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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 Proposes $10,000 Fine to FM Licensee for Public Inspection File Violations
  • Spoofed Calls Lead to $25,000 Fine
  • Wireless Licensee Agrees to Pay $28,800 Settlement for Operating on Unauthorized Frequencies

FM Licensee Hit with $10,000 Proposed Fine for “Extensive” Public Inspection File Violations

The FCC proposed a $10,000 fine against a South Carolina FM licensee for “willfully and repeatedly” failing to retain all required public inspection file documents.

Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by January 10, 2017, reflecting information for the months of October, November, and December 2016.

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 January 10, 2017, covering the period from October 1, 2016 through December 31, 2016. All TV stations, as well as commercial radio stations in the Top-50 Nielsen Audio markets that have five or more full-time employees, must post their Quarterly Lists to the online public inspection file. Note that, effective as of June 24, 2016, the website for the new online public inspection file for both TV and radio stations is https://publicfiles.fcc.gov/.

Stations should keep the following in mind:

  • Stations should maintain routine outreach to the community to learn of various groups’ perceptions of community issues, problems, and needs. Stations should document the contacts they make and the information they learn. Letters to the station regarding community issues should be made a part of the station’s database.
  • There should be procedures in place to organize the information that is gathered and bring it to the attention of programming staff with a view towards producing and airing programming that is responsive to significant community issues. This procedure and its results should be documented.
  • Stations should ensure that there is some correlation between the station’s contacts with the community, including letters received from the public, and the issues they have identified in their Quarterly Lists. A station should not overlook significant issues. In a contested license renewal proceeding, while the station may consider what other stations in the market are doing, each station will have the burden of persuading the FCC that it acted “reasonably” in deciding which issues to address and how.
  • Stations should not specify an issue for which no programming is identified. Conversely, stations should not list programs for which no issue is specified.
  • Under its former rules in this area, the FCC required a station to list five to ten issues per Quarterly List. While that specific rule has been eliminated, the FCC has noted that such an amount will likely demonstrate compliance with the station’s issue-responsive programming obligations. However, the FCC has noted that some licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth. Conversely, the FCC has noted that other broadcasters may address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly Lists should reflect a wide variety of significant issues. For example, five issues affecting the Washington, DC community might be: (1) the fight over statehood for the District of Columbia; (2) fire code violations in DC school buildings; (3) clean-up of the Anacostia River; (4) reforms in the DC Police Department; and (5) proposals to increase the use of traffic cameras on local streets. The issues should change over time, reflecting the station’s ongoing ascertainment of changing community needs and concerns.
  • Accurate and complete records of which programs were used to discuss or treat which issues should be preserved so that the job of constructing the Quarterly List is made easier. The data retained should help the station identify the programs that represented the “most significant treatment” of issues, e.g., duration, depth of presentation, frequency of broadcast, etc.
  • The listing of “most significant programming treatment” should demonstrate a wide variety in terms of format, duration (long-form and short-form programming), source (locally produced is presumptively the best), time of day (times of day when the programming is likely to be effective), and days of the week. Stations should not overlook syndicated and network programming as ways to address issues.
  • Stations should prepare each Quarterly List in time for it to be placed in their public inspection file on or before the due date. If the deadline is not met, stations should give the true date when the document was placed in the public inspection file and explain its lateness. Stations should avoid creating the appearance that a document was timely placed in the public inspection file when it was not.
  • Stations should show that their programming commitment covers all three months within each quarter.

These are just some suggestions that can assist stations in meeting their obligations under the FCC’s rules. The requirement to list programs providing the most significant treatment of issues may persuade a station to review whether its programming truly and adequately educates the public about community concerns.

Attached is a sample format for a “Quarterly Issues/Programs List” to assist stations in filling out the Quarterly List. Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on how to ensure your compliance efforts in this area are adequate.

Class A Television Stations Only

Class A television stations must certify that they continue to meet the FCC’s eligibility and service requirements for Class A television status under Section 73.6001 of the FCC’s Rules. While the relevant subsection of the public inspection file rule, Section 73.3526(e)(17), does not specifically state when this certification should be prepared and placed in the public inspection file, we believe that since Section 73.6001 assesses compliance on a quarterly basis, the prudent course for Class A television stations is to place the Class A certification in the public inspection file on a quarterly basis as well.

A PDF version of this article can be found at 2016 Fourth Quarter Issues/Programs List Advisory for Broadcast Stations.

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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:

Headlines:

  • Broadcaster Loses Appeal of $20,000 FCC Fine
  • FCC Issues Citation for Violations of Radio Frequency Equipment Authorization and Labeling Rules
  • FCC Proposes $392,930 Fine to Telecom Provider for Excessive USF Fees, Unauthorized Transfers, and Delinquent Regulatory Fees

Ninth Circuit Upholds $20,000 Fine Against FM Broadcaster for Unauthorized Operation

The U.S. Court of Appeals for the Ninth Circuit upheld a $20,000 FCC fine against a New Mexico FM broadcaster for operating outside the parameters of the broadcaster’s construction permit.

