Articles Posted in Telecommunications

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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:

  • Tower Owners Cited for Unsafe and Improperly Registered Tower
  • FCC Fines LPFM for Unauthorized Operation, Failure to Admit FCC Agents, and EAS Violations
  • Violations of Environmental, Historic Preservation, and Antenna Structure Registration Rules Lead to $38,000 Fine

FCC Cites Owners of Improperly Lit Tower

Owners of an Illinois tower were cited for failing to maintain required obstruction lighting, failing to check the structure’s lighting visually at least once every 24 hours or use an automatic alarm system to detect a lighting outage, failing to notify the FAA of lighting outages, failing to repaint the structure to maintain good visibility, and failing to notify the FCC of a change in ownership of the tower.  Such failures violate Part 17 of the FCC’s Rules, which governs antenna construction, marking, and lighting.  The FCC noted that it may only impose monetary fines against non-regulatees after issuing a citation (as it did here), the violator is given a reasonable opportunity to respond, and the violator subsequently still engages in the conduct described in the citation.  If the owners are later found to remain in violation of the rule provisions detailed in the citation, the FCC may consider both the conduct that led to the citation and the conduct following the citation in assessing a fine.

Following a 2018 complaint reporting a lighting outage for the tower, the FCC asked the FAA to issue a 90-day NOTAM (Notice to Air Missions) alerting pilots of the hazard.  Chicago FCC agents contacted the then-owner of the structure and were told the lighting issues would be corrected.  A field inspection revealed that the structure was over 200 feet in height, that the structure was being used for radio transmissions, that it lacked the required flashing red light, and that the remaining obstruction lighting was extinguished.  The FCC again contacted the structure’s owner and followed up with a Notice of Violation (“NOV”).  There is no record that the owner responded to the NOV.  Future field inspections revealed that the paint on the tower was severely faded and chipped.  An entity leasing the tower and two FCC licensees collocated on it were subsequently contacted in an effort to bring the tower into compliance.

By 2022, the parcel of land on which the tower sits was sold to the current owners.  Two months prior to that sale, an FCC agent again visited the site and observed that the structure had not been repainted and that all of the red obstruction lights were extinguished.  The agent also concluded that no licensees or users were operating from the tower.  Under the applicable FAA advisory, the structure, because it exceeds 200 feet in height, must be painted and have at its top at least one red flashing beacon to ensure an unobstructed view of at least one light by a pilot, along with two or more steady burning red lights mounted at the one-fourth and three-fourth levels of the overall height of the tower, and two red flashing beacons at the mid-level of the structure.  The tower must also be marked with alternate sections of aviation orange and aviation white paint and repainted as necessary.  These safety requirements must be met until the structure is dismantled, even if the tower is no longer being used for transmissions.  The FCC noted that any lighting outage must be reported to the FAA, and that failing to update the tower’s Antenna Structure Registration interferes with the FCC’s ability to identify the owner when attempting to remedy lighting outages.

The current owners of the tower must respond to the citation within 30 days and provide a written statement describing how they acquired the tower, provide a copy of any agreements regarding conveyance of the structure, provide current antenna structure ownership information, describe the actions they have taken to prevent future violations of the FCC’s rules, and provide a timeline by which they will complete any corrective actions.

LPFM Station Fined $25,000 for Unauthorized Operation, Failure to Admit FCC Agents, and Violating EAS Rules

Following an October 2020 Notice of Apparent Liability for Forfeiture (“NAL”), a Florida low power FM licensee must now pay $25,000 after the FCC found no reason to change the originally proposed fine amount.  The Commission found that the licensee violated Section 301 of the Communications Act (failing to operate a station in accordance with its license) and Sections 73.840 (operating a station outside of the permitted transmitter power output parameters), 73.845 (maintaining an LPFM station in compliance with the LPFM technical rules), 73.878(a) (making a broadcast station available for inspection by FCC representatives), and 11.11(a) (participation by broadcast stations in the Emergency Alert System (“EAS”)) of the FCC’s Rules. Continue reading →

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The FCC released its Report and Order adopting the final amounts that regulatees must pay in annual regulatory fees for FY2022, and opened the filing window for making those payments. The window closes at 11:59 p.m. Eastern Time on September 28, 2022.

If paying the fees wasn’t challenging enough, as part of its continuing rollout of the Commission Registration System (CORES), the FCC has retired the familiar Fee Filer system that regulatees previously used to make these payments. As a result, regulatory fee payments must now be made through CORES, meaning that payors will have to contend with a new fee filing system for this year’s regulatory fees. Given the initial reactions of some that attempted to submit their regulatory fees since the window first opened, regulatees would be wise to start the process early, ensuring they have enough time to deal with the inevitable filing hiccups and still meet the September 28, 2022 deadline.

