Articles Posted in Transmission Towers

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February 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 Issues $3.36 Million Fine to Company and Its CEO for Selling Toll Free Numbers
  • Antenna Fencing and Public Inspection File Violations Result in $17,000 Fine
  • FCC Reiterates That “Willful Violation” Does Not Require “Intent to Violate the Law”

Hold the Phone: FCC Finds Company and CEO Jointly and Severally Liable for Brokering Toll Free Numbers

The FCC handed down a $3,360,000 fine to a custom connectivity solutions company (the “Company”) and its CEO for violations of the FCC’s rules regarding toll free number administration. Section 251(e)(1) of the Communications Act mandates that telephone numbers, including toll free numbers, be made “available on an equitable basis.” As a general rule, toll free numbers, including “vanity” numbers (e.g., 1-800-BUY-THIS), cannot be transferred, and must be returned to the numbering pool so that they can be made available to others interested in applying for them when the current holder no longer needs them. Section 52.107 of the FCC’s Rules specifically prohibits brokering, which is “the selling of a toll free number by a private entity for a fee.”

In 2007, the Enforcement Bureau issued a citation to the Company and CEO for warehousing, hoarding, and brokering toll free numbers. The Bureau warned that if the Company or CEO subsequently violated the Act or Rules in any manner described in the 2007 citation, the FCC would impose monetary forfeitures. A few years later, the Bureau received a complaint alleging that in June and July of 2011, the Company and CEO brokered 15 toll free numbers to a pharmaceutical company for fees ranging from $10,000 to $17,000 per number. In 2013, the FCC found the Company and CEO jointly and severally liable for those violations and issued a $240,000 fine.

Despite the 2007 citation and 2013 fine, the Bureau found evidence that the CEO continued to broker toll free numbers. In early 2013, the Bureau received tips that the CEO sold several toll free numbers to a law firm for substantial fees. An investigation revealed that the CEO, who was the law firm’s main point of contact with the Company, had sold 32 toll free numbers to the firm for fees ranging from $375 to $10,000 per number. On other occasions, the CEO solicited the firm to buy 178 toll free numbers for fees ranging from $575 to $60,000 per number. This, along with his correspondence with the firm–including requests that payments be made to his or his wife’s personal bank accounts–were cited in support of a 2014 Notice of Apparent Liability (“NAL”) finding that the CEO, in his personal capacity and on behalf of the Company, had “yet again, apparently violated the prohibition against brokering.”

As neither the Company nor the CEO timely filed a response to the 2014 NAL, the FCC affirmed the proposed fines: $16,000 for each of the 32 toll free numbers that were sold, combined with a penalty of $16,000 for each of the 178 toll free numbers that the Company and CEO offered to sell, resulting in a total fine of $3.36 million.

FCC Rejects AM Licensee’s “Not My Tower, Not My Problem” Defense

The FCC imposed a penalty of $17,000 against a Michigan radio licensee for failing to make available its issues/program lists in the station’s public file and for failing to enclose the station’s antenna structure within an effective locked fence.
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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:

  • Unenclosed and Unpainted Tower Leads to $30,000 in Fines
  • $20,000 Fine for Missing Issues/Programs Lists at Two Stations
  • Increased Fine for Intentional Interference and Unlicensed Transmitter Use

Multiple Tower Violations Result in Increased Fine

Earlier this month, a Regional Director of the FCC’s Enforcement Bureau (the “Bureau”) issued a Forfeiture Order against the licensee of a New Jersey AM radio station for failing to properly paint its tower and enclose the tower within an effective locked fence or other enclosure.

Section 303(q) of the Communications Act requires that tower owners maintain painting and lighting of their towers as specified by the FCC. Section 17.50(a) of the Commission’s Rules says that towers must be cleaned or repainted as often as necessary to maintain good visibility. Section 73.49 of the FCC’s Rules requires “antenna towers having radio frequency potential at the base [to] be enclosed with effective locked fences or other enclosures.” The base fine for failing to comply with the lighting and marking requirements is $10,000, and the base fine for failing to maintain an effective AM tower fence is $7,000.

