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The availability of broadband Internet service in apartment buildings, condominiums, and office buildings, or what the FCC calls multiple tenant environments (MTE), was the subject of a Notice of Proposed Rulemaking (NPRM) and Declaratory Ruling released on Friday of last week.  Prior FCC decisions have attempted to strike a balance between promoting competitive access to tenants and preserving adequate incentives for the initial service providers to deploy, maintain, and upgrade infrastructure.  For example, the Commission prohibits cable providers and telecommunications carriers from entering into contracts with MTEs that grant a single provider exclusive access to the MTE, but permits exclusive marketing agreements.

The NPRM follows a 2017 Notice of Inquiry in which  the FCC sought comment on certain agreements between MTEs and service providers, including sale-and-leaseback of inside wiring, exclusive marketing agreements, and revenue sharing agreements, whereby a provider agrees to pay the MTE owner a share of the revenue generated from the tenants’ subscription service fees.  The NPRM seeks to refresh the record from the earlier proceeding, and seeks comment on the impact that these arrangements have on broadband deployment and competition within MTEs.

In addition, the NPRM asks whether the FCC “should act to increase competitive access to rooftop facilities, which are often subject to exclusivity agreements.”  Wireless providers use MTE rooftops to locate facilities that establish or enhance wireless services.  The Commission seeks comment on, among other things, the benefits and drawbacks of rooftop exclusivity agreements, the prevalence of such agreements, and common terms and conditions of such agreements that may affect broadband deployment.

The FCC also seeks comment on any other arrangements and practices between MTEs and service providers that may hinder competition among broadband, telecommunications, and video service providers in MTEs, and on any state and local regulations that promote or deter broadband deployment, competition, and access to MTEs.

Comments on the NPRM are due 30 days after it is published in the Federal Register, with replies due 30 days thereafter.

In the Declaratory Ruling released along with the NPRM, the FCC granted in part a 2017 Petition filed by a coalition of service providers seeking preemption of a 2016 San Francisco Ordinance that prohibited building owners from “interfer[ing] with the right of an occupant to obtain communications services from the communications services provider of the occupant’s choice.”  The Ordinance at issue states that a building owner interferes by not allowing a communications provider to (1) “install the facilities and equipment necessary to provide communications services,” or (2) “use any existing wiring to provide communications services as required by this [Ordinance].”

The FCC preempted the Ordinance “to the extent it requires the sharing of in-use facilities in MTEs.”  The Commission explained that the Ordinance, while ambiguous on its face, appears to require the sharing of a building owner’s in-use wiring because it does not explicitly limit sharing to unused wiring, and instead uses the terminology “any existing wiring.”  The Commission noted that San Francisco has failed to clarify whether the Ordinance requires the sharing of in-use wiring, and that such a requirement is the only one of its kind in the country.

The FCC reasoned that preemption is necessary because the in-use sharing requirement “deters broadband deployment, undercuts the Commission’s carefully-balanced rules regarding control of cable wiring in residential MTEs, and threatens the Commission’s framework to protect the technical integrity of cable systems.”  The Commission explained that the Ordinance deters investment by MTEs because they no longer control the wiring they expended resources to install.  Similarly, the FCC stated that the Ordinance deters investment by service providers who are hesitant to install and convey the wiring to an MTE if that wiring can be accessed by a competitor who bore none of the installation costs.  The FCC also stated that the Ordinance has caused confusion as to who is responsible for maintenance of wiring.

The Commission’s preemption of the Ordinance became effective immediately upon release of the Declaratory Ruling.

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At its July 2019 Open Meeting this week, the FCC voted to make several changes to its Children’s Television Programming rules.  It released its final Order adopting the changes this afternoon.  Although characterized by Commissioner O’Rielly as “modest” changes, the revised rules are likely to alter television broadcasters’ compliance efforts in several significant respects, including the time at which the programming is aired, the type of programming that qualifies as educational, and how a broadcaster demonstrates compliance with the revised rules.

