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People often conflate the term “FCC lawyer” with “Communications Lawyer,” thinking of an FCC Lawyer as someone who represents clients solely with regard to interactions with the FCC and its rules.  A Communications Lawyer, however, represents communications clients in a variety of venues and on a variety of issues whose common thread is that they affect media or telecom companies in a unique or disproportionate way.  Communications Lawyers therefore find themselves not just before the FCC, but handling complex transactions, litigation, and legislative matters where the harm or benefit has little to do with the FCC, and much to do with how the action impacts a media or telecom client.

For this reason, while a lot of what we write about here at CommLawCenter does focus on the FCC, you’ll also read about FTC actions against social media ad campaigns, Supreme Court decisions on retransmission of local TV signals,  and Department of Labor actions affecting media overtime pay and internships.  In working with media clients and the various state broadcasters associations, it’s clear that media companies, from AM/FM clusters to large media conglomerates, are being disproportionately affected by the #MeToo movement.  In response to that, next week we’ll be holding a webinar in coordination with Pillsbury’s Employment Law and Crisis Management practices titled You and #MeToo: Crisis Management for Media Companies Addressing Sexual Harassment Complaints.  The webinar is at 1 pm ET on March 20th, and you can register for it here.

Fair warning, it’s not an employee training webinar on what is or isn’t appropriate conduct in a media workplace; it’s aimed at company owners and managers seeking to prevent sexual harassment and to respond to complaints quickly and effectively, not just as between employees, but in the court of public opinion.  Responding to a sexual harassment or similar complaint in a manner that is acceptable to employees but leaves your business and brand damaged is not a successful response.

While national coverage of the #MeToo movement has largely focused on accusations against national figures, that does not mean media companies of all sizes are not fielding similar complaints; it just means that the press coverage tends to be limited to the region where the complainant or the accused are well-known.  To a local radio or TV station facing a firestorm of criticism in their community over harassment claims, the intensity of that public reaction can be every bit as withering as claims playing out on a national stage.

For example, this past month brought a lawsuit against a Philadelphia morning show host and the radio station airing his program.  The suit alleges numerous incidents of sexual harassment over an extended period of time and was brought by an individual that served in multiple on-air roles, including as the host’s sidekick.  While these allegations haven’t drawn a lot of national press, you can bet Philly audiences are watching it closely.

Expect more of these local complaints to emerge in the months ahead.  It would be foolish to presume that the dynamics leading to #MeToo allegations only apply at the national level.  A standard theme of such complaints is that the person accused is in a position of power, views themselves as “special”, and therefore sees themselves as exempt from the rules that apply to others.  This same dynamic can apply in any size market or media operation.  A top-rated drive-time radio host or local news anchor in a small market might be a big fish in a small pond, but they may still see their fellow employees as small fish in that pond, potentially leading to that same sense of entitlement that has caused #MeToo moments elsewhere.

Of course, while public allegations by or against individuals in the public eye will usually draw the most press coverage, management is hardly exempt.  A recent article in Inside Radio describes a litany of disturbing encounters between a radio employee and her coworkers and news director.

Earlier this year, the Columbia Journalism Review released the results of an informal survey of more than 300 newsroom employees.  41% of the respondents reported having been the subject of harassment as newsroom employees or freelancers, with only a third of them having reported the incident.  It appears to have been an unscientific survey, but if we are to believe the results, nearly half of newsroom personnel have been the victims of harassment, and for every complaint that management receives, there are two more complaints that didn’t get reported.

A short-sighted employer might say that it can hardly be held responsible for episodes of harassment that weren’t reported at the time, but it is precisely those episodes that will emerge during the investigation of a subsequent complaint.  When this occurs, the public doesn’t see a media company that immediately investigated and dealt with a single sexual harassment complaint; it sees a company that let a pattern of harassment continue for years.

In addition to the damage to their brand, audiences, and advertisers, companies that poorly handle harassment allegations face legal liability to the complainant, the accused, and the company’s shareholders.  We’ve already seen lawsuits from all three groups, and there will undoubtedly be more.  Before you find yourself in a position where your actions could prevent or cause such a lawsuit, and you have only hours to make decisions before outside events overtake you, it makes sense to engage in some advance preparation.  We hope to see you next Tuesday.

