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

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

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

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This morning, the FCC’s proposal to eliminate the UHF Discount was published in the Federal Register, establishing the comment and reply comment dates for that proceeding. Comments are due December 16, 2013, and reply comments are due January 13, 2014.

Under current law, no individual or entity is permitted to hold an interest in broadcast TV stations that, in the aggregate, reach more than 39 percent of U.S. television households. While this if often shorthanded as “no broadcast group can reach more than 39% of the population”, the rule is actually more restrictive than that. Since it applies not just to broadcast groups but to individuals, the rule prohibits an investor from holding 5% of the voting stock of two different TV groups if those otherwise unconnected groups’ stations together reach more than 39% of the population. Similarly, the rule would be violated if an individual served as a director for both companies.

Fortunately, the rule’s impact on broadcast investment has been lessened by the FCC’s UHF Discount, under which the FCC counts only half of the population in a station’s market towards the 39% cap if the station operates on a UHF channel (14-51) rather than on a VHF channel (2-13). Because most digital television stations operate on UHF channels, the practical effect has been to permit a group or individual to hold interests in TV stations located in markets representing more than 39% of the population (note, however, that the rule still counts every TV household in the market against the 39% cap, even where the station does not actually serve those households with an over-the-air signal).

The FCC’s Notice of Proposed Rulemaking (NPRM) proposes to eliminate the UHF Discount on the theory that while UHF stations had weaker coverage than VHF stations in an analog world, VHF frequencies are not well suited to digital transmissions, and it is now VHF stations that are suffering from poor coverage. That is accurate, but it would seem to be an argument for also creating a VHF Discount rather than eliminating the UHF Discount. While it is true that the FCC provided UHF stations with an opportunity to increase their operating power in transitioning to digital television if they could do so without creating interference to other stations, the guiding principal of making channel allotments in the DTV transition was replicating analog service areas, meaning that UHF analog stations were given digital allotments replicating their flawed analog coverage.

Oddly, however, the NPRM looks past that history, focusing instead on the fact that UHF stations and VHF stations are now much more equivalent because of VHF’s digital woes. While the 39% ownership cap, and how it is calculated, may well merit revisiting, the NPRM explicitly makes the decision to forego an examination of the 39% cap and how compliance with that cap should be calculated, and instead limits the FCC’s review to whether the UHF Discount should be eliminated.

In his dissent to the NPRM, FCC Commissioner Pai noted this fact, chiding the FCC for putting on its regulatory blinders while plunging ahead on the UHF Discount:

[B]ecause we are proposing to end the UHF discount, we should ask whether it is time to raise the 39 percent cap. Indeed, this step is long overdue notwithstanding any change to the UHF discount. The Commission has not formally addressed the appropriate level of the national audience cap since its 2002 Biennial Review Order, and it has been nearly a decade since the 39 percent cap was established. The media landscape has changed dramatically in the many years since. I’ve spoken a lot about the importance of reviewing our rules to keep pace with changes in technology and the marketplace, and I wish today’s item had done so with respect to this issue in a comprehensive manner.

Like the story of the blind men and the elephant, the FCC’s NPRM thrusts out its hand, touching only one aspect of the FCC’s ownership rules, and risks discovering later that there is much more to the elephant than its tail.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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October 2013

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

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

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

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

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

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As Scott Flick of our office reminded everyone yesterday morning, the FCC shut down from October 1, 2013 through October 16, 2013, and upon reopening, suspended filing deadlines until it could sort out some rational way of returning to normality. Late last night, the FCC announced its solution to that problem. After the past few weeks of uncertainty, those regulated by the FCC now know how to proceed (more or less). The FCC’s approach will win no points for elegant simplicity, but it is an earnest–and appreciated–effort to avoid merely going with a “one size fits all” approach.

According to the Public Notice:

Flings, with the exception of [Network Outage Reporting System] filings and certain other specified filings, that were due between October 1 and October 6 will be due on October 22, 2013. Filings, with the exception of NORS filings and certain other specified filings, that were due between October 7 and October 16 will be due 16 days after the original filing date, an extension equivalent to the period of the Commission’s closure. Thus, for example, a filing that would have been due on October 7, will be due on October 23, an extension of 16 days. To the extent the revised due dates for filings under this Public Notice fall on a weekend or other Commission holiday, they will be due on the next business day. Finally, any regulatory and enforcement filings that would otherwise be required to be filed between October 17 and November 4 with the exception of the NORS filings and other specified filings, will be due for filing on November 4, 2013 (which is the first business day following a 16-day period after the Commission’s October 17 reopening).

That Public Notice also added that:

To the extent the due dates for filings to which reply or responsive pleadings are allowed are extended by this Public Notice, the due dates for the reply or responsive pleadings are extended by the same number of days. Thus, for example, if comments were originally due on October 30 and reply comments due ten days later, comments would now be due on November 4 and reply comments on November 14. In addition, any STAs expiring between October 1, 2013 and October 22, 2013 are extended
until November 4.

FCC regulatees should read the public notice in full for more detail, and to discern whether their planned filings fall into that “other specified filings” category mentioned above, for which the FCC has announced yet more individualized deadlines.