In the past, a party owing regulatory fees signed into the FCC’s Fee Filer system using the Federal Registration Number (FRN) of the licensee and the password established for that FRN. If a filer lost either the FRN or password they had used in prior years to pay the station’s fees, they could create a new account or reset the password on the spot to get their payments on file in a timely manner. The new filing system, however, uses a more cumbersome two-step process that is not conducive to overcoming last-minute issues involving a lost FRN or password, and has the potential to trip up those unaccustomed to it.

This is the same two-step process that broadcasters first had to navigate to file their Forms 1, 2 and 3 in the EAS Test Reporting System (ETRS) in connection with nationwide tests of the EAS, which we wrote about back in 2017. That two-step process proved difficult for many and prevented some broadcasters from timely making their required filings, so we are describing the individual steps in detail below. However, stations should also be aware that if their engineer or lawyer completed this process in connection with the ETRS filings in 2017, they may now be considered by the FCC’s system as the Administrator of the licensee’s FRN.  If so, they will need to be consulted to get the station’s regulatory fees on file this year.

To begin the process, the individual making the regulatory fee payment on behalf of the licensee must create a personal account in CORES here using their email address and a password of their choosing. This account is personal to the filer, not the licensee, and identifies who is making the filing on the licensee’s behalf.

Next, the filer must sign in to CORES here using that new account and choose the option to “Associate Username to FRN” on the main screen to be able to make filings under the licensee’s FRN. As noted, if someone else has already done this, that person will be the Administrator and must grant the “associate” request before the submission can proceed, delaying the regulatory fee filing until that person responds to a request to approve the association (assuming they respond at all if they have retired, departed, etc.).

Once the filer’s account is associated with the licensee’s FRN, the filer must sign into CORES and select the “Manage Existing FRNs/FRN Financial/Bill and Fees” option on the main screen.

On the next screen, they must select the “Regulatory Fee Manager” option.

Finally, they need to select the licensee’s FRN from a dropdown list of all FRNs associated with the account and click the “Find Assessments” button. The next screen should display the licensee’s name and a total fee due amount.

Licensees should click the link labeled “View” to see the details of what stations and fees are included in the total shown. Errors in importing prior year data are common, especially where a licensee has used multiple FRNs in the past, and early reports indicate that the system-generated fee totals are sometimes missing stations, putting those licensees at risk of interest and penalties if they do not add the missing stations/fees before filing. If fees or stations are missing, the licensee must click the button labeled “Add More Manually” to add the missing stations/fees. If all fees are accounted for, the filer clicks on the “Continue to Pay” button to complete the payment process.

As for the fee amounts themselves, broadcasters can review the Commission’s Media Services Regulatory Fees Factsheet summarizing the fees due in each Media Service category and look up the fees due for individual broadcast call signs here. The FCC notes that “[i]n some instances, it may be necessary to clear your browser before logging onto the website” to look up fees. Fees for authorizations in other services such as transmit earth stations can be found in the Factsheets for those services on the FCC’s regulatory fee page here. Information about seeking deferrals or exemptions from paying the fees (for those who might qualify) can be found here.

The bottom line is that broadcasters should act quickly to begin the FY2022 regulatory fee payment process because it will look very different from how it appeared in the past, and late or missed payments can incur significant interest and penalties.

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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 ID Violations Lead to Consent Decree With $60,000 Payment
  • Unauthorized Station Transfers and Silent Stations Result in $25,000 Civil Penalty and Compliance Plan
  • Retailer Fined More Than $685,000 for Marketing Unauthorized Wireless Microphones

LPTV Station Fails to Identify Programming as Sponsored, Enters Into $60,000 Consent Decree

The licensee of an Arkansas low power TV station entered into a consent decree with the FCC’s Media Bureau, agreeing to pay a $60,000 penalty for violating sponsorship identification laws.

Broadcast stations are required under federal law (47 U.S.C. § 317(a)(1) and 47 C.F.R. § 73.1212) to identify the sponsor of any program the station has been paid to air.  This requirement applies to advertising, music and any other broadcast content.  The FCC has said that the sponsorship identification laws are “grounded in the principle that listeners and viewers are entitled to know who seeks to persuade them . . . .”  Those who lived through the 1950s and 1960s or who followed the payola/plugola scandals of those decades may recall that the principal issue wasn’t the pay-to-play scheme itself, but rather disc jockeys’ failure to disclose to listeners that something of value had been given in exchange for playing a record.

In this case, in an effort to increase station revenue, an LPTV station urged political candidates to buy advertising packages.  However, the packages being sold by the station included appearances for the candidate on the station’s daily news and public affairs program.  Multiple candidates bought these packages and were subsequently interviewed live on the air.  The station failed to disclose to its viewers that the interviewees were not chosen for their newsworthiness, but instead were interviewed merely because the station had been paid.  While stations may conduct paid interviews, under the sponsorship identification laws, viewers/listeners must be told on-air that the station was paid to air the content, and the station must identify the sponsor.