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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 Proposes Forfeitures Against South Carolina Stations for Failure to Maintain Public Inspection File
  • Noncommercial Station and FCC Settle Dispute Over Promotional Announcements
  • Brooklyn-based Bitcoin Miner Warned Over Harmful Interference
  • FCC Issues Notice to Security Camera Manufacturer for Device ID Violations

FCC Proposes Fine Against Licensee of South Carolina Stations for Failure to Maintain Complete Public Files

In two separate Notices of Apparent Liability for Forfeiture (“NALs”) released on the same day, the FCC found two commonly owned radio stations apparently liable for repeated violations of its public inspection file rule.

Section 73.3526 of the FCC’s Rules requires stations to maintain a public inspection file that includes various documents and items related to the broadcaster’s operations.  For example, subsection 73.3526(e)(11) requires TV stations to place in their public inspection file Quarterly Issues/Programs Lists describing the “programs that have provided the station’s most significant treatment of community issues during the preceding three month period.”

In their respective license renewal applications, the stations disclosed that they had failed to locate numerous Quarterly Issues/Programs Lists from the 2003 to 2010 time period.  According to the licensee, the gaps in its reporting were due to several personnel changes at all levels of the stations as well as computer and software changes made over the past ten years.

Between the two NALs, the FCC found a total of 38 missing Lists (21 for one station, and 17 for the other station), which it considered a “pattern of abuse.” Pursuant to the FCC’s forfeiture policies and Section 1.80(b)(4) of its Rules, the base forfeiture for a violation of Section 73.3526 is $10,000.  The FCC can adjust the forfeiture upwards or downwards depending on the circumstances of the violation.  Here, the FCC proposed a $12,000 forfeiture in response to the station with 21 missing Lists and a $10,000 forfeiture for the station with 17 missing Lists.  Visit here to learn more about the FCC’s Quarterly Issues/Programs List requirements.  For information on maintaining a public inspection file, check out Pillsbury’s advisory on the topic.

“Ad” Nauseam: FCC Resolves Investigation Into Underwriting Rules Violation

The FCC entered into a Consent Decree with the licensee of two noncommercial educational (“NCE”) radio stations in Arizona and California after receiving complaints that the stations aired commercial advertising in violation of the Communications Act and the FCC’s Rules (together, the “Underwriting Laws”).

Section 399B of the Communications Act of 1934 prohibits noncommercial stations from making their facilities “available to any person for the broadcasting of any advertisement.” Section 73.503(d) of the FCC’s Rules prohibits an NCE station from making promotional announcements “on behalf of for profit entities” in exchange for any benefit or payment.  Such stations may, however, broadcast “underwriting announcements” that identify but do not “promote” station donors.  Such identifications may not, among other things, include product descriptions, price comparisons, or calls to action on behalf of a for-profit underwriter.  The FCC recognizes that it is “at times difficult to distinguish between language that promotes versus that which merely identifies the underwriter,” and expects licensees to exercise good faith judgment in their underwriting messages.

In response to complaints from an individual who alleged that the stations had repeatedly violated the Underwriting Laws, the FCC sent the licensee multiple letters of inquiry regarding questionable underwriting messages between August 2016 and March 2017.  According to the FCC, the licensee did not dispute many of the facts in the letters, and the parties entered into the Consent Decree shortly thereafter.  Under the Consent Decree, the licensee (1) admitted that it violated the Underwriting Laws; (2) is prohibited from airing any underwriting announcement on behalf of a for-profit entity for one year; (3) must implement a compliance plan; and (4) must pay a $115,000 civil penalty.

Brooklyn Bitcoin Mining Operation Draws FCC Ire Over Harmful Interference

The FCC issued a Notification of Harmful Interference (“Notification”) to an individual it found was operating Bitcoin mining hardware in his Brooklyn, New York home.

