Articles Posted in Radio

Published on:

By

February 2014

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 Limits License Renewal to Two Years and Assesses $4,000 Fine
  • $24,000 Consent Decree for Incomplete Public Inspection File
  • Hotels Cited for Exceeding Signal Leakage Limits in Aeronautical Bands

Station Assessed Fine for Public File Violations and Granted Short-Term License Renewal
In reviewing the license renewal application for a Meridian, Texas radio station, the FCC’s Media Bureau proposed a $4,000 fine for public inspection file violations. It also granted the station’s license renewal application, but only for a period of two years (rather than the normal eight), based upon the station’s extended periods of silence during the prior license term.

Section 73.3526 of the FCC’s Rules requires licensees to maintain information about station operations in the station’s public inspection file so the public can obtain “timely information about the station at regular intervals.” In its license renewal application, the station indicated that it could not locate a number of its quarterly issues-programs lists. The base forfeiture amount for public inspection file violations is $10,000, but the FCC has authority to adjust that amount up or down based on a licensee’s circumstances. Here, the FCC noted that “the violations were extensive, occurring over a period of nearly two years and involving at least 6 issues/programs lists.” Despite this, the FCC ultimately imposed a forfeiture amount of only $4,000 since the violations were not “evidence of a pattern of abuse.”

The station was also dark for lengthy periods during the prior license term. Section 312(g) of the Communications Act prohibits long periods of silence by licensed stations because licensees have an obligation to provide service to the public by broadcasting on their allocated spectrum. When the FCC reviews a station’s renewal application, it considers whether the licensee has adequately served its community of license. Section 309(k) of the Communications Act provides that the renewal application should be granted if “(1) the station has served the public interest, convenience and necessity; (2) there have been no serious violations of the Act or the Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse.” In this case, the FCC pointed out that the licensee had two periods of silence, each lasting nearly a year, and that the station had been dark for almost half of the license term. Since the licensee had failed to provide “public service programming such as news, public affairs, weather information, and Emergency Alert System notifications” during these long periods of inactivity, the FCC determined that granting a renewal of only two years would be the most effective sanction because it would incentivize the licensee to maintain its broadcast operations and not go silent in the future.

License Agrees to Pay $24,000 Under Terms of Consent Decree for Missing Public File Documents
The FCC has entered into a consent decree with an Atlanta LPTV licensee after conducting a lengthy investigation. Almost two years ago, in March of 2012, the FCC sent a letter to the licensee asking for specific information to determine the station’s eligibility for Class A television status. The requested information included the location of the main studio, a description of production equipment, names of employees, the location of the public inspection file, a copy of the quarterly issues/programs lists, and a copy of the public inspection file documentation. In its response, submitted in June of 2012, the licensee informed the FCC that the station had been vandalized and provided police reports and other documentation to account for its failure to produce a public inspection file. In another letter dated almost one year after the licensee’s explanatory letter, the FCC asked for further clarification from the licensee regarding the location of the station’s public inspection file and why the police report did not mention vandalism of the public inspection file. The licensee replied one month later in July of 2013 and provided another police report to explain the theft of equipment.

Continue reading →

Published on:

By

It’s been three years since I first wrote about marijuana advertising here at CommLawCenter. Despite a head-spinning number of developments since then, including the legalization of recreational marijuana in Washington and Colorado, the answer to the question of whether broadcast stations can accept marijuana advertising is no clearer today than it was then. Since all forms of marijuana use are prohibited by the federal government, and broadcasters rely on federal licenses to operate, millions of dollars of ad revenue hang in the balance.

While steadfastly maintaining that marijuana is an illegal and dangerous drug, the federal government’s enthusiasm for prosecuting marijuana-related activities that are legal under state law has waxed and waned over the years. Call it the federal freeze/thaw cycle, because the only certainty so far has been that every thaw is inevitably followed by a federal freeze.

