Articles Posted in Radio

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March 2015
This Broadcast Station Advisory is directed to radio and television stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

April 1, 2015 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.

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.
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March 2015
The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2015, reflecting information for the months of January, February and March 2015.

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.
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February 2015

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 Issues $3.36 Million Fine to Company and Its CEO for Selling Toll Free Numbers
  • Antenna Fencing and Public Inspection File Violations Result in $17,000 Fine
  • FCC Reiterates That “Willful Violation” Does Not Require “Intent to Violate the Law”

Hold the Phone: FCC Finds Company and CEO Jointly and Severally Liable for Brokering Toll Free Numbers

The FCC handed down a $3,360,000 fine to a custom connectivity solutions company (the “Company”) and its CEO for violations of the FCC’s rules regarding toll free number administration. Section 251(e)(1) of the Communications Act mandates that telephone numbers, including toll free numbers, be made “available on an equitable basis.” As a general rule, toll free numbers, including “vanity” numbers (e.g., 1-800-BUY-THIS), cannot be transferred, and must be returned to the numbering pool so that they can be made available to others interested in applying for them when the current holder no longer needs them. Section 52.107 of the FCC’s Rules specifically prohibits brokering, which is “the selling of a toll free number by a private entity for a fee.”

In 2007, the Enforcement Bureau issued a citation to the Company and CEO for warehousing, hoarding, and brokering toll free numbers. The Bureau warned that if the Company or CEO subsequently violated the Act or Rules in any manner described in the 2007 citation, the FCC would impose monetary forfeitures. A few years later, the Bureau received a complaint alleging that in June and July of 2011, the Company and CEO brokered 15 toll free numbers to a pharmaceutical company for fees ranging from $10,000 to $17,000 per number. In 2013, the FCC found the Company and CEO jointly and severally liable for those violations and issued a $240,000 fine.

Despite the 2007 citation and 2013 fine, the Bureau found evidence that the CEO continued to broker toll free numbers. In early 2013, the Bureau received tips that the CEO sold several toll free numbers to a law firm for substantial fees. An investigation revealed that the CEO, who was the law firm’s main point of contact with the Company, had sold 32 toll free numbers to the firm for fees ranging from $375 to $10,000 per number. On other occasions, the CEO solicited the firm to buy 178 toll free numbers for fees ranging from $575 to $60,000 per number. This, along with his correspondence with the firm–including requests that payments be made to his or his wife’s personal bank accounts–were cited in support of a 2014 Notice of Apparent Liability (“NAL”) finding that the CEO, in his personal capacity and on behalf of the Company, had “yet again, apparently violated the prohibition against brokering.”

As neither the Company nor the CEO timely filed a response to the 2014 NAL, the FCC affirmed the proposed fines: $16,000 for each of the 32 toll free numbers that were sold, combined with a penalty of $16,000 for each of the 178 toll free numbers that the Company and CEO offered to sell, resulting in a total fine of $3.36 million.

FCC Rejects AM Licensee’s “Not My Tower, Not My Problem” Defense

The FCC imposed a penalty of $17,000 against a Michigan radio licensee for failing to make available its issues/program lists in the station’s public file and for failing to enclose the station’s antenna structure within an effective locked fence.
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It is an unusual occasion indeed when the FCC offers to revise its rules to provide regulatory relief to both television and radio stations. Yet that is precisely what the FCC proposed in a Notice of Proposed Rulemaking (NPRM) to update its station-conducted contest rule to allow broadcasters to post contest rules online rather than broadcast them. As the proposal now stands, stations would no longer need to broadcast the contest rules if they instead announce the full website address where the rules can be found each time they discuss the contest on-air.

The FCC’s current contest rule was adopted back in 1976 when broadcasters could only provide contest information via printed copies of the rules available at the station or by announcing the rules over the air. The FCC’s existing rule states that broadcasters sponsoring a contest must “fully and accurately disclose the material terms of the contest” on-air, and subsequently conduct the contest substantially as announced. (For a refresher on the contest rule, you can take a look at the Pillsbury Advisory drafted by Scott Flick covering a number of on-air rules, including the contest rule, here). A note to the rule explains that “[t]he material terms should be disclosed periodically by announcements broadcast on the station conducting the contest, but need not be enumerated each time an announcement promoting the contest is broadcast. Disclosure of material terms in a reasonable number of announcements is sufficient.” The challenge for broadcasters has been airing the material terms of each station contest on-air a “reasonable number” of times without driving audiences away.

In the NPRM, the FCC acknowledged that things have changed since 1976, and that the Internet is now “an effective tool for distributing information to broadcast audiences.” More than three years ago, Entercom Communications filed a Petition for Rulemaking advancing the notion, among others, that the FCC should let broadcasters use their websites to post contest rules instead of having to announce them over the air. Not surprisingly, the Entercom proposal received a great deal of support and it remains unclear why the FCC waited so long to act on it.