Section 15 of the FCC’s Rules regulates the use of unlicensed equipment that emits radio frequency energy (“RF devices”), a broad category of equipment that includes many personal electronics, Bluetooth and WiFi-enabled devices, and even most modern light fixtures.  Such devices must not interrupt or seriously degrade an authorized radio communication service.  The FCC’s rules require a device user to cease operation if notified by the FCC that the device is causing harmful interference. 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 Licenses After Alleged Failure to Report Felony Drug Conviction
  • Car Dealership Receives Citation for Interference-Creating Outdoor Lighting
  • License Renewal Hearing Ordered for Near-Silent Virginia Stations
  • FCC Commissioner Criticizes Local Colorado News Site Over Pirate Radio Station Article

LA Business Stripped of Licenses for Alleged Misrepresentations About Drug Conviction

In a rare Order of Revocation, the FCC revoked all of a Los Angeles communication equipment provider’s licenses after the licensee failed to respond to an inquiry into whether its manager lied about a 1992 felony drug conviction in dozens of Commission filings.

The Order rescinds the licensee’s eleven Private Land Mobile Radio (“PLMR”) and microwave station licenses and dismisses all of the licensee’s pending modification and license renewal applications.

Section 312(a) of the Communications Act authorizes the FCC to revoke a license “for false statements knowingly made … in the application” or when it finds that conditions “warrant it in refusing to grant a license[.]”  Pursuant to Section 1.17(a)(1) of the FCC’s Rules, no person may “intentionally provide material factual information that is incorrect or intentionally omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading.”  The FCC heavily weighs any misrepresentation or lack of candor when it determines whether a party is fit to become or remain a licensee.

The FCC began looking into the licensee’s fitness in 2015, when a different Los Angeles business alleged that the licensee had knowingly lied on an at least one FCC application when it replied “No” to a question that asked whether any of the licensee’s controlling parties had ever been convicted of a felony.  As it turns out, the manager (who is also the licensee’s sole shareholder) had been convicted of possession for sale of cocaine and sentenced to serve two years in California State Prison over two decades ago.  The FCC would later learn that the licensee had misrepresented the manager’s criminal history in at least 50 separate FCC filings.

In response, the FCC sent the licensee a Letter of Inquiry (“LOI”) seeking information about the manager’s role with the company and any criminal history.  When the licensee did not respond to the LOI, the FCC commenced a proceeding with an Administrative Law Judge (“ALJ”) to determine whether the licensee had engaged in misrepresentation before the Commission, whether it was qualified to remain a licensee, and what the FCC should do with the licensee’s various outstanding applications.  When the licensee failed to respond to the ALJ’s request to file a written appearance, and failed to appear for a status conference, the ALJ ordered a hearing, which the licensee also ignored.

The FCC determined that the company was unqualified to remain a Commission licensee, revoked all of its licenses, and denied with prejudice all of the licensee’s pending applications.

Light’s Out: FCC Issues Citation to Car Dealership That Fails to Address Harmful Interference

The FCC issued a citation to a North Dakota car dealership for its continued use of outdoor lighting that interferes with a wireless service provider’s nearby cell site.

Pursuant to Section 302(a) of the Communications Act, the FCC regulates all radio frequency energy-emitting devices (“RF devices”) that are capable of causing “harmful interference to radio communications.”  Section 15 of the FCC’s Rules regulates intentional and unintentional radiators of RF emissions, ranging from garage door openers to sophisticated computer components.  Section 18 regulates equipment that generates or uses RF energy for industrial, scientific, and medical (“ISM”) purposes.  If ISM equipment causes harmful interference with an authorized radio service, Section 18.111(b) of the Rules requires its operator to take “whatever steps may be necessary to eliminate the interference.”  Similarly, Section 18.115(a) requires the operator to “promptly take appropriate measures to correct the problem.” Continue reading →

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Back in 2015, I wrote a post on CommLawCenter discussing the prevalence of interns in the communications industry, and the Department of Labor’s crackdown on businesses illegally failing to pay their interns.  That crackdown began in 2010, with the DOL applying a rigid six-part test to determine whether an intern must be paid at least minimum wage for time spent working.  This caused a lot of consternation in media companies, with many electing to just drop internship programs rather than risk a violation of the Fair Labor Standards Act.  For those media companies, and the students that faced a suddenly diminished number of available internships, an announcement this past week from the Department of Labor will be welcome news.

