Published on:

After much public debate, the FCC voted 3-2 today to reconsider and reverse the prior decision of the Wheeler FCC to leave the broadcast ownership rules largely unchanged in the 2010/2014 Quadrennial Regulatory Review.  As detailed in an FCC Fact Sheet released after the FCC’s action this morning, the FCC’s ultimate order will hew closely to the draft released several weeks ago which we discussed briefly here.  As a result, the FCC will be eliminating the Newspaper/Broadcast Cross-Ownership Rule and the Radio-Television Cross-Ownership Rule, eliminating the Eight-Voices Test for owning a local TV Duopoly, eliminating the attribution of joint sales agreements as a regulated ownership interest, and will consider allowing broadcasters to own two Top-4 rated TV stations in a market on a case-by-case basis.

The FCC is also launching a Diversity/Incubator program to facilitate entry by new players into the broadcast industry, adopting a Notice of Proposed Rulemaking today to gather comments on how that program should be structured and implemented.

Given the extended and very public debate over modernizing the FCC’s broadcast ownership rules, including a forum on Capitol Hill yesterday debating the merits, today’s vote was not a surprise.  Indeed, regardless of the outcome, the Commission is to be congratulated for finally grappling with tough issues that past Commissions have found easier to ignore while continuing to maintain the status quo.  Unfortunately, much of the public debate outside the FCC has been beset with jingoism and shallow analysis that, among other things, presumes broadcasters operate in a walled garden (to borrow a phrase from the tech industry, another player with which broadcasters must now compete).

In an effort to bring greater depth to the discussion, Pillsbury’s John Hane agreed to give his personal views on broadcast ownership regulation at yesterday’s Capitol Hill forum, but unfortunately was unable to participate due to illness.  Before the event, however, John had asked me to look at his opening statement, and it brought home to me how wonderful it would be if jingoism could be replaced with real-world analysis, and politics be sidelined by informed debate.  With John’s gracious permission, reprinted below is his opening statement for yesterday’s forum debate.  You may not agree with him, but he makes a compelling argument with which — based on this morning’s vote — a majority of the current FCC commissioners may well agree.

From the pen of Mr. Hane: Continue reading →

Published on:

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.

Published on:

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.

Published on:

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:

Headlines:

  • 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 →

Published on:

This evening the FCC released the Agenda for its November 16 Public Meeting, and as anticipated, the two Media items on it are the Reconsideration of the FCC’s Broadcast Ownership Rules and the FCC’s proposed approval of ATSC 3.0.  More importantly, the FCC released the proposed draft orders for each item and an associated “Fact Sheet” summarizing the proposals to be voted on at the November meeting.

The content of the broadcast ownership draft Order matches what Chairman Pai had announced in his testimony before a House subcommittee yesterday and in an FCC blog post this afternoon.  Specifically, the Order proposes to eliminate the Newspaper/Broadcast and TV/Radio Cross-Ownership Rules, permit certain TV duopolies by eliminating the Eight Voices Test and assessing proposed Big-4 station combinations on a case-by-case basis, eliminate attribution of Joint Sales Agreements, and create an incubator program to promote new entry and ownership diversity in the broadcast industry.

That would normally have been enough big news for a day, but in an era that makes what once was referred to as “Internet time” seem excruciatingly slow, most of this information was already old news by tonight.  As far as breaking news goes, the more interesting item was the FCC’s reveal of its plans for ATSC 3.0 (“Next Gen TV”), which it had been holding close to the vest until tonight.

As summarized by the FCC’s Fact Sheet attached to the draft Order, the FCC proposes to:

  • Allow television broadcasters to use Next Gen TV on a voluntary, market-driven basis.
  • Require broadcasters that use Next Gen TV to partner with another local station to simulcast their programming in the current digital television (DTV) transmission standard (ATSC 1.0), so that viewers will continue to receive their existing broadcast service.
  • For five years, require the programming aired on the ATSC 1.0 simulcast channel to be “substantially similar” to the programming aired on the ATSC 3.0 channel. This means that the programming must be the same, except for programming features that are based on the enhanced capabilities of ATSC 3.0, advertisements, and promotions for upcoming programs.
  • Exempt low power TV and TV translator stations from the simulcasting requirement, and permit case-by-case waivers if a station has no viable simulcast partner.
  • Retain mandatory carriage rights on cable and satellite systems for simulcast DTV signals, and afford Next Gen TV signals no mandatory carriage rights while the Commission requires local simulcasting.
  • Subject Next Gen TV signals to the public interest obligations that currently apply to television broadcasters.
  • Require broadcasters to provide advance on-air notifications to educate consumers about Next Gen TV service deployment and simulcasting.
  • Incorporate specific parts of the Next Gen TV technical standard (A/321 and A/322) into [the FCC’s] rules and explain the methodology used to calculate interference. The A/322 requirement would apply only to a broadcaster’s primary video stream and would sunset five years from the effective date of the rules unless extended by the Commission.
  • Conclude that it is unnecessary to adopt a Next Gen TV tuner mandate for new television receivers.

The FCC also proposes to adopt a Further Notice of Proposed Rulemaking to:

  • Seek comment on issues related to exceptions and waivers of the requirement that Next Gen TV broadcasters partner with a local station to simulcast DTV signals.
  • Seek comment on whether to let full power broadcasters use vacant channels in the television broadcast band to encourage use of Next Gen TV.
  • Tentatively conclude that local simulcasting should not change the “significantly viewed ” status of a Next Gen TV station for purposes of cable and satellite carriage.

For broadcasters now diving into the spectrum repack and looking for the silver lining in having to rebuild on a new channel, tonight’s announcement will be welcome news.  Broadcasters have been urging the FCC to move forward on approving ATSC 3.0 so that it can be incorporated into station rebuilds and business planning, where any form of uncertainty complicates matters.  By revealing tonight its working draft of the ATSC 3.0 Order, the FCC has begun to remove that uncertainty. The remainder will hopefully dissipate on November 16.

Published on:

In a move that would have once been stunning, but which now was so expected as to be anticlimactic, the FCC today voted to eliminate the Main Studio Rule.  In doing so, it also eliminated various associated requirements such as the mandate that a station’s main studio be staffed during normal business hours with at least two employees (one management, one staff), and that it have the capability to locally originate programming.  The FCC did require that stations eliminating their main studio make any part of their public file that is not yet online available to the public during normal business hours “at an accessible place within its community of license.”  It also required stations to ensure that community members can continue to reach the station by telephone without cost, typically by maintaining a local or toll-free number.

Even though the FCC eliminated the rule on its own motion rather than in response to a petition (the times they are a-changin’ at the FCC), the move was not without controversy, with Commissioners Clyburn and Rosenworcel voting against the change.  Both expressed concern that allowing a station to close its local main studio would forever sever the intimate connection between the station and its community.  That is not a concern to be taken lightly, as the close connection between stations and their communities is what has made broadcasting unique among its many competitors.

Realistically, however, the elimination of the rule will not mark the elimination of main studios.  Main studios did not originally arise from regulatory fiat, but from practicality.  In the early days of radio, when pressure from musicians’ unions caused many radio stations to ban the airing of recorded music, main studios were a necessity.  There were no satellites, fiber feeds, or microwave links to relay programming long distances, so stations had to create programming under their own roof.  Even those stations that did play records had to have a place to play them close to the transmitter.  Early telephone lines were noisy, expensive, unreliable, and depending on your location, possibly unavailable.

But technology marched on.  One of my fun experiences as a young lawyer was representing one of the oldest radio stations in the world and seeing the antique sound lathes used to cut grooves in disks so large you could barely get your arms around them.  Programs were “syndicated” by physically transporting these disks around the country from station to station.  Even with this advance in technology, however, stations still had to have a place near their transmitter to play the disks, so by definition, every station had some local program origination capability.

As wireline connections around the country became more ubiquitous and reliable, and radio networks began to grow, the main studio changed with it.  No longer did every minute of programming need to be produced at the transmitter site; it could be relayed from long distances.  It was during this period, specifically 1939, that the FCC created the Main Studio Rule, forever freezing in bureaucratic amber what a main studio should look like.