The last thaw was in 2009, when the Department of Justice issued a memorandum indicating it was not particularly interested in pursuing medical marijuana sales that complied with state law. A number of broadcasters took this to mean that the federal government would be okay with advertising medical marijuana, and started accepting the ads. In the dark early days of the recession, marijuana ad sales kept afloat many stations that were otherwise starving for ad revenue.

You can track what happened afterward in posts here at CommLawCenter. In May 2011, I wrote about the DOJ sending threatening letters to states that were then considering enacting medical marijuana laws. Those letters went so far as to threaten state employees with civil and criminal prosecution if they participated in implementing that state’s medical marijuana law. At that point, most broadcasters that had been taking the ads stopped, waiting for the federal government, and perhaps the FCC itself, to provide clarification as to whether accepting marijuana ads threatened broadcast license renewals (or worse).

In the fall of 2011, I noted that the last bank in Colorado openly servicing medical marijuana businesses in that state closed those accounts, deciding that it wasn’t worth the risk. That post also noted that the DOJ had sent letters to the landlords of marijuana dispensaries threatening prosecution, including the threat to confiscate buildings and the rent received from the dispensaries. A week later, a U.S. Attorney in California raised the specter of prosecuting radio and TV stations for airing medical marijuana ads. While nothing further came from that threat, it certainly rattled media that had accepted marijuana advertising. The federal government had once again put marijuana advertising into the deep freeze.

I was reminded of this cycle last week when media stories declared another federal thaw regarding the sale of marijuana. This past Friday, FinCEN (Financial Crimes Enforcement Network), a part of the Department of Treasury, announced a set of guidelines for banks “that clarifies customer due diligence expectations and reporting requirements for financial institutions seeking to provide services to marijuana businesses. The guidance provides that financial institutions can provide services to marijuana-related businesses in a manner consistent with their obligations to know their customers and to report possible criminal activity.”

The response was predictable. Advocates of marijuana legalization hailed the action as proof that the federal government had come around on the issue. Arguably adding support to this view was a memo dated the same day from the Deputy Attorney General of the U.S. to all U.S. Attorneys appearing to accept state-approved marijuana sales, and prioritizing other types of marijuana offenses for prosecution. Specifically, U.S. Attorneys were advised to focus their resources on:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

Understandably, federally-chartered banks were less enthusiastic about the announcement, noting that federal law still bans the sale of marijuana, and that there was little reason for a bank to stick its neck out to service such accounts until that changes. Of course, it also didn’t help that the DOJ memo was titled “Guidance Regarding Marijuana Related Financial Crimes” and that it was chock full of caveats like:

Continue reading →

Published on:

By

January 2014

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 Admonishes Television Stations for “Host-Selling” to Children
  • $7,500 Fine Imposed for Documents Missing From Public Inspection File
  • $17,000 Fine for Unauthorized Operation of a Radio Transmitter

Admonishment Issued for Program Characters Promoting a Product

The FCC continues to enforce its restrictions on commercial content during children’s shows. Section 73.670 of the FCC’s Rules restricts the amount of commercial matter that can be aired during children’s programming to 10.5 minutes per clock hour on weekends and 12 minutes per clock hour on weekdays. The Commission most often examines compliance with these limitations when acting on a television station’s license renewal application.

Earlier this month, the FCC issued identical admonishments to two commonly-owned Wisconsin TV stations for failing to comply with the limits on commercial matter in children’s programming. The stations disclosed in their license renewal applications that they had aired a commercial for cereal during a children’s program seven years ago, and the commercial contained “glimpses of characters from the program on the screen.” The licensee noted that the appearance was “small, fleeting, and confined to a small area of the picture,” and that the software used by the CW Network to prevent such appearances failed to catch this particular incident. Where a program character appears during a commercial in that program, the FCC’s approach is to treat the entire program as a commercial, which by definition exceeds the FCC’s commercial time limits in children’s programming.

The licensee argued that the images did not appear “during the commercial part of the spot but during a portion of the material promoting a contest.” The FCC disagreed, but only issued an admonishment to each of the stations because the violation was an isolated incident. Nevertheless, the FCC warned that it would impose more serious sanctions if the licensee committed any similar violations in the future.

