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:
- Ownership Questions Lead to Hearing Designation Order for LPFM Licensee
- NC Man Hit with $40,000 Fine for Unauthorized Transmissions Over Public Safety Radio
- FCC Issues Notice to Hospital Paging System Licensee for Harmful Interference
FCC Launches Hearing in Response to LPFM’s Undisclosed Foreign Ownership
The FCC has designated for hearing a Low Power FM (“LPFM”) licensee’s modification application after an investigation into whether the licensee misrepresented the makeup and citizenship of its ownership in various Commission filings.
Under Section 309 of the Communications Act (“Act”), the FCC must first determine that the public interest will be served before it can grant a station license or modification application. If there is a substantial question that prevents the Commission from making that determination, it must designate the application for a hearing before an Administrative Law Judge (“ALJ”). The FCC can revoke the license if an ALJ determines that the applicant lacks the “requisite qualifications” to be a licensee, taking into consideration the applicant’s record, character, and truthfulness in dealings with the FCC.
The Act also prohibits entities with greater than 20% alien ownership or voting control from holding a broadcast license where the FCC finds such foreign ownership is not in the public interest. Many FCC filings require the licensee to identify all officers, directors, and entities with attributable ownership interests in the licensee, including their citizenship.
According to the Hearing Designation Order (“HDO”), the Missouri-based licensee initially applied for a construction permit for a new LPFM station in 2013. In that application, the licensee listed five individuals as board members and identified all of them as U.S. citizens. In two separate modification applications in January and November 2017, the licensee identified the same board members as U.S. citizens.
The Enforcement Bureau began its investigation after another licensee alleged that four of the five listed board members were not actually U.S. citizens. The Bureau discovered that one of the board members had, only weeks before the licensee’s January application, lost an appeal before a federal court to reopen his deportation order to Guatemala. The court decision referred to him as a Guatemalan citizen. His wife, another board member, had already been deported to Guatemala. These revelations indicated that foreign ownership and control of the licensee not only exceeded 20 percent, but that the licensee had also falsely certified the U.S. citizenship of the two board members.
In addition to questions of citizenship, the Bureau also found evidence that the licensee may not have even identified all individuals with attributable interests in the licensee. Specifically, in documents filed with the Missouri Secretary of State, the licensee listed several officers and board members that it had not disclosed to the FCC.
According to the FCC, these discoveries raised a “substantial and material question of fact” as to whether the licensee misrepresented to the Commission both the makeup and the citizenship of its attributable owners.
The FCC sent the licensee two Letters of Inquiry seeking information about the licensee’s board members, but never received any response. Failure to respond to a Commission inquiry is also a violation of the FCC’s Rules.
As a result, the FCC commenced an administrative hearing to determine whether the licensee: (1) made misrepresentations in its applications; (2) violated the Commission’s foreign ownership rules; (3) failed to maintain the accuracy of its pending application; and (4) failed to respond to the FCC’s inquiries.
In light of these questions, the ALJ must also examine the facts to determine whether granting the licensee’s pending application is in the public interest, and whether the licensee is even qualified to hold an FCC license at all.
FCC Proposes $40,000 Fine for Impersonating a Firefighter
In a Notice of Apparent Liability (“NAL”), the FCC found a North Carolina man apparently liable for transmitting on a frequency licensed to local first responders while impersonating a member of the local Volunteer Fire Department. Continue reading →