By way of background, the Children’s Television Act of 1990 (CTA) directed the FCC to adopt rules to limit the amount of advertising aired during children’s television programming, and to review at license renewal time the extent to which each television station “has served the educational and informational needs of children through the licensee’s overall programming, including programming specifically designed to serve such needs.”  The FCC subsequently adopted a license renewal “safe harbor” for stations airing an average of at least three hours of “core” children’s programming per week.  To qualify as “core”, the programming must meet a number of requirements, which include having as a significant purpose serving the educational and informational needs of children, being regularly scheduled and at least 30 minutes in length, and airing between 7 a.m. and 10 p.m.  To be able to monitor a station’s compliance, the FCC requires each full power and Class A TV station to file a Children’s Television Programming Report detailing its service to children’s viewing needs on a quarterly basis.

With the advent of digital television, the FCC added to its rules a requirement that TV stations engaged in multicasting must also meet the three-hour weekly average for each additional stream of programming broadcast.

In adopting this week’s changes, the FCC modified the time periods during which core children’s programming can be aired, the amount needed to meet the processing guidelines, and the process by which a broadcaster can demonstrate its compliance with the CTA and the FCC’s rules.

For example, the FCC expanded the time period during which educational children’s television programming can be aired and still be counted towards the FCC’s guidelines.  Previously, if a broadcaster intended to have its educational children’s television programming count towards the safe harbor license renewal processing guideline of 3 hours per week, the programming had to be aired between 7:00 a.m. and 10:00 p.m.  However, some broadcasters, especially those network affiliates in the Pacific time zone, ran into frequent issues of having their educational children’s programming preempted by live sporting events, and several commenters noted that children are often awake at an earlier hour, especially during the summer.  In light of these considerations, the FCC expanded the time period by one hour, so that eligible programming can be aired between 6:00 a.m. and 10:00 p.m. once the rule changes go into effect.

Under the new rules, broadcasters will still be able to meet their children’s programming obligations by airing three hours of core programming per week, as averaged over a six-month period, but now have two other options as well.  These include (i) airing 26 hours per quarter of core programming, plus an additional 52 hours of programming throughout the year that is at least 30 minutes in length, but which is not provided on a regularly-scheduled basis, such as educational specials or other non-weekly programming; or (ii) airing 26 hours per quarter of core programming, plus an additional 52 hours of programming throughout the year that is not aired on a regularly scheduled basis, but which may be shorter than 30 minutes, such as PSAs or interstitials.  Also, under any scenario, broadcasters will be permitted to count as regularly-scheduled any children’s educational program episode that was preempted but made good within seven days before or after the date it was originally scheduled to air.

Among the other revisions made by the FCC, two stand out.  First, the FCC substantially lessened the burden on broadcasters by eliminating the quarterly Children’s Television Programming Report requirement and replacing it with an annual report.  Second, the FCC voted to eliminate the requirement that broadcasters run an additional three hours of core children’s programming for each multicast channel transmitted.  The FCC determined that the CTA did not require such additional children’s programming, that the programming costs to broadcasters were unnecessary, and that those costs discouraged the offering of multicast channels and the additional programming they provide.  The FCC will also permit a TV station to relocate up to 13 hours per quarter of regularly-scheduled core programming from its primary stream to one of its multicast streams.

The rules will become effective 30 days after their publication in the Federal Register, except for those that require review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (most notably the changes to the Children’s Television Programming Report).  OMB approval typically takes much longer than Federal Register publication.

So TV stations should start revising their children’s programming plans now, but will need to hold off a little longer before those plans can be implemented.

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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:

  • Investigation Into Undisclosed Radio Station Owner With a History of Felonies Leads to Hearing Designation Order
  • FCC Settles With Alaskan Broadcaster After Disastrous Station Inspection
  • FCC Reinstates Licenses for Tennessee and Alabama Radio Stations, Then Immediately Threatens to Revoke Them

Troubled Past: Alleged Misrepresentations Lead FCC to Designate Applications for Hearing

In a recent Hearing Designation Order (“HDO”), the FCC’s Media Bureau raised serious concerns over the control of several midwestern AM stations.

