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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:

  • Investigation Into Undisclosed Radio Station Owner With a History of Felonies Leads to Hearing Designation Order
  • FCC Settles With Alaskan Broadcaster After Disastrous Station Inspection
  • FCC Reinstates Licenses for Tennessee and Alabama Radio Stations, Then Immediately Threatens to Revoke Them

Troubled Past: Alleged Misrepresentations Lead FCC to Designate Applications for Hearing

In a recent Hearing Designation Order (“HDO”), the FCC’s Media Bureau raised serious concerns over the control of several midwestern AM stations.

The ordeal began when a father sought to help his adult son get a start in the radio business.  According to the HDO, the father established a trust in 2006 for the purpose of acquiring radio station assets, and appointed his son as the sole beneficiary and a family friend/local attorney as the sole trustee.  This trust was formed orally and not put in writing until 2012.  For the next several years, the father provided the trust with millions of dollars to acquire AM stations in Missouri and Illinois.  Unbeknownst to the FCC, however, was the father’s felonious past, having been convicted for obstruction of justice and bank fraud.  The FCC’s assignment and transfer application forms specifically ask whether any parties to the application have been convicted of felonies.  The FCC’s view is that such behavior casts doubt on whether that person’s involvement with a station would be in the public interest.

Shortly after the trust’s creation, the son supposedly formed a separate company which, according to the trust, managed all of the stations’ operations, including employment and finances.  According to the trust, this agreement, like the 2006 trust agreement, was an oral agreement, and never reduced to writing.

Suspicions regarding control over the trust arose in 2012, when a local resident and listener filed a Petition to Deny the stations’ license renewal applications.  He had sought a job with the stations and was directed to speak to the father.  This raised red flags for the listener, who subsequently began perusing the stations’ Public Inspection Files.  In them, he found indications that the father was running the stations’ day-to-day operations, such as communications from the trust’s counsel to the father regarding basic station operations and business matters.

To complicate matters further, the son (and sole beneficiary of the trust) passed away in 2015, leaving the trust’s assets, including the station licenses, to his father.  According to the trust, however, the father declined them and a year later assigned the beneficial interests in the trust to his girlfriend.  In the meantime, the trust entered into a programming and marketing agreement with another broadcaster.

Once the girlfriend was made the beneficiary, she and the family friend/trustee entered into an agreement to assign the trust’s assets, including the station licenses, to a new trust, and filed assignment of license applications to seek FCC approval for that assignment.  The petitioner filed another Petition to Deny the assignment applications, claiming that the assignments were a “subterfuge” to enable the father to continue to control the stations.

In its review of the multiple pending applications, the FCC determined that substantial and material questions were raised regarding whether: (1) an undisclosed transfer of control to the father took place either before or after the son’s death; (2) the father is an undisclosed real party-in-interest to the applications; (3) the original trust was used to shield the father or other trust beneficiaries from the FCC’s ownership attribution requirements; and (4) the trust engaged in misrepresentations and/or a lack of candor in its applications and other communications with the FCC.

Further complicating the investigation, the FCC noted that the trust had failed to provide significant documentary evidence for many of its claims, with the trust blaming this in part on the destruction of “a great majority of [the stations’] business records” that took place shortly after the son’s death.

To resolve these questions and to determine whether the applications should be granted, the applications have been designated for a hearing before an Administrative Law Judge.  It is not uncommon for such hearing proceedings to take years to be resolved.

Seward’s Folly: Alaskan FM Station Settles With FCC Over 6-Year-Old Violations

The FCC recently entered into a Consent Decree involving numerous rule violations by an FM station licensed to Seward, Alaska, including infractions relating to the now-repealed Main Studio rule, and basic station monitoring and Emergency Alert System requirements.  According to the FCC, the licensee also failed to respond to multiple Notices of Violation (“NOVs”) previously issued to the station. Continue reading →

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Each full power and Class A TV station being repacked must file its next quarterly Transition Progress Report with the FCC by July 10, 2019.  The Report must detail the progress a station has made in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the months of April, May and June 2019.[1]

Following the 2017 broadcast television spectrum incentive auction, the FCC imposed a requirement that television stations transitioning to a new channel in the repack file a quarterly Transition Progress Report by the 10th of January, April, July, and October of each year.  The first such report was due on October 10, 2017.

