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One of the intriguing aspects of posting on CommLawCenter is the level of interest a particular post generates.  Posts announcing something of vital importance to broadcasters will sometimes make hardly a ripple, while more mundane posts attract surprising interest.

Indeed, one of CommLawCenter’s most-read posts in its early years was a discussion of the first national EAS test.  It wasn’t that non-broadcasters had suddenly become infatuated with EAS; it was because the first national EAS test happened to coincide with a near-miss between Earth and what was described as a “huge asteroid”.  There apparently was a sizable contingent of conspiracy theorists who thought that a national EAS test being held at the same time as the asteroid’s arrival indicated a government cover-up of the asteroid’s imminent collision with Earth.  I never understood the logic of that claim, but a four-month-old post on CommLawCenter announcing the national EAS test date suddenly became red hot in web readership until the asteroid peacefully passed by Earth.

So it was when we recently reported that shortly after the FCC shut down, some stations were getting calls claiming to be on behalf of the FCC and asking for payment of “FCC fees”.  When stations pressed for more information, the callers became belligerent or hung up.  In response, we alerted stations to be wary of such calls and to be especially leery of any caller that requested payment by gift card, which is the most common form of payment demanded by scammers (because they can’t be traced).

That brief alert received a lot of trade press coverage afterwards, and I certainly hope it saved a few stations some headaches.  We subsequently sought more information to see if there was anything that could be learned about the calls (were they all actually scams, were there multiple approaches, or just one unified effort?).  Unfortunately, there wasn’t much more information available, as it seemed most stations had just hung up and moved on with their lives.  However, we did get an interesting tidbit from one station—the callback number the caller had left on voicemail.  While that may seem odd, it’s common for phone scammers to leave a toll-free number behind so that those called can run out, obtain the necessary gift cards to make payment, and have a number they can call back to relay the gift card payment information to the scammer.

This particular number didn’t generate any useful information from a web search, but the way this particular call had been described seemed more formal and organized than you would expect the typical scam call to be (although the caller apparently still became belligerent when pressed).  As noted in the original post, the FCC (particularly when shut down) doesn’t make collection calls itself, but it does typically send a written “Past Due Notice” to licensees when a debt has stayed unpaid for 30 days.

I checked my files for a Past Due Notice a client received a few years ago, and sure enough, at the very bottom of the Notice was the phone number the station had provided.  Now we were getting somewhere.  As it turns out, despite being on a piece of FCC correspondence, it was not an FCC telephone number, but one associated with the Department of Treasury.  While the FCC does refer past due amounts to Treasury for collection (a questionable practice given that when you want to sell your station or renew its license, the FCC already has all the leverage it needs to get paid), the Treasury Department shut down long before the FCC.  Since the FCC doesn’t make collection calls, and both the FCC and Treasury were closed when this particular call was made, who was doing the calling?

Making the circumstances even more curious is the fact that the FCC actually pays Treasury to handle the collection of overdue FCC accounts.  If the FCC and Treasury are both shut down because they have no appropriated funds to operate, then the obvious question is: Who is paying a Treasury employee to do FCC collections if neither agency has funding to operate in the first place?

So I called the number to ask.  A very pleasant person (not belligerent at all, at least to me) answered the phone and indicated that she wasn’t sure exactly how the contract between the FCC and Treasury worked, but that money was apparently available for their continued operations, as they had not been informed they were at risk of being furloughed anytime soon.  She also said that any of the calls to stations in which the caller hung up when pressed would not have come from Treasury, as they are used to people thinking they are a scam caller and therefore work hard to persuade people that the call is a legitimate one.

I told her that with the FCC shut down, stations couldn’t access the FCC’s Fee Filer or Red Light systems to determine the validity of any claimed debt, so there were some serious concerns about which callers were scammers and which might be legitimate outreach from Treasury.  She responded that they were was unaware the FCC had taken the Fee Filer and Red Light systems down, and appreciated knowing that.  She added that she certainly understood why a broadcaster might be skeptical of a call given the shutdown and the inability to verify the existence of a debt until the FCC reopens.  I suggested Treasury might want to focus its collection efforts on other types of debts until the FCC reopens, but in any event, that Treasury should be aware that their calls might be viewed with more than the typical amount of skepticism until the government reopens.

As we finished the conversation, she confirmed that Treasury only takes traditional forms of payment, so again, if a caller asks to be paid in gift cards, the call is a scam.

But what if the call successfully passes that first test?  How do you tell if the call is legitimate, and equally important, whether you actually owe the amount claimed?  Under normal circumstances, the first thing you should do is log into the FCC’s Fee Filer and Red Light systems to determine whether any debt is outstanding and the amount of it (if there are amounts due, you’ll be able to pull up a “Remittance Advice – Bills for Collection (Form 159B) for the amounts owed).  Since those systems are currently unavailable during the shutdown, if you aren’t aware of any outstanding payment due, you may want to wait until the FCC reopens and the debt can be confirmed before sending any payment.

