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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 Settles With Golf Club Operator Over Unauthorized Transfer of 108 Private Wireless Licenses
  • FCC Warns Traffic Management Company Over Unlicensed Radio Operations
  • Months-Long Tower Lighting Outage Leads to Warning

Par for the Course: FCC Settles With Golf Club Operator Over Unauthorized Transfers

The FCC recently entered into a Consent Decree with a holding company for violating the FCC’s Rules governing transfers of control.  The company admitted to transferring 108 private wireless licenses without prior approval from the FCC in connection with its acquisition of a company that owned or operated over 200 golf clubs, country clubs, and business and alumni clubs.

Section 310 of the Communications Act (“Act”) prohibits the transfer of control of a private wireless license without prior FCC approval.  Under Section 1.948 of the FCC’s Rules, parties seeking consent to a transfer of control of such a license must first file FCC Form 603 and await Commission approval before consummating the transfer.

In September 2017, the holding company acquired the golf club operator.  It subsequently realized that the transaction included 108 private wireless licenses for which prior FCC approval had been needed.  As a result, in February 2018, the holding company filed transfer of control applications seeking nunc pro tunc (retroactive) approval.  The Wireless Bureau subsequently referred the matter to the Enforcement Bureau, which opened an investigation.

The clubs in question utilize wireless licenses to control day-to-day operations on their properties.  According to the Consent Decree, the licenses at issue are used to coordinate maintenance, golf shop personnel, and security, among other things.  And while the clubs’ operations and management have not significantly changed since the company’s acquisition, the change in ultimate ownership required prior FCC approval.

To resolve the Enforcement Bureau’s investigation of the transaction, the acquiring holding company entered into a Consent Decree with the FCC.  Under the terms of the Consent Decree, the company agreed to: (1) admit liability for violations of the FCC’s unauthorized transfer rules; (2) implement and adhere to a three-year compliance plan to prevent future violations of the FCC’s Rules; and (3) pay a $24,975 civil penalty to the United States Treasury.

Mean Streets: Traffic Control Company Pulled Over for Unlicensed Radio Operations

A Pennsylvania-based traffic management company received a Warning of Unlicensed Operation (“Warning”) from the FCC for operating radio transmission equipment on various frequencies in the Land Mobile Radio Service, General Mobile Radio Service, and Family Radio Service bands without authorization.

The FCC allocates various frequency bands for particular operations and with different licensing requirements.  For example, users of Land Mobile Radio Service (“LMRS”) frequencies are typically companies, government entities or similar organizations who use these channels to communicate with fleet vehicles and personnel spread out over a wide area.  In contrast, the General Mobile Radio Service (“GMRS”) is available only to individuals (and their families) for short-distance two-way communications.  Both LMRS and GMRS require an FCC license.

A third type of private voice radio service is the Family Radio Service (“FRS”).  Like GMRS, this service is intended for use by individuals, but unlike GMRS, does not require an FCC license.  However, devices used for FRS transmissions must still be approved by the FCC for that use.

The FCC began an investigation when it received information that the company, which dispatches personnel to monitor and control traffic at construction and emergency sites, was operating radio equipment across all three services in the mid-Atlantic region.  According to the Warning, the company did not have licenses to operate LMRS or GMRS equipment, and apparently did not have radios approved for FRS use.

The Warning notes that unauthorized operations subject the responsible party to monetary fines, equipment seizure, and criminal sanctions, including imprisonment.  The company was given ten days to respond with evidence that it was in fact authorized to operate on the various frequencies.  The FCC will then assess that response and any other relevant information to determine what enforcement action it will pursue against the company. Continue reading →

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Last week, the Federal Emergency Management Agency (FEMA) formally notified the FCC that FEMA has scheduled the next nationwide test of the Emergency Alert System (EAS) for August 7, 2019 at 2:20 p.m.  FEMA states that this year’s test will differ from the nationwide tests that have been conducted over the past several years in that it will be issued through the National Public Warning System, composed of FEMA-designated Primary Entry Point facilities, to test the readiness of the EAS to function in the absence of Internet connectivity.

In other words, the August test is dependent on the ability of EAS to operate without a ‘net, reaching EAS Participants solely by over-the-air means. The initial report from FEMA and the FCC following the 2018 Nationwide EAS Test noted that almost 60% of participants received the test announcement first via the Internet-oriented Integrated Public Alert and Warning System (IPAWS), a significant increase from 41.9% in 2017.

