for false statements knowingly made … in the application” or when it finds that conditions “warrant it in refusing to grant a license[.]”  Pursuant to Section 1.17(a)(1) of the FCC’s Rules, no person may “intentionally provide material factual information that is incorrect or intentionally omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading.”  The FCC heavily weighs any misrepresentation or lack of candor when it determines whether a party is fit to become or remain a licensee.

The FCC began looking into the licensee’s fitness in 2015, when a different Los Angeles business alleged that the licensee had knowingly lied on an at least one FCC application when it replied “No” to a question that asked whether any of the licensee’s controlling parties had ever been convicted of a felony.  As it turns out, the manager (who is also the licensee’s sole shareholder) had been convicted of possession for sale of cocaine and sentenced to serve two years in California State Prison over two decades ago.  The FCC would later learn that the licensee had misrepresented the manager’s criminal history in at least 50 separate FCC filings.

In response, the FCC sent the licensee a Letter of Inquiry (“LOI”) seeking information about the manager’s role with the company and any criminal history.  When the licensee did not respond to the LOI, the FCC commenced a proceeding with an Administrative Law Judge (“ALJ”) to determine whether the licensee had engaged in misrepresentation before the Commission, whether it was qualified to remain a licensee, and what the FCC should do with the licensee’s various outstanding applications.  When the licensee failed to respond to the ALJ’s request to file a written appearance, and failed to appear for a status conference, the ALJ ordered a hearing, which the licensee also ignored.

The FCC determined that the company was unqualified to remain a Commission licensee, revoked all of its licenses, and denied with prejudice all of the licensee’s pending applications.

Light’s Out: FCC Issues Citation to Car Dealership That Fails to Address Harmful Interference

The FCC issued a citation to a North Dakota car dealership for its continued use of outdoor lighting that interferes with a wireless service provider’s nearby cell site.

Pursuant to Section 302(a) of the Communications Act, the FCC regulates all radio frequency energy-emitting devices (“RF devices”) that are capable of causing “harmful interference to radio communications.”  Section 15 of the FCC’s Rules regulates intentional and unintentional radiators of RF emissions, ranging from garage door openers to sophisticated computer components.  Section 18 regulates equipment that generates or uses RF energy for industrial, scientific, and medical (“ISM”) purposes.  If ISM equipment causes harmful interference with an authorized radio service, Section 18.111(b) of the Rules requires its operator to take “whatever steps may be necessary to eliminate the interference.”  Similarly, Section 18.115(a) requires the operator to “promptly take appropriate measures to correct the problem.” 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:

Headlines:

  • FCC Proposes $20,000 Fine for Decade-Old EEO Violations
  • FCC Goes After Small North Carolina Radio Station for Absence During Inspection
  • Drone Company Agrees to $180,000 Settlement for Non-Compliant A/V Equipment

“Hire” Education: FCC Pursues South Carolina Radio Stations for EEO Violations

The FCC proposed a $20,000 fine against the operator of five radio stations near Myrtle Beach for allegedly failing to observe the Commission’s Equal Employment Opportunity (“EEO”) recruitment rules from 2008 through 2010.

The stated goal of the FCC’s EEO Rule is to promote equal access to employment opportunities in the communications industry while deterring discrimination in the hiring process.  Pursuant to the EEO Rule, the FCC requires broadcast stations to follow certain procedures before filling each full-time vacancy.  Among other things, the EEO Rule requires stations to use outside recruitment sources to publicize vacancies, notify interested third party referral sources of vacancies, and generate and retain in-depth recruitment reports.

This particular inquiry began in 2011 when the FCC randomly selected the stations’ employment unit for an EEO audit.  The audit revealed several alleged violations surrounding eleven vacancies over the preceding two-year period.  The FCC found that the licensee had either used no recruitment sources or only word-of-mouth when it recruited for six of the eleven vacancies.  Further, the licensee allegedly failed to contact a third party that had previously requested notification of full-time vacancies.

In addition, the FCC asserted that the licensee failed to keep adequate records of the number of interviewees or the referral source of most of the interviewees during that period.  As a result, this information was missing from both the licensee’s Annual EEO Public File Reports and its public inspection file.  The FCC concluded that this meant the licensee could not adequately “analyze its recruitment program … to ensure that it is effective…” as Section 73.2080(c)(3) of the FCC’s Rules requires.