Alternatively, if you get a call from someone claiming to be with the Department of Treasury, ask them to send you their copy of your Form(s) 159B, which is also used by Treasury as the basis for their collection process.  Once you are satisfied that you owe the debt (and interest), they will walk you through the payment options (again, no gift cards).  If you believe the debt claim to be an error, you can challenge it, but be aware that if you earlier received a Past Due Notice from the FCC and did not challenge it within 30 days of the date on the Notice, the government may take the position that you waived your right to challenge it.

So if you get a suspicious call claiming you owe FCC fees, whether you think it is a scam or not, it’s wise to check the FCC’s Fee Filer to make sure you are all paid up.  If not, the call might be legitimate, particularly if the amount the caller is saying you owe is similar to the amount the Fee Filer is indicating.  Note that the amounts may not be identical, as the Fee Filer indicates the initial amount owed plus any payment penalty (for example, missing a regulatory fee payment results in an immediate 25% penalty), but may not include all accrued interest, which Treasury will also insist on collecting.

But what happens if you still don’t pay?  Well, you will continue to have “Red Light” status at the FCC, which means the FCC will place a hold on processing your applications.  You won’t be able to sell your station, get its license renewed, etc., until the Red Light status is removed.  Also, once the FCC refers the debt to the Department of Treasury, if Treasury fails to collect it within a certain period of time, it will actually hand the bill to private debt collection agencies for collection.  Those entities are renowned for their skill at harassing debtors (sometimes legally, sometimes not) into paying.  If you have the misfortune to reach that state of affairs, you’ll dream of the days when you were only getting calls from scammers.

 

 

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Sometimes it seems the world really is out to get you.

Being in a highly regulated business, broadcasters are quite dedicated to meeting regulatory obligations.  More specifically, being subject to fines (or worse) for every shortcoming makes the average broadcaster not just diligent, but justifiably paranoid in ensuring that every regulatory requirement has been met and checked off the list.  Events like government shutdowns therefore give broadcasters particular angst as they throw the normal processes and routines for compliance into disarray.

We discussed this in a post last week, which parsed obligations that must be met even while the FCC is closed from those for which a broadcaster has no option but to wait until the FCC reopens.  As detailed in that post, the distinction is not always a commonsense one.  For example, we noted that stations must still prepare various quarterly reports for placement in the Public Inspection File by January 10th, but that those reports cannot actually be uploaded to the online Public File until the FCC reopens, as the FCC took its Public Inspection File database offline when it closed on January 3rd, making it impossible for stations to upload those reports.

I therefore listened with interest when a broadcaster indicated last night that after four days of being dark, the FCC’s online Public Inspection File database was suddenly working again.  That seemed unlikely, and sure enough, when I tried to access the database, I was redirected to a page announcing the FCC’s closure during the federal shutdown.  When I noted this, the broadcaster responded that not only was he successfully uploading his Public File documents, but that the “ticker” on the FCC’s website listing recent Public File uploads indicated stations from all over the country were uploading reports at a frantic pace.

I asked for the link he was using, and it took me to what appeared to be the opening page of the FCC’s shuttered online Public File database, including the familiar “Sign in” link and recent uploads ticker on the right side of the screen.  I could successfully sign in on behalf of clients, and on my first visit, the ticker indicated that eight different stations had filed more than a dozen documents in just the past six minutes.  Each time I went back to the page, the ticker had updated, listing more recent uploads by a totally different batch of stations.  Since the ticker only shows the most recent dozen or so uploads, it was impossible to know how many stations had recently uploaded documents to the site, but I counted more than 50 different radio and TV call signs in an hour.

The website looked like the online Public File database in every respect.  It included Public Files for, as best as I could tell, every station in the country that has a Public File, and most convincingly of all, listed all of the uploaded Public File documents for each and every station.  In other words, it did indeed look like the FCC had restored access to the Public File database or that stations had found a backdoor way into it.

Upon closer inspection, however, it took on the appearance of a movie set—all facades without anything behind them.  It listed the various documents in a station’s Public File, including the time of uploading and the precise file size, but clicking on those documents revealed only dead links.  Also suspicious was that it was only up-to-date through September 2018.  The Third Quarter filings stations would have made by October 10th, 2018 were missing across the board with one exception—those stations that had uploaded them in the past few days after apparently spotting them as being missing from the database.  Indeed, the only links to documents that actually took you to a document seemed to be those uploaded in the past few days; older document listings were just dead links.

Given the eerie accuracy of these station Public Files and their odd shortcomings, it seemed clear that they represented a snapshot of stations’ Public Files as they existed in the latter part of September 2018—doppelgangers of stations’ real Public Files, but definitely not the genuine article.  When I asked where the broadcaster had obtained the link, I was told “Google”, and sure enough, when you search for “public inspection file” on Google, it is the first search result listed.  Those interested can find the site here.  Just don’t waste your time uploading any documents to it.

The reason reveals itself when you take a closer look at the link address: https://publicfiles-demo.fcc.gov.  The good news is that it is an actual FCC website and not a phishing website designed to steal station passwords, etc.  The bad news is that it is, as the web address suggests, just a demo site created by the FCC to demonstrate how to use the online Public File database (which all broadcast stations are now required to use).  Its demo nature was confirmed when I found a reference to it in a 2016 post we published here on CommLawCenter.  The FCC launched it on May 12, 2016 for training purposes when it moved TV stations and the first group of radio stations to its new online Public File database.

