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At this stage in the media cycle, few could have missed the news of several Michigan and Montana TV stations airing an EAS alert warning the public of a zombie attack. As I noted earlier this week, while the facts surrounding these alerts are still developing, it appears they were the result of someone outside the U.S. triggering the stations’ EAS equipment via that equipment’s Internet connection. While the resulting burst of media stories quickly devolved into a flurry of zombie jokes, the movie that came to mind as the story developed was not Night of the Living Dead, but the Terminator films, which feature an interconnected national defense network called Skynet. In the films, Skynet becomes so sophisticated as to turn on its creators, causing a nuclear launch that brings destruction to the human race and, after the movie, Arnold Schwarzenegger to the California Governor’s Office.

For many years, the EAS system, as well as its predecessor, the Emergency Broadcast System, operated by having a number of primary broadcast stations connected to governmental agencies through a closed network (typically over telephone lines). When an alert was sent to these primary stations, they would broadcast the alert, which would then be picked up and aired by stations monitoring the signal of the primary station, and in turn, by other stations monitoring those secondary stations. This created a daisy chain in which an announcement over one station quickly spread to stations throughout the alert area.

One of the perceived flaws of the Emergency Broadcast System was the amount of human interaction it required. For example, when a national alert was accidentally triggered in 1971, it caused little disruption, since many station managers intercepted it and did not air it because they heard no corroboration of the emergency over their newswires. While it turned out that those station managers were correct in concluding it was an accidental alert, critics of the Emergency Broadcast System counted this event as a failure of the system, since the delay inherent in station managers deciding whether an alert should be aired (and the risk that they may reach the wrong conclusion) puts more lives in danger.

The shift to EAS from the Emergency Broadcast System was done largely to increase the automation, and therefore the reliability, of the system. That digital squeal you hear accompanying an EAS warning is a digital code instructing other equipment, including the public’s radios (if properly equipped), to activate, lessening the chance that emergency alerts go unheard, either because a link in the daisy chain failed to relay the message, or because the public was not listening to radio or watching TV at the time.

The downside to this level of automation soon became apparent. As I wrote in September of 2010, a radio ad for gas stations sought to satirize emergency alert announcements, right down to including the EAS digital tone. Because EAS equipment has a poor sense of humor and is no judge of context, any station airing the ad would trigger EAS alerts on the stations “downstream” from it in the EAS daisy chain. For this reason, Section §11.45 of the FCC’s Rules provides that “No 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.” Just a few months later, the problem repeated itself when TV ads for the disaster movie Skyline included an EAS tone among the many sound effects in the ad.

The highly automated nature of EAS was demonstrated yet again this week, when a Wisconsin radio station’s morning show disc jockeys played a tape of the zombie EAS alert, including the digital tone. The result was–you guessed it–the alert being automatically rebroadcast over at least one local television station whose EAS equipment was activated by the digital EAS tone.

While the automatic nature of EAS creates the risk of false alerts propagating rapidly, at least the false alerts up until now were somewhat self-inflicted wounds, caused by either the system being erroneously activated by a governmental mistake, or by an EAS Participant accidentally airing an activation code contained in third-party content. Because of the closed nature of the system, false activations necessarily required a mistake from a participant in the EAS system, even if that mistake was airing third party content that had not been screened for EAS tones.

This week’s episode, however, appears to have been something entirely different. In an effort to expand the types of consumer devices capable of relaying an alert, the backbone of the EAS system was moved not long ago from the closed network model to an Internet-based system. The benefit is that mobile and other devices connected to the Internet will be able to relay alerts to the public automatically, ensuring the broadest possible distribution of the alert. The bad news, however, is that by shifting to an Internet backbone, we have opened the public alert system to the same outside forces that plague every other aspect of the Internet. In this week’s case, it appears that someone outside the U.S. spent a number of days trying to use those Internet connections to access station EAS equipment. In at least a few cases, they succeeded, generating the now-infamous zombie alerts.