When the Department of Labor stepped up enforcement against for-profit businesses illegally using unpaid interns, it released a Fact Sheet on whether an individual could be classified as a trainee or intern exempt from the Fair Labor Standard Act’s requirement that employees be paid at least the federal minimum wage and receive overtime pay. The Fact Sheet laid out the six-part test that the DOL adopted in the 1960s, noting that “[i]nternships in the ‘for-profit’ private sector will most often be viewed as employment” unless all six of the criteria are met. The six criteria were:

  • the internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • the internship experience is for the benefit of the intern;
  • the intern does not displace regular employees, but works under close supervision of existing staff;
  • the employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • the intern is not necessarily entitled to a job at the conclusion of the internship; and
  • the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

From the DOL’s perspective, if an employer couldn’t demonstrate that all six factors were met, the intern was an employee, and the employer would be liable for paying the intern wages and overtime.

The reason I wrote about the crackdown in 2015, however, was because of a then-recent ruling by the U.S. Court of Appeals for the Second Circuit which found the Department of Labor’s test too rigid, and instead applied a more flexible standard that assessed whether the business or the intern was the “primary beneficiary” of the arrangement.  Specifically, the court examined whether the internship was primarily for the economic benefit of the employer or primarily for the educational benefit of the intern.

As I noted at the time, that was good news for businesses in New York, Connecticut, and Vermont, which are within the Second Circuit’s jurisdiction, and potentially for businesses elsewhere, as the U.S. Court of Appeals for the Second Circuit is influential.  The logic of its ruling might well persuade courts in other circuits to follow suit.

That did in fact happen, with the California-based Ninth Circuit court recently becoming the fourth circuit to adopt the “Primary Beneficiary” test.  Recognizing this judicial tide, the Department of Labor announced on January 5, 2018 that it is also adopting the Primary Beneficiary test.  It indicated it was doing so both to comply with these court rulings and to eliminate the confusion of dueling tests that depend on what part of the country a business is located.

While I have had to learn a lot about employment law in handling mergers, sales, and other media transactions, I am not an employment lawyer, have not played one on TV, and did not stay at a Holiday Inn Express last night.  I would therefore encourage those interested in getting the full details of the DOL’s announcement to take a look at a new Employment Advisory on the subject by Pillsbury’s own Julia Judish and Andrew Lauria.  In particular, you should note their admonition that this only changes the federal standard, and if your state has a more restrictive standard, you will need to take that into consideration.

Among other things you will learn is that the DOL, in classic government fashion, replaced the rigid six-factor test with a seven-factor test.  The big difference, however, is that the old test required every factor to be met, whereas the new test has seven factors for consideration (along with any other factors that might be relevant to a particular intern), with no single factor being determinative of the outcome.  For example, if your internship program met five of the six old factors, but you couldn’t prove that the internship yielded no “immediate advantage” to the business and that the intern might actually impede your operations, the new test may be more to your liking.

So if you discontinued your internship program because you couldn’t show all six factors favored a finding that the position was correctly categorized as an unpaid internship or, as was often the case, you just didn’t want to risk having to defend yourself against a lawsuit for unpaid wages, you may want to revisit that decision.  If an objective review would find that the business is the primary beneficiary of the internship, you’ll still need to pay wages and overtime to your interns.  But if you are comfortable (after checking with counsel of course) that the primary beneficiary is the intern, then it is time to relaunch your internship program and introduce a whole new generation to the wonders of the media workplace.  Maybe, just maybe, they will then become your ambassadors to a new generation that doesn’t really know what to make of any media that doesn’t have the word “social” in front of it.