It is pretty much identical to the real online Public File database in every way, but there is one big difference—the demo site is still functioning, while trying to go to the real database takes you instead to an FCC shutdown notice.

Curiously, there is no hint anywhere on the demo webpage that it is just a demo and not the real online Public File database.  It being a demo does, however, explain why the FCC didn’t bother shutting it down when it shut down many of its other databases.  Unfortunately, when the real database became unavailable, many broadcasters came upon this site through Google or other search engines, and either failed to notice it wasn’t the real Public File database, or thought they had found a way around the FCC’s closed front door to the database.

While it is certainly unfortunate that a lot of stations appear to have wasted a lot of time uploading their Public File documents to a faux database, the far more insidious impact is that these stations have now been misled into believing they have successfully completed their uploads.  As a result, when the FCC eventually reopens and the real online Public File database is made available, these stations won’t know to upload their documents to the correct database, leaving them vulnerable to license renewal challenges and Public File fines (the FCC’s base fine for a Public Inspection File violation is $10,000).  If you hear from any broadcasters claiming that they were able to successfully upload their quarterly Public File reports while the FCC was closed, please disabuse them of that notion.  Let them know that they could not have, and that they need to upload those documents to the correct database no later than the day after the day the FCC reopens.

But that isn’t the end of this already stranger-than-fiction story.  At the beginning of December 2018, the FCC sent emails to over 1,000 radio stations indicating that the FCC had determined from a review of its online Public File database that those stations had failed to populate their online Public Files.  Those emails asked the stations to acknowledge receipt and to respond by providing the FCC with a date by which each station would “complete the upload of all required information.”

At the time the emails went out, I heard from a number of stations that were totally baffled by the FCC’s assertion that they had not uploaded everything, as they were sure they had.  In addition, it seemed incredibly unlikely that such a large number of radio stations could have failed to migrate their Public Files to the FCC’s online database.  It represented a real unsolved mystery, and many of us were intrigued as to what could possibly explain it when the requirement to move radio Public Files online had been so heavily publicized (for example, just here on CommLawCenter, you’ll find it discussed here, here, here, here, here, and here).

Now, however, I’m thinking we may have solved this mystery.  It is indeed possible for the FCC’s assertion that a large number of radio stations have empty online Public Files, and the assertion from many of those stations that they have already uploaded their Public Files, to both be true.  Ironically, in creating the demo site, the FCC was attempting to help broadcasters, but in leaving it up, the FCC has unwittingly set a trap for stations that continues to swallow innocent victims hourly.  I’m betting that a lot of those missing Public Files can be found at the FCC’s online Public File demo site https://publicfiles-demo.fcc.gov—the Bermuda Triangle of online Public File uploads.

[Postscript: In response to the publication of this post, the FCC has taken the demo database offline, preventing more stations from falling into this trap.  While that is obviously a good result overall, it unfortunately means that: (1) communications counsel now cannot determine whether stations they represent mistakenly uploaded to the demo site instead of the real one in order to notify those clients, and (2) stations that mistakenly uploaded their entire Public File to the demo site long before the FCC shutdown have lost the ability to access it in order to demonstrate to the FCC that they made a good faith effort to upload their Public File (albeit to the wrong database).  As a result, stations will need to talk to their employees handling Public File matters and ascertain directly from them what they have uploaded and to where to ensure that, as soon as the FCC reopens, the appropriate Public File documents are uploaded to the correct FCC database.] 

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Proving once again that nature abhors a vacuum, we’ve just learned of another bit of fallout for broadcasters from the federal shutdown—scammers are apparently calling broadcast stations pretending to be calling on behalf of the FCC and seeking to collect “FCC fees” over the telephone.  The first of these calls that we heard about occurred within six hours of the FCC shutting down.

With the FCC largely closed at this point, these callers are likely assuming that it will be very difficult for a broadcaster to ascertain the veracity of a fee claim or to confirm whether a caller is actually connected to the FCC.  As detailed in our earlier post, however, the FCC, along with the rest of the federal government, is operating only at a bare-bones “protecting life and property” level at this point.  While it could certainly use the money given the current absence of congressional funding, a closed FCC is not seeking to collect it from broadcasters, and certainly not over the telephone.

So if you get a call claiming to be on behalf of the FCC and demanding money, be skeptical.  Be even more skeptical if the caller wants you to pay with gift cards—the preferred payment method of phone scammers.  The FCC is really more of a check and credit card operation, and has very complex systems for processing those forms of payment.  It will not allow you to pay your regulatory fees with gift cards, and certainly doesn’t do it over the telephone.

If you do get such a call, one place you can report it to is the Federal Trade Commission, but you may have to wait until the federal shutdown is over, as processing complaints regarding phone scammers is one of the many FTC activities that have ceased due to the government shutdown.