So the good news is that we are well along in the development of an automated emergency alert system that can spread emergency information to most Americans in a matter of minutes. The bad news is that by putting the system almost entirely under the control of “the machines” (a Terminator term), the moderating effect of human involvement is greatly limited. In addition, by connecting this equipment through the Internet, we have expanded the ubiquity of the system, but at the cost of making every EAS Participant’s equipment, whether in Michigan, Montana, or elsewhere, readily accessible to every miscreant in the world with an Internet connection.

Thus, we are perfecting an automated response system that operates most efficiently without human involvement, while creating opportunities for control of that system (or at least portions of it) to fall into the hands of those who do not have our best interests at heart. In other words, Skynet is now a reality. This Skynet does not, thankfully, have the power to initiate nuclear launches, but it certainly does have the capability to launch public panic. A more realistic alert than a zombie attack could cause immense confusion and harm, particularly where the false message is being reinforced by identical EAS alerts on every source of information available, whether it be broadcast, cable, satellite, or smartphone.

I have worked with many of the individuals who created and have dedicated themselves to improving and expanding the current EAS system, and I have no doubt that they are moving quickly to seal off any vulnerabilities discovered in the zombie attacks. Still, I can’t help but wonder if EAS is now subject to the same Internet arms race that bedevils online security everywhere, with ever-evolving measures and countermeasures being deployed in an effort to stay one step ahead of those wishing to commandeer the alert system for their own benefit or amusement. If so, the questions becomes: which is worse, false alerts that panic the populace, or a populace that becomes so used to false alerts that they ignore a real one?

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With the State of the Union Address occurring tonight, the FCC wasted no time in advising broadcast stations and other EAS Participants to take immediate steps to prevent unauthorized uses of the Emergency Alert System like the fake zombie attack alerts that went out over a few stations in Michigan and Montana yesterday. While federal and state authorities are investigating the source of those hoax alerts, which appear to have come from outside the U.S., the FCC has just released instructions for EAS Participants in hopes of heading off any more false alerts.

The haste with which these instructions have been generated is demonstrated by the fact that they are not even on FCC letterhead, nor formatted for such a release. It is also worth noting that they are not described as “recommendations” or “guidelines”, but as actions EAS Participants “must” or “are required” to take. A copy of the FCC release can be found here, but the full text is below:

Urgent Advisory: Immediate actions to be taken regarding CAP EAS device security.

All EAS Participants are required to take immediate action to secure their CAP EAS equipment, including resetting passwords, and ensuring CAP EAS equipment is secured behind properly configured firewalls and other defensive measures. All CAP EAS equipment manufacturer models are included in this advisory.

All Broadcast and Cable EAS Participants are urged to take the following actions immediately

  1. EAS Participants must change all passwords on their CAP EAS equipment from default factory settings, including administrator and user accounts.
  2. EAS Participants are also urged to ensure that their firewalls and other solutions are properly configured and up-to-date.
  3. EAS Participants are further advised to examine their CAP EAS equipment to ensure that no unauthorized alerts or messages have been set (queued) for future transmission.
  4. If you are unable to reset the default passwords on your equipment, you may consider disconnecting your device’s Ethernet connection until those settings have been updated.
  5. EAS Participants that have questions about securing their equipment should consult their equipment manufacturer.

I’ll have more to say about the zombie apocalypse in the next few days, as I was already writing a post on the subject when the FCC release arrived. However, I wanted to get the FCC’s message out to broadcasters, cable operators, and other EAS Participants quickly, so that they can take action to prevent further hoax alerts, as well as be aware of the seriousness with which the FCC is taking these false alerts. Management should make sure that their staff is on alert for unusual EAS activity, particularly during major events coverage.

While the farcical nature of the initial hoax caused more amusement than panic, it is easy to see how a more realistic message could have caused far more damage. Yesterday’s events will hopefully be isolated incidents, but we will be seeing a lot more attention focused on the security, as opposed to the reliability, of the EAS system.

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January 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:

  • FCC Assesses $8,000 Fine for EAS Equipment Installation Problems
  • Notice of Violation Issued against FM Station for a Variety of Reasons

FCC Proposes Fine for Operational, But Not Fully Functional, EAS Equipment

The FCC has often noted the importance of the national Emergency Alert System (“EAS”) while taking enforcement action against broadcast stations whose EAS equipment is not functioning or who otherwise fail to transmit required EAS messages. In a slightly atypical case, the FCC this month issued a Notice of Apparent Liability for Forfeiture and Order (“NAL”) for $8,000 against the licensee of an FM radio station in Puerto Rico because, even though the station’s EAS equipment was fully operational, the manner of installation made it incapable of broadcasting the required EAS tests automatically.