The ordeal began when a father sought to help his adult son get a start in the radio business.  According to the HDO, the father established a trust in 2006 for the purpose of acquiring radio station assets, and appointed his son as the sole beneficiary and a family friend/local attorney as the sole trustee.  This trust was formed orally and not put in writing until 2012.  For the next several years, the father provided the trust with millions of dollars to acquire AM stations in Missouri and Illinois.  Unbeknownst to the FCC, however, was the father’s felonious past, having been convicted for obstruction of justice and bank fraud.  The FCC’s assignment and transfer application forms specifically ask whether any parties to the application have been convicted of felonies.  The FCC’s view is that such behavior casts doubt on whether that person’s involvement with a station would be in the public interest.

Shortly after the trust’s creation, the son supposedly formed a separate company which, according to the trust, managed all of the stations’ operations, including employment and finances.  According to the trust, this agreement, like the 2006 trust agreement, was an oral agreement, and never reduced to writing.

Suspicions regarding control over the trust arose in 2012, when a local resident and listener filed a Petition to Deny the stations’ license renewal applications.  He had sought a job with the stations and was directed to speak to the father.  This raised red flags for the listener, who subsequently began perusing the stations’ Public Inspection Files.  In them, he found indications that the father was running the stations’ day-to-day operations, such as communications from the trust’s counsel to the father regarding basic station operations and business matters.

To complicate matters further, the son (and sole beneficiary of the trust) passed away in 2015, leaving the trust’s assets, including the station licenses, to his father.  According to the trust, however, the father declined them and a year later assigned the beneficial interests in the trust to his girlfriend.  In the meantime, the trust entered into a programming and marketing agreement with another broadcaster.

Once the girlfriend was made the beneficiary, she and the family friend/trustee entered into an agreement to assign the trust’s assets, including the station licenses, to a new trust, and filed assignment of license applications to seek FCC approval for that assignment.  The petitioner filed another Petition to Deny the assignment applications, claiming that the assignments were a “subterfuge” to enable the father to continue to control the stations.

In its review of the multiple pending applications, the FCC determined that substantial and material questions were raised regarding whether: (1) an undisclosed transfer of control to the father took place either before or after the son’s death; (2) the father is an undisclosed real party-in-interest to the applications; (3) the original trust was used to shield the father or other trust beneficiaries from the FCC’s ownership attribution requirements; and (4) the trust engaged in misrepresentations and/or a lack of candor in its applications and other communications with the FCC.

Further complicating the investigation, the FCC noted that the trust had failed to provide significant documentary evidence for many of its claims, with the trust blaming this in part on the destruction of “a great majority of [the stations’] business records” that took place shortly after the son’s death.

To resolve these questions and to determine whether the applications should be granted, the applications have been designated for a hearing before an Administrative Law Judge.  It is not uncommon for such hearing proceedings to take years to be resolved.

Seward’s Folly: Alaskan FM Station Settles With FCC Over 6-Year-Old Violations

The FCC recently entered into a Consent Decree involving numerous rule violations by an FM station licensed to Seward, Alaska, including infractions relating to the now-repealed Main Studio rule, and basic station monitoring and Emergency Alert System requirements.  According to the FCC, the licensee also failed to respond to multiple Notices of Violation (“NOVs”) previously issued to the station. Continue reading →

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For many consumers, answering a phone call from an unknown number has effectively turned into a gamble.  Is it a potential new client?  A medical emergency?  Or, more likely, is it an incredible offer-to-stay-at-a-Caribbean-resort-of-your-choosing-please-hold-for-a-representative?

Not surprisingly, no issue generates more complaints at the Federal Communications Commission (FCC) and the Federal Trade Commission than robocalls – according to one estimate there were 47 billion illegal and unwanted calls in 2018.  In response, the FCC last week released a Declaratory Ruling and Third Further Notice of Proposed Rulemaking (CG Docket No. 17-59, WC Docket No. 17-97) clarifying that voice service providers may offer consumers call-blocking tools through an opt-out process rather than an opt-in basis, as is typically done today.   The FCC issued this clarification to address concerns that the majority of consumers are not requesting available call-blocking services.