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Broadcasters were spared some of the uncertainty related to the December 22, 2018 government shutdown because the FCC was able to independently fund its operations until January 3, 2019.  Yesterday, those funds ran out, and under the Antideficiency Act, FCC employees are prohibited from continuing to work until funds are available to pay them.  While the Antideficiency Act doesn’t directly affect the FCC’s filing and other databases (being automated, they don’t get paid as FCC employees), some of those systems are incapable of operating without regular human intervention, and some can operate without human intervention only until they “break”, at which point the Antideficiency Act prohibits anyone from maintaining or repairing them.

As a result, it wasn’t clear until the past two days which systems might remain online, and which systems would be preemptively taken down to avoid “breakage”.  The FCC released a Public Notice on Wednesday clarifying that the last normal day of business prior to the shutdown was January 2, 2019 (January 3 being only a half-day), so any FCC filings due on January 3rd or thereafter are now due on the day after the day the Commission eventually reopens.

The Public Notice also listed certain Commission electronic filing and database systems that would remain operational during the shutdown, and certain systems that would be taken offline.  Absent from either list was the FCC’s online Public Inspection File database, and conversations with FCC staff minutes before they were required to leave the building indicated that even they didn’t know for sure whether the public file database would continue operating during the shutdown.

The answer became clear late yesterday afternoon when the online Public Inspection File database ceased to function, redirecting stations trying to upload documents and any members of the public wishing to view them to a webpage describing the shutdown.  The public’s inability to access the online Public File triggers the obligation on the part of broadcasters and cable/DBS systems to make available to the public a back-up copy of the political broadcasting portion of their Public Inspection File (generally referred to as the “Political File”).  At the time the Commission created that obligation, it said stations could keep the Political File either electronically or in paper and make it available either at their main studio or on their website.

With the elimination of the Main Studio rule, however, that obligation was further modified such that Political File documents that are not available via the Commission’s online database must now be made available at an “accessible location” in the station’s community of license during normal business hours.  An accessible location would include a station office, the local library, the office of another broadcaster, or any other business.  Broadcasters are not required to make any other portion of their Public Inspection File beyond the Political File available during the federal shutdown.

Moving beyond the Political File “backup” obligation, the shutdown of the online Public Inspection File database also means that broadcasters cannot upload their Quarterly Issues/Programs List or Children’s Commercial Television Limits compliance documents that would otherwise be due in the online Public Inspection File on January 10, 2019.   Accordingly, while the upload of Public File documents is not considered an FCC “filing”, the date to upload those documents has effectively been extended until after the Commission reopens.

However, the inability to upload materials to the Public File does not relieve stations of their recordkeeping obligations.  As stated in a 2016 Public File Report and Order by the FCC, “[i]f the Commission’s online file becomes temporarily inaccessible for the uploading of new documents, [the FCC] will require entities to maintain those documents and upload them to the file once it is available again for upload.”  These materials do not need to be made available to the public during the shutdown, but stations should proceed as usual in the creation of their January 10th documentation and be prepared to upload those materials once the online Public Inspection File database becomes accessible.

Note also that television stations, while not obligated to, can still file their Children’s Television Programming Reports (that would normally be due on January 10th) with the FCC.  This is because the FCC has left the LMS filing system up and running for incentive auction-related filings (which are excluded from the shutdown because auction-related activities at the FCC are separately funded—see below).  However, the Commission’s Public Notice is clear that, other than auction filings and those necessary for the protection of life and property, filings at the FCC during the lapse in government funding “will not be reviewed or processed and will be considered accepted on the day following the day of return to normal operations.”

Finally, be aware that because the spectrum auction operations of the FCC remain fully funded, they are NOT affected by the government shutdown.  FCC staff will continue to be available to answer questions, grant requests for Special Temporary Authority and process requests for reimbursement from television broadcasters that are transitioning to another channel as a result of the broadcast incentive auction and repack.  Because those FCC operations continue, the FCC left its LMS database up and running, which means that transitioning television stations CAN and MUST make filings related to their transition.  This includes the Quarterly Transition Progress Report due on January 10, which must still be filed by that date.  For stations assigned to Phase 2 of the transition, the obligation to notify cable and satellite TV distributors 90 days prior to a station’s transition to a new channel, and the deadline for filing with the FCC a request for any extension of time to transition, remain unchanged.  In that regard, FCC staff will still be available to provide Phase 2 transition stations with the mailing addresses of the multichannel video programming distributors to which the notices must be sent.

So if upon hearing of the FCC shutdown you thought you could extend that holiday vacation, think again.  Your regulatory obligations didn’t go away, they just became more complicated to fulfill.

 

 

 

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As 2018 moves into the rear view mirror, 2019 promises to be a consequential year for broadcasters.  In accordance with a Pillsbury holiday tradition that goes back farther than any of us can remember, earlier this month we published our annual calendar of upcoming regulatory deadlines for broadcasters–a compendium of the currently “known knowns” of 2019 (this year’s edition being innovatively titled, for the first time ever, the 2019 Broadcasters’ Calendar).  It’s chock-full of dates and deadlines affecting TV and radio in the coming year, and cross-references some of our other Advisories to help stations meet their regulatory obligations in the year ahead.