The proposed rule would allow stations to satisfy their disclosure obligations by posting contest terms on the station’s Internet website, the licensee’s website, or if neither the individual station nor the licensee has its own website, any Internet website that is publicly accessible. Material contest terms disclosed online would have to conform with any mentioned on-air, and any changes to the material terms during the course of the contest would have to be fully disclosed on-air and in the rules as posted on the website.

Comments on the FCC’s proposals were due this week and it seems most parties are on the same page as the the FCC; namely, that it is the 21st century and the contest rule should be modernized to keep up with the times. In fact, Entercom in its comments asks the Commission to permit stations to announce contest website information an average of three times per day during a contest as an effective way to announce contest information to to public.

While this is generally good news for broadcasters, there is a catch or two. Under the new rule, stations that choose to disclose their contest rules online would be required to announce on-air that the rules are accessible online, and would also be required to announce the “complete, direct website address where the terms are posted … each time the station mentions or advertises the contest.” For stations that promote (or even mention) their contests frequently, this could become a pain really quickly, for both the station and their audience. Listening to a complete and lengthy URL “each time” anything regarding the contest is uttered on the air will grow old fast. There is a reason you rarely hear an ad that contains more than just the advertiser’s domain name, as opposed to the full address for a particular link from that domain. Advertisers know that people will remember a home page domain name much better than a full URL address, and that the full URL address will only cause the audience to tune out, both literally and figuratively.

In light of these concerns, Pillsbury submitted comments this week on behalf of all fifty State Broadcasters Associations urging the Commission to simplify matters by exempting passing on-air references to a contest from any requirement to announce the contest rules’ web address. Additionally, rather than require the broadcast of a “complete and direct website address,” which is typically a lengthy and easily forgettable string of letters and punctuation, the State Broadcasters Associations’ comments urged that the rule only require stations to announce the address of the website’s home page, where a link to the contest rules can be found. Those on the Internet understand quite well how to navigate a website, and will have little difficulty locating contest rules, either through a direct link or by using a site’s search function.

As Lauren Lynch Flick, the head of Pillsbury’s Contests & Sweepstakes practice, noted in a November 2014 post, station contests also must abide by applicable state law requirements. In that vein, the State Broadcasters Associations reminded the Commission that any FCC micro-management of the manner or format of a station’s online contest rule disclosures could subject stations to dueling federal and state requirements with no countervailing benefit. As pointed out in her post, an improperly conducted contest can subject a station to far greater liability under consumer protection laws and state and federal gambling laws than the typical $4,000 fine issued by the FCC for a contest violation. As a result, broadcasters need no further incentives to make sure their contests are fairly run and their rules fully disclosed to potential entrants.

In short, the FCC has an opportunity to ease the burden on both broadcasters and their audiences by allowing stations the flexibility to elect to make their contest rule disclosures online. The FCC shouldn’t diminish the benefit to be gained by reflexively imposing unnecessary restrictions on that flexibility.

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January 2015

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:

  • Individual fined $25,000 for Unauthorized “Chanting and Heavy Breathing” on Public Safety Station
  • Failure to Timely Request STA Results in $5,000 Fine
  • FCC Imposes $11,500 Fine for Intentional Interference and Station ID Violation

FCC Fired up by a New Yorker’s Deliberate Disregard for Public Safety

Earlier this month, the FCC imposed a $25,000 fine against a New York man for operating a radio transmitter without a license and interfering with the licensed radio communications system of the local fire department. Section 301 of the Communications Act provides that “[n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with [the Act] and with a license.” Section 333 of the Act prohibits a person from willfully or maliciously interfering with any radio communications of any station licensed or authorized under the Act or operated by the United States government.

On October 31, 2013, the local fire department complained to the FCC that unauthorized transmissions of chanting and heavy breathing were interfering with its radio communications system. When the transmissions occurred during fire emergencies, the firefighters were forced to switch to an alternate frequency to communicate with each other and with the dispatchers. FCC agents traced the source of the interfering transmissions to an individual’s residence–a location for which no authorization had been issued to operate a Private Land Mobile Station. County police officers interviewed the individual and confirmed that one of his portable radios transmitted with the unique identifying code that the fire department observed when the unauthorized transmissions interfered with its communications. The officers subsequently arrested the individual for obstruction of governmental administration.

The FCC found the individual’s conduct was particularly egregious because his unlicensed operations hampered firefighting operations and demonstrated a deliberate disregard for public safety and the Commission’s authority and rules. Thus, while the FCC’s base fines are $10,000 for operation without authorization and $7,000 for interference, the FCC found that an upward adjustment of $8,000 was warranted, leading to the $25,000 fine.
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In what has become an annual holiday tradition going back so far none of us can remember when it started (Pillsbury predates the FCC by 66 years), we released the 2015 Broadcasters’ Calendar last week.