Section 301 of the Communications Act bans the unlicensed transmission of “energy or communications or signals by radio.” Section 503 of the Act authorizes monetary fines where the FCC finds “willful[] or repeated[]” failure to comply “with the terms and conditions of any license, permit, certificate, or other instrument or authorization” issued by the FCC.

In November 2009, the FCC issued a $20,000 fine to the broadcaster for operating at variance from the broadcaster’s construction permit. Specifically, the FCC found that the station was broadcasting without authorization, and was being operated at a facility 34 miles from its authorized location.

When the broadcaster failed to pay the $20,000 fine, the FCC referred the matter for collections to the Department of Justice (“DOJ”), which, in turn, sued the broadcaster in Nevada District Court to recover the $20,000. The District Court granted the DOJ’s motion for summary judgment, and in doing so upheld the fine against the broadcaster. The broadcaster, representing himself in court, subsequently appealed the District Court’s ruling to the Ninth Circuit.

The Ninth Circuit affirmed the District Court’s ruling, stating that the DOJ provided “substantial” evidence that, for more than a year, the broadcaster “willfully and repeatedly” transmitted radio signals from a different location and at different technical parameters than those specified in the broadcaster’s construction permit. In contrast, the court explained, “taking his submissions in the most generous light, [the broadcaster has] not shown a genuine issue of material fact for trial.” The broadcaster failed to contradict any of the facts underlying the alleged unauthorized operation: (1) because his construction permit required FCC approval before commencing program testing—which the FCC never granted—the transmissions were not valid under the FCC’s Rules; and (2) because the broadcaster transmitted at variance from the terms of the permit, he was not conducting valid equipment tests, which only allow transmission to assure compliance with the permit’s terms. In reviewing the amount of the fine, the Ninth Circuit found the FCC’s decision to impose the full $10,000 base fine for each of the two instances of unauthorized operation “reasonable and not an abuse of discretion.”

Going, Going, but Not Gone: FCC’s Parting Gift to Company Winding Down Business Is Citation for Equipment Authorization and Labeling Violations

The FCC’s Enforcement Bureau issued a citation to a company for marketing radio frequency (“RF”) transmitters that were not properly certified or labeled.

Section 302 of the Communications Act prohibits the manufacture, import, sale, or shipment of home electronic equipment and devices that fail to comply with the FCC’s regulations. Section 2.803 of the FCC’s Rules provides that a device subject to FCC certification must be properly authorized, identified, and labeled in accordance with Section 2.925 of the Rules before it can be marketed to consumers. Continue reading →

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‘Twas the night before Christmas,
and all through the station,
staffers laughed and sang carols,
and enjoyed jubilation.

Except for the staffers in charge of the file,
who were sweating and cursing a deadline most vile.
A Christmas Eve deadline that was set by the fed,
a public file deadline that kept them from bed.

With December 24 approaching, radio stations across the country are checking their quarterly programs/issues lists twice, lest the FCC leave coal in their stocking this holiday season (and no, nothing even comes close to rhyming with “quarterly programs/issues lists”).

As we’ve posted previously and detailed in our Public Inspection File Special Advisory, the FCC adopted a Report and Order earlier this year extending its online public file requirements to broadcast radio stations, starting with commercial radio stations in the Top-50 Nielsen Audio markets with five or more full-time employees.

Beginning June 24, 2016, these “First-Wave” radio stations were required to upload, on a going-forward basis, all public file materials created on or after that date (with the exception of letters and emails from the public, which, as we’ve explained before, should not be uploaded to the online file due to privacy concerns and instead must be maintained in the local public file).  The online public file requirements won’t kick in for all other radio stations until March 1, 2018.

These First Wave radio stations have until December 24, 2016 to upload all public file documents created prior to June 24.  There are a few exceptions.  The first (for the reason noted above) is letters and emails from the public.  The FCC has had a proceeding pending since May to eliminate this requirement entirely, but has not yet done so.  The other exception is political file materials, which stations need only upload on a going-forward basis.  First Wave stations may continue to retain political file documentation that existed prior to June 24 in their local public files until the expiration of the two-year retention period.

On the TV side, where online public files have been the norm since 2012, the FCC has handed out admonishments and thousands of dollars in fines to stations for failing to upload all required materials on time.  While many Americans try to save money by delaying their shopping until after Christmas, missing this Christmas Eve rush could be quite expensive.  The FCC’s Enforcement Bureau doesn’t believe in post-holiday discounts.