Of course, 2019 will also bring some currently “known unknowns” into focus, with one of the biggest being the FCC’s recently-launched 2018 Quadrennial Review of its media ownership rules–a proceeding that could well alter the broadcast landscape when it reaches completion.

But as broadcasters look ahead to 2019, pondering both the knowns and unknowns of the coming year, they can at least recount with the confidence of hindsight what rule changes 2018 dropped into their regulatory stocking, right?  Perhaps not.  In a year when deregulatory changes were announced at a steady pace, some broadcasters have become confused as to whether a particular rule change was just proposed, voted on, or has actually gone into effect.

So as we prepare for 2019, let’s take a quick refresher on the changes to the FCC’s Rules 2018 brought, and what’s still to come in 2019:

  • Myth: In 2018, the FCC eliminated the requirement that stations file copies of contracts like TV network affiliations, articles of incorporation, bylaws, options, etc. with the FCC.
  • Fact: While the FCC voted in 2018 to eliminate the paper filing of certain contracts, the process for implementing that change has not yet been completed.  As a result, the rule remains in effect, and stations must continue to file such contracts in paper form at the FCC until January 22, 2019.  Also, while paper copies of these contracts need no longer be filed after that date, stations must still either upload them to their online public file or upload a list of such contracts to the online public file and promptly make copies available to those requesting them.  Check out our CommLawCenter article on this topic.
  • Myth: Broadcasters have been relieved of the need to post a copy of their license at their transmission facility.
  • Fact: Not yet! Even though the FCC voted to eliminate the posting requirement in December 2018, the rule change won’t go into effect until after it has been published in the Federal Register.  As a result, this “2018 rule change” also won’t go into effect until sometime in 2019.
  • Myth: Since all stations were required to file their biennial ownership reports in 2018, that means no more biennial ownership reports until 2020, right?
  • Fact: Unfortunately not the case.  The biennial ownership reports filed in 2018 reported station ownership as of October 1, 2017.  That filing deadline was extended from December 1, 2017 to March 2, 2018 due to the merging of the filing deadlines for all commercial and noncommercial stations, as well as delays in bringing the FCC’s new ownership report filing system online.  As a result, the next batch of biennial ownership reports are due December 1, 2019, and must report station ownership as it exists on October 1, 2019.
  • Myth: In 2019, the FCC will reimburse LPTV, TV translator, and FM broadcast stations for all their costs incurred as a result of the TV spectrum repack.
  • Fact: A partial Yes. In March 2018, Congress passed legislation allocating more repack reimbursement funds and expanding the list of entities eligible for reimbursement to include these types of facilities.  However, in its August Notice of Proposed Rulemaking, the FCC noted that Congress had limiting eligibility for LPTV stations to those that were licensed and operating for nine of the twelve months prior to April 13, 2017.  The FCC also proposed reimbursing FM radio stations on a sliding scale based on the length of their time off-air, with only those stations off for more than thirty days entitled to 100% reimbursement.  All in all, certain stations may be on their way to receiving reimbursements, but who will be reimbursed and for how much (and in what order of priority) remains to be determined in 2019.  For more, check out our CommLawCenter article on this topic.
  • Myth: In 2019, CommLawCenter will be the place to go for up-to-date news and analysis in the world of communications law and business.
  • Fact: Actually, this one is true!  Best wishes to all for a New Year that holds few unpleasant regulatory surprises.  Keeping the 2019 Broadcasters’ Calendar close at hand will go a long way in achieving that result.
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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others.  This month’s issue includes:

Headlines:

  • Unpaid Regulatory Fees Bring License Revocation Proceeding for Massachusetts FM Station
  • Unregistered Tower and Unauthorized Silence Spell Trouble for North Carolina AM Station
  • FCC Issues Warning to Denver Trucking Company for Unauthorized Transmissions on Public Safety Frequency

The Check is (Not) in the Mail: Massachusetts Station Risks Revocation over Missing Regulatory Fees

The FCC’s Media Bureau issued an Order to Pay or to Show Cause (“Order”) to the licensee of a Massachusetts FM station for failing to pay five years’ worth of regulatory fees and the corresponding penalty fees.  In response to the Order, the licensee must either pay the overdue fees or demonstrate why it does not owe regulatory fees.  The Order also launches a proceeding to revoke the station’s broadcast license.

Section 9 of the Communications Act (“Act”) requires the FCC to “assess and collect regulatory fees” for certain regulated activities, including broadcast radio.  Should a party fail to timely pay such fees, the FCC will assess a 25% late fee, as well as interest, penalties and administrative costs.  The FCC may also revoke licenses for failure to pay.

The licensee failed to pay its regulatory fees between fiscal years 2014 and 2018, and has accumulated a debt of $9,641.73 in unpaid fees and related charges.  The FCC repeatedly sent the licensee Demand Letters calling for payment but received no response.  The FCC eventually transferred the licensee’s debt for fiscal years 2014-2017 to the Treasury Department for collection.  At the FCC’s request, the Treasury Department recently transferred this debt back to the FCC in order to consolidate the collection process.