As a result, the FCC issued a Notice of Apparent Liability (“NAL”) proposing to fine the stations.  While Section 503(b)(1)(B) of the Communications Act authorizes the FCC to penalize any person who violates the Act or the FCC’s Rules, neither the FCC’s Rules nor its forfeiture guidelines establish a base fine amount for specific EEO violations.  Instead, the FCC characterized the asserted violations as a “failure to maintain required records,” for which the forfeiture guidelines recommend a base fine of $1,000.  The FCC applied this fine to each of the six alleged violations of its recruitment rule and proposed an additional $2,000 fine for each of the other claimed EEO violations.  The FCC then added a $4,000 upward adjustment based on the licensee’s history of similar EEO violations at other owned stations, resulting in a total proposed fine of $20,000.

The NAL also proposed a reporting requirement under which the stations would need to report their recruitment and EEO activities directly to the FCC’s Media Bureau for each of the next three years.

Of particular interest to stations assessing their own EEO compliance, the licensee’s 2008-09 and 2009-10 recruitment reports indicated that the stations had lost much of their recruitment data to “unauthorized removal.” Specifically, the licensee subsequently reported that some of the records disappeared following the dismissal of the stations’ local business manager.  That explanation did not satisfy the FCC, which noted that the licensee’s loss of records “does not excuse it from having violated [the FCC’s] rules.”

This action is another reminder of the FCC’s strict enforcement of its EEO Rule.  Stations needing a refresher on these requirements should check out our EEO Advisory for more information, and our 2018 Broadcasters’ Calendar for important EEO-related deadlines coming up in the next year.

Out to Lunch: AM Broadcaster Notified of Station Inspection Violation

The Commission presented a Notice of Violation (“NOV”) to a small North Carolina broadcaster for failing to staff its station during lunch hour one day this past March.  In the same action, the FCC observed that the station was also transmitting from an antenna for which it was not licensed. Continue reading →

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Each year around this time, Pillsbury’s Communications Practice releases its Broadcasters’ Calendar for the upcoming year.  It may not be the perfect stocking stuffer, but broadcasters that don’t read it closely are much more likely to end up on the FCC’s Naughty List next year.  When I’m on the road visiting stations or speaking at broadcaster conventions, it’s fairly common that someone walks up to me and tells me how much they appreciate the Broadcasters’ Calendar.  Rarely do calendars without pictures attract such attention.

I cannot take credit for the calendar, however.  The current communications lawyers at Pillsbury are merely the stewards of this publication.  When I joined the firm 30 years ago, the Broadcasters’ Calendar was already a well-established annual publication.  I honestly don’t know when the first Broadcasters’ Calendar was published, but I suspect there are editions floating around out there announcing deadlines relating to the launch of FM radio and color television.

And if imitation is the sincerest form of flattery, the Broadcasters’ Calendar is blushing.  Clients have sent me bootlegs in which someone has lifted the content wholesale and just put it on their own letterhead.  For a number of years I entertained myself by incorporating unusual words into the calendar just to see who was copying it outright rather than merely happening to describe a particular deadline the same way.

But it’s not hard to understand why the Pillsbury Broadcasters’ Calendar has developed such a following.  It outlines numerous regulatory and other deadlines broadcasters face in the coming year, along with brief descriptions of what complying with a particular deadline requires.

Despite the advent of a deregulatory FCC, the 2018 edition of the Broadcasters’ Calendar contains a fairly hefty number of entries, including dates and deadlines for TV’s upcoming spectrum repack and the conclusion of radio’s migration to an online public inspection file.  Fortunately, the 2018 edition also notes some filing deadlines that the FCC is actively considering eliminating.  Here’s hoping that the 2019 edition will be significantly thinner.

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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 Fires Broadside at Pirate Stronghold: Nearly Half of November Pirate Radio Notices Go to NY/NJ/CT Area
  • Sorry About That: Wireless Broadband Manufacturer Pays $95,000 to End Investigation of Failure to Prevent Harmful Manipulation of Its Products
  • Not Too Bright: FCC Proposes $25,000 Fine for Marketing Unlabeled Fluorescent Lights

No Parlay for Pirates: FCC Turns Up the Heat on Dozens of Alleged Pirate Radio Operators

In its most recent salvo against pirate radio operators, FCC field agents issued dozens of Notices of Violation (“NOV”) or Notices of Unauthorized Operation (“NOUO”) against alleged operators of unlicensed radio stations, particularly in New York, New Jersey, and Connecticut.

Under Section 301 of the Communications Act, transmission of radio signals without FCC authorization is prohibited.  Unlicensed radio operators risk seizure of their equipment, heavy fines, and criminal sanctions.

On just two consecutive days in October, agents from the New York field office investigated no fewer than eight pirate radio operations in New York and New Jersey, and the past month saw half a dozen NOUOs issued for Connecticut pirate radio operations.