Also unique this year is the timing of FEMA’s announcement.  For the 2016, 2017 and 2018 tests, FEMA and the FCC announced the date of the proposed test in July and held the test in September with an October backup date.  As a result, the 2019 test will be performed significantly earlier in the year compared to prior tests.  The choice of this date is interesting in that it falls at the end of peak tornado season for much of the Midwest, and the beginning of peak hurricane season in the Southeast.  Last year’s test was postponed to the backup date in October because of Hurricane Florence, which made landfall in September.  This year’s date may, however, present a challenge to full participation in the test by student-run college stations, which may not operate during summer recess.

In terms of related regulatory obligations, broadcasters have generally been required to file an FCC Form One 30 days in advance of the actual test.  That filing is usually followed by a Form Two filing on the day of the test and then a Form Three filing 45 days after the test.  The exact information sought on the forms often varies year-to-year, but the filing system itself has found a permanent home on the FCC’s electronic EAS Test Reporting System (ETRS).  ETRS has not yet been updated to provide information for the 2019 Nationwide EAS Test, so the required forms (including submission due dates), updates in requested information, and any changes to the way in which the forms are to be filed have not yet been made available.

Being so broadcast station-dependent, this year’s test will place an even brighter spotlight on radio and TV stations, as any failures in receiving and relaying the National Periodic Test announcement may be laid at the feet of broadcasters.  Stations should therefore be alert to the imminent announcement of filing due dates and other information surrounding this year’s Nationwide EAS Test.

Stations should also take this opportunity to ensure that their EAS equipment is not obsolete, is fully installed, is in working order, is set to monitor the correct EAS sources, and has had the latest software updates downloaded and installed.  It would also be a good time to review EAS procedures with station staff to avoid past problems such as continuing to run program audio behind the test message.  Each of these were identified as points of failure in FEMA’s reports following the prior Nationwide EAS Tests.

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The state-by-state license renewal cycle for radio stations that will take place over the next three years commenced on April 1, 2019.  That was when the first batch of radio broadcasters (DC, MD, VA, and WV) began airing their pre-filing announcements ahead of the June 1, 2019[1] filing date for their license renewal applications.  The cycle then repeats, with a license renewal application deadline (based on state) occurring on the first day of every other month until 2022, by which time all full power, FM translator, and LPFM stations should have filed applications seeking a new eight-year license term.  Stations can determine their license renewal date by reviewing the FCC’s state-by-state license renewal timeline.

The FCC’s license renewal application form (FCC Form 2100, Schedule 303-S) may at first appear straightforward, consisting mostly of yes/no questions.  However, appearances can be deceiving, as evidenced by the countless fines, consent decrees, and other enforcement actions levied against stations that either failed to verify the accuracy of their certifications before filing, failed to timely file their license renewal application, or whose failure to comply with the FCC’s rules over their eight-year license term became apparent at license renewal time.

Those risks have increased significantly in this license renewal cycle, as it will be the first one in which all broadcast station Public Inspection Files are online.   The ability of the FCC, petitioners, and anyone else to review a station’s Public Inspection File online, at any time of day or night, and to peruse the electronic time stamps indicating exactly when documents were uploaded, creates a regulatory minefield for any applicant that has not been fastidious in preparing for its license renewal and in completing its license renewal application.

The bulk of the license renewal application consists of certifications whereby the applicant confirms its compliance with various FCC rules and requirements.  If an applicant certifies it has complied with those rules and requirements, and that assertion is not contested by a petitioner or the FCC’s own records, the FCC will generally not request additional evidence of compliance and will grant the station’s license renewal application.  Where the application is challenged by a petitioner with evidence that one or more of the station’s certifications is false, the FCC may ask the applicant for additional information to determine if grant of the license renewal application will serve the public interest.

One of the certifications that carries the highest risk of generating a fine is the certification that the station has timely placed all required documents in its Public Inspection File.  The base fine for a Public Inspection File violation is $10,000, and the FCC can adjust that amount upward if it finds multiple or egregious violations have occurred.

That means a station whose online Public Inspection File is not complete is already subject to a sizable fine. Falsely certifying compliance in the license renewal application creates the risk of additional fines, and in extreme cases, may persuade the FCC that license renewal is simply not in the public interest.

As a result, before completing the license renewal application, stations should thoroughly review their Public Inspection File to ensure it is complete and that the time stamps indicate all documents were timely uploaded.  If the Public Inspection File is not complete, stations should upload the missing documents as quickly as possible and be prepared to disclose that fact in their license renewal application.  With the Public Inspection File now online, it is easy for the FCC or a petitioner to challenge the accuracy of a station’s license renewal certifications—quite different from the days when a broadcast employee might reach retirement age without ever encountering a Public Inspection File visitor.  It is therefore even more important to a station’s well-being during this renewal cycle to fix any problems spotted as promptly as possible rather than just pretending those problems don’t exist when certifying rule compliance in the license renewal application.