While starting a new year is usually jarring, particularly breaking yourself of the habit of dating everything “2014”, this new year seems particularly so, as many took last Friday off, making today, January 5th, their first day back at work. For broadcasters, whose fourth quarter regulatory reports need to be in their public inspection files by January 10th, that doesn’t leave much time to complete the tasks at hand.

To assist in meeting that deadline, we also released last week our fourth quarter Advisories regarding the FCC-mandated Quarterly Issues/Programs List (for radio and TV) and the Form 398 Quarterly Children’s Programming Report (for TV only). Both have not-so-hidden Easter Eggs for Class A TV stations needing to meet their obligation to demonstrate continuing compliance with their Class A obligations, effectively giving you three advisories for the price of two (the price being more strain on your “now a year older” eyes)!

And all that only takes you through January 10th, so you can imagine how many more thrilling regulatory adventures are to be found in the pages of the 2015 Broadcasters’ Calendar. Whether it’s SoundExchange royalty filings, the upcoming Delaware and Pennsylvania TV license renewal public notices, or any of a variety of FCC EEO reports coming due this year, broadcasters can find the details in the 2015 Broadcasters’ Calendar. For those clamoring for an audiobook edition, we’re holding out for James Earl Jones. We’ll keep you posted on that.

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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:

  • Sponsorship Identification Violation Yields $115,000 Civil Penalty
  • $13,000 Increase in Fine Upheld for Deliberate and Continued Operation at Unauthorized Location
  • FCC Reduces $14,000 Fine for EAS and Power Violations Due to Inability to Pay

FCC Adopts Consent Decree Requiring Licensee to Pay $115,000 Civil Penalty

Earlier this month, the FCC’s Enforcement Bureau entered into a Consent Decree with a Nevada TV station terminating an investigation into violations of the FCC’s sponsorship identification rule.

The FCC’s sponsorship identification rule requires broadcast stations to identify the sponsor of content aired whenever any “money, service, or other valuable consideration” is paid or promised to the station for the broadcast. The FCC has explained that the rule is rooted in the idea that the broadcast audience is “entitled to know who seeks to persuade them.”

In 2009, the FCC received a complaint alleging that an advertising agency in Las Vegas offered to buy air time for commercials if broadcast stations aired news-like programming about automobile liquidation sales events at dealerships. The FCC investigated the complaint and found that the licensee’s TV station accepted payment to air “Special Reports” about the liquidation sales. The “Special Reports” resembled news reports, and featured a station employee playing the role of a television reporter questioning representatives of the dealership about their ongoing sales event.

The licensee acknowledged the applicability of the sponsorship identification rule to the “Special Reports,” but asserted that the context made clear their nature as paid advertisements despite the absence of an explicit announcement. The FCC disagreed, contending that the licensee failed to air required sponsorship announcements for twenty-seven “Special Reports” broadcast by the station from May through August of 2009.

As part of the Consent Decree, the licensee admitted to violating the FCC’s sponsorship identification rule and agreed to (i) pay a civil penalty of $115,000; (ii) develop and implement a Compliance Plan to prevent future violations; and (iii) file Compliance Reports with the FCC annually for the next three years.

FCC Finds That Corrective Actions and Staffing Problems Do Not Merit Reduction of Fine

The FCC imposed a $25,000 fine against a Colorado radio licensee for operating three studio-transmitter links (“STL”) from a location not authorized by their respective FCC licenses.

Section 301 of the Communications Act prohibits the use or operation of any apparatus for the transmission of communications signals by radio, except in accordance with the Act and with a license from the FCC. In addition, Section 1.903(a) of the FCC’s Rules requires that stations in the Wireless Radio Services be operated in accordance with the rules applicable to their particular service, and only with a valid FCC authorization.

In August 2012, an agent from the Enforcement Bureau’s Denver Office inspected the STL facilities and found they were operating from a location approximately 0.6 miles from their authorized location. The agent concluded–and the licensee did not dispute– that the STL facilities had been operating at the unauthorized location for five years. A July 2013 follow-up inspection found that the STL facilities continued to operate from the unauthorized location.
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Yesterday, the FCC released a Notice of Proposed Rulemaking proposing that broadcast radio licensees, satellite TV/radio licensees, and cable system operators move the bulk of their public inspection files online. The FCC previously adopted an online public file requirement for broadcast TV, and sees this as the logical next step.

