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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:

  • Streaming Service Agrees to Pay $3.5 Million for Violating FCC’s Closed-Captioning Rules
  • FCC Enters Consent Decree with Kentucky Broadcaster for Failing to Timely File License Renewal Application
  • Alabama Television Station Fined for Late Issues/Programs Lists

Streaming Service Enters Into Consent Decree for Violating Closed Captioning Rules

The FCC’s Enforcement Bureau and a multinational entertainment company entered into a Consent Decree to resolve an investigation into whether a streaming service owned by the company violated the FCC’s Rules pertaining to the closed captioning of video programming. To settle the matter, the company agreed to admit to violating the Internet Protocol Closed Captioning Rules, implement a compliance plan, and pay a $3,500,000 penalty.

The FCC’s Rules pertaining to the closed captioning of IP-delivered Video Programming require that all “nonexempt full-length video programming delivered using Internet Protocol must be provided with closed captions if the programming is published or exhibited on television in the United States with captions.” Most nonexempt full-length Video Programming delivered using Internet Protocol has to be provided with closed captioning if that programming aired with captions on television in the United States after September 30, 2013. For uncaptioned programming that is later aired on television with captions, video programming distributors have 15 days after that airing to add captions.

Section 79.4 of the FCC’s Rules requires that Video Programming Distributors “[e]nable the rendering or pass through of all required captions to the end user” and maintain the quality of the captions provided by the programming owner, as well as transmit the captions in a way that will reach the user with that same level of quality. Video Programming Distributors providing a device to receive their programming also need to comply with Section 79.103. That provision requires that such devices format captions in such a way as to permit viewers to control the display by changing the font, character size, or background color of the captioning. Video Programming Distributors are also required to “[m]ake contact information available to end users for receipt and handling of written closed captioning complaints.”

Beginning in January 2018, the FCC received consumer complaints about the closed captioning on the streaming service. Initially, the FCC’s Consumer and Governmental Affairs Bureau sought to informally resolve the complaints by requiring the company to submit progress reports. In May 2019, the company filed a Petition for Waiver of Section 79.4. It eventually filed a Request to Withdraw its Petition for Waiver in September 2021, and the Media Bureau granted that request at the same time it adopted the Consent Decree.

While the public comment period on the Petition for Waiver was ongoing, the Enforcement Bureau issued a Letter of Inquiry to the company in February 2020, which the company then responded to the following month. An investigation found that the company continued to offer programming that did not comply with the closed captioning rules after it had been reminded of its captioning obligations and even after it had received and responded to the Letter of Inquiry. Ultimately, the FCC concluded that the company failed to (1) enable the rendering or pass through of all required captions to the end user as required by Section 79.4, (2) implement the closed captioning functionality requirements of Section 79.103, and (3) make contact information available to end users wishing to complain about captioning.

To resolve the investigation, the company agreed to enter into a Consent Decree under which it will designate a compliance officer, implement a multi-part compliance plan, including developing a compliance manual and compliance training program, disclose within fifteen days any violations of the Consent Decree or the captioning requirements, file annual compliance reports for the next three years, and pay a $3.5 Million civil penalty.

Kentucky AM Station Pays $4,500 for Late-Filed License Renewal Application and Related Violations

A Kentucky broadcaster recently agreed to enter into a Consent Decree with the FCC for failing to timely file its license renewal application, failing to submit an EEO Program Report, and failing to place Quarterly Issues/Programs Lists in its online Public Inspection File throughout the license term.

Section 73.3539(a) of the FCC’s Rules requires that license renewal applications be filed no later than “the first day of the fourth full calendar month” before the license expires. As a result, an application to renew a Kentucky radio license needed to have been filed by April 1, 2020. However, the AM station did not file its license renewal application until July 20, 2020.

Additionally, Section 73.2080(f)(1) of the FCC’s Rules requires broadcast stations to file an EEO Program Report in connection with their license renewal application filings. In this case, the broadcaster did not do so. Finally, in its late license renewal application, the broadcaster certified compliance over the license term with the Public Inspection File rule, but had failed to place any Quarterly Issues/Programs Lists in its Public Inspection File during the license term.

As a result, the broadcaster elected to enter into a Consent Decree with the FCC to resolve the matter rather than face an extended FCC investigation. In it, the broadcaster admitted to the violations and agreed to pay a civil penalty of $4,500. The Consent Decree also requires the broadcaster to file an EEO Program Report within thirty days, implement and maintain a compliance program, including appointment of a compliance officer, development of a compliance manual, implementation of a training program, filing of a compliance report with the FCC a year after entering into the Decree, and reporting to the FCC any violations of either the Consent Decree or the Public File Rule within ten days of discovering such violation.

FCC Proposes Fine for Alabama Television Station with Late-Filed Issues/Programs Lists

The FCC fined an Alabama television station for failing to timely upload all of its Quarterly Issues/Programs Lists to its Public Inspection File. The station recently filed a license renewal application, and an FCC staff review of the stations’ Public Inspection File revealed that the station uploaded fourteen of the Lists late during the license term.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires every commercial television station to place in its Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter.

The FCC noted that five of the Lists were uploaded more than one year late, four Lists were between one month and one year late, and five Lists were uploaded between one day and one month late. When the licensee failed to provide an adequate explanation for the late uploads, the Commission concluded that the licensee willfully and repeatedly violated Section 73.3526 of the FCC’s Rules.

Section 1.80(b)(10) of the FCC’s Rules establishes a base fine of $10,000 for Public Inspection File violations. However, the Commission may adjust the amount upwards or downwards based upon factors such as the “nature, circumstances, extent and gravity of the violation,” in addition to the licensee’s “degree of culpability” and “any history of prior offenses.”  Taking those factors into account, the FCC proposed a fine of $9,000 as appropriate. Noting that the violation did not constitute a “serious violation” nor a pattern of abuse that would prevent renewal of the station’s license, the FCC indicated it would grant the license renewal application in a separate proceeding if no other issues arose.

A PDF version of this article can be found at FCC Enforcement ~ October 2021.