Alongside this growing chorus for more robust call blocking, however, are concerns by legitimate callers of over-blocking.  Calling parties fear that the adoption of widespread call blocking may result in unintended consequences as call-blocking tools rely on analytics to determine when calls are likely to be illegal, spam or telemarketing.  The challenge is that legitimate calls may share some of the same analytical tendencies (e.g., a high volume of short duration calls originating from a toll-free number), resulting in the blocking of wanted calls, such as credit card fraud notifications, flight delays or school closing alerts.

To this end, the Declaratory Ruling clarifies when voice service providers may implement call-blocking programs, what other types of call-blocking tools they may offer to customers, and what options, if any, calling parties have to challenge over-blocking.

a. Opt-Out Method

First, the Declaratory Ruling clarifies that voice providers may implement call-blocking programs to subscribers on an opt-out basis.  Many voice providers only offer call-blocking services on an opt-in basis, requiring subscribers to specifically request these services.  However, either because of a lack of awareness of options, or just general inertia, the vast majority of subscribers have not opted to use such services.

And rather than set specific rules for which calls are blocked, the Declaratory Ruling permits calls to be blocked based on “any reasonable analytics designed to identify unwanted calls.”  Such “reasonable analytics” can be based on a broad combination of factors, including: callers with a large number of complaints, large bursts of calls within a short time period, calls with low average call duration, invalid numbers placing large numbers of calls, sequential dialing patterns, and other indicia of illegal calling.  Regardless, providers must apply such analytics in a “non-discriminatory, competitively neutral manner.” Continue reading →

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

  • FCC Settles With Golf Club Operator Over Unauthorized Transfer of 108 Private Wireless Licenses
  • FCC Warns Traffic Management Company Over Unlicensed Radio Operations
  • Months-Long Tower Lighting Outage Leads to Warning

Par for the Course: FCC Settles With Golf Club Operator Over Unauthorized Transfers

The FCC recently entered into a Consent Decree with a holding company for violating the FCC’s Rules governing transfers of control.  The company admitted to transferring 108 private wireless licenses without prior approval from the FCC in connection with its acquisition of a company that owned or operated over 200 golf clubs, country clubs, and business and alumni clubs.

Section 310 of the Communications Act (“Act”) prohibits the transfer of control of a private wireless license without prior FCC approval.  Under Section 1.948 of the FCC’s Rules, parties seeking consent to a transfer of control of such a license must first file FCC Form 603 and await Commission approval before consummating the transfer.

In September 2017, the holding company acquired the golf club operator.  It subsequently realized that the transaction included 108 private wireless licenses for which prior FCC approval had been needed.  As a result, in February 2018, the holding company filed transfer of control applications seeking nunc pro tunc (retroactive) approval.  The Wireless Bureau subsequently referred the matter to the Enforcement Bureau, which opened an investigation.

The clubs in question utilize wireless licenses to control day-to-day operations on their properties.  According to the Consent Decree, the licenses at issue are used to coordinate maintenance, golf shop personnel, and security, among other things.  And while the clubs’ operations and management have not significantly changed since the company’s acquisition, the change in ultimate ownership required prior FCC approval.

To resolve the Enforcement Bureau’s investigation of the transaction, the acquiring holding company entered into a Consent Decree with the FCC.  Under the terms of the Consent Decree, the company agreed to: (1) admit liability for violations of the FCC’s unauthorized transfer rules; (2) implement and adhere to a three-year compliance plan to prevent future violations of the FCC’s Rules; and (3) pay a $24,975 civil penalty to the United States Treasury.

Mean Streets: Traffic Control Company Pulled Over for Unlicensed Radio Operations

A Pennsylvania-based traffic management company received a Warning of Unlicensed Operation (“Warning”) from the FCC for operating radio transmission equipment on various frequencies in the Land Mobile Radio Service, General Mobile Radio Service, and Family Radio Service bands without authorization.