The federal shutdown has not been easy on anyone inside or outside the FCC, and we have received an absolute deluge of calls from clients trying to deal with the disruption. With last night’s announcement, FCC applicants now have a path forward. Let the frenzied filing begin!

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As the FCC reopens today after being shut down for 16 days, it has reactivated its website and posted the following notice:

SUSPENSION OF FILING DEADLINES
As a result of the recent shutdown of Commission services, including access to electronic dockets on the Commission’s web site, due to a government-wide lapse in appropriations, we suspend all Commission filing deadlines that occurred during the shutdown or that will occur on or before October 21, other than Network Outage Reporting System (NORS) filing deadlines, until further notice. The Commission will soon issue further guidance on revised filing deadlines.

We recommend that parties refrain from submitting filings seeking additional relief until after they consider the further guidance.

Given that this was the first government shutdown of the online era, today’s announcement is welcome news for many FCC filers. Unlike in previous shutdowns, where applications could be prepared offline (or “on paper” as the communications bar refers to it) and just submitted when the government reopens, the FCC’s movement of most applications to online filings made this shutdown far more disruptive. With the FCC website shut down, applicants couldn’t even prepare their applications, much less file them, meaning that there will be a lot of activity on the FCC website over the next week as applicants make up for lost time. We’ll know in the next few days whether the newly reactivated FCC website is able to handle that sudden load.

Of course, how intense that activity will be depends on how much additional time the FCC provides for filings in its promised “further guidance” announcement. Stay tuned.

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Beginning tomorrow, October 16, 2013, new FCC “robocalling” rules go into effect that require all businesses to obtain specific written consent from a consumer before sending that consumer marketing messages by telephone or text. While we did an earlier Pillsbury Advisory on these rules, they still appear to be catching businesses off-guard, as many business owners incorrectly assumed that the rules were targeted only at robocallers and text spammers, and are just now beginning to realize that the breadth of business activities reached by these rules is far more extensive.

When calling or texting a cell phone for any non-emergency reason, the FCC’s rules have always required that businesses using autodialer technology, like that used in text campaigns, or pre-recorded voices, must first get express consent from the recipient. Prior express consent has also been required before making marketing calls to residential landlines, but the rules contained an exception to that requirement if the business had an established business relationship with the called party (e.g., you ordered something from their catalog in the past eighteen months).

The big change under the new rules is that the prior express consent required to send marketing messages to cell phones (the FCC treats calls and texts the same) or to residential landlines must now be in writing, and there is no longer an exception to that requirement for those with an established business relationship with the called party.

While the impact of this rule change on robocallers is obvious, it applies to most other businesses as well. For example, many broadcast stations have a variety of texting programs, ranging from news, weather and traffic alerts to promotional texts about upcoming programming events or contests. Those stations should now review how the numbers they are texting were originally added to their contact lists, and either be certain that they meet the FCC’s new requirements, or suspend texting to those numbers.

For purely informational texts, such as news, weather and traffic alerts, the station need only have previously received express consent to send the type of text message involved. Written consent was not required and is still not required if there is no marketing component to the call. As a result, if the station previously stated it would only use the consumer’s cell phone number to send weather alert texts, then weather alerts are the only type of texts the station can send to those who signed up for that type of text message. The weather alert contact database therefore could not be combined with the station’s marketing contact database.

The rub is that such stations must also make sure that those weather texts do not include any marketing messages in addition to the weather-related messages. If a marketing component is included (and the definition of marketing for this purpose is very broad), starting tomorrow, they will need to get written consent before sending any more of those messages.

To send promotional or other forms of marketing texts, a business needs to have made a clear and conspicuous disclosure and received clear consent in writing. Importantly, the business cannot require that the written consent be given as a condition of purchasing any product or service. As to the consent being in writing, the FCC permits electronic signatures collected via webforms, email, text messages, telephone keypresses, or voice recordings.

Businesses that previously signed consumers up for their texting programs via a webform, for example, may have given sufficiently clear notice and generated an electronic signature sufficient to fulfill these requirements. Affected businesses should therefore review the language used in their disclosures to be sure that it clearly communicated to the consumer what the texting program involves, and that it did not condition the consumer’s ability to make a purchase on their giving this consent. If a business is able to meet these tests, then it should verify that it has retained sufficient records to demonstrate that it obtained the necessary written consent before continuing to text the affected consumers.

While we have covered the high points of the new rules in this post, those affected should definitely read the more detailed description found in our Pillsbury Advisory. In particular, businesses need to be aware that these new rules were adopted pursuant to the Telephone Consumer Protection Act. That law is the source of many class action lawsuits brought on behalf of consumers who have received texts or calls alleged to be in violation of the law, and provides statutory damages where violations are found to have occurred.

Unfortunately, the prospect of class action damages is likely to attract lawsuits for even benign potential violations of the new rules, and just being named a defendant in such a lawsuit can have devastating consequences for that business. While the effort involved in ensuring that your business is in compliance with these rules could be substantial, the risks of proceeding to contact consumers via marketing texts or calls, even where they are your existing customers, is far too great to be ignored.