Along with political candidates, the station accepted payments to interview spokespeople for several commercial entities on the program.  In both cases, that station failed to disclose that the content was sponsored and by whom.  The Media Bureau noted that these undisclosed appearances on a news and public affairs program misled the public into thinking that the interviewees were selected based on their newsworthiness and the station’s editorial judgment.

To resolve the FCC’s investigation, the station entered into a Consent Decree.  Along with paying a $60,000 monetary penalty, the station must implement a compliance plan overseen by a compliance officer that includes written procedures, a compliance manual, and a training program for employees designed to prevent future violations of the sponsorship identification laws.  The license must also file compliance reports with the FCC annually for the next five years, and must notify the FCC within 15 days of discovering any future violation of the sponsorship identification rules.

Family of Deceased Radio Owner Fails to File Necessary Transfer Applications, Agrees to Consent Decree With $25,000 Penalty

The family of a deceased radio owner failed to file the necessary FCC applications to transfer the owner’s stations after his death and also failed to timely request authority for two stations to be silent.  These violations resulted in a Consent Decree with the FCC’s Media Bureau requiring payment of a $25,000 penalty.

On January 13, 2021, the controlling shareholder of a number of radio licensees passed away.  Under Section 310(d) of the Communications Act and Sections 73.3540 and 7.3541 of the FCC’s transfer of control rules, involuntary transfer of control applications should have been filed within 30 days of the controlling shareholder’s passing.  Those applications must apprise the FCC of the facts surrounding the involuntary transfer, and seek Commission consent to the transfer of control of the licenses from, for example, the decedent to the decedent’s estate/executor.  Once the FCC approves the involuntary transfer, there will typically be a second set of applications to transfer the licenses out of the estate to the party inheriting the stations (or sometimes to a party buying the stations directly from the estate).

Here, the stations were also later placed into trusts created two months after the controlling shareholder’s death, but applications seeking FCC approval were not filed until several months after that.  During that time, the former controlling shareholder’s son became the sole trustee of the trusts and assumed de facto control of the licensees and their radio licenses without having obtained the additional FCC approvals to do so.

Unrelated to these transfer issues, the license renewal applications for an AM station and FM translator formerly controlled by the deceased owner disclosed that the stations were off the air without FCC authorization.  In the case of the AM station, special temporary authority (“STA”) to remain silent was not requested until two months after a previous STA to be silent had expired.  With regard to the FM translator, it was silent for seven months before the licensee requested special temporary authority for it to be silent.

Under Section 73.1740(a)(4) (full power stations) and Section 74.1263(c) (FM translators) of the FCC’s Rules, licensees must notify the FCC within 10 days of a station going silent if it does not return to the air within that time.  If that silence is expected to last more than 30 days, the licensee must obtain FCC authorization to be silent for longer than 30 days.  Even where a station has received permission to remain silent for the maximum duration of an STA (six months), the licensee must seek renewal of that authorization every six months thereafter if the station continues to be silent.  Absent a special finding by the FCC preventing it, the license of a station that has been silent for more than 12 consecutive months (even with the required STAs in place) automatically expires under Section 312(g) of the Communications Act.

To conclude the FCC’s investigation of the alleged violations, the licensees agreed to enter into a Consent Decree.  Under the terms of the Decree, the licensees must pay a civil penalty of $25,000 and appoint a compliance officer to implement and administer a compliance plan.  The compliance plan must include a compliance manual and training program to prevent future violations.  The licensees must also submit a compliance report within 90 days, and then submit annual compliance reports for the next three years.

FCC Fines New York Retailer $685,338 for Marketing Noncompliant or Unauthorized  Wireless Microphones

The FCC recently fined a wireless microphone retailer $685,338 after years of warning the company to obtain proper FCC authorizations for the wireless microphones it was selling.  As we discussed in 2020, the FCC previously proposed the fine, asserting that the retailer had advertised 32 models of wireless microphones that did not comply with the Communications Act or the FCC’s equipment marketing rules.

Section 302(b) of the Communications Act prohibits, among other things, the sale or offering for sale of devices that fail to comply with the FCC’s radiofrequency (“RF”) equipment authorization regulations.  Similarly, Section 2.803(b) of the FCC’s Rules prohibits, with limited exceptions, the marketing of an RF device unless the device has first been properly authorized, identified, and labeled in accordance with the FCC’s Rules.  Section 74.851(f) of the FCC’s Rules requires devices emitting radiofrequency energy (such as wireless microphones) to be authorized in accordance with the FCC’s certification procedures to prevent interference before they can be marketed in the United States.  As detailed in Pillsbury’s Primer on FCC Radio Frequency Device Equipment Authorization Rules, equipment authorization procedures differ depending on the type of equipment involved.

