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:

  • Wireless Internet Provider Hit With $25,000 Proposed Fine for Interference Caused by Network Equipment
  • Unauthorized License Transfers Lead to Consent Decree and $70,000 Civil Penalty
  • FCC Issues Notice of Violation to AM Daytimer Operating Past Sunset

FCC Proposes $25,000 Fine Against Wireless Internet Provider for Causing Harmful Interference

The FCC recently issued a $25,000 Notice of Apparent Liability for Forfeiture against a wireless Internet provider.  This is one of several recent proposed fines involving unauthorized equipment causing harmful interference to Federal Aviation Administration (FAA) weather radar systems.

Section 301 of the Communications Act generally prohibits the use or operation of a device for the transmission of radio signals, communications, or energy without an FCC license.  There is an exception, however, for low power devices emitting radiofrequency energy in compliance with certain technical restrictions under Part 15 of the FCC’s Rules.  Relevant to this particular matter, the FCC has authorized unlicensed operations in portions of the 5 GHz band for U-NII (Unlicensed National Information Infrastructure) devices, which are commonly used to provide Wi-Fi and broadband access.  The FCC’s rules require U-NII devices to have Dynamic Frequency Selection (“DFS”), allowing them to detect and thereby avoid interfering with radar systems operating on similar frequencies in the 5 GHz band.

In May 2018, the FCC issued a written warning to the Internet provider concerning interference to the FAA’s nearby doppler weather radar station from unlicensed devices operating on nearby frequencies.  In response, the Internet provider confirmed that all of its equipment conformed to the FCC’s rules designed to prevent such interference.

A year later, however, the FAA notified the FCC that its weather radar station was still experiencing interference from a source operating on a nearby frequency.  Following an investigation, the FCC determined that some of the equipment used by the provider’s network was causing the interference.  Further analysis indicated that the provider’s U-NII devices were improperly configured, and that DFS functionality had been disabled.  The FCC instructed the provider to reconfigure the devices to operate on a different frequency.  Following this change, the interference ceased immediately.

The FCC’s rules establish a base fine of $10,000 for operation without a license or other authorization from the Commission.  In this case, the FCC found two separate $10,000 rule violations: (1) the unauthorized operation of devices in the 5 GHz frequencies, and (2) failure to enable DFS functionality.  The FCC also applied an upward adjustment of $5,000 for failing to address the problem after the first warning, and the provider’s false claim that its equipment complied with FCC rules.

In addition to the $25,000 proposed fine, and to protect the FAA’s weather radar systems from further interference, the FCC ordered the provider to submit a signed statement within 30 days certifying that its U-NII operations comply with the FCC’s rules and all applicable equipment authorizations.

Hospitality Company Enters Into FCC Consent Decree Over Unauthorized Transfer of Wireless Licenses

The FCC entered into a Consent Decree with a large hospitality company to resolve an investigation into unauthorized transfers of wireless licenses acquired in connection with several corporate acquisitions and other transactions.  The resulting $70,000 civil penalty serves as a reminder to companies that don’t often deal with the FCC of the risks and regulatory obligations at play in transactions involving control of FCC licenses. Continue reading →

Published on:

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, New Mexico, Michigan, Nevada, 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 by June 1.

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,[1] (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. Continue reading →

Published on:

With much of the United States under COVID-19 stay-at-home directives, and frost warnings still in the forecast, it’s as good a time as any to review the upcoming cable and satellite carriage election process for television broadcasters. The FCC recently completed an overhaul of its rules governing how eligible television broadcasters provide notice of their carriage elections to cable and satellite companies. The first deadline under those new procedures is July 31, 2020, when broadcasters must update their online contact information at the FCC as a precursor to implementing the FCC’s new paperless MVPD carriage notification procedures.

Ever since Congress created the must-carry/retransmission consent regime in the 1992 Cable Act, broadcasters have mailed paper notices to MVPDs regarding their must-carry/retransmission consent elections prior to October 1st of every third year. With regard to satellite distributors, this process has always required stations to send their election notices via certified mail, return receipt requested. While the rules didn’t specifically require this for notices to cable systems, the lack of specificity in the rules regarding cable notices led most broadcasters to use the same procedures as used with satellite providers.

This approach often imposed significant costs on broadcasters, requiring them to: (1) identify the MVPDs serving each of their markets, (2) locate the correct contact person for carriage matters at each MVPD, (3) prepare the election letters, (4) send the letters to that contact person via certified mail, (5) confirm receipt of each letter, and (6) be prepared to move quickly to find new contact information and send new election letters (which still must be received by the October 1 deadline) where the post office returns an election letter as undeliverable.

In 2019, the FCC took the first step to simplify this process and reduce the corresponding costs. Specifically, it adopted rules requiring both television broadcasters and MVPDs to post in their online Public Inspection Files an email address and telephone number for the employee responsible for handling carriage inquiries. In addition, MVPDs must place similar contact information in the FCC’s COALS filing system. The FCC has now directed television stations and MVPDs to complete these tasks by July 31, 2020.

In the FCC’s new paperless notice system, after the contact information has been uploaded, TV stations will have until October 1, 2020 to upload to their online Public Inspection File their carriage elections. This election will cover the next three-year cycle from January 1, 2021 to December 31, 2023.

Because noncommercial stations cannot elect retransmission consent on MVPDs, the FCC found that it could simplify the process for noncommercial stations by eliminating the need for further triennial elections after the October 1, 2020 election notice is placed in the station’s Public Inspection File.