License Assessed $7,500 Fine for Failing to Provide Quarterly Issues/Programs Lists for Seventeen Quarters

Earlier this month, the FCC imposed a $7,500 fine on a Pennsylvania station for willfully and repeatedly violating the Commission’s rule regarding the public inspection file. Under Section 73.3526(e)(12) of the FCC’s Rules, a licensee must create a list of significant issues affecting its viewing area in the past quarter and the programs it aired during that quarter to address those issues. The list must then be placed in the station’s public inspection file by the tenth day of the month following that quarter.

In April of 2010, an agent from the Enforcement Bureau’s Philadelphia office found during an inspection that the licensee was missing fifteen quarters of issues/programs lists. The licensee explained in response to a subsequent Letter of Inquiry that some of the lists had been stolen or removed from the public inspection file and promised to replace the missing lists. However, in February of 2011, a follow-up investigation revealed that the public inspection file contained only one issues/programs list, which meant that there was a total of seventeen quarters of missing lists. At the time of the follow-up, the licensee said that part of the roof of a neighboring building had collapsed and destroyed the records.

In June of 2011, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) for $15,000. In response, the licensee argued that the fine should be reduced because the missing records were outside his control and that he did not have the ability to pay such a fine. In January of 2014, the FCC determined that a reduction of the fine was warranted based on the licensee’s inability to pay, but noted that the failure to maintain issues/programs lists was not outside of the licensee’s control and that the licensee’s explanations as to the cause of the missing documents conflicted with each other. Although the FCC reduced the fine from $15,000 to $7,500, the Enforcement Bureau cautioned that it has previously rejected inability to pay claims for repeated or egregious violations and that in the event this licensee commits future violations, it may result in significantly higher fines that may not be reduced merely because of the licensee’s inability to pay.

Licensee Fined for Interfering with United States Coast Guard Operations

Last month, the FCC issued an NAL against a California licensee for operating a radio transmitter on a frequency not authorized by its license and failing to take precautionary measures to avoid causing interference. The base fine for operating on an unauthorized frequency is $4,000, and the base fine for interference is $7,000.

In January of last year, the United States Coast Guard complained to the FCC of interference with its operations in the 150 MHz VHF band. An agent from the Enforcement Bureau’s Los Angeles office used radio direction-finding methods to determine that the interference was coming from the licensee’s building. The agent located a transmitter at that location that was operating on a frequency different than that indicated on the transmitter’s label. After the Bureau contacted the licensee and informed it of the agent’s findings, the licensee turned off the transmitter, and the interference to the Coast Guard stopped.

Subsequently, the Enforcement Bureau’s Los Angeles office issued a Notice of Violation (“NOV”) to the licensee for failing to operate in accordance with its authorization and not taking reasonable precautions to avoid interference to licensed services. The NOV noted that the licensee’s authorization specified operation on frequencies that included neither the transmitter’s labeled frequency nor the frequency on which the transmitter was actually operating. In response, the licensee argued that the transmitter was unstable and operating about .8 MHz on both sides of the designated frequency.

Under Section 1.903(a) of the FCC’s Rules, a licensee can only operate a station in compliance with a valid authorization granted by the Commission. The FCC rejected the licensee’s argument that the malfunctioning transmitter was operating on the licensee’s assigned frequency, finding that its agent’s investigation indicated otherwise. The FCC also noted that Section 90.403(e) of the FCC’s Rules requires that licensees take appropriate measures to avoid causing harmful interference, and that the licensee here failed to offer any evidence in response to the NOV that it had taken such precautions.

In determining the appropriate fine, the FCC considered the facts and circumstances and found that the violations warranted proposing a fine higher than the base amount for these violations. Because the licensee caused harmful interference to the Coast Guard’s operations and the licensee was not aware of its spurious signal until the FCC notified it, the FCC assessed a total fine of $17,000, increasing the fine by $6,000 over the base amount for such violations.

