FCC Enforcement Monitor
Posted September 28, 2012
By Scott R. Flick and Lauren A. Birzon
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 Follows Up a $25,000 Fine With a $236,500 Fine
- Two Tower Owners Fined for Fading Paint
FCC Issues Second Fine to Cable TV Operator for $236,500
As we previously reported in October 2011, the operator of a cable television system in Florida was fined $25,000 for a variety of violations of the FCC's Rules, including failing to install and maintain operational Emergency Alert System ("EAS") equipment, failing to operate its system within the required cable signal leakage limits, and failing to register the cable system with the FCC. This month, the FCC issued a second Notice of Apparent Liability for Forfeiture and Order ("NAL") to the operator for continued violations of the FCC's cable signal leakage and EAS rules and for failing to respond to communications from the FCC requiring that the operator submit a written statement of compliance.
In January 2011, agents from the Tampa Office of the FCC's Enforcement Bureau inspected the cable system and discovered extensive signal leakage, prompting the issuance of a NAL in 2011. The FCC has established signal leakage rules to reduce emissions that could cause interference with aviation frequencies. Sections 76.605 and 76.611 of the FCC's Rules establish a maximum cable signal leakage standard of 20 microvolts per meter ("µV/m") for any point in the system and a maximum Cumulative Leak Index ("CLI") of 64. If potentially harmful interference cannot be eliminated, the FCC's Rules require that the system immediately suspend operations following notification from the FCC's local field office. Normal operations cannot resume until the interference has been eliminated "to the satisfaction of" the FCC's local field office.
In early September 2011, agents from the Enforcement Bureau conducted a follow-up inspection of the cable system. During the inspection, the agents discovered 33 leakages, 22 of which measured over 100 µV/m, and found that the CLI for the system was 86.97, well in excess of the maximum permitted. Two days after the inspection, the local field office issued an Order to Cease Operations, directing the cable system to cease operations until the leakages were eliminated and to seek written approval from the local field office prior to resuming normal operations. At the time of its issuance, the President of the cable system verbally consented to abide by the terms of the Order. However, the cable system operator never contacted the field office to seek approval to resume operations, and the field office has yet to approve further cable system operations.
Between September 2011 and March 2012, agents from the FCC inspected the cable system an additional five times. During those inspections, the agents found that not only had the cable system resumed operation without permission, but they once again observed numerous signal leakages during each inspection.
In addition to the signal leakage problems, the FCC found that the cable system operator violated the FCC's EAS requirements to perform monthly and weekly tests, and to ensure that all EAS equipment is functioning. Upon inspection in January 2011, the owner of the cable system admitted it had never installed any EAS equipment, though it had been required to have EAS equipment in place since 2002. In a September 2011 inspection, the operator indicated that although the equipment had been purchased, it had not yet been installed. At the time, the agents issued a verbal warning, but when they returned a few weeks later, the operator had still not installed any EAS equipment.
Ultimately, the FCC also found that the cable system operator had failed to register the system with the FCC. In the 2011 NAL, the FCC fined the station $4,500 for failing to submit the required registration statement. During a follow-up inspection, the operator conceded it had still not submitted its registration statement. The operator eventually submitted the registration form in December 2011, after several verbal warnings from the Enforcement Bureau agents.
The FCC did not take kindly to the cable system's long history of noncompliance or to the operator's unresponsiveness to FCC communications. To date, the operator has not responded to the NAL issued last September nor to the Forfeiture Order upholding that NAL. According to the FCC, the operator never submitted a certified statement of compliance indicating that the cable system had installed operational EAS equipment as required by the 2011 NAL. The FCC found this noncompliance to be a "complete disregard for the Commission's authority and requirements," and therefore deserving of major upward adjustments to the base forfeiture amounts, often up to the statutory maximum of $37,500 per violation.
The FCC determined that the system's signal leakages were "egregious" and a hazard to public safety, thus warranting a fine of $37,500 for each observed instance of leakages (rather than the base forfeiture amount of $8,000), creating a fine of $150,000 for operating a cable system with excessive signal leakage. The FCC fined the operator an additional $37,500 for failing to suspend operations when it was instructed to do so by the field office. For failing to install operational EAS equipment, the FCC again fined the operator the statutory maximum of $37,500, an upward adjustment from the base amount of $8,000. The FCC issued more minor upward adjustments for the operator's other violations, with fines of $6,000 for failing to file the required registration forms and $5,500 for failing to file the required statement of compliance. In addition to the combined $236,500 forfeiture, the NAL directs the operator to submit a written statement of compliance within 30 days, certifying that the system has come into compliance with all of the FCC rules it has violated.
While they may not feel as closely watched by the FCC as broadcast stations, as seen here, cable system operators need to take the possibility of FCC enforcement action quite seriously. In particular, they need to move quickly to rectify observed violations, submit all required statements on time, and respond promptly to all communications from the FCC. Failure to take those steps can be enormously expensive.
Despite Attempts at Compliance, FCC Fines Tower Owners for Fading Paint
This month, the FCC turned its attention to towers with old and fading paint. The FCC issued two fines for $10,000 each to tower owners who failed to maintain the visibility of their towers.
In the first case, the owner of a registered antenna structure in Texas was fined for failing to clean or repaint the structure. In February 2012, agents from the Dallas Office of the Enforcement Bureau inspected the antenna structure and found the paint was rusted and faded in several areas, making the structure less visible and also making it difficult to distinguish the alternating bands of paint on the structure. Following the inspection, the owner spoke with an agent and admitted that the tower had not been repainted in the two years since the owner had acquired the structure, and that the structure was last painted twelve years ago. Within a few weeks of this conversation, the owner repainted the structure and sent an e-mail to the field office with a picture of the repainted structure.
Despite the owner's efforts to bring the tower into compliance, the FCC issued a NAL for $10,000 to the owner, finding that the owner had violated Section 17.50 of the FCC's Rules, which requires that antenna structures be repainted or cleaned "as often as necessary to maintain good visibility."
In a second Forfeiture Order, the FCC upheld an earlier decision fining the owner of a tower in Oklahoma for similar violations of the FCC's Rules requiring that structures be repainted and cleaned.
In September 2011, agents from the FCC inspected the antenna structure and found the paint to be heavily faded and chipped. The FCC issued an NAL for $10,000 in January 2012. The owner responded to the NAL and requested cancellation of the proposed fine. The owner argued that it had taken "serious steps to restore the Antenna Structure well before the FCC inspection," including allocating money in its budget and meeting with a professional tower inspection company, but those efforts had been delayed due to financial hardships. The owner also asserted that the fine should be reduced because the owner had entered into a contract to replace the old structure with a new, compliant antenna structure after the NAL was issued.
Once again, the FCC did not find the owner's efforts sufficient to justify a reduction or cancellation of the fine. The FCC also reiterated its firm stance that it does not believe "merely having discussions with contractors regarding the repainting of the tower prior to the agent's inspection warrants a reduction of the forfeiture amount on the basis of good faith." Instead, the FCC maintained that the $10,000 fine it had proposed was appropriate to the circumstances.