The licensee has 60 days to either: (1) provide the FCC with documented evidence that all its regulatory fee debt has been paid, or (2) show cause for why such payment is either “inapplicable or should otherwise be waived or deferred.”

Failure to provide a satisfactory response to the Order may result in the revocation of the licensee’s sole FM station license.

Silent Night: FCC Investigates North Carolina Licensee for Unregistered Tower and Other Violations

The FCC’s Enforcement Bureau issued a Notice of Violation (“NOV”) to the licensee of a North Carolina AM radio station for failing to register and light its tower, and for failure to operate its station in accordance with the FCC’s Rules.

Part 17 of the FCC’s Rules requires a tower owner to comply with various registration, lighting and painting requirements.  With limited exceptions, a tower that exceeds 200 feet in height above ground level must be registered with the FCC.  Further, towers must be painted and lighted in compliance with FAA requirements, and any extinguished or improperly functioning lights must be reported to the FAA if the problem is not corrected within 30 minutes.

Part 73 of the FCC’s Rules sets minimum operating hours for commercial broadcast stations.  A commercial AM station must operate for at least two-thirds of the total hours it is authorized to operate between the hours of 6 a.m. and 6 p.m., and two-thirds of the total hours it is authorized to operate between 6 p.m. and midnight every day except Sunday.  A station that expects to be silent for over 30 days must seek and obtain Special Temporary Authority (“STA”) from the FCC to be silent for such an extended period. Continue reading →

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

Headlines:

  • Premature Construction Turns Texas LPFM’s Minor Change into a Major Fine
  • FCC Issues Notice of Violation to Miami LPFM Licensee for Unauthorized Antenna Location
  • California Man Pleads Guilty to FCC Bomb Threat, Fatal “Swatting” Hoax

Houston, We Have a Problem: Media Bureau Proposes $5,000 Fine for Unapproved Construction of a Broadcast Facility

The FCC’s Media Bureau issued a Notice of Apparent Liability (“NAL”) to the licensee of a Houston-area low power FM (“LPFM”) station for engaging in premature construction of broadcast facilities.

Section 319(a) of the Communications Act (“Act”) prohibits the FCC from licensing an applicant to operate broadcast facilities unless that applicant has previously obtained a construction permit from the FCC to build those specific facilities.  A construction permit sets out the facilities and operating parameters for a proposed station, including the station’s frequency allotment.  Though an applicant may initiate certain pre-construction measures, including site clearance and purchase of broadcast equipment that is not specific to the station (e.g., generic studio equipment, but not a frequency-tuned antenna), the applicant may not take more substantive steps until it has a construction permit in hand.

In seeking a construction permit, an applicant must show that its proposed service contour is sufficiently distant from other stations operating on the same or adjacent frequencies as to ensure no interference will be created to existing stations.  If the proposed LPFM facilities do not satisfy the minimum geographic distances set out in Section 73.807 of the FCC’s Rules, the applicant must obtain a waiver of those requirements by demonstrating that the proposed operation will not result in actual interference.  For example, an applicant might be able to demonstrate that intervening terrain (mountains) will block the interfering signal.

According to the NAL, the LPFM applicant filed for a construction permit to modify its existing facilities.  Because the proposed site would not satisfy the minimum distance requirements for two local second-adjacent FM stations, the licensee also filed a waiver request purporting to demonstrate that the proposed service contour would not reach the two FM stations’ potential listeners.

Before the Commission granted either of these requests, it received a Petition to Deny from another local station, alleging that the licensee had prematurely begun construction on the proposed site without prior FCC approval.  The petition alleged that the licensee had mounted an antenna on an existing tower and had already proceeded to attach a transmission line to the antenna, in contravention of the prohibition on premature construction.

The petition also alleged that the waiver request was “flawed” because it did not sufficiently protect local listeners of the two second-adjacent FM stations.  According to the petition, the waiver application assumed its contour would only reach one-story structures, when, in fact, several surrounding structures were two-story.

In response, the applicant swiftly removed its equipment from the tower only three weeks after it had installed it.  In a later amendment, the applicant also proposed operating at a lower power level with a different antenna to reduce the likelihood of interference to nearby two-story buildings.

Nearly ten months later, the Media Bureau issued the NAL, proposing a $5,000 fine for the applicant’s premature construction.  Though the FCC’s Rules establish a base fine of $10,000 for unauthorized construction, the Media Bureau adjusted this amount downward, citing the brief duration of the violation and the licensee’s prior history of compliance.

The Media Bureau indicated that once the fine was “resolved,” and assuming no additional issues emerged, it intended to grant the waiver and related modification application, finding that the applicant’s new engineering solution was sufficient to prevent interference to the nearby second-adjacent stations.

Technical Foul: Miami Licensee Cited for Unauthorized Facilities

In another case involving an LPFM, the Enforcement Bureau presented a Notice of Violation (“NOV”) to the licensee of a Miami station for operating at variance from the station’s authorization.  As with all other broadcast operations, LPFM stations must operate in compliance with the Commission’s technical rules and with the station’s own authorization.