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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 Proposes $20,000 Fine for Decade-Old EEO Violations
  • FCC Goes After Small North Carolina Radio Station for Absence During Inspection
  • Drone Company Agrees to $180,000 Settlement for Non-Compliant A/V Equipment

“Hire” Education: FCC Pursues South Carolina Radio Stations for EEO Violations

The FCC proposed a $20,000 fine against the operator of five radio stations near Myrtle Beach for allegedly failing to observe the Commission’s Equal Employment Opportunity (“EEO”) recruitment rules from 2008 through 2010.

The stated goal of the FCC’s EEO Rule is to promote equal access to employment opportunities in the communications industry while deterring discrimination in the hiring process.  Pursuant to the EEO Rule, the FCC requires broadcast stations to follow certain procedures before filling each full-time vacancy.  Among other things, the EEO Rule requires stations to use outside recruitment sources to publicize vacancies, notify interested third party referral sources of vacancies, and generate and retain in-depth recruitment reports.

This particular inquiry began in 2011 when the FCC randomly selected the stations’ employment unit for an EEO audit.  The audit revealed several alleged violations surrounding eleven vacancies over the preceding two-year period.  The FCC found that the licensee had either used no recruitment sources or only word-of-mouth when it recruited for six of the eleven vacancies.  Further, the licensee allegedly failed to contact a third party that had previously requested notification of full-time vacancies.

In addition, the FCC asserted that the licensee failed to keep adequate records of the number of interviewees or the referral source of most of the interviewees during that period.  As a result, this information was missing from both the licensee’s Annual EEO Public File Reports and its public inspection file.  The FCC concluded that this meant the licensee could not adequately “analyze its recruitment program … to ensure that it is effective…” as Section 73.2080(c)(3) of the FCC’s Rules requires.

As a result, the FCC issued a Notice of Apparent Liability (“NAL”) proposing to fine the stations.  While Section 503(b)(1)(B) of the Communications Act authorizes the FCC to penalize any person who violates the Act or the FCC’s Rules, neither the FCC’s Rules nor its forfeiture guidelines establish a base fine amount for specific EEO violations.  Instead, the FCC characterized the asserted violations as a “failure to maintain required records,” for which the forfeiture guidelines recommend a base fine of $1,000.  The FCC applied this fine to each of the six alleged violations of its recruitment rule and proposed an additional $2,000 fine for each of the other claimed EEO violations.  The FCC then added a $4,000 upward adjustment based on the licensee’s history of similar EEO violations at other owned stations, resulting in a total proposed fine of $20,000.

The NAL also proposed a reporting requirement under which the stations would need to report their recruitment and EEO activities directly to the FCC’s Media Bureau for each of the next three years.

Of particular interest to stations assessing their own EEO compliance, the licensee’s 2008-09 and 2009-10 recruitment reports indicated that the stations had lost much of their recruitment data to “unauthorized removal.” Specifically, the licensee subsequently reported that some of the records disappeared following the dismissal of the stations’ local business manager.  That explanation did not satisfy the FCC, which noted that the licensee’s loss of records “does not excuse it from having violated [the FCC’s] rules.”

This action is another reminder of the FCC’s strict enforcement of its EEO Rule.  Stations needing a refresher on these requirements should check out our EEO Advisory for more information, and our 2018 Broadcasters’ Calendar for important EEO-related deadlines coming up in the next year.

Out to Lunch: AM Broadcaster Notified of Station Inspection Violation

The Commission presented a Notice of Violation (“NOV”) to a small North Carolina broadcaster for failing to staff its station during lunch hour one day this past March.  In the same action, the FCC observed that the station was also transmitting from an antenna for which it was not licensed. Continue reading →

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Each year around this time, Pillsbury’s Communications Practice releases its Broadcasters’ Calendar for the upcoming year.  It may not be the perfect stocking stuffer, but broadcasters that don’t read it closely are much more likely to end up on the FCC’s Naughty List next year.  When I’m on the road visiting stations or speaking at broadcaster conventions, it’s fairly common that someone walks up to me and tells me how much they appreciate the Broadcasters’ Calendar.  Rarely do calendars without pictures attract such attention.

I cannot take credit for the calendar, however.  The current communications lawyers at Pillsbury are merely the stewards of this publication.  When I joined the firm 30 years ago, the Broadcasters’ Calendar was already a well-established annual publication.  I honestly don’t know when the first Broadcasters’ Calendar was published, but I suspect there are editions floating around out there announcing deadlines relating to the launch of FM radio and color television.