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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 Largest Robocalling Fine Under TCPA
  • Tennessee Broadcaster Fined for Failing to File License Applications for FM Translators
  • FCC Fines Rhode Island Broadcaster for Late-Filed License Renewal Application

FCC Proposes $5 Million Robocalling Fine in First Case Under TRACED Act’s TCPA Revisions

The FCC proposed to fine two individuals and a Virginia lobbying firm over $5.13M for apparently making 1,141 illegal robocalls to wireless numbers without the subscribers’ prior express consent.  This is the largest Telephone Consumer Protection Act (TCPA) robocall fine ever proposed by the FCC.

The TCPA and Section 64.1200(a)(1)(iii) of the FCC’s Rules prohibit prerecorded voice calls to wireless telephone numbers unless there is an emergency or the subscriber has given prior express consent to receive the call.  Additionally, the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) allows the FCC to issue a Notice of Apparent Liability for Forfeiture (NAL) for violations of Section 227(b) of the Communications Act (the “Act”) without first issuing a warning citation.  Due to Congress’s recent amendment of the TCPA, this is the first time the FCC has been able to proceed directly to a proposed fine against a robocaller.

In September 2020, the FCC began receiving complaints about the prerecorded calls at issue.  The recorded message in the call told potential voters that if they voted by mail, their “personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts.”

In cooperation with the Ohio State Attorney General’s Office, the Enforcement Bureau (the “Bureau”) identified the dialing service providers that placed the calls.  Subpoena responses from those providers revealed the existence of the robocalling campaign and identified the individuals as the customers who hired the providers to place the calls on their behalf and on behalf of the lobbying firm.  Bureau staff determined that 1,141 calls were made to mobile telephone numbers and reached out to the consumers assigned to those numbers.  None of the consumers the Bureau contacted stated that they had consented to receive the calls.

In addition to the two individuals, the FCC concluded that the lobbying firm violated Section 227(b) of the Act and Section 64.1200(a)(1)(iii) of the Commission’s Rules.  The FCC has held that an entity may be deemed to be the maker of a call if it was “so involved in the placing of a specific telephone call” that it can effectively be found to have initiated it.  To determine this, the FCC looks to the “totality of the facts and circumstances surrounding the placing of a particular call” to find “who took the steps necessary to physically place the call” and “whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.”

The FCC also considered factors such as the fact that the prerecorded messages identified both individuals by name, one of the individual’s personal telephone number was listed as the calling party, both individuals admitted their involvement in the calling campaign under oath, and the lobbying firm paid one of the dialing platforms with a company check.  The FCC therefore determined that both individuals and the firm were integral to the call campaign and were so involved as to be deemed to have initiated the calls.

In calculating a proposed fine, the FCC considers prior decisions involving unlawful, unsolicited prerecorded calls, and it has on many occasions applied a base fine of $4,500 per call.  Though most prior decisions involved a smaller number of calls, the FCC found those cases analogous and saw no reason to deviate from them as precedent.  As a result, the FCC proposed a total fine of $5,134,500 ($4,500 per call multiplied by 1,141 calls) for which it found the two individuals and the lobbying firm jointly and severally liable. Continue reading →

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For those racing to meet tonight’s deadline to file your 2021 Regulatory Fees, we have some good news.  The FCC just released a Public Notice announcing that the deadline for submitting those fees has been extended to 11:59pm on September 27, 2021.  The Notice is silent as to whether the extension is based on filing system problems or other causes.  However, it was apparently released in a rush as it doesn’t include the FCC’s standard language specifying that the deadline is 11:59pm Eastern Daylight Time (for those wishing to file at 11:59pm Pacific Time, we wouldn’t advise it).

So if you have already paid your regulatory fees, congratulations, you got in ahead of whatever issue is driving this extension.  If not, now you have something to do this weekend.

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Each year with the end of summer comes an announcement from the FCC as to how it is divvying up its operating costs to then charge its regulatees in the form of regulatory fees.  This annual ritual, required by Congress, makes the FCC virtually unique among federal agencies in funding its operations by passing the hat among those it regulates (and then charging them a fee to process each application to boot).

Being told how much broadcasters must pay to be regulated is never welcome news, but this year there is at least some upside, as broadcasters’ fees will be nearly 10% less than originally proposed, with most broadcasters’ 2021 fees being the same or less than last year’s.  The FCC’s Public Notice announcing the fee deadline and procedures is available here: https://docs.fcc.gov/public/attachments/DA-21-1112A1.pdf

Here are the highlights:

  • Annual regulatory fees are due by September 24, 2021.
  • Annual regulatory fees must be filed electronically at fcc.gov/feefiler.
  • Annual regulatory fee increases originally proposed for broadcasters were rolled back under intense lobbying pressure from trade associations representing broadcasters.
  • The FCC has commenced a proceeding to examine how it can more equitably implement the congressionally-mandated obligation to collect its entire appropriation from those that benefit from its operations.

Taking these points in turn, it is imperative that regulatees who owe more than $1,000 in regulatory fees file and pay those fees, or seek a waiver or exemption from doing so, by September 24.  Late or unpaid fees incur a 25% late penalty, plus interest and fees.  Those whose total regulatory fees are $1,000.00 or less are exempt.  Payments must be made in a single transaction.  Remember that the FCC’s daily limit on a party’s credit card transactions is $24,999.99, so payors that owe more than that amount must use one of the other methods available, including VISA/Mastercard Debit cards, ACH or wire transfers.  Wire transfers must be initiated early enough that they are credited by September 24 or they will be considered late.  Payors who cannot make their regulatory fee payments may seek a waiver or deferral of the fee payment obligation, which requires a showing of financial hardship.

The regulatory fee payment process involves two steps.  Payors must first sign into the FCC’s Fee Filer database using their Federal Registration Number (“FRN”) and password and electronically submit information about the fees they are paying.  This information may pre-populate with data from prior years’ payments and the FCC’s information about the facilities associated with the FRN.  However, payors are responsible for verifying that the information is accurate, including adding any facilities that may be missing.  Fee payors must then pay the fee amount indicated using one of the permitted online payment methods via the Fee Filer database or by wire transfer.