The FCC allocates various frequency bands for particular operations and with different licensing requirements.  For example, users of Land Mobile Radio Service (“LMRS”) frequencies are typically companies, government entities or similar organizations who use these channels to communicate with fleet vehicles and personnel spread out over a wide area.  In contrast, the General Mobile Radio Service (“GMRS”) is available only to individuals (and their families) for short-distance two-way communications.  Both LMRS and GMRS require an FCC license.

A third type of private voice radio service is the Family Radio Service (“FRS”).  Like GMRS, this service is intended for use by individuals, but unlike GMRS, does not require an FCC license.  However, devices used for FRS transmissions must still be approved by the FCC for that use.

The FCC began an investigation when it received information that the company, which dispatches personnel to monitor and control traffic at construction and emergency sites, was operating radio equipment across all three services in the mid-Atlantic region.  According to the Warning, the company did not have licenses to operate LMRS or GMRS equipment, and apparently did not have radios approved for FRS use.

The Warning notes that unauthorized operations subject the responsible party to monetary fines, equipment seizure, and criminal sanctions, including imprisonment.  The company was given ten days to respond with evidence that it was in fact authorized to operate on the various frequencies.  The FCC will then assess that response and any other relevant information to determine what enforcement action it will pursue against the company. Continue reading →

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Last week, the Federal Emergency Management Agency (FEMA) formally notified the FCC that FEMA has scheduled the next nationwide test of the Emergency Alert System (EAS) for August 7, 2019 at 2:20 p.m.  FEMA states that this year’s test will differ from the nationwide tests that have been conducted over the past several years in that it will be issued through the National Public Warning System, composed of FEMA-designated Primary Entry Point facilities, to test the readiness of the EAS to function in the absence of Internet connectivity.

In other words, the August test is dependent on the ability of EAS to operate without a ‘net, reaching EAS Participants solely by over-the-air means. The initial report from FEMA and the FCC following the 2018 Nationwide EAS Test noted that almost 60% of participants received the test announcement first via the Internet-oriented Integrated Public Alert and Warning System (IPAWS), a significant increase from 41.9% in 2017.

Also unique this year is the timing of FEMA’s announcement.  For the 2016, 2017 and 2018 tests, FEMA and the FCC announced the date of the proposed test in July and held the test in September with an October backup date.  As a result, the 2019 test will be performed significantly earlier in the year compared to prior tests.  The choice of this date is interesting in that it falls at the end of peak tornado season for much of the Midwest, and the beginning of peak hurricane season in the Southeast.  Last year’s test was postponed to the backup date in October because of Hurricane Florence, which made landfall in September.  This year’s date may, however, present a challenge to full participation in the test by student-run college stations, which may not operate during summer recess.

In terms of related regulatory obligations, broadcasters have generally been required to file an FCC Form One 30 days in advance of the actual test.  That filing is usually followed by a Form Two filing on the day of the test and then a Form Three filing 45 days after the test.  The exact information sought on the forms often varies year-to-year, but the filing system itself has found a permanent home on the FCC’s electronic EAS Test Reporting System (ETRS).  ETRS has not yet been updated to provide information for the 2019 Nationwide EAS Test, so the required forms (including submission due dates), updates in requested information, and any changes to the way in which the forms are to be filed have not yet been made available.

Being so broadcast station-dependent, this year’s test will place an even brighter spotlight on radio and TV stations, as any failures in receiving and relaying the National Periodic Test announcement may be laid at the feet of broadcasters.  Stations should therefore be alert to the imminent announcement of filing due dates and other information surrounding this year’s Nationwide EAS Test.

Stations should also take this opportunity to ensure that their EAS equipment is not obsolete, is fully installed, is in working order, is set to monitor the correct EAS sources, and has had the latest software updates downloaded and installed.  It would also be a good time to review EAS procedures with station staff to avoid past problems such as continuing to run program audio behind the test message.  Each of these were identified as points of failure in FEMA’s reports following the prior Nationwide EAS Tests.