The Commission initially cited the company in 2011 (the “2011 Marketing Citation”) for marketing wireless microphones that did not comply with the FCC’s equipment marketing rules.    Despite this citation, the retailer continued to market noncompliant microphones.  In response to a 2016 complaint alleging the company was still marketing noncompliant microphones, the FCC issued a Letter of Inquiry (“LOI”) in 2017.  This prompted a years-long investigation, during which the retailer never provided complete answers regarding the authorization status of its microphones.  In many cases, the FCC ID numbers provided by the retailer did not match the microphone’s advertised descriptions and/or claimed operating frequencies.

The FCC then issued another LOI in 2019 asking for (i) the actual frequencies, (ii) the FCC IDs, and (iii) the authorized frequencies for 82 wireless microphone models that were available for sale on the retailer’s website.  The retailer only provided answers for some of the wireless microphones.  The FCC determined that 32 of the 82 microphone models advertised for sale were not properly authorized and issued a Notice of Apparent Liability for Forfeiture in April 2020 (the “2020 NAL”) proposing a $685,338 fine.

In the 2020 NAL, the FCC found that the retailer apparently willfully and repeatedly violated Section 302 of the Communications Act and Sections 2.803 and 74.851 of the Commission’s Rules when it marketed 32 models of wireless microphones that were noncompliant or unauthorized.  The FCC also proposed a significant upward adjustment of the total “base fine” for such violations due to the retailer’s long record of repeated and continuous marketing violations and the egregious nature of the violations, specifically noting that the retailer marketed two microphones that apparently operated in the aviation band and thus had the potential to cause harmful interference to a critical public safety radio service.

The retailer responded to the 2020 NAL on July 10, 2020.  First, it asserted that the 2020 NAL should be cancelled because it did not prove a violation occurred, and it claimed that screenshots of its website showing prices and a shopping cart do not prove that a specific microphone was available for purchase.  The retailer also argued that to prove a violation, the FCC must show that the retailer had “the intention or ability to sell or lease” the microphones.  The FCC reasoned that a website containing images, descriptions, prices, the word “shop” and a shopping cart, and an “add to cart” function clearly indicated the products were advertised for sale.  The FCC further noted that the actual sale of an unauthorized device is not necessary to prove a marketing violation, and a website with thorough descriptions and pictures of the microphones is a clear indication that the retailer was marketing the microphones to the public.

Second, the retailer claimed the 2011 Marketing Citation provided insufficient and stale notice to support the 2020 NAL.  In many cases, entities that violate a rule and do not hold an FCC authorization or license are entitled to a non-monetary citation before an NAL can be issued, but the FCC pointed out that there is no expiration date for a citation, and the 2017 LOI followed by the 2020 NAL kept the retailer on notice that the FCC was continuing to investigate.  The FCC also rejected the claim that the rules cited in the Marketing Citation did not match the rules cited in the 2020 NAL, noting that the difference in the rule numbers was due to that rule section being reordered in 2013.

Third, the retailer argued that the proposed fine should be lowered because some microphones were authorized or should be grouped together and considered one model.  The FCC rejected this argument, noting the company did not provide any technical documentation to prove the devices were identical and should be grouped together.  The FCC also rejected the argument that some of the microphones had not been sold for more than a year prior to the 2020 NAL, explaining that a model does not have to be sold to be marketed.  The FCC also rejected the argument that some of the models were actually authorized, instead showing that the frequencies authorized under the FCC ID for a particular model did not match the frequencies provided by the retailer in its 2020 NAL response.

Finally, the retailer claimed that the upward adjustments were excessive and unwarranted.  The retailer argued that the fines for the microphones capable of operating in the aviation band should be eliminated or reduced because it was not proven that the models in fact operated in the aviation band.  However, the FCC pointed out that the retailer never actually stated that the two models were not capable of operating in the aviation band and had not provided information to show the devices could not operate in that band.  The retailer also claimed that there was no evidence of a continuing violation to support the upward adjustment.  The FCC reaffirmed its conclusion that the facts supported an upward adjustment, noting that the 2011 Marketing Citation and the 2020 NAL both showed noncompliant wireless microphones being marketed on the retailer’s websites.  In addition, the FCC rejected the retailer’s argument that it did not understand the FCC’s inquiries because it is not involved in the communications business.  The FCC explained that the retailer received multiple citations and communications from the FCC and any continued ignorance of the law did not excuse or mitigate the violations.  The Commission also noted that the retailer’s website continues to show many of the models at issue – a clear indication the company had no intent of complying with the FCC’s Rules.

A PDF version of this article can be found at FCC Enforcement ~ August 2022.