In April 2012, agents from the FCC’s Enforcement Bureau inspected the station’s main studio and discovered that the EAS equipment was installed in such a way that it was not able to automatically interrupt programming to transmit an EAS message. Section 11.35 of the FCC’s Rules requires that all broadcast stations have EAS equipment that is fully operational so that the monitoring and transmitting functions are available when the station is in operation. The Rules further require that broadcast stations be able to receive EAS messages, interrupt on-air programming, and transmit required EAS messages. When a facility is unattended, automatic systems must be in place to perform these functions. During the inspection, the station’s director admitted that the EAS equipment was not capable of transmitting an EAS message without someone manually reducing the on-air programming volume. He further admitted that the equipment had been in this condition since at least September 2011, if not earlier.

The station broadcast programming 24 hours a day, but was only staffed from 6:00 am to 7:00 pm. As a result, when the station was unattended, it could not interrupt programming to transmit EAS messages. The base forfeiture for failing to maintain operational EAS equipment is $8,000, which the FCC thought was appropriate in this case. The FCC also directed the licensee to submit a written statement indicating that the EAS equipment is now fully operational at all times, particularly when unattended, and otherwise in full compliance with the FCC’s rules.

FM Station Receives Notice of Violation for an Assortment of Violations

At the end of last month, the FCC issued a Notice of Violation (“NOV”) against the licensee of an FM radio station in Texas based upon an October 2012 inspection by an agent from the Enforcement Bureau. The agent concluded that the licensee was violating a number of FCC rules.

Section 73.1350 of the FCC’s Rules requires that licensees establish monitoring procedures to ensure that the equipment used by a station complies with FCC rules. Upon inspection, the FCC agents found no records indicating that the licensee had established or implemented such monitoring procedures, and the station’s chief engineer had difficulty monitoring the equipment’s output when asked to do so by the agent. Sections 73.1870 and 73.3526 also require that a chief operator be designated, that designation be posted with the station’s license at the main studio, and a copy of the station’s current authorization be kept in the station’s public inspection file. At the time of the inspection, the NOV indicated there was no written designation of the chief operator and the station’s license renewal authorization was not at the station’s main studio.

During the inspection, the agent also found that the FM station’s EAS equipment was unable to send and receive tests and was not properly installed to transmit the required weekly and monthly tests. The licensee also did not have any EAS logs documenting the tests sent and received and, if tests were not sent or received, the reasons why those tests were not sent or received, all in violation of Section 11.35 of the FCC’s Rules.

Finally, pursuant to Section 73.1560 of the FCC’s Rules, if a station operates at reduced power for 10 consecutive days, it must notify the FCC of that fact. Operation at reduced power for more than 30 days requires the licensee to obtain a grant of Special Temporary Authority from the FCC for such operation. In this instance, the FM station had been operating at reduced power for 14 consecutive days, and the FCC found no indication that it had been notified by the licensee of the station’s reduced power operations.

As a result of the NOV, the licensee must submit a written response, explaining each alleged violation and providing a description and timeline of any corrective actions the licensee will take to bring its operations into compliance with the FCC’s rules. The FCC may elect to assess a fine or take other enforcement action against the station in the future if it ultimately determines the facts call for such a response.

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

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Earlier today, the FCC released a Sixth Further Notice of Proposed Rulemaking relating to its biennial broadcast ownership report filing requirements, reigniting a controversy over privacy, broadcast investment, and indeed, the very purpose of the reports.

In 2009, the FCC revamped its Form 323, the Commercial Broadcast Station Ownership Report, somewhat to address data collection shortcomings identified by the U.S. Government Accounting Office, but mostly to try to make the information more standardized and transparent for academic researchers wishing to generate industry-wide ownership statistics, particularly with regard to minority and female ownership. Unfortunately, the FCC’s initial effort to revise the form seemed to have focused on trying to create a form that researchers would applaud, rather than on the “user experience” of those required to fill it out. The result was an awkward effort at forcing complex ownership information into highly redundant machine-readable spreadsheet formats.