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The state-by-state license renewal cycle for radio stations that will take place over the next three years commenced on April 1, 2019.  That was when the first batch of radio broadcasters (DC, MD, VA, and WV) began airing their pre-filing announcements ahead of the June 1, 2019[1] filing date for their license renewal applications.  The cycle then repeats, with a license renewal application deadline (based on state) occurring on the first day of every other month until 2022, by which time all full power, FM translator, and LPFM stations should have filed applications seeking a new eight-year license term.  Stations can determine their license renewal date by reviewing the FCC’s state-by-state license renewal timeline.

The FCC’s license renewal application form (FCC Form 2100, Schedule 303-S) may at first appear straightforward, consisting mostly of yes/no questions.  However, appearances can be deceiving, as evidenced by the countless fines, consent decrees, and other enforcement actions levied against stations that either failed to verify the accuracy of their certifications before filing, failed to timely file their license renewal application, or whose failure to comply with the FCC’s rules over their eight-year license term became apparent at license renewal time.

Those risks have increased significantly in this license renewal cycle, as it will be the first one in which all broadcast station Public Inspection Files are online.   The ability of the FCC, petitioners, and anyone else to review a station’s Public Inspection File online, at any time of day or night, and to peruse the electronic time stamps indicating exactly when documents were uploaded, creates a regulatory minefield for any applicant that has not been fastidious in preparing for its license renewal and in completing its license renewal application.

The bulk of the license renewal application consists of certifications whereby the applicant confirms its compliance with various FCC rules and requirements.  If an applicant certifies it has complied with those rules and requirements, and that assertion is not contested by a petitioner or the FCC’s own records, the FCC will generally not request additional evidence of compliance and will grant the station’s license renewal application.  Where the application is challenged by a petitioner with evidence that one or more of the station’s certifications is false, the FCC may ask the applicant for additional information to determine if grant of the license renewal application will serve the public interest.

One of the certifications that carries the highest risk of generating a fine is the certification that the station has timely placed all required documents in its Public Inspection File.  The base fine for a Public Inspection File violation is $10,000, and the FCC can adjust that amount upward if it finds multiple or egregious violations have occurred.

That means a station whose online Public Inspection File is not complete is already subject to a sizable fine. Falsely certifying compliance in the license renewal application creates the risk of additional fines, and in extreme cases, may persuade the FCC that license renewal is simply not in the public interest.

As a result, before completing the license renewal application, stations should thoroughly review their Public Inspection File to ensure it is complete and that the time stamps indicate all documents were timely uploaded.  If the Public Inspection File is not complete, stations should upload the missing documents as quickly as possible and be prepared to disclose that fact in their license renewal application.  With the Public Inspection File now online, it is easy for the FCC or a petitioner to challenge the accuracy of a station’s license renewal certifications—quite different from the days when a broadcast employee might reach retirement age without ever encountering a Public Inspection File visitor.  It is therefore even more important to a station’s well-being during this renewal cycle to fix any problems spotted as promptly as possible rather than just pretending those problems don’t exist when certifying rule compliance in the license renewal application.

The License Renewal Process

The first point to note is that a license renewal application is just that—an application—and not a guarantee of a new license term.  The Communications Act of 1934, as amended (the “Act”) requires all radio broadcasters to obtain from the FCC an authorization to operate.  By filing Schedule 303-S, an applicant requests its authorization be extended for another eight years.  The Act requires the FCC to grant such an application only if it finds that during the preceding license term: (1) the station has served the public interest, convenience, and necessity; (2) the licensee has not committed any serious violations; and (3) there have been no other violations by the licensee of the FCC’s rules and regulations which, taken together, would constitute a pattern of abuse.  To this end, the FCC invites petitions to deny, informal objections, and comments from the public for every license renewal application, and will review the application and these other submissions to make a determination as to whether the station at issue is deserving of license renewal. Continue reading →

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

  • FCC Revokes License for Unpaid Regulatory Fees; Warns Other Stations of Similar Fate
  • Texas Station Warned Over Multiple Tower and Transmission Violations
  • FCC Nabs Massachusetts Pirate While Commission Continues to Push for Anti-Piracy Legislation

Winter Comes for FM Station With Unpaid Regulatory Fees

The FCC’s Media Bureau published a trio of orders this month relating to the unpaid regulatory fees of three unrelated FM stations.  In the most severe case, the Media Bureau revoked the license of a Massachusetts station, ordering it to cease operations immediately.  The Bureau also initiated license revocation proceedings for overdue fees from stations in Illinois and Louisiana.

