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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:

  • New Hampshire Presidential Primary Deepfake Robocalls Lead to Enforcement Action Against Call Originator
  • TV Broadcaster Faces $720,000 Fine for Failure to Negotiate Retransmission Consent in Good Faith
  • Statutory Maximum Penalty of $2,391,097 for Pirate Radio Operator

Telecommunications Company Accused of Originating Illegal Robocalls That Used President Biden’s Voice

A Michigan-based telecommunications company received a Notice of Suspected Illegal Traffic (“Notice”) from the FCC’s Enforcement Bureau accusing it of originating illegal robocall traffic related to the New Hampshire Presidential Primary election.

Two days before voting began in the Primary, New Hampshire residents believed to be potential Democratic voters began receiving calls purportedly from President Joe Biden telling them to “save” their vote for the November general election and not vote in the Primary.  The caller ID information indicated the call came from the spouse of a former state Democratic Party chair who was running a super PAC urging state Democrats to write in President Biden’s name in the Primary.  The call was not authorized by President Biden or his campaign or an authorized committee, nor did it include a legitimate message from the president but instead was a so-called deepfake using the President’s voice.  The caller ID information was spoofed.

Following widespread news reporting of the calls, the FCC investigated the matter together with the New Hampshire Attorney General, the Anti-Robocall Multistate Litigation Task Force and USTelecom’s Industry Traceback Group (“ITG”).  This group determined that the telecommunications company was the originating provider of the robocalls at issue, and the ITG provided identifying call data to the company for the suspect calls.  In response, the company identified another entity as the party that initiated the calls and told the ITG that it had warned the initiating entity as to the illegality of the calls.  According to the Notice, both the company and the apparent initiating entity have been previous subjects of illegal robocall investigations.

It is illegal under federal law to “knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value” and the law requires originating providers to protect their networks by taking “affirmative, effective measures to prevent new and renewing customers from using its network to originate illegal calls, including knowing its customers and exercising due diligence in ensuring that its services are not used to originate illegal traffic.”  Failure by a provider to protect its network can lead to downstream providers permanently blocking all of the upstream provider’s traffic.  In this case, the FCC believed the caller knowingly transmitted misleading and inaccurate caller ID information to deceive and confuse call recipients and apparently intended to harm prospective voters by using the President’s voice to tell them to not participate in the Primary.  The company also signed the calls with A-Level Attestation, an authentication designation that signals to downstream providers that the company has a direct relationship with the customer and that the customer legitimately controls the phone number in the caller ID field.

Transmittal of the Notice triggered several obligations for the company, including that it investigate the illegal traffic identified by the FCC and block or cease accepting all of the illegal traffic within 14 days of the Notice if the company’s investigation determines that it was part of the call chain for the identified traffic or substantially similar traffic.  Failure to respond to the Notice or to comply with additional obligations could result in temporary or permanent blocking of all traffic from the company, removal of the company from the Robocall Mitigation Database, which would cause all intermediate and terminating providers to immediately cease accepting the company’s telephone traffic, and more.  The FCC also issued a Public Notice notifying all U.S.-based voice service providers of the suspected illegal traffic coming from the company and authorizing the providers, at their discretion, to block or cease accepting traffic from the company without liability under the Communications Act of 1934 if the company failed to effectively mitigate the illegal calls. Continue reading →

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Yesterday, the FCC released its Fourth Report and Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking in its Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and Policies docket, which was first opened in 1998.

The Report and Order portion of the document reinstates the requirement that broadcasters file FCC Form 395-B, the Annual Employment Report.  The FCC will then make the reports publicly available on a station by station basis on its website.

Since the FCC suspended use of the form in 2001 following adverse court decisions, it has been updated to require stations to first sort employees into ten job categories (Executive/Senior Level Officials and Managers, First/Mid-Level Officials and Managers, Professionals, Technicians, Sales Workers, Administrative Support Workers, Craft Workers, Operatives, Laborers and Helpers, and Service Workers), then indicate the number of employees in each of those job categories who are Male/Female; Hispanic/Latino; or Non-Hispanic White, Black/African American, Native Hawaiian/Other Pacific Islander; Asian, American Indian/Alaska Native, or Two or More Races.

In addition, the FCC will modify the Form 395-B to add “a mechanism to account for those who identify as gender non-binary.”  As a result, the form will require a new approval by the Office of Management and Budget before its use can resume.  The report will be due each year on September 30.  The data is to be taken from one payroll period between July and September, with the same payroll period used each year.  The Order indicates that the Media Bureau will announce filing procedures by a separate Public Notice when OMB clearance is received.

The FCC also amended its EEO rule and adopted some clarifications requested by state broadcasters associations twenty years ago in a Petition for Reconsideration, amending its rules to specifically state that the information in the Form 395-B “will be used only for purposes of analyzing industry trends and making reports to Congress. Such data will not be used for the purpose of assessing any aspect of an individual broadcast licensee’s or permittee’s compliance with the nondiscrimination or equal employment opportunity requirements….”  However, in seeking to defend the constitutionality of the requirement, the FCC pointedly noted that “any attempt by a non-governmental third party to use the publicly available Form 395-B data to pressure stations in a non-governmental forum would not implicate any constitutional rights of the station.”

The FCC rejected arguments by broadcasters that the FCC should not collect this data at all, and that if collected, the FCC should not release it publicly or on a station-attributable basis due to the risk of third-party pressure on stations with regard to their employment practices, which was found to create unconstitutional harms in two separate cases by the United States Court of Appeals for the District of Columbia Circuit more than 20 years ago.  The FCC responded that it has a significant public interest in employment in the industry and that Congress, in the Communications Act of 1992 (which predated the court decisions) “ratified” the FCC’s authority to collect such data by mandating that the then-existing EEO regulations and forms as applied to television stations not be modified.  The FCC stated that public release of the data will ensure that it is accurate, maximize its utility, and alleviate concerns about the FCC’s accidental release of confidential data (by making it not confidential).  It claimed that there was no record evidence of Form 395-B data being used to pressure broadcasters (despite two court decision to the contrary), and stated that the Commission “will make every effort to dismiss as quickly as possible any petitions, complaints, or other filings that rely on a station’s Form 395-B filing….”

In the Further Notice of Proposed Rulemaking portion of the document, the FCC proposed reinstating and making the same sorts of changes to the Form 395-A as it adopted for the Form 395-B.  The Form 395-A is similar to the Form 395-B, but applies to MVPDs rather than broadcasters.

The two Republican Commissioners dissented from the item, saying that had the Commission simply agreed to broadcasters’ request that the information not be released publicly in an attributable manner, they would have voted in favor of reinstating the form.  Each pointed to foreseeable or existing record evidence of pressure likely to be placed on broadcasters by third parties that find fault with a station’s staff demographics after public release of the information, and concluded that the Order raises the same constitutional concerns as the prior FCC rules that were invalidated by the D.C. Circuit more than 20 years ago.

The new requirement will apply to Station Employment Units with five or more full time employees.  The FCC notes that stations should use the time they have while OMB is reviewing the modifications to the form to develop whatever surveys or recordkeeping procedures they will need to gather the information requested by the form.  The instructions to the currently-approved version of the form (to which the Order links) state that employee self-identification of racial and ethnic information is the preferred method.  If an employee refuses to  provide that information, the instructions state that employment records or “observer identification” can be used instead.