In August of this year, FCC field agents investigated the Miami LPFM and found violations in nearly every aspect of the station’s operation.  At the time of the investigation, the station’s license authorized it to operate on 107.9 MHz in southern Miami at a height of 62 meters.  Two months prior, the station had been granted a construction permit to operate four miles west of its original location on a new frequency and at a height of 15 meters.

When the field agents located the actual transmission facilities, however, they found that the licensee was operating at a completely different location several miles away from both its licensed and newly-authorized coordinates.  The station was also using an antenna located 45 meters above ground. Continue reading →

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

Headlines:

  • Ownership Questions Lead to Hearing Designation Order for LPFM Licensee
  • NC Man Hit with $40,000 Fine for Unauthorized Transmissions Over Public Safety Radio
  • FCC Issues Notice to Hospital Paging System Licensee for Harmful Interference

FCC Launches Hearing in Response to LPFM’s Undisclosed Foreign Ownership

The FCC has designated for hearing a Low Power FM (“LPFM”) licensee’s modification application after an investigation into whether the licensee misrepresented the makeup and citizenship of its ownership in various Commission filings.

Under Section 309 of the Communications Act (“Act”), the FCC must first determine that the public interest will be served before it can grant a station license or modification application.  If there is a substantial question that prevents the Commission from making that determination, it must designate the application for a hearing before an Administrative Law Judge (“ALJ”).  The FCC can revoke the license if an ALJ determines that the applicant lacks the “requisite qualifications” to be a licensee, taking into consideration the applicant’s record, character, and truthfulness in dealings with the FCC.

The Act also prohibits entities with greater than 20% alien ownership or voting control from holding a broadcast license where the FCC finds such foreign ownership is not in the public interest.  Many FCC filings require the licensee to identify all officers, directors, and entities with attributable ownership interests in the licensee, including their citizenship.

According to the Hearing Designation Order (“HDO”), the Missouri-based licensee initially applied for a construction permit for a new LPFM station in 2013.  In that application, the licensee listed five individuals as board members and identified all of them as U.S. citizens.  In two separate modification applications in January and November 2017, the licensee identified the same board members as U.S. citizens.

The Enforcement Bureau began its investigation after another licensee alleged that four of the five listed board members were not actually U.S. citizens.  The Bureau discovered that one of the board members had, only weeks before the licensee’s January application, lost an appeal before a federal court to reopen his deportation order to Guatemala.  The court decision referred to him as a Guatemalan citizen.  His wife, another board member, had already been deported to Guatemala.  These revelations indicated that foreign ownership and control of the licensee not only exceeded 20 percent, but that the licensee had also falsely certified the U.S. citizenship of the two board members.

In addition to questions of citizenship, the Bureau also found evidence that the licensee may not have even identified all individuals with attributable interests in the licensee.  Specifically, in documents filed with the Missouri Secretary of State, the licensee listed several officers and board members that it had not disclosed to the FCC.

According to the FCC, these discoveries raised a “substantial and material question of fact” as to whether the licensee misrepresented to the Commission both the makeup and the citizenship of its attributable owners.

The FCC sent the licensee two Letters of Inquiry seeking information about the licensee’s board members, but never received any response.  Failure to respond to a Commission inquiry is also a violation of the FCC’s Rules.

As a result, the FCC commenced an administrative hearing to determine whether the licensee: (1) made misrepresentations in its applications; (2) violated the Commission’s foreign ownership rules; (3) failed to maintain the accuracy of its pending application; and (4) failed to respond to the FCC’s inquiries.

In light of these questions, the ALJ must also examine the facts to determine whether granting the licensee’s pending application is in the public interest, and whether the licensee is even qualified to hold an FCC license at all.

FCC Proposes $40,000 Fine for Impersonating a Firefighter

In a Notice of Apparent Liability (“NAL”), the FCC found a North Carolina man apparently liable for transmitting on a frequency licensed to local first responders while impersonating a member of the local Volunteer Fire Department. Continue reading →

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Originally intended as an “innovation band” for the testing of new wireless broadband services, the Citizen Broadband Radio Service (CBRS) was created in 2015 to permit commercial and federal spectrum users to operate in the same spectrum band. By utilizing smaller geographic areas for licenses, and short-term authorizations lacking an expectation of renewal, the CBRS was seen as a test bed for a variety of different wireless broadband services, including those of rural wireless broadband service providers.

To that end, the FCC created two new classes of licenses, Priority Access Licenses (PALs) and General Authorized Access Licenses (GAAs).  GAAs are permitted to operate anywhere within the CBRS band, so long as incumbent licensees and PALs are protected. PALs are required to protect the incumbent licensees, and will receive protection from GAAs. A key component of the CBRS licensing scheme is the implementation of a central database, the Spectrum Access System (SAS) (had enough acronyms yet?), maintained by third parties who will coordinate among licensees to prevent interference.