Broadcasters will notice that their regulatory fees this year are very close to or even less than last year.  In May 2021, the FCC released its proposed fee amounts, which included fee increases of 5% to 15% for the various categories of broadcasters.  Most of this proposed increase was due to the FCC’s decision to charge to “overhead” its special $33 billion appropriation for the Broadband DATA Act.  Through the Broadband DATA Act, Congress directed the FCC to use employees in certain of the FCC’s Bureaus to create accurate maps of broadband availability in the U.S.  Under the FCC’s fee methodology, overhead costs are paid for by all regulatory fee payors and divided among regulatees based on the size of the staff of the bureau that regulates them.  Since the Media Bureau has the largest staff, regulatees of the Media Bureau were slated to pay the largest portion of the $33 billion, despite the fact that broadcasters receive no benefit from the FCC’s broadband mapping activities and Media Bureau employees were not among those tasked by Congress to implement the mapping.

The NAB and State Broadcasters Associations filed comments in the proceeding and lobbied all of the Commissioners’ offices, urging the FCC to withdraw its proposal to charge broadcasters for the costs of its activities under the Broadband DATA Act and to reform its fee methodology to more accurately assign the responsibility of paying for the FCC’s activities to those who benefit from them, as required by law.

The broadcasters’ efforts were successful, with their 2021 fees generally being the same or lower than 2020 fees, and the FCC launching a proceeding to reform its regulatory fee methodology more generally.  Over the more than two and a half decades that broadcasters have been paying annual regulatory fees, the communications landscape in the U.S. has changed dramatically, with many new entrants, products and business models having been introduced.  Much of that change has been made possible through rulemaking and spectrum reallocation activities of the FCC, including many that reduced the spectrum available for broadcasting and/or increased interference to broadcasters.

Because of their position as licensees, however, broadcasters have had to pay for the FCC’s operating expenses while many of their unlicensed competitors do not.  Given the stakes for the future, it is important for broadcasters to remain engaged for this rulemaking proceeding, as it represents the greatest chance of altering a fee methodology that has consistently overcharged broadcasters in comparison to other FCC beneficiaries.

Only part of the solution rests with the FCC, however.  Because the regulatory fee obligation originates from Congress, it is important for broadcasters to be conversant on the subject and prepared to address it with legislators.  Broadcasters wishing to better understand the congressional regulatory fee mandate as implemented by the FCC may wish to read the summary of the State Broadcasters Associations’ ex parte meeting with Acting Chairwoman Rosenworcel, or their Joint Reply Comments in this year’s regulatory fee proceeding.

In the meantime, make sure your regulatory fees are paid by midnight (East Coast time) on September 24, 2021.

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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:

  • Broadcasters Fined for Late-Filed Issues/Programs Lists
  • Cable Sports Network Receives Proposed Fine of $20,000 for EAS Violation
  • FCC Enters Consent Decrees with Wireless Providers for Engaging in Prohibited Communications During Spectrum Auction

FCC Proposes Stiff Fines for Two TV Stations With Late-Filed Issues/Programs Lists

The FCC fined a Louisiana and a Georgia television station for failing to timely upload quarterly Issues/Programs Lists to their Public Inspection Files. Both stations recently applied for renewal of their licenses, and an FCC staff review of the stations’ Public Inspection Files revealed that one station uploaded 16 Lists late and the other uploaded 21 Lists late.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires every commercial television licensee to place in its online Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the online Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter.

In addition to the lists having been filed late, the FCC noted that most of the lists were actually filed over a year late. The Commission therefore concluded that each broadcaster had willfully and repeatedly violated Section 73.3526 of the FCC’s Rules. Section 312(f)(1) of the Communications Act defines “willful” as “the conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law, and “repeated” as applying where an act occurs more than once or, if an act is continuous, for more than one day. Though each broadcaster indicated that the Lists were uploaded late due to station staffing issues or their staff’s lack of familiarity with the Public File rule, the FCC noted that employee acts such as clerical errors in failing to file required forms do not excuse a violation.

In determining the amount of a proposed fine, the FCC may adjust its base fine amount for such a violation upward or downward based upon the nature, circumstances, extent, and gravity of the violation, in addition to the licensee’s degree of culpability and any history of prior offenses. Section 1.80(b)(10) of the Commission’s rules establishes a base fine of $10,000 for Public Inspection File violations.

In both instances, the FCC determined that the amount should be adjusted upward due to the large number of late-filed lists. The broadcaster that filed 16 Lists late faces a $15,000 proposed fine, while the broadcaster that filed 21 Lists late faces a $20,000 fine. However, in neither case did the FCC find that the violation would constitute a “serious violation” or pattern of abuse preventing renewal of the stations’ licenses. Barring other issues arising, the FCC indicated that both license renewal applications would be granted in separate Commission actions upon conclusion of the stations’ respective forfeiture proceedings.

FCC Proposes $20,000 Fine Against Cable Sports Network for Violating EAS Rule

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to a cable sports network for violating the Commission’s Emergency Alert System (EAS) rules. Specifically, Section 11.45 of the Commission’s Rules prohibits the transmission of false or deceptive EAS tones.

The EAS is a nationwide public warning system designed to alert the public in case of emergencies, such as severe weather warnings or AMBER alerts. In order to maintain the effectiveness of such emergency alerts, EAS tones may only be aired for specific uses, such as actual emergencies, authorized tests, and qualified public service announcements (PSAs). Section 11.45 strictly prohibits airing the EAS tones, or simulations thereof, except in connection with of one of those permitted uses.

In October 2020, the FCC became aware that a cable network had transmitted during a program EAS tones that were not connected to an emergency, authorized test, or qualified PSA. The Commission’s Enforcement Bureau sent a Letter of Inquiry to the network seeking information regarding the inclusion of EAS tones in the program. The network responded, admitting that it aired the tones in the context of a television show depicting a weather event. While there was no actual emergency occurring at the time, the network noted that the show featured a dramatic retelling of an actual weather event. The network also explained that the tones lasted less than two seconds and did not include keying tones, so they could not have triggered any automated EAS relay equipment.

Rejecting this explanation, the FCC found that the network willfully violated Section 11.45 of the Commission’s Rules, stating that whether the EAS rule was violated does not turn on the length of time the tones were aired, nor whether EAS data was embedded within the tones. The FCC also noted that while it has issued its base fine of $8,000 for past violations of the EAS rule, it may upwardly adjust the fine for violations that are particularly egregious, intentional, repeated, cause substantial harm, or generate substantial economic gain for the violator.

