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April 2015

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 Scuttles New York Pirate Radio Operator and Proposes $20,000 Fine
  • Failure to Properly Identify Children’s Programming Results in $3,000 Fine
  • Telecommunications Carrier Consents to Pay $16 Million To Resolve 911 Outage Investigation

Fire in the Hole: FCC Proposes $20,000 Fine Against Pirate Radio Operator

This month, the FCC proposed a fine of $20,000 against an individual in Queens, NY for operating a pirate FM radio station. Section 301 of the Communications Act prohibits the unlicensed use or operation of any apparatus for the transmission of communications or signals by radio. Pirate radio operations can interfere with and pose illegal competitive harm to licensed broadcasters, and impede the FCC’s ability to manage radio spectrum.

The FCC sent several warning shots across the bow of the operator, noting that pirate radio broadcasts are illegal. None, however, deterred the individual from continuing to operate his unlicensed station. On May 29, 2014, agents from the Enforcement Bureau’s New York Office responded to complaints of unauthorized operations and traced the source of radio transmissions to an apartment building in Queens. The agents spoke with the landlord, who identified the man that set the equipment up in the building’s basement. According to FCC records, no authorization had been issued to the man, or anyone else, to operate an FM broadcast station at or near the building. After the man admitted that he owned and installed the equipment, the agents issued a Notice of Unlicensed Operation and verbally warned him to cease operations or face significant fines. The man did not respond to the notice.

Not long after, on January 13, 2015, New York agents responded to additional complaints of unlicensed operations on the same frequency and traced the source of the transmissions to another multi-family dwelling in Queens. The agents heard the station playing advertisements and identifying itself with the same name the man had used during his previous unlicensed operations. Again, the agents issued a Notice of Unlicensed Operation and ordered the man to cease operations, and again he did not respond.

The FCC therefore concluded it had sufficient evidence that the man willfully and repeatedly violated Section 301 of the Communications Act, and that his unauthorized operation of a pirate FM station warranted a significant fine. The FCC’s Rules establish a base fine of $10,000 for unlicensed operation of a radio station, but because the man had ignored multiple warnings, the FCC doubled the base amount, resulting in a proposed fine of $20,000.

FCC Rejects Licensee’s Improper “E/I” Waiver Request and Issues $3,000 Fine

A California TV licensee received a $3,000 fine this month for failing to properly identify children’s programming with an “E/I” symbol on the screen. The Children’s Television Act (“CTA”) requires TV licensees to offer programming that meets the educational and informational needs of children, known as “Core Programming.” Section 73.671 of the FCC’s Rules requires licensees to satisfy certain criteria to demonstrate compliance with the CTA; for example, broadcasters are required to provide specific information to the public about the children’s programming they air, such as displaying the “E/I” symbol to identify Core Programing. Continue reading →

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The FCC’s Media Bureau issued a Public Notice today announcing that it would immediately suspend the September 1, 2015 digital transition date for LPTV and TV translator stations. The FCC’s Second Report and Order had established the September 1 deadline for LPTV, TV translator, and Class A TV stations to terminate analog operations and transition to digital. However, in its Third Notice of Proposed Rulemaking, the FCC recognized that the upcoming spectrum auction and repacking process would likely displace a substantial number of LPTV and TV translator stations, and that 795 LPTV and 779 TV translator stations had not yet completed their digital conversion. Seeking to avoid requiring those stations to incur the costs of the digital transition prior to completion of the auction and repacking, the FCC proposed suspending the transition deadline. In today’s Public Notice, the FCC concluded that suspending the digital transition deadline would be appropriate to permit analog LPTV and TV translators to postpone construction of digital facilities that could be impacted by the spectrum auction and repacking.

The FCC’s decision, however, does not affect Class A TV stations, which are still required to complete the digital transition by the September 1 deadline. Class A stations that do not complete construction of their digital facilities by 11:59 pm, local time, on September 1, 2015 will be required to go dark until they complete construction of their digital facilities.

Additionally, although Class A stations are not required to cease analog transmissions until September 1, their digital facilities must be licensed or have an application for a license on file by May 29, 2015 for those digital facilities to be fully protected by the FCC in the repacking process. Any Class A station that fails to meet the May 29 Pre-Auction Licensing Deadline will be afforded protection based solely on the coverage area and population served by its analog facilities, as set forth in the Incentive Auction Report and Order.

The FCC has not announced when the new transition date will be, other than to say the deadline will come after final action in its LPTV DTV proceeding. According to the Third NPRM, the FCC is weighing the benefit of waiting until the close of the auction to establish a new deadline—which would allow the FCC to take into account the overall impact of the repacking process—against announcing a deadline sooner than the end of the auction, which could provide more certainty to LPTV and translator stations about when the digital transition will end and expedite the completion of that transition.

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It was once a tradition that the FCC would release a pro-broadcaster rulemaking decision on the eve of the NAB Show to ensure a warm reception when the commissioners and staff arrived to speak at the Show. I say it “once” was a tradition because pro-broadcaster rulemakings are none too common these days, a point alluded to by Chairman Wheeler at the Show when he said “Now, I’ve heard and read how some believe the Federal Communications Commission has been ignoring broadcasting in favor of shiny new baubles such as the Internet.”

Still, it was in the spirit of that tradition that the Chairman posted a blog titled “Let’s Move on Updating the AM Radio Rules” two days before his NAB speech. In it, he stated his intent to call for a vote in the AM Revitalization proceeding, which then-acting-Chairman Clyburn launched at a different NAB convention in September of 2013.