In March of 2010, agents from the Bureau’s Philadelphia Office inspected the licensee’s tower in New Jersey. The terms of the Antenna Structure Registration required that this particular tower be painted and lit. During their inspection, the agents noticed that the paint on the tower was faded and chipped, resulting in significantly reduced visibility. During their inspection, the agents also found that an unlocked gate allowed unrestricted access to the tower, which had radio frequency potential at its base. The agents contacted the owner of the tower and locked the gate before leaving the site.

In April of 2010, the Philadelphia Office issued a Notice of Violation (“NOV”) to the licensee for violating Sections 17.50(a) and 73.49 of the FCC’s Rules. The next month, in its response to the NOV, the licensee asserted that it inspects the tower several times each year and had been planning for some time to repair the faded and chipped paint and promised to bring the tower into compliance by August 15, 2010 by repainting the structure or installing white strobe lighting. The licensee also indicated that it had never observed the gate surrounding the tower be unlocked during its own site visits and noted that several tenants, each of whom leased space on the tower, also had keys for the site.

In November of 2010, agents inspected the tower again to ensure that the violations had been corrected. The agents discovered that the licensee had neither repainted the tower nor installed strobe lights and that now a different gate to the tower was unlocked. The agents immediately informed the licensee’s President and General Manager about the open gate, which they were unable to lock before leaving the site. The following day, the agents returned to the tower and noted that the gate was still unlocked. The agents again contacted the President, who promised that a new lock would be installed later that day, which did occur. At the beginning of December 2010, agents visited the tower with the President and the station’s Chief Engineer. The tower still had not been repainted, nor had strobe lights been installed. On January 7, 2011, the Chief Engineer reported to the FCC that white strobe lighting had been installed.

The Philadelphia Office issued a Notice of Apparent Liability for Forfeiture (“NAL”) on October 31, 2011 for failure to repaint the tower and failure to enclose the tower with an effective locked fence or enclosure. In the NAL, the Philadelphia Office adjusted the base fines upward from the combined base fine of $17,000 because the “repeated warnings regarding the antenna structure’s faded paint and the unlocked gates . . . demonstrate[ed] a deliberate disregard for the Rules.” The Philadelphia Office proposed a fine of $20,000. In its response to the NAL, the licensee requested that the fine be reduced based on its immediate efforts to bring the tower into compliance with the rules and its overall history of compliance.

In response, the FCC declined to reduce the proposed fine because corrective action taken to come into compliance with the Rules is expected and does not mitigate violations. In addition, the FCC rejected the licensee’s argument that it had taken “immediate action” to correct the violations because the licensee was first notified about the chipped paint in March 2010 and did not install the strobe lights until January 2011. Finally, the FCC declined to reduce the fine based on a history of compliance because the licensee had violated the FCC’s Rules twice before. Therefore, the FCC affirmed the imposition of a $20,000 fine.

Fine Reduced to Base Amount for Good Faith Effort to Have Issues/Programs Lists Nearby

The Western Region of the Enforcement Bureau issued a Forfeiture Order against the licensee of two Colorado stations for failing to maintain complete public inspection files.
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The Federal Communications Commission recently adopted a Report and Order to streamline and eliminate outdated provisions of its Part 17 Rules governing the construction, marking, and lighting of antenna structures. According to the Commission, the goal was to “remove barriers to wireless deployment, reduce unnecessary costs, and encourage providers to continue to deploy advanced systems that facilitate safety while preserving the safeguards to protect historic, environmental and local interests.” The question, as Commissioner O’Rielly put it, is “why did it take nine years to get this item before the Commission for a vote?” While it was a long time in coming, the changes the FCC made will be mostly welcomed by tower owners across the country.

The need for changes to the rules was first raised in the FCC’s 2004 Biennial Ownership Review, and the FCC initiated a formal review of the antenna structure rules in 2010 in a Notice of Proposed Rulemaking. The FCC’s goal in streamlining Part 17 of its rules was to improve compliance and enforcement while eliminating unnecessary and burdensome requirements for tower owners. The revised rules impact a number of regulations, and the hope is that the changes will also harmonize the FCC’s rules with the safety recommendations and rules of the Federal Aviation Administration (FAA). That said, in its update, the FCC made a point of removing from its rules references to FAA Circulars that the FCC has determined are out of date.