The Communications Act requires the FCC to assess and collect regulatory fees for certain regulated activities, including broadcast radio.  The FCC assesses a 25 percent penalty on any late or missing payments.  Failure to pay these regulatory fees or related penalties is grounds for license revocation.

The Media Bureau initially sent the Massachusetts licensee several Demand Letters requiring payment of delinquent fees.  The licensee did not respond to them.  Subsequently, in November 2018, the Media Bureau issued an Order to Pay or to Show Cause, which required the licensee to either pay its overdue fees or demonstrate why it did not owe them.  As we discussed at the time, between fiscal years 2014 and 2018, the licensee had accumulated a debt to the FCC of $9,641.73 in unpaid fees and related charges.  After the licensee failed to respond to the November Order, the Media Bureau issued a Revocation Order.  This “death sentence” terminates the licensee’s authority to operate the station and deletes the station’s call sign from FCC databases.

Shortly after releasing the Revocation Order, the Media Bureau issued two separate Orders to Pay or to Show Cause to the licensees of FM stations in Louisiana and Illinois.  According to the Media Bureau, the Louisiana licensee owes the FCC $11,386.77 in regulatory fees, interest, penalties, and other charges for fiscal years 2009, 2011-2014, and 2017, and the Illinois licensee owes $17,296.21 for fiscal years 2007, 2009, 2010, 2012, and 2013.  The Media Bureau had previously sent various notices and Demand Letters to the licensees regarding the overdue amounts without success.

The Louisiana and Illinois licensees each have 60 days in which to submit evidence showing that either full payment has been made, or that payment should be waived or deferred, lest they suffer the same fate as the Massachusetts FM station.

Who Monitors the Monitoring Points?  FCC Warns Texas AM Station Over Multiple Tower and Transmission Violations

The FCC’s Enforcement Bureau issued a Notice of Violation (“NOV”) against the tower owner and licensee of a Dallas-area AM station for improper tower painting and lighting and for operating at variance from its license. Continue reading →

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Last April, the broadcast industry was abuzz with the need to register previously unlicensed earth stations in order to reduce the chance of future displacement.  In April 2018, the deadline for submitting the registrations was announced, and after two extensions, all fixed-satellite service (FSS) earth stations in use prior to April 19, 2018 that operated in the 3.7 to 4.2 GHz band were to be registered with the FCC by October 31, 2018.

Subsequent to the April 2018 announcement, the FCC adopted an Order and Notice of Proposed Rulemaking regarding the potential for re-purposing the 3.7-4.2 GHz band.  Since then, most of the focus (over 400 submissions thus far) has been on various proposals for reallocating the spectrum band for 5G use.  Simultaneously, the FCC has worked to implement the Order’s information collection requirements.

In particular, the Order required all FSS earth station operators in the 3.7-4.2 GHz band (either licensed or registered) to submit a certification which confirmed that the information currently contained in the FCC’s records is accurate and complete.  Reducing the potential impact of this new requirement somewhat was the FCC’s decision to exempt those operators that submitted license applications or registrations during the April-October 2018 window referenced above.  The Order also sought additional information from both (i) operators of temporary fixed or transportable earth stations (i.e., satellite news gathering trucks) and (ii) operators of FSS space stations (or grantees of U.S. market access).

On April 11, 2019, the FCC released a Public Notice outlining the procedures for submitting the required certifications and related information by May 28, 2019.  Operators of FSS earth stations that were licensed or in use prior to April 19, 2018, must therefore submit the following information:

  • Relevant call sign(s);
  • File numbers;
  • Applicant or registrant name; and
  • Signed certification statement: “The undersigned, individually and for the applicant, licensee, or registrant, hereby certifies that all information reflected in his or her licenses or registrations in IBFS, including any attached exhibits, are true, complete and correct to the best of his or her knowledge and belief, and have been made in good faith.”