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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:

Headlines:

  • Broadcaster Agrees to Pay $100,000 Fine for Filing Applications Under False Names
  • FCC Proposes $13,000 Fine for Late License Renewal Application and Unauthorized Operation
  • Failure to Register with the FCC Results in $100,000 Fine for Telecom Provider

Catch Me If You Can: Broadcaster Settles Long-Running Investigation into the Use of Pseudonyms in FCC Applications

The FCC entered into a Consent Decree with a radio broadcaster to resolve an investigation into whether the broadcaster filed numerous applications using fake names and refused to cooperate with FCC investigations.

Section 1.17 of the FCC’s Rules requires that written and oral statements to the FCC be truthful and accurate. Section 1.65 of the Rules requires applicants to amend applications as needed for continuing accuracy and completeness. In addition, Section 73.1015 requires applicants to respond to FCC inquiries regarding broadcast applications.

The Consent Decree explains that, since 1982, there has been a “cloud of unanswered questions” about whether applications filed by the broadcaster were accurate. In 1993, the FCC sent the broadcaster a letter inquiring into: (1) his role in certain entities; (2) apparent misrepresentations he made to the FCC; (3) his prior failure to respond to certain site availability allegations; and (4) the operation of several FM translators. The broadcaster never responded to the letter, and since that time, the broadcaster’s real name has not appeared in any FCC application as a principal of any applicant. Instead, the broadcaster used pseudonyms, as well as the names of his wife, mother, and grandmother.

In addition, the Consent Decree states that a 1997 complaint filed by another broadcaster was never answered or disclosed by the broadcaster. The complaint alleged that the broadcaster was the real party in interest behind a certain licensee, and that the broadcaster had violated several other FCC Rules.

Under the terms of the Consent Decree, the broadcaster admitted to being the real party in interest on numerous applications for which he had used pseudonyms, and admitted to several other violations of FCC Rules. The broadcaster agreed to (1) pay a $100,000 fine; (2) the cancellation of licenses for an AM station and two low power FM stations; and (3) the dismissal of petitions for reconsideration involving two dismissed FM applications. In return, the FCC agreed to grant the license renewal applications for another AM station and seven FM translator stations, each with a shortened license term of one year so that the FCC can closely monitor the licensee’s operation of the stations in the future.

FCC Proposes $13,000 Fine for Unauthorized Operation Caused by Late License Renewal Application

The FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) against an Ohio FM licensee for failing to timely file its license renewal application and for continuing to operate the station after its license had expired. The FCC proposed a fine for the violations and simultaneously issued a Memorandum Opinion and Order regarding the licensee’s license renewal application.

Section 301 of the Communications Act provides that “[n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with this [Act] and with a license in that behalf granted under the provisions of [the Act].” Section 73.3539(a) of the FCC’s Rules requires that broadcast licensees file applications to renew their licenses “not later than the first day of the fourth full calendar month prior to the expiration date of the license sought to be renewed.”

In this case, the station’s license expired on October 1, 2004, rendering the license renewal application due by June 1, 2004. The licensee, however, did not file the renewal application until July 30, 2004. The FCC dismissed the application due to the licensee’s “red light” status for owing a debt to the FCC. Red light status prevents the FCC from providing any government benefit to a licensee, including license renewal. The licensee did not seek reconsideration of the dismissal and, as a result, the station’s license expired on October 1, 2004.

In January 2011, the FCC staff was told that the station was off the air. On January 12, 2011, the FCC wrote a letter to the former licensee inquiring into the operating status of the station, and requested a response within 30 days. The station did not respond until March 25, 2011, and stated that it was on-air as of the date of the FCC letter. However, the station explained that it had in fact suspended operations on February 23, 2011, after its transmitter was damaged during the theft of its copper feed lines.

In May 2011, the licensee filed a request for Special Temporary Authority (“STA”) to resume operations, stating that its transmitter repair was almost complete. The licensee also noted that it was unaware its 2004 license renewal application had been dismissed, and that it would file another license renewal application “once it [could].” The licensee submitted a license renewal application in July 2011, and the FCC subsequently granted the station’s STA request through March 2012.

In February 2012, the licensee filed another STA request to operate with reduced facilities, stating that the damage to the transmitter was far worse than previously thought, and would cost more than the value of the station to repair. The licensee also stated that the landlord of its transmitter site had declined to renew the station’s lease, but it had found an alternative, temporary location from which it could operate the station. The FCC granted the STA, and set an expiration date of August 2012. The licensee continued to operate under the STA facilities even after the August 2012 expiration date. The licensee did not file a request to extend the STA until February 2013. That request was granted as a new STA in March 2013, and the licensee has operated under a series of extensions to that STA ever since.