In this instance, the FCC noted the seriousness of the matter given the potential to undermine the integrity of the EAS system when the tones are used outside of true emergencies or tests. The Commission also considered other factors, such as the number of times the false EAS tone was transmitted, the length of time over which the violations occurred, the audience reach (nationwide), and the extent of the public safety impact. Finally, the FCC noted that the network had previously been fined for violating the same rule.

Given the nationwide scope of the audience, the serious public safety implications, and the prior history of EAS violations, the FCC concluded that an upward adjustment was warranted, proposing a total fine of $20,000. The company has 30 days from release of the NAL to pay the fine or file a written statement seeking reduction or cancellation of the proposed fine.

FCC Fines Wireless Providers for Violating Rules Against Communicating Bidding Strategies During FCC Spectrum Auction

Two Internet service providers recently agreed to enter into consent decrees with the FCC for engaging in prohibited communications regarding their bids and bidding strategies with other FCC Auction 105 participants.

Section 1.2105(c)(1) of the Commission’s Rules forbids FCC auction applicants from conveying certain information to other auction applicants during the “quiet period.” This “quiet period” begins on the deadline for filing a short-form application to participate in the auction and ends on the deadline for winning bidders to submit downpayments. The rule applies to any communication by an applicant regarding its own, or any other applicant’s, bids or bidding strategies.

While an applicant may state that it has applied to participate in a spectrum auction, a public statement by a party that it does not intend to place bids (or that it intends to stop bidding) can violate Section 1.2105(c)(1).

Additionally, Section 1.2105(c)(4) requires applicants to disclose to the FCC if it makes or receives a communication that appears to violate section 1.2105(c). Applicants must disclose potential violations in writing to the Commission immediately, and no later than five business days after the communication occurred.

In one case, a company official expressed to a Wireless Internet Service Providers Association members email group his company’s intent to cease participating in the auction. This email group included other auction participants, at least one of whom timely reported the communication to the FCC as required by Section 1.2105(c)(4).  The company itself self-reported the disclosure, and ultimately elected to enter into a consent decree with the FCC to resolve the matter.  While the consent decree did not include an admission of guilt, the company did agree to institute a training and compliance program, file annual compliance reports with the FCC for the next three years, and pay a civil penalty of $30,000.

In a separate matter, an officer of another potential bidder posted a statement to a Facebook group saying that the company did not intend to place any bids in the auction. Another auction participant saw and timely reported the communication to the FCC, but in this case, the potential bidder that posted the message did not self-report the communication to the FCC.

When the FCC commenced an investigation, the potential bidder elected to enter into a consent decree with the Commission to conclude the matter.  In this case, however, the consent decree included an admission that the party violated Section 1.2105(c)(4) by not reporting the prohibited communication. Along with committing to a training and compliance program, and submitting annual compliance reports to the FCC for the next three years, the potential bidder agreed to pay a civil penalty of $50,000 to conclude the investigation.

A PDF version of this article can be found at FCC Enforcement ~ August 2021.

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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 Asserts Violation of Prohibition Against Owning Two Top-Four Stations in the Same Market and Proposes $518,283 Fine
  • FCC Admonishes Indiana Broadcaster for Failing to Timely File License Renewal Application
  • Noncommercial Broadcaster Fined $9,000 for Late-Filed Issues/Programs Lists

Alaska TV Duopoly Violation Draws Large Proposed Fine

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to a television licensee for violating the Commission’s Duopoly Rule. That rule prohibits a party from owning two of the four highest-rated full-power TV stations in a Designated Market Area (DMA).

Section 73.3555(b)(1) of the FCC’s Rules allows an entity “to directly or indirectly own, operate, or control two television stations licensed in the same Designated Market Area” only if those stations’ service contours do not overlap or if, at the time the application to acquire the second station is filed, at least one of the stations is not ranked among the top four stations in the DMA.

Particularly relevant here is Note 11 to that rule, which was adopted in 2016. Note 11 prohibits the common ownership of two overlapping stations where one is a top-four rated station and the second station acquires a top-four rated station’s network affiliation from that station’s owner. In this instance, the buyer acquired most of the non-license assets of the third-party station, including its network affiliation, and moved that affiliation to the buyer’s non-top-four station.

According to the FCC, such transactions “serve as the functional equivalent of a transfer of control or assignment of license.”

The FCC noted the buyer did not contact Commission staff regarding the permissibility of the transaction nor seek a waiver of Section 73.3555 prior to closing the sale. In calculating the fine, the FCC explained that the licensee willfully and repeatedly violated Section 73.3555 of the FCC’s Rules. Section 312(f)(1) of the Communications Act defines willful as “the conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law, and “repeated” when an act occurs more than once or, if an act is continuous, for more than one day. By continuously operating the station for over seven months, the FCC found the licensee’s behavior to be conscious and deliberate, and thus willful.

When determining the amount of a proposed fine, the Commission may adjust its base fine for such a violation upward or downward based upon the nature, circumstances, extent, and gravity of the violation, in addition to the licensee’s degree of culpability and any history of prior offenses. In this instance, the FCC found that because the violation resulted in substantial economic gain, an upward adjustment was appropriate, particularly in light of the licensee’s significant ability to pay.

While the FCC noted it had not previously issued a fine for a Note 11 violation, it looked at fines issued in similar instances for guidance. The Commission found that its base fine of $8,000 for unauthorized transfers of control was sufficiently similar to use as a guidepost. As the Communications Act and the FCC’s rules contemplate a separate fine for each day of a continuing violation, the result would have been $8,000 multiplied by the 215 days the violation persisted, for a total fine of $1,720,000.

However, the FCC’s ability to assess fines is capped at $518,283 for a single act or failure to act, even when it is a continuing violation. Were it not for this statutory cap, the FCC indicated there would have been a number of reasons to upwardly adjust the fine. The licensee has 30 days from release of the NAL to pay the fine or file a written statement seeking reduction or cancellation of it.

Untimely Indiana License Renewal Application Results in Admonishment Despite FCC Technical Issues

The FCC’s Media Bureau recently released an Order admonishing the licensee of an FM translator for failing to timely file a license renewal application by the April 1, 2020 deadline. The Commission initially issued a fine but later cancelled it and instead issued the admonishment.