Causing particular consternation, however, was a new requirement that every officer, director and shareholder mentioned in those reports have a unique FCC-issued Federal Registration Number (FRN). Because the FCC wants researchers to be able to track the race, ethnicity and gender of each individual connected with a broadcast station, it requires that those registering to obtain an FRN provide either a Taxpayer Identification Number (TIN), or a Social Security Number (SSN). This, according to the FCC, is necessary to allow it to differentiate between individuals that may have similar names and addresses.

Not surprisingly, this requirement met with fierce opposition from numerous groups, including: (1) those who have heard the admonition of government and others to never reveal your SSN to anyone or risk identity theft; (2) broadcasters, who found less than thrilling the experience of badgering their shareholders to either hand over their SSN or take the time to apply for and deliver the FRN themselves; (iii) broadcast lawyers, trying to get ownership reports on file by the deadline despite never hearing back from a significant percentage of those asked to cooperate to provide individual FRNs; and (iv) the investor community, which is not fond of the idea of having to hand over personal information because an individual chose to buy shares of a broadcast company rather than a movie studio.

After fierce opposition and various failed efforts to get the FCC to eliminate the requirement or at least create an alternate method of obtaining an FRN that didn’t require an SSN or TIN, the FCC had a change of heart when required by the U.S. Court of Appeals for the DC Circuit to explain itself (you can read Paul Cicelski’s discussion of that response here). The FCC defended the new ownership report filing requirements by telling the court that no one would be forced to hand over their SSN or TIN, as it was going to permit broadcasters to apply for a Special Use FRN (SUFRN, one of the most descriptive acronyms you will find) in cases where a party refuses to allow use of its SSN/TIN. In light of this representation, the court declined to intervene, and the FCC proceeded with implementation of the new ownership report form and requirements.

With the availability of SUFRNs and various other changes to the ownership report form and filing system, the FCC was finally able to make the oft-extended filing deadline stick, with commercial broadcasters filing their November 1, 2009 ownership reports by a July 8, 2010 deadline. However, the effort at making the data more accessible for researchers ended up making the form very burdensome for broadcasters required to complete and submit the reports. The biggest issue is structural–requiring the submission of the exact same information over and over in a filing system never lauded for its user-friendliness. During the numerous extensions of the filing deadline, the FCC did incorporate some features like copy and paste to lessen the burden of creating duplicative reports, but no tech feature can overcome the burden created by requiring the filing of the exact same ownership information over and over again for each station in a group rather than just reporting the ownership of that group (once) and the stations that are in it. Because of this, even a relatively small broadcast group can find itself filing well over a hundred ownership report forms.

The irony is that even media researchers–the very group for which this unwieldy reporting system was created–have begun to complain that the sheer volume of filings makes it difficult to sort through the mass of repetitive data. Many communications lawyers seem to agree, finding the “old” ownership reports far more useful in understanding a station’s ownership than the current edition.

Still, broadcasters and the FCC seemed to have reached a detente over the reports, with broadcasters quietly grumbling to themselves about the mind-numbing repetitiveness of drafting and filing the reports, but (having seen in the earlier iterations of the “new” report) knowing how much worse it could be. That detente may have ended today when the FCC released the Sixth Further Notice of Proposed Rulemaking, which tentatively concludes that the need to uniquely identify each person connected with a broadcast station is so strong that it must end the availability of SUFRNs and require that all reported individuals get an FRN based upon their SSN or TIN.

While the FCC’s conclusions are “tentative”, and it requests comment on these and many other questions relating to the ownership report, you can feel the collective chill go down broadcasters’ spines as the FCC proceeds to suggest that it could fine individuals who fail to provides an SSN/TIN-based FRN, and queries whether broadcasters should be required to warn their shareholders of that. Telling shareholders or potential shareholders that they face fines for electing to invest their money in broadcasting is not exactly the best way to attract investment to broadcasting, including investment by the minority and female investors the FCC so clearly wants.