In a similar show of force to the south, the FCC warned a dozen Florida residents of potential violations. The FCC also handed out a Notice of Apparent Liability for Forfeiture (“NAL”) to an alleged California pirate, proposing a $15,000 fine.

For many years, broadcasters complained bitterly about both the interference from multiplying pirate stations and the FCC’s glacial response to these illegal operations. Too often, the FCC’s response was to shrug its bureaucratic shoulders and note that it had limited resources. Broadcasters thus became even more disheartened when the FCC greatly reduced its field offices and staffing in 2016, making it harder for FCC personnel to quickly reach and investigate pirate operations, even if given authority to do so.

Fortunately, Commissioner O’Rielly took up the cause early in his tenure at the FCC, and under Chairman Pai, the FCC has made prosecution of unauthorized radio operations a priority. While broadcasters are certainly appreciative of the change, the sudden uptick in enforcement actions by a reduced number of field offices and agents has made clear that it was never a matter of resources, but of regulatory will. If you want to hunt pirates, you have to leave port.

Consent Decree Ends FCC Investigation Into Company’s Modifiable Wireless Broadband Devices

The FCC entered into a Consent Decree with a wireless device manufacturer after investigating whether the company violated various rules pertaining to the authorization and marketing of devices that emit radio frequency (“RF”) radiation.

In particular, the FCC looked into the manufacturer’s U-NII (Unlicensed National Information Infrastructure) devices. These devices are commonly used for Wi-Fi and other broadband access technology. However, U-NII devices that operate in the 5 GHz radio band risk interfering with certain weather radar systems. As a result, the FCC regulates how manufacturers make these devices available to the public. Continue reading →

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

December 1, 2017 is the deadline for broadcast stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont 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 their EEO Mid-term Report on FCC Form 397 by December 1, 2017.

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 with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint 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, December 1, 2017 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 rules, 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 part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file. 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:

Headlines:

  • Law and Disorder: FCC Fines New York City Man $404,166 for Interfering with NYPD Radio Frequencies
  • A Friendly Port: In Novel FCC Action, Property Owners Face a $144,344 Fine for Housing a Pirate’s Radio Operation
  • Continuous Unidentified Transmissions on a Shared Channel Leads to a $25,000 Fine

FCC Slaps NYC Individual with a $404,166 Fine for Interfering with NYPD Radio Frequencies

After a unique investigation involving a television host’s Twitter account, a New York Police Department investigation into criminal impersonation of a police officer, and a bomb threat to Times Square, the FCC fined a New York City man for operating on NYPD radio frequencies without authorization, malicious interference with officers’ communications, and transmission of false distress calls.

Section 301 of the Communications Act prohibits the unauthorized use of any device for radio transmission of energy, communications, or signals. Section 333 of the Act prohibits willful or malicious interference with any stations licensed, authorized, or operated by the United States Government.  The FCC has interpreted this to include repeated disruptions to public safety communications apparatus.  In addition, Section 325(a) prohibits the utterance or transmission of “any false or fraudulent signal of distress, or communication relating thereto.”

In August, 2016, the Enforcement Bureau responded to a TV host’s Twitter message that stated “A man hacked into the NYPD’s secure radio network to yodel repeatedly . . . .” Several weeks later, the NYPD arrested the individual, who admitted under interrogation to making the transmissions.  The transmissions, which went to several NYPD precincts over the course of four months, included a bomb threat to a Times Square pharmacy, threats to harm police officers, music, and profanity.

Several months after the initial arrest, the FCC issued a Notice of Apparent Liability proposing the statutory maximum of $19,246 for each of the 21 violations it found. The individual was found to have violated Section 301 and Section 333 for each of the nine calls he made, and the FCC found three violations of Section 325(a) (one for each of the false threats and distress calls).

Following the individual’s failure to respond to the Notice, the FCC issued a Forfeiture Order to make the proposed $404,166 fine a reality. The FCC stated in the Order that the man’s actions showed deliberate disregard for “the safety of NYPD officers and the public that they are called to serve and protect.”

FCC Proposes a $144,344 Fine Against Pirate Radio Operator and Property Owners

Taking a new approach, the FCC proposed a fine against not only the operator of a Florida-based unlicensed radio station, but against the owners of the property housing the station.

Section 301 of the Communications Act states that “No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with this Act and with a license [granted by the FCC].” In past pirate radio actions, the FCC tended to invoke Section 301 against only the pirate radio operator.  In this case, the FCC broadened the definition of a party that “use[s] or operate[s]” a station to include those who knowingly have control and access to the transmission equipment and pay for the station’s utility costs. Continue reading →