Additionally, all operators of temporary-fixed or transportable FSS earth stations (regardless of when the stations were licensed and/or registered) must also submit the following information for each licensed or registered facility:

  • Earth station call sign (or IBFS file number if a registration filed between April 19, 2018 and October 31, 2018 is pending);
  • Address where the equipment is typically stored;
  • The area within which the equipment is typically used;
  • How often the equipment is used and the duration of such use (i.e., examples of typical deployments, such as operation x days a week at sports arenas within a radius of y miles of its home base);
  • Number of transponders typically used in the 3.7-4.2 GHz band and extent of use on both the uplink and downlink; and
  • Licensee/registrant and point of contact information.

Interestingly, the FCC did not create a new electronic submission form for these filings.  Instead, the required information must be submitted through the International Bureau’s filing system as a pleading, which will provide additional flexibility for operators in preparing their submissions.  However, given the short period of time to file, we suggest that operators start working on gathering the required information as soon as possible.

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Embedded in the Music Modernization Act signed into law in 2018 was a provision that extended most federal copyright protections to pre-1972 sound recordings.  Prior to the enactment of the MMA, sound recordings made prior to February 15, 1972, may have been protected under state law, but federal copyright law protections did not apply.

While the MMA extended federal copyright protections to this subset of sound recordings, it also included language that provided an opportunity for digital audio service providers (i.e., streamers and podcasters) that play pre-1972 songs to avoid statutory damages and payment of attorney’s fees should the provider be found to have infringed the artist’s copyright.

On March 22, 2019, the Copyright Office adopted its final rule, requiring interested digital audio service providers to file a form with the Copyright Office providing contact information for the provider, and payment of a filing fee of $105 per digital audio platform.  The online form must be filed (and the payment submitted) no later than Tuesday, April 9, 2019.

As described in the Copyright Office’s adopting order:

Under the Act, rights owners must also provide specific notice of unauthorized use to certain entities that were previously transmitting Pre-1972 Sound Recordings before pursuing certain remedies against them. To be entitled to receive direct notice of unauthorized activity from a rights owner, an entity must have been publicly performing a Pre-1972 Sound Recording by means of digital audio transmission at the time of enactment of section 1401 and must file its contact information with the Copyright Office within 180 days of enactment, that is, by April 9, 2019. Where a valid notice of contact information has been filed, the rights owner may be eligible to obtain statutory damages and/or attorneys’ fees only after directly sending the transmitting entity a notice stating that it is not legally authorized to use the Pre-1972 Sound Recording, and identifying the Pre-1972 Sound Recording in a schedule conforming to the requirements by the Office for filing Pre-1972 Schedules. For any eligible transmitting entities that do not file contact information by April 9, 2019, rights owners may seek statutory damages and/or attorneys’ fees resulting from unauthorized uses by those entities after filing Pre-1972 Schedules as described above.

So once the form is filed, an artist who alleges that the digital audio provider has infringed the artist’s pre-1972 copyright must first provide notice of the allegation to the individual listed in the form.  Should the digital audio service provider resolve the alleged infringement within 90 days, the provider will be not be found liable for statutory damages ($150,000 per recording) or for the artist’s attorney’s fees arising from enforcement of the artist’s copyright.

Those that already pay SoundExchange for the right to play pre-1972 sound recordings may balk at the additional effort to submit the Notice of Contact form and pay a fee when, hopefully, they have at all times been in compliance with the SoundExchange-related requirements in that regard.  However, given the simple, straight-forward form, the relatively nominal fee of $105.00 per platform, and the legal minefield that pre-1972 recordings have shown themselves to be over the past several years, streaming platforms that feature classic jazz, oldies, or similar recordings from before February 15, 1972 may find filing the form a worthwhile effort to minimize future infringement hassles.