The primary changes to the rules that tower owners should be aware of are:

Antenna Structure Marking and Lighting Specifications. The Order updated the FCC’s rules to require that tower owners comply with the marking and lighting specifications included in the FAA’s “no hazard” determination for that particular tower, thereby making FCC and FAA regulations consistent in this area. The Order also emphasized that changes to marking and lighting specifications on an Antenna Structure Registration (ASR) require prior approval from both the FAA and the FCC. Importantly, the FCC specifically declined to require existing antenna structures to comply with any new lighting or marking requirements unless mandated to do so by the FAA.

Accuracy of Height and Location Data. The FCC noted in the Order that its prior rules did not define what kinds of “alterations” to an existing tower required a new registration and FCC approval prior to making those changes. The new rules are clear that FCC approval is required for any change or correction to a structure of one foot or greater in height, or one second or greater in location, relative to the existing information in the structure’s ASR form. The new criteria is the same as that used by the FAA for requiring a new aeronautical study and determination of “no hazard”.

Notification of Construction or Dismantlement. Tower owners are now required to notify the FCC within five days of “when a construction or alteration of a structure reaches its greatest height, when a construction or alteration is dismantled or destroyed, and when there are changes in structure height or ownership.” Under the prior rules, structure owners were given only 24 hours to provide notification to the FCC.

Voluntary Antenna Structure Registration. Under the FCC’s prior rules, tower owners were given the option to voluntarily register structures even when the FCC’s rules did not require registration. The new rules will still allow voluntary registration, but parties will be allowed to indicate that the registration is indeed voluntary, and they will not be subject to the Part 17 rules that apply to towers that are required to be registered (i.e., towers that exceed 200 feet or, for those located in close proximity to an airport, lower heights).

Posting of Antenna Structure Registrations. The new ASR posting requirement gives tower owners greater latitude regarding where they must post their Antenna Structure Registration numbers. The old rule required that the ASR number be displayed “in a conspicuous place so that it is readily visible near the base of the antenna structure.” As a result of the rule change, registration numbers can now be posted at the “closest publicly accessible” location near the tower base.

Providing Antenna Structure Registration to Tower Tenants. Tenant copies of ASRs will no longer need to be given to tenants in paper. Under the new rules, a link to the FCC’s website can be provided by mail or email.

Inspection of Structure Lights and Associated Control Equipment. The Order established a process allowing qualifying network operations center-based monitoring systems to be exempted from the existing quarterly inspection requirements that apply to automatic or mechanical control devices, indicators, and alarm systems used to ensure tower lighting systems are functioning properly. Specifically, systems with advanced self-diagnostic functions, an operations center staffed with “trained personnel capable of responding to alarms 24 hours per day, 365 days per year”, and a backup network operations center that can monitor systems in the event of failure, may be eligible for the exemption.

Notification of Extinguishment or Improper Functioning of Lights. The FCC’s rules require that when tower lights do go out, tower owners immediately notify the FAA so that the FAA can issue a Notice to Airmen (NOTAM) to make aircraft aware of the outage. Parties are also required to notify the FAA when repairs have been completed so that the FAA can cancel the NOTAM. Under the new rules, tower owners are required to keep the FAA up to date and let the FAA know when repairs are expected to be complete at the expiration of each NOTAM (which last 15 days each). The good news is that the FCC clarified its rules somewhat, stating that lighting repairs must be completed “as soon as practicable”. Instead of adopting a fixed deadline for repairs to be made, the FCC will consider whether the tower owner has exercised due diligence and made good faith efforts to complete repairs in a timely manner.

Recordkeeping Requirements. Under the FCC’s prior rules, there was no specification regarding how long records of improper functioning needed to be kept. Under the newly adopted rules, the FCC requires antenna structure owners to maintain records of observed or otherwise known outages or improper functioning of structure lights for two years, and the records must be provided to inspectors upon request.

Maintenance of Painting. With regard to painting, the FCC adopted the FAA’s “In-Service Aviation Orange Tolerance Chart” as the standard for determining whether an antenna structure needs to be cleaned or repainted. The FCC did not say how often towers should be repainted or how close someone has to be to compare the colors on the chart with those on the tower. The FCC did say that placing the chart over a portion of the top half of the tower would give the best results, as that is where most of the wear and tear typically occurs.