Since then, a thousand technological advances have changed broadcasting (one of them being the advent of commercial TV).  Equipment became smaller, more reliable, and automated.  Microwave, satellite, and now Internet transmission made program distribution to stations easy and relatively inexpensive.  Hard-drive based music servers allowed diverse program schedules to be created and aired on radio stations without anyone needing to sit at a turntable flipping an LP every three minutes.  Relieved of these mechanical duties, on-air talent could focus all their energies on connecting with their audience rather than “tending” the station and its equipment.  And because of the ease with which audio and video can be relayed, that on-air talent could now do all of that from nearly anywhere in the world.  The days of having to be within a few hundred feet of the transmitter at all times are long gone.

Of course, that’s the operational side of the equation.  One of the reasons the Main Studio Rule was created was to “enable members of the public to participate in live programs and present complaints or suggestions to the stations.”  However, the wonder of many of the technologies discussed above is not that they exist, but that they are sufficiently inexpensive that not only stations but audiences are using them.  Once, appearing on a live radio program would have required a trip to the main studio.  Later, calling in to a live network program in New York from Kansas would have been so expensive as to likely exceed the value of any prize you might win.

That problem was first solved with toll-free calling to the distant studio — a technology that came on the scene 25 years after the Main Studio Rule was created.  Then toll-free numbers were supplanted by Voice-Over-Internet-Protocol (VOIP) equipment and cellphones that eliminated the need to pay separate long distance charges.  That capability was then improved upon by Skype and other services that allowed viewers and listeners to appear aurally and visually anywhere in the world with a broadband connection.

As for listeners being able to “present complaints or suggestions to the stations,” if toll-free numbers didn’t address that, email certainly did.  And if not email, then texts and social media.  I would be surprised to hear if there is a single station in the country that gets more main studio visits in a year than it receives messages via social media in a day.

So with the elimination of the Main Studio Rule will main studios just disappear?  Hardly.  They’ll just look less like 1939.

For most stations, main studios will continue to be useful hubs for organizing programming and operations.  They just won’t all need to look and operate the same.  Stations emphasizing a hyper-local format will have main studios so sophisticated that the original drafters of the Main Studio Rule would be in awe; a local studio with capabilities far beyond what any national radio network had in 1939 or afterwards.

Other stations, for example those whose formats focus on importing high-quality regional or national programming and distributing it locally, will have main studios with topnotch communications and automation gear, but probably no employee staring at the front door all day just in case someone shows up to see the public file (which is or soon will be online).  We live in the age of optimization, and main studios will be optimized to connect with a station’s audience, not to meet a 1939 conception of what a main studio should look like.

Of course, we have to be realistic.  Some stations will certainly shut down their main studio (particularly if we define a “main studio” as a place of daily program origination) because they believe they can operate more efficiently without that affectation of early radio.  There will also be those that close their main studio to reduce operating costs to the greatest extent possible.  In an era when competition from the Internet and other media has caused numerous rural stations to shut down and mail their licenses back to the FCC, allowing a station to operate without a main studio certainly seems preferable to forcing it to go dark because it can’t meet studio expenses.

And in that regard, perhaps it’s time to acknowledge what the Main Studio Rule really was — a government mandate to maintain a rigid brick-and-mortar presence in an Internet Age.  It’s existence hindered stations from evolving and adapting to the rapidly changing business strategies of their many non-broadcast competitors.  Of course the analogy doesn’t stop there.  Just as most people like the idea of a physical store where they can go and handle the merchandise, they like the idea of a main studio — a place where, if they ever felt like it, they could visit and see the product being created.  Of course, many of the people that like the idea of having a physical store buy everything online, and many that like the idea of a traditional main studio are streaming their music and video from non-broadcast sources.

Broadcasters could perhaps afford the luxury of having a formal main studio designed to suit the FCC when they were the only game in town, but that was then, and this is now.  Most broadcasters will continue operating a main studio in one form or another, and if viewers and listeners find the programming from such stations is better and tune in accordingly, there will be plenty of stations with elegant main studios for the foreseeable future.  If, however, the stations that divert those funds to program acquisition or other initiatives are the ones attracting larger audiences, then, and only then, will the era of the main studio finally draw to a close.