But it is that last issue that raises the most curious point of all: to get minority and female ownership information, the FCC seeks to implement an awkward, intrusive, burdensome, privacy-insensitive ownership reporting regime premised on the need for both massive ownership filings and the tracking of individuals by their SSN to determine minority and female ownership trends in the industry. Wouldn’t it be far simpler, less intrusive, and less burdensome to just ask broadcasters to provide in their ownership reports (or elsewhere) aggregate data on their minority and female officers, directors, and shareholders? Researchers could then just utilize that data to create industry totals rather than having to wade through mountains of unrelated ownership data to derive it themselves.

Instead of this simplified approach, the FCC seems intent upon using the clumsy mechanism of ownership reports to assess minority and female representation in the industry, stating in the Sixth Further Notice of Proposed Rulemaking that “Unlike many of our filing obligations, the fundamental objective of the biennial Form 323 filing requirement is to track trends in media ownership by individuals with particular racial, ethnic, and gender characteristics.” For those of us who have been in the industry for quite some time, that claim is surprising, as the very first sentence of Section 73.3615, the FCC rule that governs the filing of ownership reports, states: “The Ownership Report for Commercial Broadcast Stations (FCC Form 323) must be electronically filed every two years by each licensee of a commercial AM, FM, or TV broadcast station (a “Licensee”); and each entity that holds an interest in the licensee that is attributable for purposes of determining compliance with the Commission’s multiple ownership rules.”

In attempting to convert a reporting obligation designed to ensure multiple ownership rule compliance into an academic research tool on minority and female broadcast ownership, the FCC undermines both goals. Broadcasters have routinely provided the minority and female ownership data the FCC seeks without fuss, and can hardly be faulted for wishing to do so in a straightforward manner that: (a) doesn’t require unnecessarily complex and redundant filings; and (b) doesn’t require them to badger their shareholders for private information while threatening their shareholders with federal fines for failing to comply. Rather than “doubling down” on a flawed approach, perhaps it is time for the FCC to step back and reassess the most efficient way of obtaining the desired information–more efficient for broadcasters, more efficient for the FCC, and more efficient for media researchers.

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December 2012

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 Multiple Forfeitures for Unauthorized Marketing of Transmitters
  • FCC Proposes $35,000 in Fines for Unauthorized Radio Operations

Three Years Later, FCC Pursues Unauthorized Marketing of Transmitters

This month, the FCC issued Forfeiture Orders against two companies for marketing unauthorized transmitters, with both orders following up on Notices of Apparent Liability for Forfeiture (NAL) issued in 2009.

In one instance, the FCC issued a Forfeiture Order for $18,000 against a company that marketed an unauthorized FM broadcast transmitter in the U.S. and provided incorrect information to the FCC “without a reasonable basis for believing that the information was correct.” The FCC first issued an NAL against this company in 2009, after an in-depth investigation by the Spectrum Enforcement Division, alleging that the company was marketing several FM transmitters, including one model of transmitter that was not verified to comply with FCC regulations. The FCC’s rules prohibit the manufacturing, importation, and sale of radio frequency devices that do not comply with all applicable FCC requirements, and Section 73.1660 of the FCC’s Rules requires that transmitters be verified for compliance. If a transmitter has not complied with the verification requirements of Section 73.1660, then the transmitter is considered unauthorized and may not be marketed in the United States.

In response to multiple Letters of Inquiry, the company attempted to demonstrate the transmitter’s compliance with FCC regulations by submitting verification information for a component part of the transmitter. The FCC concluded, however, that “[b]ecause transmitters are a combination of several functional components that interact with one another … verification of [one part] incorporated into a transmitter is insufficient to verify the final transmitter.”

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Yesterday, the FCC adopted a Fifth Order on Reconsideration and a Sixth Report and Order (Sixth R&O) designed to facilitate the processing of approximately 6,000 long-pending FM translator applications and to establish new rules for low power FM (LPFM) stations. The result is that the FCC anticipates opening a filing window for applications for new LPFM stations in October 2013.