In February 2021, the Media Bureau issued an Order and NAL fining the licensee $1,500 for failing to timely file a license renewal application. The FCC referenced its Forfeiture Policy Statement, which sets a base fine of $3,000 for failing to file a required form. In this case, however, the FCC felt that because the licensee filed the renewal application before the station’s license expired, a fine of $1,500 was sufficient, noting that as a translator, the station was providing a secondary service.

The licensee was given 30 days from the release of the NAL to either pay the fine or file a written statement seeking reduction or cancellation of it. The licensee submitted a response, explaining that its inability to timely file the license renewal application was because of a technical issue with the FCC’s filing database, LMS.

According to the licensee, LMS incorrectly listed the expiration date of the station’s license as July 2021, rather than August 2020. Because the expiration date listed was too far in the future, LMS would not accept a license renewal application for the station. The licensee’s engineer reached out to FCC staff in February 2020 to have the expiration date corrected and was later told the error had been fixed. However, the erroneous date had in fact not been corrected and the station continued to be unable to file its license renewal application. The engineer reached out to the FCC again in July 2020 to have the problem fixed. The LMS error was resolved by the FCC on July 23, 2020 and the licensee filed its license renewal application that same day.

Despite the LMS error and the FCC’s failure to correct the problem originally, the FCC stated that the station’s failure to timely file was “due to Licensee’s own lack of diligence” and admonished the licensee for violating Section 73.3539 of the FCC’s Rules regarding license renewal filing deadlines. The FCC compared the situation to a prior case where a licensee was granted a waiver of the deadline after experiencing technical issues, but then acted diligently and kept in constant contact with FCC staff to resolve the issue and file the application. Ultimately though, the Commission acknowledged that it did not correct the LMS issue in February 2020 when the licensee raised the issue, and on its own motion cancelled the NAL.

FCC Fines Virginia Noncommercial Broadcaster for Late-Filed Issues/Programs Lists

The FCC fined a noncommercial broadcaster for failing to timely upload the quarterly issues/programs lists for two of its TV stations. The FCC found from a review of the stations’ online Public Inspection Files that a total of sixteen reports were uploaded late.

Section 73.3527(e) of the FCC’s Rules requires every noncommercial educational television licensee to place in its online Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the online Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter.

The broadcaster filed applications to renew the stations’ licenses in 2020. An associated FCC staff review of the stations’ Public Inspection Files revealed that one station uploaded seven lists late and the other uploaded nine lists late. The FCC further pointed out that of these late-filed lists, some were more than a year late.

The FCC found that the failure to timely upload sixteen lists between the two stations constituted a willful and repeated violation of its rules. Though the broadcaster indicated the error was due to administrative oversight, the FCC noted that employee acts such as clerical errors in failing to file required forms do not excuse a violation.

The base fine for a Public Inspection File violation is $10,000. In determining whether the amount should be adjusted upward or downward based upon the facts of the case, the FCC found that the broadcaster’s failure did not constitute a “serious violation” or pattern of abuse that would prevent renewal of the stations’ licenses. However, it proposed a $9,000 fine as appropriate given the nature of the violations. The broadcaster must now either pay that amount within 30 days or file a written statement seeking reduction or cancellation of the proposed fine.

A PDF version of this article can be found at FCC Enforcement ~ July 2021.

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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:

  • Online Drone Retailer Fined Nearly $3 Million for Marketing Unauthorized Devices
  • FCC Denies Motion to Quash Letter of Inquiry Concerning Unauthorized Operation of Nevada LPFM Station
  • Unauthorized License Transfers Lead to $104,000 Consent Decree for New Jersey Water Service Company

FCC Affirms $2.8 Million Fine for Marketing Unauthorized Drone Transmitters

The FCC denied a petition asking it to reconsider a $2.8 million fine it issued to an online company for marketing and selling audio/visual (A/V) transmitters for use with drones that did not comply with FCC rules. The FCC found that dozens of the devices transmitted in unauthorized radio frequency bands and some transmitters were operating at excessive power levels.

Pursuant to Section 302(b) of the Communications Act of 1934, “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to this section.” Section 2.803(b) of the Commission’s Rules prohibits the marketing of radio frequency devices unless the device has first been properly authorized, identified, and labeled in accordance with the FCC’s rules. Any electronic device which intentionally emits radio frequency energy must be authorized before it can be marketed within the United States. The FCC noted in its Forfeiture Order that these technical and authorization requirements are designed to prevent interference.

The FCC’s Enforcement Bureau, Spectrum Enforcement Division, received complaints about the company’s equipment marketing and began investigating in 2016. After the investigation, the Enforcement Bureau issued a Citation and Order for violations of Section 302 of the Communications Act and Sections 2.803 and 2.925 of the FCC’s Rules. The Citation and Order stated that the company had been illegally marketing noncompliant and unauthorized drone transmitters. The FCC then received more complaints about the company’s marketing of the transmitters and began a further investigation.

After the company failed to respond, the Enforcement Bureau issued a second Citation and Order to compel the company to respond. The company again did not answer. In June 2018, a Notice of Apparent Liability for Forfeiture for over $2.8 million was issued to the company for its violations of the Communications Act and the FCC’s rules, and for its failure to respond to the FCC’s two orders. The company responded in July 2018, arguing that the Notice of Apparent Liability for Forfeiture should be cancelled, or the amount of the proposed fine should be reduced.

As we covered in detail here, the FCC released a Forfeiture Order in July 2020 issuing the proposed $2.8 million fine, declining to reduce the amount. In the Forfeiture Order, the FCC considered and rejected the company’s response, which did not dispute any of the factual allegations. Among its arguments, the company asserted that it lacked fair notice of its legal obligations. The FCC rejected this argument, explaining that the company had sufficient notice of the long-standing equipment authorization rules which apply to radio frequency devices. The FCC also explained that it twice put the company on notice when it issued citations warning the company of those requirements.

The FCC also rejected the company’s argument that the rules say nothing about authorization for devices that operate on both amateur and other frequencies, explaining that the rules are clear that any device emitting radio frequency energy is subject to the authorization requirements unless an exception applies. As it stands, the only current exception is for devices operating solely on amateur frequencies.