The next quarterly Transition Progress Report must be filed with the FCC by July 10, 2019, and must reflect the progress made by the reporting station in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the period from April 1 through June 30, 2019.  The Report must be filed electronically on FCC Form 2100, Schedule 387 via the FCC’s Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by July 10, 2019, reflecting information for the months of April, May and June 2019.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station.  The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the Public Inspection File a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.”  By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations.  The lists also provide important support for the certification of Class A television station compliance discussed below.  We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness.  Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term.  Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs.  Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their Public Inspection File.  The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the Public Inspection File by January 10, April 10, July 10, and October 10 of each year.  The next Quarterly List is required to be placed in stations’ Public Inspection Files by July 10, 2019, covering the period from April 1, 2019 through June 30, 2019.

Stations should keep the following in mind: Continue reading →

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ Public Inspection Files by July 10, 2019, reflecting programming aired during the months of April, May and June 2019.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) and the FCC rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements.  Specifically, stations must: (1) place in their Public Inspection File one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under.  Form 398 must be filed electronically with the FCC.  The FCC automatically places the electronically filed Form 398 filings into the respective station’s Public Inspection File.  However, each station should confirm that has occurred to ensure that its Public Inspection File is complete.  The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations.  Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their Public Inspection Files.  Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398.  They must, however, maintain records of their own in the event their performance is challenged at license renewal time.  In the face of such a challenge, a noncommercial station will be required to have documentation available that demonstrates its efforts to meet the needs of children.

Commercial Television Stations

Commercial Limitations

The FCC’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend.  In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits.  In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations.  Program promos also qualify as “commercial matter” unless they promote (i) children’s educational/informational programming, or (ii) other age-appropriate programming appearing on the same channel.  Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis. Continue reading →

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For many consumers, answering a phone call from an unknown number has effectively turned into a gamble.  Is it a potential new client?  A medical emergency?  Or, more likely, is it an incredible offer-to-stay-at-a-Caribbean-resort-of-your-choosing-please-hold-for-a-representative?

Not surprisingly, no issue generates more complaints at the Federal Communications Commission (FCC) and the Federal Trade Commission than robocalls – according to one estimate there were 47 billion illegal and unwanted calls in 2018.  In response, the FCC last week released a Declaratory Ruling and Third Further Notice of Proposed Rulemaking (CG Docket No. 17-59, WC Docket No. 17-97) clarifying that voice service providers may offer consumers call-blocking tools through an opt-out process rather than an opt-in basis, as is typically done today.   The FCC issued this clarification to address concerns that the majority of consumers are not requesting available call-blocking services.

Alongside this growing chorus for more robust call blocking, however, are concerns by legitimate callers of over-blocking.  Calling parties fear that the adoption of widespread call blocking may result in unintended consequences as call-blocking tools rely on analytics to determine when calls are likely to be illegal, spam or telemarketing.  The challenge is that legitimate calls may share some of the same analytical tendencies (e.g., a high volume of short duration calls originating from a toll-free number), resulting in the blocking of wanted calls, such as credit card fraud notifications, flight delays or school closing alerts.

To this end, the Declaratory Ruling clarifies when voice service providers may implement call-blocking programs, what other types of call-blocking tools they may offer to customers, and what options, if any, calling parties have to challenge over-blocking.

a. Opt-Out Method

First, the Declaratory Ruling clarifies that voice providers may implement call-blocking programs to subscribers on an opt-out basis.  Many voice providers only offer call-blocking services on an opt-in basis, requiring subscribers to specifically request these services.  However, either because of a lack of awareness of options, or just general inertia, the vast majority of subscribers have not opted to use such services.

And rather than set specific rules for which calls are blocked, the Declaratory Ruling permits calls to be blocked based on “any reasonable analytics designed to identify unwanted calls.”  Such “reasonable analytics” can be based on a broad combination of factors, including: callers with a large number of complaints, large bursts of calls within a short time period, calls with low average call duration, invalid numbers placing large numbers of calls, sequential dialing patterns, and other indicia of illegal calling.  Regardless, providers must apply such analytics in a “non-discriminatory, competitively neutral manner.” Continue reading →