And if imitation is the sincerest form of flattery, the Broadcasters’ Calendar is blushing.  Clients have sent me bootlegs in which someone has lifted the content wholesale and just put it on their own letterhead.  For a number of years I entertained myself by incorporating unusual words into the calendar just to see who was copying it outright rather than merely happening to describe a particular deadline the same way.

But it’s not hard to understand why the Pillsbury Broadcasters’ Calendar has developed such a following.  It outlines numerous regulatory and other deadlines broadcasters face in the coming year, along with brief descriptions of what complying with a particular deadline requires.

Despite the advent of a deregulatory FCC, the 2018 edition of the Broadcasters’ Calendar contains a fairly hefty number of entries, including dates and deadlines for TV’s upcoming spectrum repack and the conclusion of radio’s migration to an online public inspection file.  Fortunately, the 2018 edition also notes some filing deadlines that the FCC is actively considering eliminating.  Here’s hoping that the 2019 edition will be significantly thinner.

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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 Fires Broadside at Pirate Stronghold: Nearly Half of November Pirate Radio Notices Go to NY/NJ/CT Area
  • Sorry About That: Wireless Broadband Manufacturer Pays $95,000 to End Investigation of Failure to Prevent Harmful Manipulation of Its Products
  • Not Too Bright: FCC Proposes $25,000 Fine for Marketing Unlabeled Fluorescent Lights

No Parlay for Pirates: FCC Turns Up the Heat on Dozens of Alleged Pirate Radio Operators

In its most recent salvo against pirate radio operators, FCC field agents issued dozens of Notices of Violation (“NOV”) or Notices of Unauthorized Operation (“NOUO”) against alleged operators of unlicensed radio stations, particularly in New York, New Jersey, and Connecticut.

Under Section 301 of the Communications Act, transmission of radio signals without FCC authorization is prohibited. Unlicensed radio operators risk seizure of their equipment, heavy fines, and criminal sanctions issued for Connecticut pirate radio operations.

On just two consecutive days in October, agents from the New York field office investigated no fewer than eight pirate radio operations in New York and New Jersey, and the past month saw half a dozen NOUOs issued for Connecticut pirate radio operations.

In a similar show of force to the south, the FCC warned a dozen Florida residents of potential violations. The FCC also handed out a Notice of Apparent Liability for Forfeiture (“NAL”) to an alleged California pirate, proposing a $15,000 fine.

For many years, broadcasters complained bitterly about both the interference from multiplying pirate stations and the FCC’s glacial response to these illegal operations. Too often, the FCC’s response was to shrug its bureaucratic shoulders and note that it had limited resources. Broadcasters thus became even more disheartened when the FCC greatly reduced its field offices and staffing in 2016, making it harder for FCC personnel to quickly reach and investigate pirate operations, even if given authority to do so.

Fortunately, Commissioner O’Rielly took up the cause early in his tenure at the FCC, and under Chairman Pai, the FCC has made prosecution of unauthorized radio operations a priority. While broadcasters are certainly appreciative of the change, the sudden uptick in enforcement actions by a reduced number of field offices and agents has made clear that it was never a matter of resources, but of regulatory will. If you want to hunt pirates, you have to leave port.

Consent Decree Ends FCC Investigation Into Company’s Modifiable Wireless Broadband Devices

The FCC entered into a Consent Decree with a wireless device manufacturer after investigating whether the company violated various rules pertaining to the authorization and marketing of devices that emit radio frequency (“RF”) radiation.

In particular, the FCC looked into the manufacturer’s U-NII (Unlicensed National Information Infrastructure) devices. These devices are commonly used for Wi-Fi and other broadband access technology. However, U-NII devices that operate in the 5 GHz radio band risk interfering with certain weather radar systems. As a result, the FCC regulates how manufacturers make these devices available to the public. Continue reading →

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The FCC today released an Order waiving, at least for this year, the requirement that full power, Class A and low power television stations file what has traditionally been known as a Form 317 report by December 1.  More formally known as the DTV Ancillary/Supplementary Services Report, and due each December 1 for the past two decades, the reports are now actually filed on Form 2100, Schedule G rather than on the discontinued Form 317 (small wonder that everyone still refers to it as the Form 317 report).