In August 2020, the company filed a Petition for Reconsideration asking the FCC to reconsider the Forfeiture Order. In June 2021, the FCC released an Order stating that upon review of the Petition for Reconsideration and the entire record, the Petition presented no new information and there was no basis for reconsideration. The FCC affirmed the Forfeiture Order and the fine.

The FCC strictly enforces its rules surrounding unauthorized devices, with a statement issued by Acting Chairwoman Rosenworcel’s office noting that this fine should serve as “notice to all others that we take our policies protecting our airwaves seriously.” The company will have 30 days from release of the June Order to pay the fine. If the fine is not paid within that time, the FCC may refer the matter to the Department of Justice for enforcement of the forfeiture.

FCC Rejects Nevada LPFM’s Motion to Quash a Letter of Inquiry Regarding Unauthorized Operation

The FCC’s Enforcement Bureau recently released an Order dismissing a low power FM (“LPFM”) licensee’s Motion to Quash a Letter of Inquiry (“LOI”) and denying the licensee’s Motion for Stay.

In November 2019, the Enforcement Bureau sent a letter to the licensee of the LPFM station notifying it that its license had expired pursuant to Section 312(g) of the Communications Act. The letter explained that the station had been operating from a site that was 256 feet from the station’s licensed coordinates. Pursuant to Section 73.875(b)(2) of the FCC’s Rules, any change in a station’s geographic coordinates, including corrections to the coordinates or a move of the antenna to another site, may only be made after the FCC grants a construction permit application. Though the licensee filed a request for authority to make the coordinate change, this request came only after it had already been operating at the new site for over a year.

The FCC noted in its 2019 letter to the licensee that Section 312(g) is clear that “[i]f a broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted for the operation of that broadcast station expires at the end of that period.” FCC caselaw also makes clear that stations cannot avoid this 12-month deadline by operating from unauthorized facilities, as was the case here. The FCC found that the license had therefore expired, and the facts did not support reinstatement of the license.

The FCC then sent an LOI in April 2021 asking the Licensee if it continued to operate the station after the license expired. The licensee responded by filing a Motion to Quash the Letter of Inquiry and filing a Motion for Stay of the FCC’s investigation into whether it had continued to operate the station. In June 2021, the FCC issued an Order dismissing the licensee’s Motion to Quash the Letter of Inquiry, explaining that the LOI was issued pursuant to Sections 4(i), 4(j) and 403 of the Communications Act, not under its subpoena power in Section 409(e). The FCC said that because the licensee brought its Motion to Quash under Section 1.334 of the FCC’s Rules, which only applies to subpoenas, and because the LOI is not a subpoena, the Motion to Quash was “procedurally defective” and therefore dismissed it.

The FCC also denied the arguments laid out in the Motion to Quash for independent reasons. Among other arguments, the licensee had contended it has the right to operate its station pending the outcome of its appeal before the United States Court of Appeals for the District of Columbia Circuit. The FCC rejected this claim, explaining that it is premature. The FCC noted that it lacks sufficient information to determine whether the station indeed operated after the expiration of its license, and should it take a position regarding that argument it would pre-judge its own investigation. The FCC also dismissed the licensee’s argument that granting the Motion to Quash would serve the public interest. The FCC stated that granting the Motion would set a precedent allowing all appellants to avoid investigation while an appeal is pending.

Finally, the FCC denied the Motion for Stay because the licensee based its motion on its likelihood of prevailing on the Motion to Quash and the pending appeal. The FCC explained that not only did it dismiss the Motion to Quash, rendering moot any argument the licensee would prevail on that motion, but a pending appeal does not preclude the FCC from continuing its investigation into whether the station operated after the expiration of its license. 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 Fines Colorado Wireless Operators for Use of Unauthorized Equipment and Unauthorized Operations
  • VoIP Provider Enters Into Consent Decree With $180,000 Penalty Over Failure to Meet FCC Filing Requirements
  • FCC Investigates Colorado Manufacturer’s Unauthorized Signal Booster

Two Colorado Wireless Operators Fined for Unauthorized Equipment and Unauthorized Operations

The FCC fined two Colorado-based wireless operators for intentionally altering settings on equipment so as to operate it in a manner not authorized by the FCC’s rules.  The operators, licensed to provide radiolocation services (such as radar services), instead operated a GPS vehicle tracking service using the unauthorized equipment on unauthorized frequencies.

Under Section 301 of the Communications Act of 1934 and Section 1.903(a) of the FCC’s Rules, the operation of any device that transmits radio signals, communications, or energy without an FCC authorization is prohibited.  Additionally, Section 302(b) of the Communications Act requires that radio frequency devices operate in accordance with their associated FCC authorization.  While a radiolocation service licensed under subpart F of Part 90 of the FCC’s Rules permits operations that “determine distance, direction, speed or position by means of radiolocation services, for purposes other than navigation,” GPS services rely on satellite communications to determine the location of an object, typically to allow the owner of a GPS receiver to navigate based upon triangulation of the satellite GPS signals.

The FCC began investigating the two operators in April 2017 after receiving a complaint alleging that the companies were providing non-radiolocation wireless data transmission services rather than the radiolocation services for which they were licensed.  The Enforcement Bureau issued Letters of Inquiry (LOI) to both operators, and FCC agents followed up with an investigation of the companies’ shared facilities in Denver, Colorado.  This investigation led the FCC to issue a second set of LOIs seeking additional information from the companies regarding the equipment used.

In October 2017, the companies filed requests for Special Temporary Authority (STA) acknowledging their unauthorized use of the equipment and seeking authority to migrate their radiolocation services to an affiliated non-radiolocation licensee authorized to operate on a different frequency.  The FCC denied the STA requests, as well as a subsequent Petition for Rulemaking filed jointly by the companies, noting that the services proposed would still be prohibited on the newly-requested frequencies, and that the transmission of GPS coordinates is not a radiolocation service as defined by the FCC’s rules.

In September 2018, the FCC issued a Notice of Apparent Liability (NAL) proposing $534,580 in total fines against the two companies for the use of unauthorized equipment and conducting unauthorized operations.  The companies responded to the notice, presenting several arguments as to why the NAL should be cancelled, but according to the FCC, still failing to explain how the non-radiolocation GPS service could legally operate using noncompliant equipment on a frequency band designated for other services.