The new rules will take effect thirty days after notice of the Order is published in the Federal Register (except for those provisions requiring Office of Management and Budget approval), which has not yet occurred. Despite the time it took to adopt new rules, the rule changes themselves are relatively straightforward, and tower owners should be sure to take advantage of the new rules when they take effect. It’s not every day we see less regulation from the FCC.

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June 2014

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:

  • Bad Legal Advice Leads to Admonishment for Public File Violations
  • $10,000 Fine for Tower Violation
  • Missing Emergency Alert System Equipment Results in $6,000 Fine

Licensee’s Poor Financial Condition and Reliance on Bad Legal Advice Fend Off Fines

Earlier this month, the FCC’s Enforcement Bureau issued an order against the former licensee of a Texas radio station admonishing the licensee but declining to impose $40,000 in previously proposed fines relating to public inspection file violations.
In December of 2010, agents from the Enforcement Bureau’s local office reviewed the station’s public inspection file and determined that, among other things, the file did not contain any quarterly issues-programs lists. In response, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”), and ultimately a Forfeiture Order, imposing a fine of $25,000, which the licensee subsequently paid.

After the original NAL was issued, the station hired an independent consultant to assist it in ensuring that the station’s public inspection file was complete. In August of 2011, the licensee submitted a statement to the FCC in which it certified that all of the required documents had been placed in the station’s public inspection file. However, field agents visited the station again in October of 2011, and found that the public inspection file still did not contain any issues-programs lists. In response, the FCC issued two more NALs in June of 2012 (the “2012 NALs”) for the still-incomplete public inspection file and for the false certification submitted in response to the original NAL. The 2012 NALs proposed a $25,000 fine for providing false information to the FCC and a $15,000 fine for the still-missing issues-programs lists.

In this month’s order, the FCC analyzed the now-former licensee’s claim that it had engaged an independent consultant to assist it in responding to the original NAL and that it had subsequently placed documentation regarding issues-programs in its public inspection file. The FCC noted that the outside consultant’s advice that placing copies of the station’s daily program logs in the file would be adequate to meet the requirement was erroneous. However, since the licensee had sought to fix the problem by hiring a consultant and had relied on the consultant’s advice, the FCC concluded that the licensee had not negligently provided incorrect information to the Enforcement Bureau, and therefore the FCC did not impose the originally-proposed $25,000 fine for false certification.

In contrast, the FCC concluded that the former licensee had indeed willfully violated Section 73.3526 of the FCC’s Rules by not including issues-program lists in its public inspection file. The former licensee had, however, submitted documentation of its inability to pay and asked that it not be required to pay the proposed $15,000 fine. The FCC agreed that the former licensee had demonstrated its inability to pay, and therefore declined to impose the $15,000 fine.

In doing so, the FCC also noted that while “[r]eliance on inaccurate legal advice will not absolve a licensee of responsibility for a violation, [it] can serve as evidence that the licensee made an effort to assess its obligations, that its assessment was reasonable, if erroneous, and was made in good faith.” In light of all the facts, the FCC elected to formally admonish the former licensee, and warned that, should the former licensee later acquire broadcast licenses, it could face substantial monetary penalties, regardless of its ability to pay, for future rule violations.
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March 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:

  • Delay in Providing Access to Public Inspection File Leads to Fine
  • FCC Fines Broadcaster for Antenna Tower Fencing, EAS and Public Inspection File Violations

Radio Station Fined $10,000 for Not Providing Immediate Access to Public File

This month, the Enforcement Bureau of the FCC issued a Notice of Apparent Liability for Forfeiture and Order (“NAL”) in the amount of $10,000 against a Texas noncommercial broadcaster for failing to promptly make its public inspection file available. For the delay of a few hours, the Commission proposed a fine of $10,000 and reminded the licensee that stations must make their public inspection file available for inspection at any time during regular business hours and that a simple request to review the public file is all it takes to mandate access.