A number of parties had filed petitions for reconsideration (in response to the FCC’s March 19, 2012 Fourth Report and Order in this proceeding) challenging the FCC’s new limit on the number of translator applications that could be pursued both on a per-market basis and under a national cap. In response to those challenges, the FCC’s just released Fifth Order on Reconsideration: (1) establishes a national limit of 70 applications so long as no more than 50 of those applications specify communities located inside any of the markets listed in Appendix A to that Order; (2) increases the per-market cap from one application to up to three applications per market in 156 larger markets, subject to certain conditions; and (3) clarifies the application of the per-market cap in “embedded” markets.

In the Sixth R&O, the FCC laid the groundwork for introducing LPFM stations to major urban markets. As mandated by the Local Community Radio Act, the Sixth R&O also establishes a second-adjacent channel spacing waiver standard and an interference-remediation scheme to ensure that LPFM stations operating with these waivers will not cause interference to other stations. In addition, the Sixth R&O creates separate third-adjacent channel interference remediation procedures for short-spaced and fully-spaced LPFM stations, and addresses the potential for predicted interference to FM translator input signals from LPFM stations operating on third-adjacent channels.

The Sixth R&O also revises the following LPFM rules to better promote the localism and diversity goals of the LPFM service:

  • modifies the point system used to select among mutually exclusive LPFM applicants by adding new criteria to promote the establishment and staffing of a main studio, radio service proposals by Tribal Nations to serve Tribal lands, and the entry of new parties into radio broadcasting. A “bonus” point also has been added to the selection criteria for applicants eligible for both the local program origination and main studio credits;
  • clarifies that the localism requirement applies not only to LPFM applicants, but to LPFM permittees and licensees as well;
  • permits cross-ownership of an LPFM station and up to two FM translator stations, but imposes restrictions on such cross-ownership to ensure that the LPFM service retains its local focus;
  • provides for the licensing of LPFM stations to Tribal Nations, and permits Tribal Nations to own or hold attributable interests in up to two LPFM stations;
  • revises the existing exception to the cross-ownership rule for student-run stations;
  • adopts mandatory time-sharing procedures for LPFM stations that operate less than 12 hours per day;
  • modifies the involuntary time-sharing procedures, shifting from sequential to concurrent license terms and limiting involuntary time-sharing arrangements to three applicants;
  • eliminates the LP10 class of LPFM facilities; and
  • eliminates the intermediate frequency protection requirements applicable to LPFM stations.

If some of the above changes seem a bit cryptic, it is because the FCC has issued only a News Release briefly summarizing the changes. Once the FCC releases the full text of the orders, we will have a much more detailed understanding of the modifications. The full texts will hopefully become available in the next few days. In the meantime, radio broadcasters, particularly those with large numbers of FM translator applications pending, will be doing their best to assess how these FCC actions will affect their current and proposed broadcast operations.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by January 10, 2013, reflecting information for the months of October, November, and December 2012.

Content of the Quarterly List
The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file.

A PDF version of this entire article can be found at Fourth Quarter Issues/Programs List Advisory for Broadcast Stations.

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November 2012

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 Punishes the Operators of an Unlicensed FM Station
  • FCC Investigates Antenna Structure Violations

Recurrent Unlicensed Operations Lead to Large Forfeitures

Last month, we wrote about a case in which the FCC fined the renter of a property after discovering an unlicensed radio transmitter, even though the renter claimed the equipment was operated by a third party. This month, the FCC again went after the renters of a property on which there was an unlicensed transmitter, issuing two $20,000 Forfeiture Orders. In this case, however, the renters left little doubt that they were directly responsible for the operation of the unlicensed radio station.

In October 2011, agents from the Miami office of the Enforcement Bureau identified the source of radio frequency transmissions on the 101.1 MHz frequency as an FM antenna mounted to a structure on a property in Florida. The signal strength exceeded that permitted for unlicensed broadcasting, and the agents later determined that no authorization had been issued for the operation of an FM broadcast station at that location. In addition, the agents were able to hear live broadcasts from the station and found that the on-air DJ was promoting the station on several web sites and Facebook pages.