The FCC considered and dismissed the companies’ various arguments, upholding the fines it had originally proposed.  Among other arguments, the companies asserted that they had held a reasonable belief that the GPS service was authorized due to prior conversations and assurances from FCC staff.  The FCC rejected that argument and reiterated that “parties who rely on staff advice or interpretations do so at their own risk.”  Critically, the FCC noted that the licenses themselves did not authorize non-radiolocation services, and a license grant is not a blanket authorization to operate any equipment of a party’s choosing.  The FCC also rejected the companies’ request that the fines be cancelled, instead choosing to adjust the fines upward due to both companies’ history of repeated and continuous violations of the FCC’s rules, along with the deliberate nature of these particular violations.

The companies have 30 days from release of the Orders to pay the fines in full.  If the fines are not paid within that time, the FCC noted that it may refer the matter to the Department of Justice to commence collection proceedings.

VoIP Provider Hit With $180,000 Penalty Over Failure to Comply with FCC Filing Requirements

The FCC entered into a Consent Decree with a Voice over IP (VoIP) provider, resolving an investigation into whether the provider violated several of the FCC’s filing requirements.  For purposes of settling the matter, the provider admitted that it failed to timely file its Telecommunications Reporting Worksheets, CPNI Certifications, Advanced Telecommunications Capability Data, and a response to an LOI from the Enforcement Bureau.

Under Section 254(d) of the Communications Act, “[e]very telecommunications carrier [providing] interstate telecommunications services . . . [must] contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service.”  In implementing this directive, the FCC requires interstate telecommunications service providers, including VoIP providers, to contribute a portion of their interstate and international end-user telecommunications revenue to the Universal Service Fund (USF).  To accomplish this, providers must file annual, and in most cases quarterly, Telecommunications Reporting Worksheets (Worksheets) reporting their interstate and international revenue.  Failure to timely file and accurately report this information prevents the FCC from ensuring the provider is contributing its required share to the USF. 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 Fines Long-Distance Carrier $4.1 Million Over Cramming and Slamming Violations
  • Wireless Internet Service Provider’s Unauthorized Operations Lead to Consent Decree
  • Mississippi and Michigan Radio Station Licensees Admonished for Late License Renewal Filings

Long Distance Carrier Receives $4.1 Million Fine for Deceptive Billing and Service Practices Targeting Vulnerable Populations

The FCC fined a long-distance telephone service provider $4.1 million for deceptive practices involving switching customers from their preferred interexchange carrier (the company handling a caller’s long-distance calls) without their permission, a practice known as “slamming,” and adding unauthorized charges to customers’ telephone service bills, a practice referred to as “cramming.”  This far-reaching scam employed tactics targeting vulnerable customers, including senior citizens and individuals with severe health conditions.  To make matters worse, when the fraudulent charges went unpaid, a number of these customers had their phone service disconnected.  Given the age and health of many of the affected individuals, losing phone service was not just an inconvenience, but a health and safety risk.

Section 201(b) of the Communications Act of 1934 (the Communications Act) generally protects consumers from unjust and unreasonable practices by telecommunications providers, which the FCC has found to include misrepresentations about a carrier’s identity or service intended to persuade customers to change their long-distance carrier.  The FCC has also found that placing unauthorized charges on a customer’s telephone bill constitutes a prohibited “unjust and unreasonable” practice under the Communications Act.  Additionally, Section 258 of the Communications Act and Section 64.112 of the FCC’s Rules prohibit telecommunications carriers from changing a subscriber’s telephone exchange provider without prior authorization from the customer, which must be done in accordance with the FCC’s verification requirements.

To make the FCC’s enforcement efforts more effective and efficient, Section 1.17(a) of its Rules prohibits parties from providing false or misleading information to the Commission.  The FCC has found that even absent an intent to deceive, false or misleading statements may still violate its rules if provided without a reasonable basis to believe the statement is true.

In 2017, the FCC noted that a significant number of consumer complaints regarding this long-distance carrier had been received by the Commission, state regulatory agencies, the Federal Trade Commission, and the Better Business Bureau.  The complaints alleged that the carrier switched their—or in many cases their older relatives’—long distance carrier without authorization or charged them for services they did not request.  Many complaints stated that the carrier’s telemarketers misrepresented themselves by claiming affiliation with the customer’s telecommunications service provider.  Others stated that the carrier offered a nonexistent discount on the consumer’s existing phone service or discussed a fraudulent government assistance program for low-income individuals and senior citizens that it falsely claimed could lower their cost of service.  According to many of the complaints, the “slamming” and “cramming” left many elderly and vulnerable customers unable to contact caregivers due to disconnected service.  For example, one complaint filed on behalf of a 94-year-old woman emphasized that, beyond the harmful financial impact, the “slamming” and “cramming,” and subsequent termination of telephone service, had created a broader safety issue.

In April 2018, the FCC issued a Notice of Apparent Liability (NAL) proposing a $5.3 million fine for these actions.  The NAL alleged that the carrier violated the Communications Act and FCC rules by changing the selected carrier of 24 customers without complying with the required verification procedures and placed 21 unauthorized charges on customer bills.  The NAL also alleged that the carrier failed to respond fully to the FCC’s letter of inquiry and submitted false information in the form of fraudulent third-party verifications.

In response, the carrier denied the slamming, cramming, misrepresentation, and altered third-party verification claims, and challenged the validity of the evidence relied upon by the FCC.  The carrier also argued that the FCC had exceeded its authority, violated the carrier’s due process rights, and proposed an unlawful fine amount.  Finally, the carrier urged reduction of the proposed fine based on its inability to pay such an amount.  The FCC considered the carrier’s arguments but largely reaffirmed the conclusions set forth in the earlier NAL.  It did, however, decline to find that the carrier violated Section 1.17(a) of the Commission’s Rules regarding the third-party verifications submitted.  The carrier had argued that it maintained an arms-length relationship with its third-party verification provider, with no opportunity to alter or falsify recordings, and therefore had a reasonable basis for believing the recordings provided were authentic. Although the FCC expressed doubts regarding the validity of the recordings, it concluded that the carrier had a reasonable basis for believing the recordings were legitimate.