This new “Public File” approach also simplifies the process for commercial TV stations going forward in that they will only have to send a separate notice to an MVPD if the station seeks to change its election for that MVPD from its election for the prior three-year cycle. In such cases, the station must send an email to the MVPD containing certain information with regard to its change in election, and send a “carbon copy” to a newly-created FCC email address for such notifications. The MVPD is then required to acknowledge receipt via email.

The copy sent to the FCC email address is intended to serve as evidence of the station’s effort to provide the required email notice to the MVPD. If the station does not receive the required acknowledgement from the MVPD, it must call the MVPD’s contact telephone number. Where the station retains records demonstrating that it took the above steps, and timely uploaded its election to its online Public File, the FCC will consider the station’s election to be effective.

In adopting these new procedures, the FCC noted that two classes of television broadcast facilities eligible for carriage are not required to maintain online Public Inspection Files: (i) low-power television stations that qualify for must-carry rights, and (ii) qualified educational television translators. Because of this, the FCC adopted rules in March 2020 to implement slightly different election notification requirements for these facilities.

Specifically, eligible low-power television stations and educational television translator stations will be required to email each MVPD by  October 1, 2020 and provide certain “baseline information” regarding their carriage election (or carriage request in the case of NCE translators). Going forward, qualified LPTV stations must only email an MVPD when seeking to change their election for the upcoming three-year cycle. Like full-power commercial TV stations, LPTV stations must send a “carbon copy” to the FCC’s must-carry notification email address, and follow-up with a telephone call to the MVPD if they do not receive a verification of receipt email from the MVPD.

If the MVPD has any questions regarding carriage, it is permitted to rely on the contact information for the station contained in the FCC’s LMS filing system. For that reason, eligible LPTV stations and educational television translators must update their contact information in LMS no later than July 31, 2020, and keep it updated thereafter.

The new rules should reduce the number of broadcasters standing in line at their local post offices in late September, but for this new system to work, broadcasters and MVPDs need to make sure that they update their contact information by July 31st, 2020, and keep it up to date thereafter.

Published on:

This afternoon, the FCC released a brief Order looking toward the day when life in the U.S. hopefully returns to normal, and broadcast stations begin rehiring furloughed workers.

In the two-page Order, the FCC waived the requirement in its EEO Rule that broadcasters and MVPDs engage in “broad outreach” when filling each full-time job position.  Making clear that this relief is restricted to the circumstances of COVID-19, the FCC limited application of the waiver to the rehiring of station employees that were laid off due to the pandemic, and only where the employee is then rehired within nine months of being laid off.

The FCC reasoned that:

Given the unique importance of broadcasters and MVPDs in providing access to breaking news and critical information relating to the pandemic, the public interest, convenience, and necessity would be best served by encouraging these entities to maintain, or quickly resume, normal operations. Facilitating the expeditious re-hiring of full-time employees laid off as a result of the pandemic to job vacancies created by the pandemic supports this important goal.

While the FCC has long recognized a narrow exception to its broad recruitment requirement where a hire occurs under “exigent circumstances” (and it’s hard to imagine more exigent circumstances than a station bringing its employees back on board after a pandemic), today’s waiver avoids the need for stations to have to prove exigent circumstances existed when facing an EEO audit or other EEO review down the road.

The good news is that today’s waiver gives broadcasters and MVPDs one less thing to worry about during the pandemic.  The bad news is that it still leaves about 999,999 others for them to address in the coming months.

Published on:

On April 2, 2020, the FCC established the COVID-19 Telehealth Program (Program), which will guide the disbursement of $200 million to health care providers for connected care services to their patients. We published our summary of the Program on April 3, 2020, and followed up with a discussion of the FCC’s application procedures on April 9, 2020, and a review of the first wave of proposals granted on April 16, 2020.

With the fourth tranche of proposals approved on April 29, 2020, the FCC has now granted 30 funding proposals in 16 states. The FCC has pledged to review and grant eligible proposals on a rolling basis until either the FCC runs out of funds or the national pandemic ends.

As discussed in our prior alerts, the CARES Act of 2020 provided $200 million for the FCC to distribute to eligible parties with proposals to provide connected care services in response to the COVID-19 pandemic. The funds could be used for (i) telecommunications services and broadband connectivity services, (ii) data and information services, and (iii) internet-connected devices and equipment.

While the FCC has not released for public review most of the approved proposals, based on the public notices that have been released, it is clear that the FCC is willing to provide funding for proposals to implement connected care services and devices. Most of the approved proposals requested funding for a combination of:

  • Remote patient monitoring;
  • Portable equipment for screening at remote centers and nursing homes;
  • Video services including patient visits; and
  • Connected devices (tablets) for staff and high-risk patients.

On May 1, 2020, the FCC announced that, as of May 3, 2020, all applicants must submit their applications through the online portal.

Recently, there has been a push by groups to expand the pool of eligible entities. The American Hospital Association requested that the FCC reconsider its decision to only provide funding for nonprofit applicants. Other organizations like HCA Healthcare and the American Dental Association supported the expansion of eligible entities, arguing that the COVID-19 pandemic has affected all health care providers (including dentists) and that the CARES Act did not require the nonprofit limitation. The U.S. Chamber of Commerce also supported the expansion of funding opportunities, noting that 20 percent of the nation’s hospitals are prevented from filing proposals for COVID-19 funds.

It is unclear whether the FCC will adjust its eligibility standards to include for-profit hospitals and medical practices, especially in light of the availability of funds that have yet to be allocated. We will continue to monitor the program’s progress and report any changes in the FCC’s rules.