Published on:

The FCC announced late today that the freeze that has been in place since April 2013 which prevents full-power and Class A TV stations from filing applications to expand their coverage areas will be lifted temporarily, likely before the end of this year.  The lifting of the freeze allows stations that were not repacked following the Broadcast Incentive Auction to file minor modification applications to expand their signal for the first time in nearly five years.

Earlier this year, television stations that were repacked filed applications specifying facilities on their new channel assignments.  A small group of repacked stations that were unable to build on their assigned channel, and stations that were predicted to receive excessive interference as a result of the repack, were allowed to file applications for different facilities in a priority filing window that closed on September 15.  A second priority window for repacked stations to further modify their facilities is currently underway.  CommLawCenter reported on these various repack milestones here and here.

Today’s announcement alerts full-power and Class A TV stations which were not repacked that the freeze on filing modification applications will be lifted temporarily some time after the second priority window for repacked stations closes on November 2, but before a planned Special Displacement Window for LPTV stations is opened, which is predicted to occur early next year.

Given the timing of those two windows, the odds seem good that the temporary lifting of the freeze will occur before the end of this calendar year.  By allowing these stations to file modification applications before the opening of next year’s LPTV window, the FCC hopes to avoid having LPTV stations file in that window only to find their newly authorized facilities subsequently displaced by full-power and Class A TV stations that have been waiting to file a modification application since 2013.

While the freeze is lifted, applications to modify facilities will be accepted on a first come, first served basis.  Only applications that qualify as minor modifications will be permitted.  The temporary lifting of the freeze also means that processing of modification applications that were pending in April of 2013 can resume.

In this complex game of upgrade chess, LPTV station licensees should file any minor modification applications they are contemplating as soon as possible, since the FCC indicates that the filing of those types of applications will be frozen 30 days prior to the opening of the LPTV Special Displacement Window.  Such is the freeze-thaw cycle at the FCC.

Published on:

As we noted back in April (has it really been that long ago?) when the FCC first announced the TV spectrum repack deadlines, TV stations being repacked now have yet another quarterly filing obligation.  Television stations transitioning to a new channel in the repack must file a quarterly Transition Progress Report by the 10th of October, January, April, and July.  Yesterday, the FCC issued a Public Notice reminding stations of this obligation.

Each transitioning television station must electronically file the report (FCC Form 387) informing the FCC and public of the station’s progress towards constructing facilities on its newly-assigned channel and terminating operations on its current channel.  The quarterly reporting requirement will continue for each repacked station until the station has completed its transition and filed a final report indicating that it has done so.

While it is still early in the transition process, it is a mistake to assume that stations will have little to report in this first filing.  The Form 387 asks a number of baseline questions, such as whether a station needs to conduct a structural analysis of its tower, obtain any non-FCC permits or FAA Determinations of No Hazard, or order specific types of equipment to complete the transition.

Depending on a station’s response to a question, the electronic form will then ask for additional information regarding that particular subject.  For example, if a station indicates that it needs to make structural changes to its tower, it will be prompted to provide information about whether those changes are major and if so, whether they have been scheduled or completed.  In some cases, narrative responses may be necessary.

Ultimately, the form requires each station to indicate whether it anticipates that it will receive its equipment and complete any needed tower work in time to meet the construction deadline for its transition phase.

Don’t let the simple Yes/No appearance of the Form 387 fool you.  It requires input from both engineering and management personnel, and future reports will then be compared against the baseline it creates.  In other words, it would be a mistake to merely leave the task to the person who handles your other quarterly FCC reports as you walk out the station door.  You’ll likely be getting a panicked call from them shortly thereafter.

Published on:

Toll-free telephone numbers celebrated their 50th birthday this year (frankly, without much fanfare). These numbers allow callers to reach businesses without being charged for the call. When long distance calling was expensive, these numbers were enticing marketing tools used by businesses to encourage customer calls and provide a single number for nationwide customer service—for example, hotel, airline or car rental reservations.

Toll-free numbers are most valuable to businesses when they are easy to remember because they spell a word (1-877-DENTIST) or have a simple dialing pattern (1-855-222-2222). Like all telephone numbers, however, the FCC considers toll-free numbers to be a public resource, not owned by any single person, business or telephone company. Toll-free numbers are assigned on a first-come, first-served basis, primarily by telecommunications carriers known as Responsible Organizations. The FCC even has rules that prohibit hoarding (keeping more than you need) or selling toll-free numbers.