A PDF version of this article can be found at FCC Enforcement Monitor.

Published on:

By

As our own Lauren Lynch Flick reported last month, the deadline for commercial broadcast stations to file their biennial ownership reports with the FCC, which the FCC in August moved from November 1st to December 2nd, and then in November moved from December 2nd to December 20th, has now been moved up, but just by a little.

In a Public Notice released today, the FCC announced that:

The Media Bureau previously issued an order granting requests to extend the 2013 biennial ownership report filing deadline to December 20, 2013. Subsequently, a power outage of the FCC headquarters building’s electrical systems, as required by the District of Columbia Fire Code, was scheduled. The Commission’s systems, including CDBS, will become unavailable after business hours on the evening of the filing deadline. The outage is scheduled to begin at 7 p.m. on December 20, 2013. Filers must complete electronic filing of their 2013 biennial Ownership Report for Commercial Broadcast Stations prior to that time to comply with the filing due date.

Because the FCC’s website has been known to struggle on days where large numbers of filings are due, broadcasters should generally avoid filing documents on their due date unless there is good reason to do so. However, one benefit of electronic filing has been the ability to file after normal business hours, when traffic on the FCC’s filing databases eases. That will not be possible this year, and for those on the West Coast, the 7 p.m. (Eastern) deadline means that they will need to get their ownership reports on file by 4 p.m. Pacific time, before their business day actually ends.

As a result, broadcasters will need to be extra vigilant this year to ensure that they don’t find themselves trying to file their ownership reports late in the day on December 20th, only to realize that the FCC’s filing system is moving at the speed of molasses from the high volume of filers. When the lights go out at the FCC on December 20th, so will your chance of a timely filing.

Published on:

By

Earlier today, the FCC released a Public Notice detailing the results of the recent LPFM filing window, along with guidance as to what happens next. More than 2,800 low power FM (LPFM) applications were filed during the October 15 – November 15 (as extended) filing window, with the largest numbers coming from Texas (303), California (283), and Florida (276). To put that number in perspective, if it were possible to grant all of the filed LPFM applications, it would increase the number of radio stations in the U.S. (not including translators) by nearly 20%.

However, many if not most of the applications will indeed conflict with each other, so part of the reason for today’s Public Notice is to respond to inquiries regarding the processing of singleton and mutually exclusive applications. This includes such topics as amendments, settlement agreements between mutually exclusive applicants, time-sharing agreements, petitions to deny, and how parties can obtain reinstatement of dismissed applications. Given the more than a decade it took to process applications from the 2003 FM translator filing window, the breakneck speed at which the FCC is moving to process LPFM applications is notable.

According to the Public Notice, the FCC intends to begin rapidly processing applications as early as this month, stating that:

  • The Bureau’s first priority has been to identify singleton applications (applications that do not conflict with other applications filed in the window), of which there appear to be about 900. The FCC indicates it hopes to begin granting such applications in January 2014.
  • Later this month, the Bureau will release a Public Notice identifying the mutually exclusive (MX) application groups.
  • Effective with the release of the Public Notice on MX application groups, mutually exclusive applicants will have the ability to file technical amendments and/or enter into settlement and time-sharing agreements to resolve application conflicts.
  • Following the Bureau’s review of technical amendments and agreements filed to remove application conflicts, the FCC will identify one or more tentative selectees from each mutually exclusive group. The Bureau will then analyze petitions to deny filed against each tentative selectee, and either grant or dismiss that application. In certain cases, the FCC will identify a successor tentative selectee or selectees after acting on the application of the original tentative selectee.

The Public Notice also provided the following information:

Mutually Exclusive Applications: For applications that do not meet the minimum separation requirements of the FCC’s rules, parties are allowed to negotiate settlements and/or file technical amendments to resolve conflicts after the FCC releases the MX Public Notice. As noted above, the FCC intends to release the MX Public Notice later this month.