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The irony. The sheer irony. Just a few weeks ago, Congress was holding hearings in which the challenges of concluding retransmission negotiations without the occasional service disruption featured prominently. Representative Eshoo’s draft legislation targeting such disruptions had just been released, and there was little doubt that some members of Congress felt that CBS and Time Warner Cable had not worked hard enough at preventing a disruption of CBS programming on TWC cable systems, or worse, had been indifferent to the impact on cable viewers.

Fast forward a few weeks and we now face another impasse where the parties have been unable to negotiate an accord, with the resulting disruption greatly affecting the public. Also familiar are the statements to the press and the public by the negotiators that the inability to reach a negotiated resolution is entirely the other party’s fault.

The difference this week is that we are not talking about a retrans dispute, but the shutdown of the federal government. While the ramifications of this disruption are far greater than any retrans dispute, the similarity of circumstances is striking. First, all of the parties to the negotiation knew well in advance exactly when the current authorization was expiring and of the need to negotiate an extension. Second, all of the parties knew that the stakes are high and that disruption of service to the public should be avoided if at all possible. Third, it is primarily a dispute about money.

And yet, despite the early warning, the high stakes, and the impending loss of service to the public, Congress failed to reach agreement and the government shut down. As I wrote a few weeks ago, as nice as it would be to avoid it, one of the inherent characteristics of arm’s length negotiations is that a disruption is sometimes necessary to jolt the parties into moving off of their original positions and on to a negotiated result. Admittedly, national budgetary policy is more complex than most (but perhaps not all) retransmission negotiations, but then the adverse impact of the accompanying disruption is vastly greater as well.

Unlike a retrans dispute, however, where the public can fully restore service with a set of rabbit ears, nothing I can buy at my local radio Radio Shack will open the national parks or allow FCC staffers to return to their desks to process my applications. In short, even where the harm from service disruption is infinitely greater than in any retrans negotiation, Congress failed to find common ground and avoid that disruption.

Given the high stakes, it is interesting that there are actually far more protections against failed negotiations in the retrans context than in the congressional context. For example, unlike Congress, parties to retransmission negotiations are subject to the FCC’s rule requiring good faith negotiations. While those who assert that the current retrans process is broken frequently argue that merely policing the negotiation process to ensure the parties are negotiating in good faith is not enough, it seems like those rules might actually be fairly useful in the current congressional conundrum.

For example, a party violates the FCC’s good faith rule if it refuses to show up for negotiations, unreasonably delays negotiations, refuses to put forth more than a single unilateral proposal (the “take it or leave it” approach), or fails to respond to a proposal by the other party. Some might argue that such restrictions limit a party’s freedom to negotiate, but all retrans negotiations are conducted within that regulatory framework, making retrans negotiations more regulated than most, and giving proponents of adding yet further layers of restrictions a high hurdle to jump.

That will of course not prevent continued efforts by regulatory proponents to make that leap, but given the events of this week, it will be hard for members of Congress to feign shock and disbelief that two parties, even after making arduous efforts, aren’t always able to negotiate away their differences before those differences disrupt service to the public. Where such intractable disputes arise, we should all be thrilled if all that is needed to solve the problem is a pair of rabbit ears.

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September 2013

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

  • FCC Assesses Substantial Fine for Antenna Lighting Outage
  • Big Fines for Children’s Television Violations

Failure to Monitor Antenna Lighting Costly

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) in the amount of $20,000 to an Alaskan telecommunications company for tower lighting violations.

The height of the antenna structure placed it within the jurisdiction of both the FAA and the FCC. FAA rules required the structure to have dual lighting: red lights at night and medium intensity flashing white lights during the daytime and at twilight.

The company’s troubles began when an agent from the FCC’s Anchorage Enforcement Bureau office observed that the tower was unlit during the daytime. The FCC agent contacted the FAA, which confirmed that no Notice to Airmen (NOTAM) had been issued for the lighting outage. Tower operators are required to notify the FAA immediately of any lighting outage lasting more than 30 minutes. The FCC agent also alerted the tower owner of the situation. According to the FCC, the owner did not appear to have a functioning monitoring system for the tower lighting.

The NAL cited the owner’s failure to visually monitor obstruction lighting on a daily basis or to maintain a functioning alarm system. In response, the owner acknowledged the violation and stated it had identified the source of the problem to be a failing capacitor on the system’s control board. It then replaced the failing component and installed a remote monitoring and alarm system for the antenna structure.

The base fine for failing to comply with tower lighting and monitoring requirements and for failing to provide notification of extinguished lights is $10,000. The NAL stated that the fine was increased to $20,000 as part of the FCC’s policy of fining “large” companies larger dollar amounts to ensure that the fine “is a deterrent and not simply a cost of doing business.”

FCC Actively Pursuing Kidvid Violations

This month, the FCC has once again been bringing enforcement actions against a number of Class A stations for failure to timely file Children’s Television Programming Reports on FCC Form 398. The Commission has issued at least ten NALs for Kidvid violations since the beginning of this month.

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