The purpose of the report is to inform the FCC if a TV station has used its spectrum to provide non-broadcast services during the past year, and if so, to submit a payment to the government equivalent to 5% of the gross revenues derived from that service.  Ancillary or supplementary services are all services provided on any portion of a DTV station’s digital spectrum that is not necessary to provide the single free over-the-air program stream required by the FCC.  Any video broadcast service that is provided with no direct charge to viewers is exempt.  According to the FCC, examples of services that are considered ancillary or supplementary include “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”  If the station charges a fee for such a service, it must pay the government 5% of the gross revenues derived from that service when it files its report.

The FCC first adopted the requirement in 1999 as a result of a directive contained in the Telecommunications Act of 1996.  Since then, the rule has required digital full power commercial and noncommercial TV stations, and later Class A and low power television stations, to report annually “whether they provided ancillary or supplementary services in the 12-month period ending on the preceding September 30.”  The rule requiring the filing of these reports mandates that TV stations file them whether or not they have any non-broadcast services to report.  In fact, the rule pointedly says that failure to file “regardless of revenues from ancillary or supplementary services or provision of such services may result in appropriate sanctions.”  As a result, many thousands of these reports have been filed over the years despite the fact that very few stations have ever offered such services.

When the FCC this summer opened the door in its Modernization proceeding for suggestions as to how to eliminate unnecessary regulatory burdens, a chorus rang out in support of modifying this particular rule.  In one of those now glaringly obvious “how could someone not have thought of this twenty years ago?” moments, first Commissioner O’Rielly and then numerous commenters suggested modifying the rule to eliminate the requirement for all stations except those that actually provide such services.  That led to the FCC voting last month to issue a Notice of Proposed Rulemaking proposing to eliminate the filing requirement for all stations that do not offer ancillary or supplementary services.

Buried in a footnote to that NPRM was the answer to a question many of us had asked over the years; namely, what is the percentage of stations indicating they are actually providing such services?  Having been involved in the filing of well over a thousand of these reports over the years, we had yet to file one indicating a station has actually provided ancillary or supplementary services.  Now we know that, according to the NPRM, fewer than 15 stations nationwide offered such services in 2016, yielding a total payment to the government of roughly $13,000.  That’s fewer than fifteen out of more than 6600 reports filed in 2016 (0.2%).

Stated differently, if the FCC had just asked each of those 6600 stations to mail in $2.00 rather than a report, the government would have garnered more revenue while wasting far less station resources.  Of course, that doesn’t take into account the resources the FCC was forced to expend processing 6600 reports looking for the 15 that actually reported revenues, ensuring that fulfilling this congressional mandate currently costs the FCC more than it brings in.

For that reason, today’s Order waiving this year’s filing requirement for stations not offering such services will likely be welcome news not just for those broadcasters, but for FCC staff as well.  It does, however, remain a short-term fix.  The FCC’s proceeding to permanently change the rule is still underway, with the comment deadline not yet set.  Based on today’s waiver, the odds seem pretty good that by the time December 1, 2018 rolls around, a waiver will no longer be necessary as the change will have been incorporated into the rule.  In a time when even the most mundane proposals for change can generate fervent opposition, this may be the rare Commission rule that lacks a constituency to defend it to the death.

So the vast majority of stations that had been drafting their 2017 report can stop right now.  Of course, if your station is one of the lonely 15 that provided ancillary and supplementary services during the past year, the waiver doesn’t apply and you will still need to file the report and pay the FCC 5% of the gross revenues generated.  Then Congress can debate at length where to spend the $13,000.

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As Lauren Lynch Flick wrote here several weeks ago, the FCC announced in October that it would be lifting its 2013 freeze on certain TV station modification applications that would increase a station’s coverage area.  Lifting the freeze would let full-power and Class A TV stations that weren’t able to expand facilities in the just-ended modification windows for repacked stations (ie, stations that were not affected by the repack) to do so for the first time in nearly five years.