According to the NAL, an individual from a competitor arrived at the station at approximately 10:45 a.m. and asked to review the station public inspection file. Station personnel informed the individual that the General Manager could give him access to the public files, but that the General Manager would not arrive at the station until “after noon.” The individual returned to the studio at 12:30 p.m.; however, the General Manager had still not arrived at the studio. According to the visiting individual, the receptionist repeatedly asked him if he “was with the FCC.” Ultimately, the receptionist was able to reach the General Manager by phone, and the parties do not dispute that at that time, the individual asked to see the public file. During that call, the General Manager told the receptionist to give the visitor access to the file. According to the visitor, when the General Manager finally arrived, he too asked if the individual was from the FCC, and then proceeded to monitor the individual’s review of the public file.

After the station visit, the competitor filed a Complaint with the FCC alleging that the station public files were incomplete and that the station improperly denied access to the public inspection files. The FCC then issued a Letter of Inquiry to the station, requesting that the station respond to the allegations and to provide additional information. The station denied that any items were missing from the public file and also denied that it failed to provide access to the files.

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November 2012

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 Punishes the Operators of an Unlicensed FM Station
  • FCC Investigates Antenna Structure Violations

Recurrent Unlicensed Operations Lead to Large Forfeitures

Last month, we wrote about a case in which the FCC fined the renter of a property after discovering an unlicensed radio transmitter, even though the renter claimed the equipment was operated by a third party. This month, the FCC again went after the renters of a property on which there was an unlicensed transmitter, issuing two $20,000 Forfeiture Orders. In this case, however, the renters left little doubt that they were directly responsible for the operation of the unlicensed radio station.

In October 2011, agents from the Miami office of the Enforcement Bureau identified the source of radio frequency transmissions on the 101.1 MHz frequency as an FM antenna mounted to a structure on a property in Florida. The signal strength exceeded that permitted for unlicensed broadcasting, and the agents later determined that no authorization had been issued for the operation of an FM broadcast station at that location. In addition, the agents were able to hear live broadcasts from the station and found that the on-air DJ was promoting the station on several web sites and Facebook pages.

During a subsequent February 2012 visit, the agents inspected the property and found radio transmitting equipment installed in a storage room. The property owner indicated that the space was rented by two men, and provided contact information for the renters to the agents. The agents called one of the renters, who asked the agents what would happen to the radio transmitting equipment. The renter contacted by the agents then called the other renter, who went to the station, told the agents the equipment was his, and removed the equipment from the location.

In July 2012, the FCC issued two $20,000 Notices of Apparent Liability for Forfeiture (NALs) for operating without FCC authorization – one against the renter identified as the DJ of the station, and one against the renter who admitted it was his equipment. The base forfeiture for operating without authorization is $10,000. However, the FCC determined an upward adjustment of $10,000 was warranted for each of the renters because both had previously been involved in operating an unlicensed station on a different frequency in a different part of the state, and the FCC had issued previous Notices of Unlicensed Operation to the renters for that station.

Having not heard back from the renters in response to the July NALs, the FCC followed up the NALs by issuing two $20,000 Forfeiture Orders against the renters this month.

Faded Antenna Structures Garner Notices of Violations

Six towers in Oklahoma and one in New Mexico were the subject of Notices of Violation (NOVs) earlier this month after FCC agents noted that the paint on the towers was faded and chipped. Some of the NOVs also noted that the respective structure owners had failed to post the Antenna Structure Registration Number (ASRN) at the gate of the surrounding fence, and that any signage at the base of the structure was not visible from the gate of the fence.

In accordance with the rules of the FCC, owners of antenna structures must regularly inspect those structures to ensure the structures continue to comply with all FCC requirements. Indeed, the rules require owners to inspect the antenna structure’s lights (manually or by automatic indicator) at least once every 24 hours, and to inspect all lighting control devices, indicators and alarms every three months. Owners must also maintain a record of any lighting malfunctions, including the nature of the malfunction, the date and time of the malfunction, the date and time of FAA notification, and the date, time and nature of repairs.

As this month’s NOVs explicitly note, the FCC is free to take further steps against the tower owners, including issuing fines, and often does. Tower owners should therefore be careful to ensure that:

  • The ASRN is conspicuously displayed so that it is readily visible from the base of the structure;
  • Materials used to display ASRN are weather-resistant and large enough to be easily seen from the base of the structure;
  • Where the tower is surrounded by a fence, the ASRN is posted where it will be readily visible from the fence gate;
  • Antenna structures exceeding 200 feet are painted and lighted according to FAA specifications; and
  • Antenna structures are cleaned or repainted as often as is necessary to maintain good visibility.
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September 2012
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.