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

  • FCC Orders Dismantling of Unlit Arkansas Tower
  • New York Man Ordered to Cease Operating Interference-Causing Device
  • Louisiana Corporation Fined for Engaging in Prohibited Communications during FCC Auction

FCC Orders Unlit, Unmarked Tower Dismantled

In a recent Order, the FCC directed the owners of a parcel of land where an unlit tower in Arkansas sits to dismantle the structure because it is not lit or marked according to the FCC’s Rules or the Communications Act (the “Act”).  The Federal Aviation Administration had declared the structure to be a “menace to aviation.” Section 303(q) of the Act allows the FCC to require the painting and/or illumination of radio towers where those towers are a menace to air navigation. That provision also requires that when a tower ceases to be licensed by the FCC, the tower owner must continue to maintain the painting and/or lighting of the tower, and the FCC can order it dismantled if the FCC determines the tower is a menace to air navigation.

The tower “owner” may include an “individual or entity vested with ownership, equitable ownership, dominion or title to the [tower] structure.” The FCC has determined that if the title holder of the tower does not own the land where the structure is located (i.e., if the tower owner has leased the land), the title holder of the structure is deemed the owner until the landowner acquires possession of the structure. After that occurs, the landowner will be considered the owner of the structure.

This particular situation was unusual in that the tower owner could not definitively be determined. In 1990, the then-current landowner granted an easement allowing an individual to build the tower structure and required an annual $12,000 payment for the easement. The easement was to run with the land, but the landowner could terminate the easement if the payments were more than 45 days late. In subsequent years, the tower was sold several times. Ultimately, it was registered with the FCC in 1998, given an Antenna Structure Registration number, and required to have a steady-burning obstruction light at the top of the tower.

The tower and associated station were later sold to an entity that is no longer in existence. Through public property records in Arkansas, the FCC determined the identity of the owner of the land and sent a letter to the owner in 2017. In her response, the landowner told the Commission that she jointly owns the land with two other individuals, has never received any payments for the easement, and that the electricity to the tower was disconnected in 2005 at her request. She also expressed interest in quieting title to the structure and indicated a desire to have it dismantled. The FCC sent letters to the two other landowners identified, seeking to confirm that no landowner had received the annual fee for the easement, but received no response.

In the Order, the FCC indicated that the landowners possess the structure for the limited purpose of invoking Section 303(q) of the Act, and ordered them to dismantle the structure. In case another party comes forward to challenge the dismantling of the tower, the FCC held that any person having a “remaining interest in the Structure” is subject to the Order as well. The Commission ordered the structure to be dismantled within 90 days of the release of the Order.

New York Resident Ordered to Cease Operating Interference-Causing Equipment

The FCC recently issued a Citation and Order (“C&O”) directing a New York man to stop operating a device at his home that was causing harmful interference to a wireless provider’s licensed operations. The Commission warned him that he may be liable for fines of up to $22,021 per day if he does not comply with the order.

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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:

  • Telecommunications Carrier Pays $3.8 Million To Resolve 911 Outage Investigation
  • FCC Reduces Fine for Late-Filed License Renewal Application
  • Arkansas Radio Station Faces $17,500 Fine for Unauthorized Silence and Public File Violations

77-Minute 911 Outage Results in $3.8 Million Penalty

A large telecommunications provider entered into a consent decree with the FCC last month to resolve an investigation into a one hour and 17 minute 911 service outage that occurred on September 28, 2020. Section 9.4 of the FCC’s Rules states that all “telecommunications carriers shall transmit all 911 calls to a PSAP [Public Safety Answering Point], to a designated statewide default answering point, or to an appropriate local emergency authority…” Additionally, Section 4.9(h) of the Rules requires a wireline communications provider experiencing a network outage that potentially affects 911 service to notify the designated official at the affected PSAP of the outage “as soon as possible but no later than thirty minutes after discovering the outage[.]”  The provider must “convey to that person all available information that may be useful in mitigating the effects of the outage.…”

The 911 outage began when two new Global Traffic Managers (“GTMs”) were introduced into the carrier’s next generation 911 (“NG911”) facilities. A configuration error occurred that placed the new GTMs into the carrier’s existing, operational environment with a “blank” configuration, meaning they contained no routing data. During the outage, thousands of calls to PSAPs in Arizona, Colorado, Minnesota, North Carolina, North Dakota, South Dakota, and Utah were unable to be completed for a period of one hour and 17 minutes, and the carrier failed to timely notify all affected PSAPs of the outage.

The carrier acknowledged that it was responsible for complying with the applicable FCC rules regardless of any alleged failures by its subcontractors, and ultimately entered into a consent decree with the FCC to resolve the investigation.

The terms of the consent decree require the carrier to pay a $3,800,000 civil penalty. Additionally, the carrier must implement a compliance plan “to develop and implement processes in the evolving NG911 environment” to identify risks that could result in 911 service disruptions, protect against such risks, detect 911 outages when they occur, respond to such outages with remedial actions, and recover from such outages as soon as practicable. The carrier is also required to report any material violations of the 911 rules or the terms and conditions of its consent decree within fifteen calendar days of discovering a violation.