But the rules will change if the FCC adopts its recent proposal to assign toll-free numbers by auction as it prepares to open access to its new “833” toll-free numbers. The Notice of Proposed Rulemaking issued last week proposes to auction off approximately 17,000 toll-free numbers for which there have been competing requests. The proceeds of these auctions would then be used to reduce the costs of administering toll-free numbers.

The NPRM also contemplates revising the current rules to promote the development of a secondary market for toll-free numbers. This would allow subscribers to reassign toll-free numbers to other businesses for a fee (think 1-800-STUBHUB!). The FCC suggests this would promote economic efficiencies, as the number would presumably be better utilized by a business owner willing to pay for it than by the company that merely happened to claim it first.

The proposed rules are not without controversy. Some toll-free numbers are used to promote health, safety and other public interest goals (e.g., 1-800-SUICIDE). The NPRM seeks comments on whether toll-free numbers used by governmental or certain nonprofit organizations should be exempt from the auction process. There are also questions about whether the expected demand for the 17,000 new numbers will erode if claiming a number is no longer free.

Comments in this proceeding will be due 30 days after the NPRM is published in the Federal Register, with replies due 30 days after that. If you are interested in filing comments, you can reach us at 1-888-387-5714 Call: 1-888-387-5714.  After all, it’s a toll-free call.

Published on:

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:

Headlines:

  • Noncommercial TV Broadcaster Agrees to $5,000 Consent Decree for EEO Violations
  • Taxi Company Fined $13,000 for Failing to Operate a Private Land Mobile Radio Station on a Narrowband Basis and Other Violations
  • FCC Issues Notices of Unlicensed FM Station Operation to Five Individuals

EEO Violations Lead to $5,000 Settlement with FCC

The FCC entered into a Consent Decree with a Maryland noncommercial TV broadcaster to resolve an investigation into whether the broadcaster violated the FCC’s equal employment opportunity (“EEO”) Rules.

Under Section 73.2080(c)(1)(ii) of the FCC’s Rules, licensees must provide notices of job openings to any organization that “distributes information about employment opportunities to job seekers upon request by such organization,” and under Section 73.2080(c)(3), must “analyze the recruitment program for its employment unit on an ongoing basis.” In addition, Section 1.17(a)(2) requires that licensees provide correct and complete information to the FCC in any written statement.

The FCC audited the broadcaster for compliance with EEO Rules for the reporting period June 1, 2008 through May 31, 2010. During the audit, the FCC asserted that the broadcaster filled 11 vacancies at its TV stations without notifying an organization that had requested copies of job announcements. The FCC then concluded that the notification failure revealed a lack of self-assessment of the broadcaster’s recruitment program. Finally, the FCC asserted that the broadcaster provided incorrect information to the FCC when it submitted two EEO public file reports stating that it had notified requesting organizations of vacancies, but later admitted those statements were incorrect.

The FCC subsequently issued a Notice of Apparent Liability for Forfeiture proposing a $20,000 fine. The broadcaster avoided the fine by instead entering into a Consent Decree with the FCC under which the company agreed to make a $5,000 settlement payment to the government, appoint a Compliance Officer, and implement a three-year compliance plan requiring annual reports to the FCC and annual training of station staff on complying with the broadcaster’s EEO obligations.

FCC Fines Taxi Company $13,000 for Failing to Operate a Private Land Mobile Radio Station on a Narrowband Basis and Other Violations

The FCC fined a California taxi company $13,000 for failing to operate a private land mobile radio (“PLMR”) station in accordance with the FCC’s narrowbanding rule, failing to transmit a station ID, and failing to respond to an FCC communication.

Section 90.20(b)(5) of the FCC’s Rules requires licensees to comply with applicable bandwidth limits, and Section 1.903 requires PLMR stations to be “used and operated only in accordance with the rules applicable to their particular service . . . .” In 2003, the FCC adopted a requirement that certain PLMR station licensees reduce the bandwidth used to transmit their signals from 25 kHz to 12.5 kHz or less by January 1, 2013. Continue reading →