Amendments: Once the MX Public Notice is released, parties will be allowed to file certain minor amendments to their applications. Major amendments can only be filed by tentative selectees, and only after the FCC announces which applicants have been anointed with that status.

Settlement Agreements: MX applicants will also be allowed to resolve technical conflicts through settlement agreements among applicants, including agreements to make technical amendments to their applications to eliminate the conflict. The Public Notice spells out a detailed process applicants must follow to notify the FCC of their settlement plans.

Voluntary Time-Share Agreements: Parties are also allowed to enter into “partial or universal time-share” agreements. Time-share agreements must (i) specify the proposed hours of operation of each time-share proponent; (ii) not include simultaneous operation of the time-share proponents; and (iii) include a proposal by each time-share proponent to operate for at least 10 hours per week.

Petitions to Deny: All applications that the Commission accepts are subject to petition to deny filings within 30 days after a Public Notice announcing that the application has been accepted for filing.

Dismissed Applications: The FCC is required to dismiss any application that does not comply with the FCC’s minimum distance separation requirements to pre-existing facilities. Any application that does not meet the separation requirements to existing facilities cannot be amended to fix that problem.

It is clear from today’s Public Notice that the FCC is working quickly to try and wrap up much of this proceeding by Christmas or shortly after the new year begins. Parties involved or potentially affected by this proceeding should therefore start adjusting their holiday schedules to be able to move quickly in response to the promised notices that will be rolling out of the FCC in the next few weeks.

By
Posted in: FCC Administration
Published on:
Updated:
Published on:

By and

November 2013

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:

  • Multiple Indecency Complaints Result in $110,000 Payment
  • $42,000 in Fines for Excessive Power, Wrong Directional Patterns and Incomplete Public Inspection Files
  • Cable Operator Fined $25,000 for Children’s Programming Reports

Broadcaster Enters Into $110,000 Consent Decree Involving Allegations of Indecent Material

The FCC recently approved a consent decree involving a broadcaster with TV stations in California, Utah and Texas accused of airing indecent and profane content.

Section 73.3999 of the FCC’s Rules prohibits radio and television stations from broadcasting obscene material at all times and prohibits indecent material aired between 6:00 a.m. and 10:00 p.m.

The FCC received multiple complaints about the television show in question and sent Letters of Inquiry to the broadcaster asking it to provide a copy of the program and to answer questions about possible violations of the FCC’s indecency rule. The licensee complied with the requests but maintained that the program did not contain indecent content.

Earlier this month, the FCC entered into a consent decree with the broadcaster and agreed to terminate its investigation and dismiss the pending indecency complaints. Under the terms of the consent decree, the broadcaster is required to (a) designate a Compliance Officer within 30 days, and (b) create and implement a company-wide Compliance Plan within 60 days, which must include: (i) creating operating procedures to ensure compliance with the FCC’s restrictions on indecency, (ii) drafting a Compliance Manual, (iii) training employees about what constitutes indecent content, and (iv) reporting noncompliance to the FCC within 30 days of discovering any violations. The consent decree also requires the filing of a compliance report with the FCC in 90 days and annually thereafter for a period of 3 years. The requirements imposed under the consent decree expire after three years.

Continue reading →

Published on:

By

A few minutes ago, the FCC released an Order extending the December 2, 2013 deadline for commercial broadcast stations to file their biennial ownership reports to December 20, 2013. The extension is meant to respond to the fact that the FCC took its website (including the Consolidated Database System used for preparing and filing reports and applications) offline during the October government shutdown. Because of this, broadcasters were prevented from preparing their voluminous ownership reports until the FCC reopened and the website was reactivated.

Since the biennial ownership report requires filers to provide their ownership information as it existed on October 1, 2013, broadcasters normally have sixty days after the October 1 reporting date to prepare and submit their reports. By extending the deadline to December 20, the FCC is seeking to maintain that sixty day preparation period.