Broadcaster’s Fine for Late License Renewal Application Reduced to $5,000

In a December 2021 Forfeiture Order (“Order”), the FCC reduced the fine issued to a Rhode Island broadcaster for failing to timely file a license renewal application for its FM translator station.  As we discussed in September, the FCC originally issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a $7,000 fine.

The broadcaster had acquired the translator after its prior owner received only a short-term license renewal for it, meaning that its license would expire earlier than those of other Rhode Island stations. Because of the shorter term, a license renewal application should have been filed by July 1, 2017, the first day of the fourth month prior to the license expiration date.  Unfortunately, the broadcaster did not file a license renewal application until September 11, 2020, and did not request Special Temporary Authority (“STA”) to operate without a license until September 16, 2020.  In its defense, the broadcaster informed the FCC that there was a discrepancy in the FCC’s LMS database, which indicated the translator’s license would expire on April 1, 2022, the same date as all other Rhode Island radio licenses.

The Commission granted the STA on October 2, 2020 for a period of six months, allowing the station to operate while the renewal application was processed.  However, the renewal processing took longer than six months, so the broadcaster timely filed for an extension of the STA in March 2021, which remains pending.

Ultimately, the FCC issued an NAL in September 2021, proposing a fine of $7,000 – $3,000 for failing to timely file a license renewal application and $4,000 for the resulting unauthorized operation. The NAL gave the broadcaster thirty days to either pay the fine or seek reduction or cancellation of it. In response, the broadcaster filed a Petition for Reconsideration asking the FCC to reduce or cancel the fine.

In the petition, the broadcaster argued that: (1) it acted in good faith and was not responsible for the previous licensee’s misconduct resulting in the short-term license renewal; (2) though it operated after the license expired, its broadcast was a public service which did not result in interference to any other station; (3) it has a record of compliance with the FCC’s Rules; (4) the FCC incorrectly discounted the LMS database error because, although LMS did not exist at the time of violation, the incorrect expiration of April 1, 2022 was also listed in the CDBS database which was in use at the time; (5) the violation was over a shorter period of time than was initially thought due to a covering license application being filed; and (6) the broadcaster was unaware the license expired because the station was still assessed regulatory fees and was listed as “licensed” in queries performed in the FCC’s databases.

In its Order responding to the Petition for Reconsideration, the FCC reduced the fine by $2,000, citing the broadcaster’s history of compliance with the Commission’s Rules. It reduced the fine by $500 for each of the two regulations violated (failure to timely file a license renewal application and the resulting unauthorized operation). The FCC then acknowledged that there was “a possibility, albeit remote,” that the incorrect date listed in the databases may have been a contributing factor. The Commission also noted that a Covering License granted in January 2020 also had the short-term license expiration date listed, but again acknowledged that some time after that January 2020 grant, the incorrect April 1, 2022 expiration date would have appeared in searches in LMS and CDBS. As a result, the FCC agreed to further reduce the fine by another $1,000, bringing the total amount down to $5,000.

FCC Fines Arkansas Broadcaster for Silent Radio Station and Public File Violations

The FCC fined an Arkansas radio station $17,500 for (1) discontinuing operation of its AM radio station and FM translator without first requesting authority from the FCC to do so, (2) Public Inspection File rule violations, and (3) failing to update certifications made in its license renewal applications.

In January of 2020, the broadcaster had filed license renewal applications for both stations in which it certified the stations were operating and had not been silent during the license term for more than 30 days. However, on March 6, 2020, the broadcaster’s AM station, and therefore the associated FM translator, went silent due to failure of the AM transmitter.  The FCC was alerted to this fact through an informal objection to the AM station’s pending license renewal application.

Shortly after the informal objection was filed with the FCC, the broadcaster submitted STA requests seeking authority for both stations to stay silent.  The FCC granted the STA requests on May 22, 2020, but noted that the requests had not been timely filed, as the stations were silent for thirty days as of April 6, 2020, and the grant of the STAs did not authorize the stations’ silence between April 6, 2020 and May 22, 2020.

The FCC’s rules require stations to notify the Commission within 10 days of discontinuing operations, and to obtain FCC authorization if the station will be silent for more than 30 days.  Here, both stations went silent on March 6, 2020, with the AM station resuming operations on July 29, 2020 and the FM translator resuming operations on September 25, 2020.  As a result, the broadcaster should have notified the FCC the stations had gone silent no later than March 17, 2020, and sought authority to remain silent by April 5, 2020.  Since the STA requests were not filed until May 22, 2020, the FCC found that the broadcaster had willfully and repeatedly violated Sections 73.1740(a)(4) and 74.1263(e) of its Rules.