The FCC noted that adoption of the online broadcast TV public file “represent[ed] a significant achievement in the Commission’s ongoing effort to modernize disclosure procedures to improve access to public file material.” As such, the FCC is proposing the same general approach for transitioning broadcast radio, satellite TV/radio, and cable system operators to an online public file.

Specifically, the FCC proposes to:

  • require entities to upload only documents that are not already on file with the FCC or for which the FCC does not maintain its own database; and
  • exempt existing political file material from the online file requirement and instead require that political file documents be uploaded only on a going-forward basis.

While the FCC indicates it is not generally interested in modifying the content of public inspection files in this proceeding, it does propose some new or modified public inspection file requirements, including:

  • requiring broadcast radio, satellite TV/radio, and cable system operators to post online the location and contact information for their local public file;
  • requiring cable system operators to provide information about the geographic areas they serve; and
  • clarifying the documents required to be kept in the cable public file.

To address online file capacity and technical concerns related to the significant increase in the number of online file users that the proposed expansion will bring, the FCC seeks comment on:

  • whether it should require that only certain components of the public file be moved online;
  • any steps the FCC might take to improve the organization of the online file and facilitate the uploading and downloading of material;
  • the amount of time the FCC should provide entities to upload documents to the online file;
  • whether the FCC should adopt staggered filing dates by service (broadcast radio, satellite radio, satellite TV, and cable);
  • whether to otherwise stagger or alter existing filing deadlines; and
  • any other ways the FCC can improve performance of the online public file database.

With respect to broadcast radio, the proposed online public file rule would require stations to upload all documents required to be in the public file that are not also filed in CDBS (or LMS) or otherwise available at the FCC’s website. Just as with the online broadcast TV file, the FCC proposes to exempt letters and emails from the public from being uploaded due to privacy concerns, instead requiring that those documents continue to be maintained in the “paper” local public file.

The FCC “recognize[s] that some radio stations may face financial or other obstacles that could make the transition to an online public file more difficult.” In response, the FCC proposes to:

  • begin the transition to an online public file with commercial stations in the top 50 markets that have five or more full-time employees;
  • initially exempt, for two years, non-commercial educational (NCE) radio stations, as well as stations with fewer than five full-time employees from all online public file requirements; and
  • permit exempted stations to voluntarily transition to an online public file early.

The Commission also is seeking comment on:

  • whether it is appropriate to temporarily exempt other categories of radio stations from all online public file requirements, or at least from an online political file requirement;
  • how the FCC should define the category of stations eligible for a temporary exemption;
  • whether the FCC should permanently exempt certain radio stations, such as NCEs and stations with fewer than five full-time employees, from all online public file requirements; and
  • whether the FCC should exclude NCE radio station donor lists from the online public file, thereby treating them differently than NCE TV station donor lists, which must currently be uploaded to the TV online file.

The FCC proposes to treat satellite TV/radio licensees and cable system operators in essentially the same manner as broadcast radio by requiring them to upload only material that is not already on file with the Commission. Because the only document these entities file with the FCC that must be retained in the public inspection file is the EEO program annual report (which the FCC will upload to the file), almost all material required to be kept by these entities in the online file will need to be uploaded.

Comments will be due 30 days after publication of the NPRM in the Federal Register and reply comments will be due 30 days thereafter.

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December 2014
The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by January 10, 2015, reflecting information for the months of October, November and December 2014.

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.
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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:

  • $7,000 Fine for Late Renewal Application and Unauthorized Operation
  • Missing Wood Planks Around Tower Lead to $5,600 Fine
  • $39,000 Fine Upheld for Hearing Aid Compatibility Violations

Reduced Fine Imposed for Unauthorized Operation and Tardy Renewal Application

Earlier this month, the Audio Division of the FCC’s Media Bureau (the “Bureau”) issued a Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture (“NAL”) against a Nevada licensee for failing to timely file its license renewal application and for continuing to operate its FM station after its license had expired. The Bureau imposed a fine for the violations and considered the licensee’s renewal application at the same time.

Section 301 of the Communications Act provides that “[n]o person shall use or operate any apparatus for the transmission of energy of communications or signals by radio . . . except under and in accordance with this Act and with a license in that behalf granted under the provisions of the Act.” Section 73.3539(a) of the FCC’s Rules requires that broadcast licensees file applications to renew their licenses “not later than the first day of the fourth full calendar month prior to the expiration date of the license sought to be renewed.”

In this case, the licensee’s license expired on October 1, 2013, which meant that the licensee was required to file its license renewal application by June 1, 2013. However, the licensee did not file its renewal application until October 18, 2013, almost three weeks after its license expired, even though the Bureau had attempted to contact the licensee in June of 2013 about the impending expiration. In addition to its license renewal application, the licensee also requested Special Temporary Authority on October 18, 2013 to continue operating while its license renewal application was processed.
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