The post was unavoidably sparse on details given its short length, but one detail leapt out at radio broadcasters. While signaling movement on smaller issues (“the proposed Order would give stations more flexibility in choosing site locations, complying with local zoning requirements, obtaining power increases, and incorporating energy-efficient technologies”), the post rejected what the industry sees as the real answer to revitalizing AM radio—opening a filing window for applicants seeking to build translators to rebroadcast AM radio stations on the FM band (a “translator” in the truest sense of the word).

Many see this as the most practical and consequential option since it would allow AM daytimer stations to serve their audiences around the clock, while overcoming many of AM radio’s worst obstacles—interference from appliances and electronics, as well as other AM stations, and AM’s limited sound quality. Most importantly, unlike a number of other potential solutions, FM translators avoid the need for everyone to buy a new radio in order to make the solution viable.

In his blog post, the Chairman gave two reasons for this surprising development. First, he questioned “whether there is an insufficient number of FM translator licenses available for AM licensees.” Second, he raised qualms about opening a window for only AM licensees, stating that “the government shouldn’t favor one class of licensees with an exclusive spectrum opportunity unavailable to others just because the company owns a license in the AM band.”

The first reason is, quite simply, factually unsupported by the proceeding record. In comments and reply comments filed just a year ago, the call for an FM translator filing window was deafening. It’s hard to believe the need for such translators has dramatically plummeted in just a year, or that the call for a window would have been so loud were there truckloads of FM translators already out there (in the right location) just waiting to be purchased. For anyone thinking that AM stations just want a “free” translator rather than buying one, applying for and building a translator is anything but free. In addition, the likelihood of mutually exclusive translator applications raises the specter of licenses being awarded by auction, ensuring that acquiring one from the FCC would hardly be “free”.

Of course, the oversupply argument is logically flawed as well. If a window is unnecessary, no one will show up with an application, and the only energy expended will be that of drafting a public notice announcing the window. In reality, however, few think that would be the result, as the FCC’s last general filing window for FM translators was back in 2003, long before AM stations were even permitted to rebroadcast on an FM translator. In other words, far from receiving preferential treatment, AM licensees have never even had an opportunity to apply for an FM translator to retransmit their stations.

All of which makes the second reason given in the Chairman’s post—avoiding an AM licensee-only filing window—even more curious. Under the current FM translator rule, Section 74.1232, applying for an FM translator license is not limited to broadcast licensees. The rule provides that “a license for an FM broadcast translator station may be issued to any qualified individual, organized group of individuals, broadcast station licensee, or local civil governmental body….”  A common example of this is a community with limited radio service that applies for and builds an FM translator to rebroadcast a distant station that is otherwise difficult to receive locally, providing that community a reliable information lifeline. Indeed, the FCC is finding out on the television side that many of the TV translators that might be repacked out of existence are owned by local communities rather than licensees.

So the FCC would not even need to revise its eligibility rules in order to open an “FM for AM” translator window for all comers. Under the existing rule, anyone is free to apply as long as they have “a valid rebroadcast consent agreement with such a permittee or licensee to rebroadcast that station as the translator’s primary station.” In terms of being limited to serving as a translator for an AM station, that is the nature of an FCC filing window, as the FCC always specifies the type of application it will accept in any filing window announcement, and has never opened a “file for whatever service you want” window.

Thus, the record amply supports the need for an “FM for AM” translator window, and the current rules preclude any concern that a window would offer preferential treatment, as anyone who wants one can apply for one.

So what is the FCC waiting for?

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It sounds like the setup for a joke: a broadcaster, a broker, a banker, a broadcast lawyer, and a backer all walk into a bar. There is no punch line, however, as that will happen innumerable times over the next week, and that just means it’s time for this year’s NAB Show!

What started as a simple gathering of broadcasters and broadcast equipment vendors has grown to mammoth proportions, now encompassing not just broadcasting, but every aspect of content and content delivery, as well as mountains of technology for creating and distributing that content. Billed as “the world’s largest media and entertainment event” with around 100,000 attendees, it is also one of the largest conventions in Las Vegas each year, nearly doubling the attendance (I kid you not) of February’s “World of Concrete” convention.

As it has grown, the NAB Show has become a magnet for those of us that work in and around the industry, as you can accomplish in an afternoon what would otherwise take dozens of plane trips. As a result, lots of transactions are launched or sealed in the confines of the hotels surrounding the Convention Center. While that may not be different from any other week in Vegas, these deals will often involve broadcast stations and program content.

The Great Recession battered all conventions, including the NAB Show, but pre-Show levels of activity seem to indicate that this year’s Show will be a return to form, bringing back people that may have skipped the past few years. Perhaps more important is an accompanying shift in attitude. It seems attendees are back to looking for ways to expand their businesses rather than just survive until economic conditions improve.

I will be there along with the rest of the Pillsbury contingent going this year—Lew Paper, Miles Mason, Lauren Lynch Flick, John Hane, and our newest addition, David Burns. There will be much to see, and I know the other lawyers on Pillsbury’s Unmanned Aircraft Systems team are jealous, as the number of drones on display in the Convention Center will likely exceed that of both the CIA and the Air Force (minus the Hellfire missiles).

So we look forward to seeing you there, and if it isn’t everything you are hoping for, don’t worry; there’s another World of Concrete expo coming in 2016!