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June 2012
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:

  • Long-Term Violation of an FCC Order Leads to $25,000 Forfeiture
  • FCC Issues $10,000 Fines for Obstruction Lighting Violations

Licensee Fined $25,000 for Failing to Pay $8,000 Four Years Ago

The licensee of an AM radio station in Puerto Rico was recently fined $25,000 for a string of failures to comply with an FCC Consent Decree issued four years ago, showcasing the FCC’s irritation with unpaid fines.

In 2005, the Enforcement Bureau issued a Notice of Apparent Liability for Forfeiture (NAL) for $15,000 against the licensee for failing to properly maintain a fence around its tower, violations related to the public inspection file, and operating with an unauthorized antenna pattern. Following the issuance of this first NAL, the FCC issued a Forfeiture Order which the licensee challenged, arguing that the forfeiture for the fencing violation should be reduced. The FCC eventually issued an Order lowering the penalty amount to $14,000, based on the licensee’s efforts to comply with the FCC’s antenna structure fencing requirements. Still unhappy with the FCC’s decision, the licensee filed a petition for reconsideration of the Order, but ultimately entered into a Consent Decree with the FCC in 2008 terminating the investigation.

In the Consent Decree, the licensee agreed to make a “voluntary” contribution of $8,000 to the U.S. Treasury. The licensee further agreed to submit compliance reports for two years and to certify to the FCC that it is properly maintaining its public inspection file, operating its transmitters as authorized, and has repaired the fence surrounding its tower.

However, the licensee failed to pay the $8,000 or submit its compliance reports to the FCC. In 2010, two years after the Consent Decree, the licensee responded to a letter of inquiry from the FCC, noting that it had sent a check to the FCC to pay the $8,000, but that the check had bounced because the licensee had insufficient funds.

The FCC rejected this excuse, and in May 2011, issued an additional NAL against the licensee for $25,000 for failing to comply with an FCC Order. Notably, the FCC concluded that there is no base forfeiture for failing to comply with an FCC Order, and that it is therefore within the FCC’s discretion to determine how serious the violation is and how large a penalty is warranted. In this instance, the FCC considered the licensee’s violations to be egregious and determined that “‘a consent decree violation, like misrepresentation, is particularly serious. The whole premise of a consent decree is that enforcement action is unnecessary due, in substantial part, to a promise by the subject of the consent decree to take the enumerated steps to ensure future compliance.'”
The licensee responded to the 2011 NAL, requesting that the forfeiture be cancelled due to the licensee’s financial situation–the majority of the owner’s companies had filed for bankruptcy and the licensee’s sole owner was some $70 million in debt. Unfortunately for the licensee, the FCC rejected this request and proceeded to issue a Forfeiture Order this month for the proposed $25,000. In the Forfeiture Order, the FCC acknowledged that the licensee’s financial situation indicated that it was unlikely to be able to pay the forfeiture. Nevertheless, the FCC considered the licensee’s continuous violation of the terms of the Consent Decree to be a demonstration of “bad faith and a complete disregard for Commission and Bureau authority.”

The licensee now has until mid-July to make the $25,000 payment, an amount significantly greater than the initial $8,000 contribution it was unable to pay in 2008.

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Last Thursday, the FCC’s Media Bureau issued a Letter Decision involving two disputed coordinate correction applications for a station’s main and auxiliary antennas that, at least on paper, proposed to increase the short spacing to another radio station. In the Letter Decision, the Media Bureau spelled out the circumstances under which a requested coordinate correction, absent an actual change in facilities, will be approved by the Media Bureau.

Certain FCC applications and registrations require parties to specify the geographic coordinates for the site that is the subject of the filing. Examples of such FCC filings include applications for modifications to an AM or FM broadcast station on FCC Form 301 or 302, antenna and tower registrations on FCC Form 854, and applications seeking authorization to operate studio transmitter links on FCC Form 601. The Letter Decision emphasized that the coordinates supplied to the FCC should be accurate not only to prevent interference among stations, but also to avoid unanticipated and potentially costly disputes like the one discussed in this decision.