Noncommercial broadcasters whose biennial ownership reports are due on December 2, 2013 (radio stations licensed to communities in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Vermont, and Rhode Island and noncommercial television stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota) should be aware that this extension does not apply to noncommercial ownership reports. Barring further action by the FCC, noncommercial stations in the listed states should continue to plan on filing their ownership reports by the current December 2, 2013 deadline.

Published on:

By

Over the years, I’ve written a number of times of the FCC’s concern about airing emergency sounds, from the siren blare telling you that Indiana Wants Me, to Emergency Alert System tones promoting the movie Skyline, to an actual EAS alert warning of the Zombie Apocalypse.

Section 11.45 of the FCC’s Rules states that “[n]o person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.” As a result, every time that annoying EAS digital squeal slips onto the airwaves during a commercial rather than in an EAS test, it is guaranteed that the employee charged with screening ads is going to have a very bad day.

Fortunately, most broadcasters and cable operators are well aware of the restriction and go to great lengths to screen out such content. Unfortunately, advertisers and ad agencies are often not so attuned, and given the sheer amount of ad content being aired, an EAS-laden ad will slip through sooner or later.

Aggravating the situation is that while airing the tone from the old Emergency Broadcast System could cause public confusion, the EAS squeal contains digital information that is relayed to other media entities, whose EAS equipment then reads that data and automatically transmits the alert on down the alert chain. The farther the alert travels from the original source (where observant viewers or listeners might have figured out it was just part of a commercial), the greater the likelihood of public confusion and panic.

While the FCC certainly takes EAS false alerts seriously, it has seemed to recognize that the media entity airing the ad is usually as much a victim of the false alert signal as anyone, and as long as prompt action was taken to prevent a recurrence, has not been particularly punitive in its enforcement actions. Its strongest reaction to false EAS alerts up till now has been to issue an Urgent Advisory after the Zombie Apocalypse telling EAS participants to change the default password on their EAS equipment to prevent hackers from commandeering the equipment over the Internet to send out false alerts.

That changed late today, when the FCC issued a News Release and an FCC Enforcement Advisory warning against “False, Fraudulent or Unauthorized Use of the Emergency Alert System Attention Signal and Codes”, along with a Notice of Apparent Liability (NAL) for $25,000 against Turner Broadcasting System, Inc. and a $39,000 consent decree against a Kentucky TV station.

According to the NAL, Turner aired a promo for the Conan show that contained a simulated EAS tone in connection with an appearance by comic actor Jack Black. The FCC was not amused. While the base fine for violating Section 11.45 is $8,000, the FCC found that the seriousness of the violation, particularly given the nationwide transmission of the false alert signal, as well as Turner’s ability to pay, justified increasing the proposed fine to $25,000. While not specifically addressed in the NAL, the fact that Turner produced the promo itself, rather than this being a case of a third party advertiser slipping it past Turner, appears to have drawn the FCC’s ire.

More interesting still is the $39,000 consent decree, where the Kentucky station did not contest that it aired an ad for a sports apparel store that “stops in the middle of the commercial and sounds the exact tone used for the Emergency Alert warnings.” Besides the eye-opening $39,000 payment, the consent decree requires extensive further efforts by the licensee, including implementing a Section 11.45 compliance program for its staff, creating and distributing a compliance manual to its staff, implementing a compliance training program, filing annual compliance reports for the next three years, reporting any future violations to the FCC, and developing and implementing a program to “educate members of the public about the EAS alerts, the limits of public warning capabilities, and appropriate responses to emergency warning messages.” With regard to this last requirement, the educational program must include:

  • Airing 160 public service announcements (80 on the station’s primary channel and 80 on its multicast channel).
  • Interviewing local emergency preparedness officials and including vignettes on emergency awareness topics at least twice a month on the station’s morning program.
  • Expanding the station’s website to include links to local emergency agencies, banner messages with emergency-related information, and video messages from the Federal Emergency Management Agency and local emergency preparedness agencies.
  • Installing an additional SkyCam at its tower site and using “special radio equipment” to communicate with local emergency management officials and which will relay alerts to the station’s master control personnel.
  • Leasing tower space to the local emergency management agency for a “new modernized communications system” linking local agencies and organizations.
  • Using social media and digital technologies to promptly disseminate emergency alerts, including posting information culled from the station’s public service announcements, vignettes, and the local emergency management agency on the station’s Facebook page weekly, and including timely late-breaking news coverage of severe weather conditions and forecasts on the station’s smartphone app.
  • Utilizing specific computer hardware and software to render weather data and maps for use on-air, online, and in mobile applications, as well as to track severe weather events.
  • Periodically reviewing and revising the station’s educational program to improve it and ensure it is current and complete, including conferring with the National Weather Service and state, county and federal emergency preparedness managers and public safety officials.

The consent decree does not indicate how many times the offending ad aired, or if the station produced it, but the severity of the consent decree terms is startling. Also noteworthy is the FCC Enforcement Advisory’s admonition that not just broadcast stations and multichannel video programming distributors are on the hook, but that “[t]he prohibition thus applies to programmers that distribute programming containing a prohibited sound regardless of whether or not they deliver the unlawful signal directly to consumers; it also applies to a person who transmits an unlawful signal even if that person did not create or produce the prohibited programming in the first instance.”

The FCC has therefore decided that it is time to crack down on violations, and ominously, today’s FCC Enforcement Advisory notes that “[o]ther investigations remain ongoing, and the Bureau will take further enforcement action if warranted.” Given today’s actions by the FCC, everyone whose job it is to review ad content before it airs is having a very bad day.

Published on:

By

Yesterday, the FCC released a Notice of Proposed Rule Making setting forth a number of potential changes to its technical rules governing AM radio designed to revitalize AM stations and enhance the quality of AM service.

In the past several years, the Commission has instituted several changes to its AM rules and policies in hopes of improving AM radio and reducing the regulatory burdens on AM broadcasters. Among these are:

  • 2005 and 2008 – Announced simplified AM licensing procedures for KinStar (2005) and Valcom (2008) low-profile and streamlined AM antennas, which provide additional siting flexibility for non-directional stations to locate in areas where local zoning approval for taller towers cannot be obtained;
  • 2006 – Adopted streamlined procedures for AM station community of license changes;
  • 2008 – Adopted moment method modeling as an alternative methodology to verify AM directional antenna performance, reducing the cost of AM proof of performance showings substantially;
  • 2009 – Authorized rebroadcasting of AM stations on FM translators, which has proven to be extremely successful, with over 10% of all AM stations now using FM translators to provide improved daytime and nighttime service to their communities of license;
  • 2011 – Authorized AM stations to use Modulation Dependent Carrier Level (“MDCL”) control technologies, which allow AM stations to cut energy costs through reduced electrical consumption on transmissions and related cooling functions;
  • 2011 – Announced an FM translator minor modification rule waiver policy and waiver standards to expand opportunities for AM stations to provide fill-in coverage with FM translators;
  • 2012 – Authorized all future FM translator stations licensed from Auction 83 to be used for AM station rebroadcasting;
  • 2012 – Granted first Experimental Authorization for all-digital AM operation; and
  • 2013 – Improved protection to AM stations from potential re-radiators and signal pattern disturbances by establishing a single protection scheme for tower construction and modification near AM tower arrays, and designating moment method modeling as the principal means of determining whether a nearby tower affects an AM radiation pattern.

Now, with the introduction of yesterday’s Notice of Proposed Rule Making, the FCC is considering yet more changes to its rules to help AM radio. Among the proposals in the Notice of Proposed Rule Making are:
(1) Open an FM translator filing window exclusively for AM licensees and permittees during which AM broadcasters may apply for a single FM translator station in the commercial FM band to be used solely to rebroadcast the AM station’s signal to provide fill-in and/or nighttime service. The window, as proposed, would have the following limitations:

  • Applications filed during this window must strictly comply with the existing restrictions on fill-in coverage governing AM use of FM translators (e.g., they must be located so that no part of the 60 dBu contour of the FM translator will extend beyond the smaller of a 25-mile radius from the AM station’s transmitter site, or the AM station’s daytime 2 mV/m contour; and
  • Any FM translator station authorized though this filing window will be permanently linked to the licensee or permittee of the primary AM station acquiring the authorization, and the FM translator authorization may not be assigned or transferred except in conjunction with that AM station.