The purpose of the planned thaw is to let these stations implement desired modifications of their facilities long prohibited by the freeze, as well as to react to changes in coverage and interference coming from competing stations that were repacked.  By lifting the 2013 freeze before the FCC opens its planned Special Displacement Window for LPTV stations early next year, the FCC hopes to avoid having LPTV stations apply for and build out displacement facilities only to then be displaced again when these long-frozen full-power and Class A TV stations finally have a chance to modify their facilities.

The news released by the FCC this afternoon is that the thaw will commence on November 28, and will be quite short in duration, ending at 11:59 pm Eastern on December 7.  During this period, full-power and Class A TV stations that were not assigned a new channel in the repack will be able to file for minor modifications of their facilities.  Unlike other recent filing windows where applications filed at any time during the window were all treated as having been filed on the same day, applications filed in this window will be processed on a first come, first served basis.  That means there is a definite benefit to filing on the first day of the window.

While most stations that avoided being moved to a new channel in the repack were thrilled by that fact, being locked in place while those all around them modify and maximize facilities has been frustrating.  Now they have a chance to join other stations in nudging and jostling for position in a post-repack world.  They will need to move quickly, however.  Winter is coming.

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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:


  • Law and Disorder: FCC Fines New York City Man $404,166 for Interfering with NYPD Radio Frequencies
  • A Friendly Port: In Novel FCC Action, Property Owners Face a $144,344 Fine for Housing a Pirate’s Radio Operation
  • Continuous Unidentified Transmissions on a Shared Channel Leads to a $25,000 Fine

FCC Slaps NYC Individual with a $404,166 Fine for Interfering with NYPD Radio Frequencies

After a unique investigation involving a television host’s Twitter account, a New York Police Department investigation into criminal impersonation of a police officer, and a bomb threat to Times Square, the FCC fined a New York City man for operating on NYPD radio frequencies without authorization, malicious interference with officers’ communications, and transmission of false distress calls.

Section 301 of the Communications Act prohibits the unauthorized use of any device for radio transmission of energy, communications, or signals. Section 333 of the Act prohibits willful or malicious interference with any stations licensed, authorized, or operated by the United States Government.  The FCC has interpreted this to include repeated disruptions to public safety communications apparatus.  In addition, Section 325(a) prohibits the utterance or transmission of “any false or fraudulent signal of distress, or communication relating thereto.”

In August, 2016, the Enforcement Bureau responded to a TV host’s Twitter message that stated “A man hacked into the NYPD’s secure radio network to yodel repeatedly . . . .” Several weeks later, the NYPD arrested the individual, who admitted under interrogation to making the transmissions.  The transmissions, which went to several NYPD precincts over the course of four months, included a bomb threat to a Times Square pharmacy, threats to harm police officers, music, and profanity.

Several months after the initial arrest, the FCC issued a Notice of Apparent Liability proposing the statutory maximum of $19,246 for each of the 21 violations it found. The individual was found to have violated Section 301 and Section 333 for each of the nine calls he made, and the FCC found three violations of Section 325(a) (one for each of the false threats and distress calls).

Following the individual’s failure to respond to the Notice, the FCC issued a Forfeiture Order to make the proposed $404,166 fine a reality. The FCC stated in the Order that the man’s actions showed deliberate disregard for “the safety of NYPD officers and the public that they are called to serve and protect.”

FCC Proposes a $144,344 Fine Against Pirate Radio Operator and Property Owners

Taking a new approach, the FCC proposed a fine against not only the operator of a Florida-based unlicensed radio station, but against the owners of the property housing the station.

Section 301 of the Communications Act states that “No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with this Act and with a license [granted by the FCC].” In past pirate radio actions, the FCC tended to invoke Section 301 against only the pirate radio operator.  In this case, the FCC broadened the definition of a party that “use[s] or operate[s]” a station to include those who knowingly have control and access to the transmission equipment and pay for the station’s utility costs. Continue reading →