As detailed in the Letter Decision, a California broadcaster filed applications seeking to correct its main and auxiliary transmitter site coordinates on FCC Form 302-FM pursuant to the FCC rule that allows a station to correct its coordinates by no more than three seconds of latitude and/or longitude without requesting a new construction permit. The applications in question were opposed by a broadcaster in an adjacent market who argued that the applications to correct the coordinates would impermissibly increase the existing short spacing between the applicant’s station and its station. While the correction of coordinates did technically reduce the stated distance between the stations, it did so by only 304 feet.

The Media Bureau stated in the Letter Decision that it is an “undisputed fact” that the coordinate changes proposed would increase the short spacing, but it decided to approve the applications because the increase in short spacing was negligible, or “de minimis.” In doing so, the Media Bureau relied on a 1998 case involving a coordinate correction that proposed a “paper” change in coordinates of a similar distance (less than a tenth of a kilometer).

However, the Media Bureau also concluded that in assessing the distances between transmitter sites to determine whether a short-spacing is increased under the FCC’s Rules, it will round distances to the nearest kilometer. Using this rounding methodology, the distance between the stations in the Letter Decision remained unchanged by the correction, since both the old and the new distances rounded to 221 kilometers, and therefore created no “change” in the short spacing between the stations.

The take away from the Letter Decision is that the Media Bureau will likely approve applications to correct coordinates that increase an existing short spacing where (i) the application is for correction of site data that does not involve an actual facility change; (ii) the correction raises no environmental or international (or other) issues; (iii) the difference between the authorized and corrected spacing involved is de minimis (keep in mind the only clear line even after the Letter Decision is that a tenth of a kilometer, or less, will be considered de minimis by the FCC); and (iv) a change of more than a tenth of a kilometer may be permissible where rounding to the nearest kilometer would indicate no change in the distance between stations.

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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:

  • Failure to Refresh Tower Paint Garners $8,000 Fine
  • FCC Levies $25,000 Fine for Failure to Respond
  • $85,000 Consent Decree Terminates Investigation Into Unauthorized Transfers of Control

Tower Owners Receive Harsh Reminder Regarding Lighting and Painting Compliance
The FCC, citing air traffic navigation safety, has fined many tower owners for noncompliance with Part 17 of the Commission’s Rules. Part 17 includes regulations pertaining to the registration, maintenance and notification obligations of tower owners. The base fine for violating Part 17 requirements is $10,000.

Part 17 supplements the notification obligations imposed by the Federal Aviation Administration (“FAA”). Section 17.7 of the FCC’s Rules requires that certain tower structures, including most structures over 200 feet in height and those near airports or heliports, be registered with the FCC. Section 17.21 mandates that most towers over 200 feet be lit and painted in accordance with the FAA’s recommendations. These recommendations include the use of orange and white paint (alternating bands) and red or white flashing, strobe or static lights.

With the recent release of two Notices of Apparent Liability (“NAL”), the FCC continued its pursuit of those who fail to comply with its tower rules, including Section 17.50, which mandates that any tower required to be painted in accordance with the FAA’s guidelines or the FCC’s Rules must be cleaned or repainted as often as necessary to maintain good visibility.

In the first of the two NALs, agents from the Dallas Field Office inspected a 402-foot tower located in Quanah, Texas and determined that the existing paint, which was faded, scraped, peeling or missing in certain areas, was insufficient. The NAL indicates that the agents were unable to distinguish between the orange and white bands from a “quarter mile from the [tower]”, thereby “reducing the structure’s visibility.”

Shortly after the Quanah inspection, agents from the Dallas Field Office also inspected a 419-foot tower located in Durant, Oklahoma. The agents found a similar situation, where the tower’s paint was faded, scraped, peeling or missing in certain areas. The agents were again unable to distinguish between the orange and white bands from “800 feet away from the [tower]”, once again “reducing the structure’s visibility.”

The FCC levied the full base fine of $10,000 against each tower owner. The FCC also mandated that no later than 30 days after the release of the respective NAL, a “written statement pursuant to Section 1.16 of the Rules signed under penalty of perjury by an officer or director of [the tower owner] stating that the [tower] has been painted to maintain good visibility” be delivered to the Dallas Field Office.

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