Additionally, Section 73.3526(e)(11)(i) of the FCC’s Rules requires every station to place in its Public Files “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must be placed in the Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter. The FCC’s review of the AM station’s Public File revealed that the Programs/Issues Lists for six quarters were filed late, and eight were missing.

Finally, the FCC noted that under Section 1.65 of its Rules, applicants are responsible for the continuing accuracy and completeness of information furnished in pending applications. In this instance, the broadcaster certified in its license renewal applications that the stations were “currently on the air broadcasting,” that there had been no rule violations by the licensee, and that the stations had not been silent for more than 30 days. The FCC explained that the first certification became inaccurate when the stations went off the air on March 6, 2020 and the second certification became inaccurate when the broadcaster failed to notify the Commission the stations were off the air on March 16, 2020. The third certification became inaccurate on April 6, 2020, the 31st day the stations were silent.

The Commission’s base fine for unauthorized silence is $5,000. The base fine for failure to file required forms or information is $3,000, and the base fine for Public Inspection File violations is $10,000. In determining the amount of a proposed fine, the FCC may adjust its base fine upward or downward based upon the nature, circumstances, extent, and gravity of the violation, in addition to the licensee’s degree of culpability and any history of prior offenses. In this case, the Commission concluded a proposed total fine of $17,500 was appropriate.

Fortunately for the broadcaster, the FCC did not find that the violations constituted a “serious violation” or pattern of abuse preventing renewal of the stations’ licenses. Barring other issues arising, the FCC indicated that both license renewal applications would be granted in separate Commission actions upon conclusion of the stations’ forfeiture proceedings. However, given the importance the FCC places on its Public Inspection File requirements, the FCC stated that any grant of the license renewal applications would be conditioned on the AM station submitting a report regarding its compliance with those requirements.

A PDF version of this article can be found at FCC Enforcement ~ January 2022.

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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:

  • Florida Broadcaster Pays $20,000 for Unauthorized Tower Construction Work
  • Colorado Broadcaster Issued Notice of Violation for Operating FM Translator on Wrong Frequency
  • Telecommunications Company Receives Cease-and-Desist Letter From FCC for Transmitting Illegal Robocalls

FCC Fines Florida Broadcaster $20,000 for Commencing Tower Construction Prior to Completing Required Environmental Review

The FCC’s Enforcement Bureau and a Florida broadcaster entered into a Consent Decree to resolve an investigation into whether the broadcaster began clearing land for a wireless telecommunications tower before it completed the required environmental review. Environmental reviews are required by the FCC’s Rules, including rules implementing the National Environmental Policy Act of 1969 (NEPA). To settle the matter, the broadcaster admitted violating the FCC’s environmental and antenna structure rules, and agreed to implement a compliance plan while making a $20,000 penalty payment.

The FCC’s Environmental Rules require applicants and licensees to assess whether proposed facilities may significantly affect the environment. Under Section 1.1307(a)(3) of the Commissions Rules, an applicant must prepare an Environmental Assessment for facilities that could have a significant environmental effect. When considering whether an action may have a significant environmental effect, one of the factors an applicant must consider is whether the proposed site may affect threatened or endangered species or designated critical habitats.

Additionally, the FCC’s Antenna Structure Registration (ASR) rules require the owner of a proposed or existing antenna structure to follow registration procedures prior to constructing or altering a tower. If an Environmental Assessment is required by the rules, it must be included in the ASR application.

In July and August of 2020, the broadcaster hired contractors to perform the necessary environmental review and construct a wireless communications tower located within the designated critical habitat of the endangered Florida bonneted bat. When the broadcaster filed its ASR application in November 2020, it included an Environmental Assessment depicting premature clearing and admitted to preconstruction activities.

Although the environmental review was later completed and the FCC authorized construction of the tower, the FCC issued a Letter of Inquiry to the broadcaster in April 2021 asking a series of questions related to its compliance with the Commission’s Environmental and ASR rules. The broadcaster responded in July 2021, admitting that it began construction by clearing vegetation from the tower site around August 3, 2020 – before it prepared an Environmental Assessment and before applying for an ASR.

To resolve the investigation, the broadcaster agreed to enter into a Consent Decree in which it admitted its actions violated the FCC’s Environmental and ASR rules. As part of the Decree, the broadcaster must designate a compliance officer, implement a multi-part compliance plan, including developing a compliance manual and compliance training program, disclose within fifteen days any violations of the Consent Decree or the Environmental and ASR rules, file annual compliance reports with the FCC for the next three years, and pay a $20,000 civil penalty.

FCC Issues Notice of Violation to Colorado Licensee for Operating FM Translator on Unauthorized Frequency

Earlier this month, the FCC issued a Notice of Violation to the licensee of a Colorado FM Translator asserting violations of Sections 1.903(a) and 74.14(a) of the FCC’s Rules by operating a station on a channel for which it wasn’t licensed.