During a subsequent February 2012 visit, the agents inspected the property and found radio transmitting equipment installed in a storage room. The property owner indicated that the space was rented by two men, and provided contact information for the renters to the agents. The agents called one of the renters, who asked the agents what would happen to the radio transmitting equipment. The renter contacted by the agents then called the other renter, who went to the station, told the agents the equipment was his, and removed the equipment from the location.

In July 2012, the FCC issued two $20,000 Notices of Apparent Liability for Forfeiture (NALs) for operating without FCC authorization – one against the renter identified as the DJ of the station, and one against the renter who admitted it was his equipment. The base forfeiture for operating without authorization is $10,000. However, the FCC determined an upward adjustment of $10,000 was warranted for each of the renters because both had previously been involved in operating an unlicensed station on a different frequency in a different part of the state, and the FCC had issued previous Notices of Unlicensed Operation to the renters for that station.

Having not heard back from the renters in response to the July NALs, the FCC followed up the NALs by issuing two $20,000 Forfeiture Orders against the renters this month.

Faded Antenna Structures Garner Notices of Violations

Six towers in Oklahoma and one in New Mexico were the subject of Notices of Violation (NOVs) earlier this month after FCC agents noted that the paint on the towers was faded and chipped. Some of the NOVs also noted that the respective structure owners had failed to post the Antenna Structure Registration Number (ASRN) at the gate of the surrounding fence, and that any signage at the base of the structure was not visible from the gate of the fence.

In accordance with the rules of the FCC, owners of antenna structures must regularly inspect those structures to ensure the structures continue to comply with all FCC requirements. Indeed, the rules require owners to inspect the antenna structure’s lights (manually or by automatic indicator) at least once every 24 hours, and to inspect all lighting control devices, indicators and alarms every three months. Owners must also maintain a record of any lighting malfunctions, including the nature of the malfunction, the date and time of the malfunction, the date and time of FAA notification, and the date, time and nature of repairs.

As this month’s NOVs explicitly note, the FCC is free to take further steps against the tower owners, including issuing fines, and often does. Tower owners should therefore be careful to ensure that:

  • The ASRN is conspicuously displayed so that it is readily visible from the base of the structure;
  • Materials used to display ASRN are weather-resistant and large enough to be easily seen from the base of the structure;
  • Where the tower is surrounded by a fence, the ASRN is posted where it will be readily visible from the fence gate;
  • Antenna structures exceeding 200 feet are painted and lighted according to FAA specifications; and
  • Antenna structures are cleaned or repainted as often as is necessary to maintain good visibility.
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October 2012

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 Takes Action against Illegal Jamming Devices
  • Unlicensed Transmitter Gets Renter into Trouble

FCC Goes After Marketing and Sale of Illegal Jamming Devices

The FCC’s enforcement efforts this month focused heavily on the marketing and sale of illegal signal jamming devices. The advertising, sale, or operation of devices which jam GPS, cell phone, or other wireless communications is prohibited under Section 301 of the Communications Act as well as under the FCC’s Rules. As the Commission has previously noted, it is unlawful to use a jammer, even on private property. In the span of a week this October, the FCC issued eight “Citation and Order” actions against companies and individuals it determined were unlawfully advertising jammers for sale on Craigslist.org.

In those orders, the FCC emphasized that it views unlawful operation of jammers as a public safety hazard. In several of the orders, the Enforcement Bureau wrote that it is “increasingly concerned that individual consumers who operate jamming devices do not appear to understand the potentially grave consequences of using a jammer. Instead these operators incorrectly assume that their illegal operation is justified by personal convenience or should otherwise be excused.” Because of this, the FCC cautioned that going forward, it “intend[s] to impose substantial monetary penalties, rather than (or in addition to) warnings, on individuals who operate a jammer.” The FCC added that “substantial monetary penalties” in these cases would mean up to $16,000 per violation, or, in the case of a single continuing violation, $16,000 per day up to a total of $112,500.

The Enforcement Bureau indicated that the FCC will continue to target individuals and companies involved in the illegal advertisement, sale, or operation of jammers. In fact, on October 15th, the Bureau launched a dedicated jammer tip line – 1-855-55-NOJAM – to make it easier for members of the public to report the use or sale of illegal jammers. It also released an Enforcement Advisory explaining the FCC’s “zero tolerance” policy regarding the unlawful sale and operation of jammers. Based on these recent actions by the FCC, we expect to see a growing number of signal jamming fines in the months ahead.

