Articles Posted in

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:

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

Winter Comes for FM Station With Unpaid Regulatory Fees

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

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

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

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

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

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

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

Published on:

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

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

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

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

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

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

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

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

Published on:

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

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

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

As described in the Copyright Office’s adopting order:

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

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

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