Section 1.903(a) requires stations to be used and operated only in accordance with the rules applicable to their particular service and with a valid authorization granted by the Commission. Pursuant to Section 74.14(a), once an FM Translator has been built in accordance with the terms of its construction permit and a license application has been filed showing the station is in satisfactory operating condition, it may commence service or program tests.

On three different dates between October 2020 and January 2021, an agent of the Denver Office of the FCC’s Enforcement Bureau observed the FM Translator operating on Channel 282 despite being licensed to operate on Channel 272. While the licensee had obtained a construction permit authorizing it to modify the station to operate on Channel 282, at the time of the three separate observations, it had not yet filed an FM Translator License Application. Until a license application is filed, the facility lacked authority to operate with the parameters outlined in the construction permit, and any such operation would violate Section 74.14(a).

The Notice of Violation seeks additional information from the broadcaster concerning these apparent violations. It instructs the broadcaster to submit within 20 days a written response fully explaining each apparent violation and all relevant surrounding facts and circumstances, including the specific actions taken to correct any violations and prevent them from recurring. The Notice also requires the broadcaster to include a timeline for completing any pending corrective actions.

FCC Issues Cease-and-Desist Letter to Telecommunications Company for Transmitting Illegal Robocalls

The FCC’s Enforcement Bureau issued a cease-and-desist letter to a telecommunications company for apparently transmitting illegal robocalls. The letter instructs the company to investigate, and if necessary, cease transmitting any illegal robocall traffic immediately and take steps to prevent its network from being used to transmit illegal robocalls.

The Enforcement Bureau issued the letter after an investigation revealed the company apparently originated multiple illegal robocall campaigns. The Bureau works closely with the USTelecom Industry Traceback Group (“Traceback Consortium”), which is the consortium selected pursuant to the TRACED Act to conduct tracebacks. The Traceback Consortium investigated prerecorded voice message calls that voice service providers and customers of YouMail flagged as illegal robocalls made without consent of the called party.

Between August 24, 2021 and October 15, 2021, the Traceback Consortium conducted tracebacks and concluded that the company originated over 80 calls that appeared to be illegal robocalls, including substantial numbers of government imposter scam calls such as posing as the Social Security Administration and the Federal Reserve, as well as calls threatening utility discontinuation, offering fake credit card rate reductions, and arrest warrant scams. Furthermore, the Traceback Consortium notified the company about the calls and provided access to supporting data identifying each call prior to the cease-and-desist letter being sent.

The FCC noted that in addition to the Traceback Consortium previously notifying the company, the numerous tracebacks to the company as an originator indicated that the company is apparently knowingly or negligently originating illegal robocall traffic. The letter instructs the company to take steps to “effectively mitigate illegal traffic within 48 hours” and inform the FCC and the Traceback Consortium within 14 days of the date of the letter of the steps it has taken to “implement effective measures” to prevent customers from using the network to make illegal calls.

If the company fails to properly take the actions listed in the letter or fails to take sufficient mitigating actions to prevent customers from using its network to make illegal robocalls, downstream U.S.-based providers may block calls transmitted by the company. Additionally, the FCC may find that the company’s certification in the Robocall Mitigation Database is deficient and direct the removal of its certification from the database. If its certification is removed from the Robocall Mitigation Database, all intermediate and terminating voice service providers would be required to immediately cease accepting calls from the company.

A PDF version of this article can be found at FCC Enforcement ~ November 2021.

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

  • FCC Proposes Largest Robocalling Fine Under TCPA
  • Tennessee Broadcaster Fined for Failing to File License Applications for FM Translators
  • FCC Fines Rhode Island Broadcaster for Late-Filed License Renewal Application

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

  • FCC Asserts Violation of Prohibition Against Owning Two Top-Four Stations in the Same Market and Proposes $518,283 Fine
  • FCC Admonishes Indiana Broadcaster for Failing to Timely File License Renewal Application
  • Noncommercial Broadcaster Fined $9,000 for Late-Filed Issues/Programs Lists

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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:

  • Online Drone Retailer Fined Nearly $3 Million for Marketing Unauthorized Devices
  • FCC Denies Motion to Quash Letter of Inquiry Concerning Unauthorized Operation of Nevada LPFM Station
  • Unauthorized License Transfers Lead to $104,000 Consent Decree for New Jersey Water Service Company

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

  • FCC Fines Colorado Wireless Operators for Use of Unauthorized Equipment and Unauthorized Operations
  • VoIP Provider Enters Into Consent Decree With $180,000 Penalty Over Failure to Meet FCC Filing Requirements
  • FCC Investigates Colorado Manufacturer’s Unauthorized Signal Booster

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