Because of this finding, the FCC reduced the fine from the originally-proposed $5.3 million to $4.1 million.  The carrier now has 30 days from release of the Order to pay the fine.  If it is not paid within that time period, the FCC noted it may refer the matter to the Department of Justice to enforce collection.

FCC Enters Consent Decree with Wireless Internet Service Provider Over Interference to FAA Systems

The FCC entered into a Consent Decree with a wireless internet service provider, concluding an investigation into the operation of unauthorized devices causing harmful interference to a Federal Aviation Administration (FAA) weather radar system.

Section 301 of the Communications Act prohibits the use or operation of any device that transmits radio signals, communications, or energy without an FCC license.  There is an exception to this general licensing requirement under Part 15 of the FCC’s Rules whereby certain low power devices that comply with established technical parameters to limit interference may operate without a license.  In particular, the FCC has set aside spectrum in the 5 GHz band for unlicensed use by Unlicensed National Information Infrastructure (U-NII) devices, commonly used for Wi-Fi and broadband internet access.  To avoid harmful interference to other nearby authorized services, the Part 15 rules require unlicensed U-NII devices to incorporate “Dynamic Frequency Selection” capability, which enables such devices to detect nearby radiofrequency devices and avoid operating on frequencies that could create interference to those devices.

As we discussed here, in May 2018, the FCC issued an initial warning to the wireless internet service provider regarding U-NII devices causing interference to a nearby doppler radar station.  In response, the provider assured the FCC that all of its devices were operating in compliance with Commission rules.  A year later, however, the FCC received a report from the FAA that the same radar station was experiencing interference from a source operating on a nearby frequency in the 5 GHz band.  In June 2019, the FCC Enforcement Bureau began investigating the interference claims and identified two U-NII devices operated by the wireless internet service provider without Dynamic Frequency Selection capabilities enabled.  Following this discovery, the Bureau instructed the provider to modify the U-NII devices to operate on a different frequency, which immediately resolved the interference.  In May 2020, the Bureau issued an NAL to the wireless provider, proposing a $25,000 fine for violations of the Part 15 rules.

In response to the NAL, the wireless internet service provider admitted that in June 2019, it was in fact operating U-NII devices in violation of the FCC’s rules, but corrected the device configurations immediately upon discovery of the issue.  The provider also informed the FCC that it had since implemented a policy to verify on a monthly basis that all of its devices are operating on the correct frequency.  Additionally, in an effort to obtain a reduction of the proposed $25,000 fine, the company submitted financial documentation demonstrating its inability to pay the proposed fine amount.

To resolve the investigation, the Bureau entered into a Consent Decree under which the company (1) admitted, for purposes of the Consent Decree, that it violated the FCC’s rules governing U-NII devices; (2) agreed to pay a reduced $11,000 penalty; and (3) agreed to implement a compliance plan to prevent future violations.

Mississippi and Michigan Radio Stations Avoid Fines, But Receive Admonishments for Failing to Timely File Their License Renewal Applications

The FCC recently canceled proposed fines against the licensees of a Michigan FM station and FM and AM stations in Mississippi for late license renewal application filings and instead admonished the stations for the violations.

Section 73.3539(a) of the FCC’s rules requires that license renewal applications be filed four months prior to the license expiration date.  The Michigan station’s license renewal application was due June 1, 2020, but was not filed until September 29, 2020, while the Mississippi stations’ applications were due February 3, 2020, but were not filed until May 20, 2020.

Under Section 1.80(b) of the FCC’s Rules, the Commission sets a base fine amount of $3,000 for failure to timely file a required form, which may be adjusted upward or downward based on consideration of the “circumstances, extent and gravity of the violation.”  Absent an explanation from the Mississippi stations regarding the late filings, the FCC last month proposed the full $6,000 fine ($3,000 for each late-filed application).  In response, the licensee argued that it was not aware of the filing deadline and therefore did not intentionally violate Section 73.3539(a) of the FCC’s Rules.  The licensee also submitted federal tax returns in support of a request to cancel the proposed fine based upon an inability to pay such an amount.

The FCC responded that licensees are responsible for complying with the Commission’s rules, and even violations resulting from inadvertent errors or a lack of familiarity with the Commission’s rules are still considered willful violations.  The FCC did, however, accept the licensee’s financial hardship showing and did not issue the proposed $6,000 fine.  The Commission instead admonished the station for willful violations of its rules.

With regard to the Michigan FM station, the FCC proposed a $3,000 fine against the Michigan School District to which the station is licensed.  In response, the School District explained that due to restrictions associated with COVID-19, the employees did not have access to the station, which is located in inside a school, from March 12, 2020 to June 24, 2020.  The licensee further noted that it mistakenly believed the license renewal application was due on July 1, rather than June 1, 2020, and thought it had timely filed a renewal application on June 29, 2020.

To complicate matters further, it turned out the licensee was mistaken in its belief that it had filed on June 29.  According to the licensee, it was not until several months later when it received an inquiry from the FCC’s Media Bureau regarding the failure to file that it discovered the application had been prepared, but not correctly filed, in the FCC’s filing system on June 29.

While the FCC noted the licensee was incorrect in its understanding of the relevant deadline, it did find that the licensee was unable to file by June 1 due to the COVID-19-related school closure.  The FCC also verified in the Commission’s licensing database that the licensee prepared a draft application dated June 29, 2020 that was never filed.  In light of the circumstances, the FCC found that, although the station’s failure to file before the June 1 deadline was due to its inability to access the station, the subsequent failure to file resulted from a misunderstanding of the Commission’s electronic filing procedures.  The FCC emphasized that such inadvertent errors still constitute willful violations of the Commission’s Rules.  Weighing the circumstances, however, the FCC cancelled the $3,000 fine, and admonished the station for failing to comply with the Commission’s rules.

A PDF version of this article can be found at FCC Enforcement ~ April 2021.

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Turns out, some things are simpler than you think.

Few rules in the Code of Federal Regulations have as tortured a history as 47 CFR § 73.3555—the broadcast multiple ownership rules. The subject of court decisions too numerous to count, a brief review of FCC decisions revising (or deciding not to revise) these rules reveals a twisted mass of logic and rationales where parties fiercely argue even as to the very reason for their existence. In the midst of these debates, the regulatory pendulum swings steadily back and forth between ownership deregulation and added regulation as FCC commissioners come and go.

Continue reading →