At its October meeting, the FCC revised its rules for the service with the stated goal of further encouraging the rapid development of 5G technologies.  The revised rules were adopted in response to petitions filed by CTIA and T-Mobile in 2017 which proposed several changes to the original 2015 rules.  The FCC sought comment on those proposals, which suggested several changes to the Priority Access Licenses, including adjusting the size of the geographic license, expanding the initial and renewal terms for licenses, and adopting performance standards. Although the FCC did not fully adopt the proposals, the revised rules make significant changes before the FCC has even issued the first CBRS authorization.

License Area: Under the 2015 rules, PALs were to be issued based on census tracts. The intent was to encourage local broadband development, especially in rural areas that may not receive service by nationwide carriers. By highlighting the difficulty of managing the licensing and build-out of service in 74,000 separate census tracts, CTIA, T-Mobile and several other parties argued that the FCC should expand the PAL geographic area to the more-manageable Partial Economic Areas. Ultimately, the FCC rejected that proposal, but instead expanded the PAL geographic area to county-based authorizations.

License Terms: In 2015, the FCC was concerned about the warehousing of spectrum, so it limited the license term of PALs in a particular geographic area to two sequential three-year periods, with no option for renewal. Several parties filed comments arguing that the three-year limit for licenses would serve as a roadblock to robust investment by wireless companies. The FCC has now agreed and extended the initial term to ten years. The FCC also modified its rules to permit licensees to renew their PAL authorizations.

Performance Standards: In light of its decision to extend the license term and permit renewals, the FCC imposed a “substantial service” performance standard for services operating in the CBRS band. For mobile and point-to-multipoint services, a licensee must demonstrate that it provides service to at least 50 percent of the licensed service area. For point-to-point service, a licensee must demonstrate that it provides at least four links in areas with a service population of 134,000 people or less, and at least one link per 33,500 people in service areas with a population greater than 134,000 people. This showing will be required when the licensee files its license renewal application.

Competitive Bidding: Finally, the FCC decided to grant PALs in accordance with its competitive bidding auction rules, permitting applicants to claim bidding credits as “small” or “very small business” entities, as a rural service provider, and/or if they propose to serve qualifying Tribal lands.

Support for the proposed rule changes was first signaled by then-Commissioner Pai and Commissioner O’Rielly in their concurring statements when the original rules were adopted in 2015. Because the FCC is still working on approval of the various SAS database proposals, and because there was a change in FCC leadership in January 2017, it was possible for the petitioning parties to seek revision of the 2015 rules before the FCC issued its first CBRS authorization. To date, the FCC has not issued authorizations for PALs or GAAs, but it is possible that new authorizations could be issued in 2019. Thus, while the rule changes will not impact any existing PAL or GAA licensees, these changes will have a significant impact on the operation of the CBRS band in the future.

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For nearly 80 years, the FCC’s Rules have required broadcasters to file paper copies of various types of documents relating to the control and operation of their stations.  Section 73.3613 of the FCC’s Rules requires broadcasters to file with the FCC certain contracts and instruments relating to network affiliations, present or future ownership or control, and some personnel agreements, as well as local marketing agreements (“LMAs”) and joint sales agreements (“JSAs”).  Today, the FCC voted unanimously to eliminate this requirement.

The rule was originally created in the 1930s to make these documents more accessible to both FCC staff and the public.  However, the advent of the online public inspection file has effectively rendered this octogenarian obligation obsolete.  By March 1, 2018, all full-power TV, Class A TV, AM and FM broadcasters should have transitioned to the online public inspection file (“OPIF”), where they must either (i) upload all Section 73.3613 documents, or (ii) maintain an up-to-date list of those documents and provide a copy of any listed contract requested by a party within seven days of that request.  Similarly, stations are required to list all Section 73.3613 documents in their Ownership Reports, which are then automatically linked by the FCC to station OPIFs.

In eliminating the requirement to file such documents with the Commission, the FCC reasoned that the paper filing rule not only imposed unnecessary burdens on stations, but was redundant with the OPIF and Ownership Report requirements; as a result, the requirement did little to serve the public.  The FCC also observed that very few people actually visited its Reference Information Center, where all of these paper filings are maintained.  Members of the public will continue to be able to obtain copies of Section 73.3613 agreements directly from stations by requesting them.

For their part, stations must remain diligent and update their OPIF contract lists within 30 days of the execution, termination, or amendment of any Section 73.3613 document.  As we have previously discussed, timely filing is now particularly important because all OPIF uploads are timestamped, and late uploads are easy for FCC staff to spot at license renewal time.

Today’s Order also extends the FCC’s permitted redaction rules applicable to JSAs and LMAs to all Section 73.3613 documents.  Section 73.3613 currently only addresses redaction of confidential or proprietary information in the context of JSAs and LMAs.  In the past, stations have filed redacted copies of other contracts, as Section 0.459 of the FCC’s Rules allows certain materials to be withheld from public inspection.  The amended Part 73 redaction rule will explicitly allow limited redaction of all Section 73.3613 documents.

Though these changes will certainly save broadcasters time and resources in the long run, broadcasters should continue filing Section 73.3613 documents with the FCC for the moment.  Before the full rule change can go into effect, it must be approved by the Office of Management and Budget.  In the past, such approvals have typically taken many months, so this rule change may well not go into effect until sometime next year.