The License Renewal Process

The first point to note is that a license renewal application is just that—an application—and not a guarantee of a new license term.  The Communications Act of 1934, as amended (the “Act”) requires all radio broadcasters to obtain from the FCC an authorization to operate.  By filing Schedule 303-S, an applicant requests its authorization be extended for another eight years.  The Act requires the FCC to grant such an application only if it finds that during the preceding license term: (1) the station has served the public interest, convenience, and necessity; (2) the licensee has not committed any serious violations; and (3) there have been no other violations by the licensee of the FCC’s rules and regulations which, taken together, would constitute a pattern of abuse.  To this end, the FCC invites petitions to deny, informal objections, and comments from the public for every license renewal application, and will review the application and these other submissions to make a determination as to whether the station at issue is deserving of license renewal. Continue reading →

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This Pillsbury Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights upcoming deadlines for compliance with the FCC’s EEO Rule.

June 1 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming to place their Annual EEO Public File Report in their Public Inspection File and post the report on their station website.  In addition, certain of these stations, as detailed below, must submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal application submissions due on June 3.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements.  Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term.  These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the Public Inspection Files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application.  The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities.  As discussed below, nonexempt SEUs must submit to the FCC their two most recent Annual EEO Public File Reports when they file their license renewal applications.

For a detailed description of the EEO Rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group.  This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, June 1, 2019 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the Public Inspection Files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations.  LPTV stations are also subject to the broadcast EEO Rule, even though LPTV stations are not required to maintain a Public Inspection File.  Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request.  Therefore, if an LPTV station has five or more full-time employees, or is otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from June 1, 2018 through May 31, 2019. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before May 31, so long as they begin the next annual reporting period on the day after the cut-off date used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period June 1, 2018 through May 22, 2019 for this year’s report (cutting it off up to ten days prior to May 31, 2019), then next year, the Nonexempt SEU must use a period beginning May 23, 2019 for its report. Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in North Carolina and South Carolina must begin airing pre-filing license renewal announcements on June 1, 2019.  License renewal applications for these stations, and for in-state FM translator stations, are due by August 1, 2019.

Full power commercial and noncommercial radio and LPFM stations must air four pre-filing announcements alerting the public to the upcoming renewal application filing.  As a result, these radio stations must air the first pre-filing renewal announcement on June 1.  The remaining pre-filing announcements must air once a day on June 16, July 1, and July 16, for a total of four announcements.  At least two of these four announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.

The text of the pre-filing announcement is as follows:

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until December 1, 2019.  [Stations that have not received a renewal grant since the filing of their previous renewal application should modify the foregoing to read: “(Call letters) is licensed by the Federal Communications Commission to serve the public interest as a public trustee.”]

Our license will expire on December 1, 2019.  We must file an application for renewal with the FCC by August 1, 2019.  When filed, a copy of this application will be available for public inspection at www.fcc.gov.  It contains information concerning this station’s performance during the last eight years [or other period of time covered by the application, if the station’s license term was not a standard eight-year license term] Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the FCC by November 1, 2019.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station][1] or may be obtained from the FCC, Washington, DC 20554, http://www.fcc.gov/.

If a station misses airing an announcement, it should broadcast a make-up announcement as soon as possible and contact counsel to further address the situation.  Special rules apply to noncommercial educational stations that do not normally operate during any month when their announcements would otherwise be due to air, as well as to other silent stations.  These stations should also contact counsel regarding how to give the required public notice.

Post-Filing License Renewal Announcements

Once the license renewal application has been filed, full power commercial and noncommercial radio and LPFM stations must broadcast six post-filing renewal announcements.  These announcements must air, once per day, on August 1, August 16, September 1, September 16, October 1, and October 16, 2019.  At least three of these announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.  At least one announcement must air in each of the following time periods: between 9:00 am and noon, between noon and 4:00 pm, and between 7:00 pm and midnight.

The text of the post-filing announcement is as follows:

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until December 1, 2019.

Our license will expire on December 1, 2019. We have filed an application for renewal with the FCC.

A copy of this application is available for public inspection at www.fcc.gov.  It contains information concerning this station’s performance during the last eight years [or such other period of time covered by the application, if the station’s license term was other than a standard eight-year term].

Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the FCC by November 1, 2019.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station] or may be obtained from the FCC, Washington, DC 20554, www.fcc.gov. Continue reading →