(2) Modify the daytime community coverage standards for existing AM stations contained in Section 74.24(i) of the FCC’s Rules to require only that stations cover either 50% of the population or 50% of the area of the station’s community of license with a daytime 5 mV/m signal. This proposal would not affect applications for new AM stations, or proposals to change the community of license of an existing AM station, both of which will continue to require that 100% of the community of license receive at least a 5 mV/m signal during the day, and cover at least 80% of the community of license at night with a nighttime interference-free signal.

(3) Modify nighttime community coverage requirements for existing AM stations by (i) eliminating the nighttime coverage requirement for existing licensed AM stations, and (ii) in the case of new AM stations and AM stations seeking to change their community of license, modify the rules so the station would be required to cover either 50% of the population or 50% of the area of the community of license with a nighttime 5 mV/m signal or a nighttime interference-free contour, whichever value is higher.

(4) Delete the AM “Ratchet Rule,” which currently results in a reduction of nighttime signal coverage for AM stations relocating their licensed facilities.

(5) Permit wider implementation of Modulation Dependent Carrier Level control technologies by amending the FCC’s rules to allow AM stations to commence operation using MDCL control technologies without seeking prior FCC authority, provided that they notify the FCC of the MDCL operation using the Media Bureau’s Consolidated Database System within 10 days of commencing such operation.

(6) Modify AM antenna efficiency standards, and consider whether the minimum field strength values set forth in various technical rules could be reduced by approximately 25%.

While the changes under consideration are significant, AM broadcasters will have a fair amount of time to contemplate them before comments on the proposals are due at the FCC. The comment deadline will be 60 days after Federal Register publication of the Notice of Proposed Rule Making, with reply comments due 30 days after that.

Published on:

By and

October 2013

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:

  • Online Public File Violations and Failure to Respond Result in $14,400 Fine
  • Unlicensed Broadcast Operation Draws $7,000 Fine
  • Fines Continue for Class A Children’s Television Violations

Licensee Fined for Public Inspection File Violations and Failure to Respond to FCC Inquiries
The FCC issued a Forfeiture Order in the amount of $14,400 to a California television licensee for failing to keep its online public inspection file up to date and for not responding to the FCC’s letters of inquiry.

Earlier this year, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) against the licensee, asserting that the station had failed to place required documentation in its online public inspection file and failed to respond to FCC letters of inquiry. The NAL concluded that the licensee should be assessed a $16,000 forfeiture for these violations, which was comprised of $10,000 for the public file violation and $6,000 for failure to respond to the FCC’s correspondence. Although the usual penalty for failure to respond is $4,000, the FCC imposed the higher penalty of $6,000 on this licensee because its “misconduct was egregious and repeated.”

The licensee timely responded to the NAL and argued against the imposition of a $16,000 fine. The FCC rejected all but the last of the station’s arguments. First, the FCC disagreed with the licensee’s argument that uploading documents into its online inspection file was unnecessary because of their availability at the station’s main studio, noting that “the online public file is a crucial source of information for the public.” Second, the FCC noted that providing the FCC with updated contact information is the responsibility of the licensee, and therefore rejected the licensee’s argument that the station’s failure to reply to FCC letters sent to an outdated address was unintentional. Third, the FCC ignored the licensee’s argument that paying a fine would impose a financial hardship, as the station declined to provide the required documentation of its financial status. Ultimately, however, the FCC agreed to reduce the fine from $16,000 to $14,400 in light of the station’s history of compliance with the FCC’s Rules.

Continue reading →