Turning a Blind Eye to Illegal Operations Is Also a Violation of the FCC’s Rules

This month, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) against a property renter after finding that an unlicensed transmitter was being operated on his leased property. What makes the case interesting is that the renter claimed the equipment was not his, and was actually operated by unnamed third parties (the classic “not my stash” defense).

In September 2012, agents from the FCC’s Enforcement Bureau, responding to a complaint, used direction-finding equipment to locate the source of the suspect radio transmissions. They found an FM transmitting antenna mounted to the chimney of a residence. The antenna was emitting signals exceeding the FCC’s limits for unlicensed operation under Part 15 of the FCC’s Rules. Upon subsequent inspection of the FCC’s records, the agents determined there was no FCC authorization for the antenna, nor for any antenna near that address.

The following day, the agents returned to the property with the property owner and found a transmitter located in a locked basement room in the residence. The agents then questioned the renter of that room about the antenna, transmitter, and an accompanying computer which fed audio to the transmitter. The renter admitted to having installed the equipment, but denied that he was operating the unlicensed station. He claimed that unnamed individuals owned and operated the equipment and gave him money each month to pay the rent. The renter further claimed that the operators had not provided him with their names, but had informed him that the FCC might inspect the station and order him to cease operations because of unlawful operations.

Apparently not convinced by the renter’s defense, the FCC issued an NAL for $10,000 against the renter for operating a station without FCC authorization. The NAL clarified that “operating” a station means both the technical operation of the station and the “general conduct or management of a station as a whole.” Noting that the renter himself acknowledged that he had been told by the unnamed “operators” that the operation was illegal, the FCC indicated that “in spite of the warning, [the renter] nonetheless allowed the station to continue to operate in his basement.” Under the circumstances, the FCC concluded that the renter’s actions qualified as being involved in the general conduct or management of a station, defined to include “any means of actual working control over the operation of the [station].” The FCC therefore concluded that the renter did in fact “operate” the unlicensed radio station, justifying the proposed fine. In addition, the FCC noted that it had difficulty believing the renter’s claimed defense, indicating that “we find it implausible that [the renter] (or anyone for that matter) would install radio equipment, rent space, allow for unlawful operations in the rented space, and incur potential financial and other liability on behalf of complete strangers.”

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

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In what seems to be the longest presidential campaign in history, tomorrow, September 7th, marks the beginning of the final stretch. That’s the first day of Lowest Unit Charge Season, the 60-day period before the November 6th, 2012 general election. During that time (which also occurs in the 45 days before a primary election), broadcast stations may charge no more than their lowest rate for each particular class of ad time purchased for a “use” by a legally qualified candidate.

Of course, while the concept sounds simple enough, its implementation at stations with dozens of different classes of ad time has proven to be a biennial headache for broadcasters. However, particularly for stations in political swing states, it can be a fairly profitable headache, and well worth the regulatory aspirin needed to get through it.

Contrary to a common misconception, Lowest Unit Charge applies to all legally qualified candidates during the LUC window, and not just to federal candidates. Also, keep in mind that the 60-day Lowest Unit Charge window is relevant only to the issue of rates. Other political broadcast rules, like the requirements for reasonable access for federal candidates and equal opportunities apply as soon as there are enough legally qualified candidates to trigger them (one in the case of reasonable access, and at least two in the case of equal opportunities, since there has to be a competing candidate to demand an equal opportunity in response to the first candidate’s airtime).

If the statements above have left you perplexed, confused, or questioning the very meaning of your existence, you should definitely take some time to look at the current edition of our Political Broadcasting Advisory. The Advisory fills in lots of detail on the matters discussed above, as well as myriad other issues created by the complexities of selling (or buying) political ad time in a regulated environment.

So, update the rate card attached to your Political Disclosure Statement, and get ready for the final stretch of a political season that has been excruciatingly long for viewers and listeners, but which will be over all too quickly for many broadcasters.