Based on the facts of this case, the FCC proposed the full base fine amount of $3,000 for failure to file a required form, and the full base fine amount of $10,000 for unauthorized operations. The FCC explained that while it typically assesses fines of $7,000 for unauthorized operations, the length of the first unauthorized period in this case—over six years—followed by a second unauthorized period, warranted a $10,000 fine.

The FCC stated that it would grant the station’s license renewal application upon the conclusion of the forfeiture proceeding “if there are no issues other than the apparent violation that would preclude grant of the applications.”

FCC Fines Prepaid Calling Card Company $100,000 for Failing to Register as Service Provider

The FCC fined a New Jersey provider of international prepaid calling card services $100,000 for failing to register as a telecommunications service provider and adhere to all registration requirements.

Section 64.1195(a) of the FCC’s Rules requires that companies providing interstate telecommunications services file an FCC Form 499-A, also known as the Annual Telecommunications Reporting Worksheet, with the Universal Service Administrative Company prior to providing service. The Form 499-A instructions state that “[w]ith very limited exceptions, all intrastate, interstate, and international providers of telecommunications in the United States must file this Worksheet.”

According to the FCC, compliance with the registration requirement is critical to determining a provider’s payment obligations to the Universal Service Fund, Telecommunications Relay Service Fund, and numbering support mechanisms. The FCC further stated that registration is a way to recover costs, and is a central repository for important details about providers.

Calling it a “dereliction of its responsibilities,” the FCC determined that the provider willfully operated for years without filing a Form 499-A, giving the provider an unfair economic advantage over its competitors. The FCC stated that the misconduct started when the provider began providing service in 1997 and continues until the provider files its initial Form 499-A. The FCC proposed a $100,000 fine for the provider’s transgressions.

In addition to the fine, the FCC instructed the provider to immediately register as a telecommunications provider, and to come into full compliance with all of its federal regulatory obligations. The FCC also warned that the fine was “a very limited action that does not reflect the full extent of [the service provider’s] potential forfeiture liability and that does not in any way preclude the Commission from imposing additional forfeitures … in the future.”

A PDF version of this article can be found at FCC Enforcement Monitor November 2016.

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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:

Headlines:

  • FCC Revokes Company’s Authorizations for Failure to Pay Regulatory Fees
  • Failure to Disclose Felonies in License Applications Yields $175,000 Fine
  • Cable Operator Settles Investigation into Unlawful Billing for $2.3 Million

Pay Up or Shut Down: Failure to Pay Regulatory Fees Leads to License Revocation 

In a rare move, the FCC revoked the domestic and international 214 authorizations of a Florida telecommunications company to provide facilities-based and international telecommunications services.

Section 9 of the Communications Act directs the FCC “to assess and collect regulatory fees” to recover costs of certain FCC regulatory activities. When a required payment is not made or is late, the FCC will assess a monetary penalty. Further, Section 9(c)(3) of the Act and Section 1.1164(f) of the FCC’s Rules permits the FCC to revoke authorizations for failure to make timely regulatory fee payments. Under Section 1.1917 of the Rules, a non-tax debt owed to the FCC that is 120 days delinquent is transferred to the Secretary of the Treasury for collection.

In December 2008, the company was authorized to provide facilities-based and resold international telecommunications services. In October 2014, the FCC sent the company a Demand Letter notifying the company of delinquent regulatory fees for fiscal year 2014 and demanding payment. The company failed to respond to the Letter and, as required by Section 1.1917 of the Rules, the FCC transferred the FY 2014 debt to the Secretary of the Treasury. As of July 1, 2016, the company had unpaid regulatory fees of $711.40 for FY 2014, and $3,025.34 for FY 2012. According to the FCC, the company does not appear to have any current customers.

In July 2016, the FCC issued an Order to Pay or Show Cause, instructing the company to demonstrate within 60 days that it paid the regulatory fees and penalties in full, or show why the payment was inapplicable or should be waived or deferred. The Order also explained that failure to comply could result in revocation of the company’s international and domestic authorizations. The company neither responded to the Order nor made any payments.

Citing the company’s failure to either pay its regulatory fees or show cause to remove, waive, or defer the fees, the FCC revoked the company’s international and domestic authorizations. The Revocation Order explicitly stated that such revocation did not relieve the company of its obligation to pay the delinquent fees or “any other financial obligation that has or may become due resulting from the authorizations held until revocation.”

Companies Settle Investigation Into Subsidiaries’ Failure to Disclose Felony Convictions in Wireless Applications With $175,000 Fine

Two engineering corporations, on behalf of themselves and their subsidiaries, entered into a Consent Decree with the FCC to end an investigation into the subsidiaries’ failure to disclose two corporate felony convictions in several wireless license applications. Continue reading →

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The next Quarterly List for months of July, August and September must be placed in stations’ public inspection files by October 10, 2016.

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 October 10, 2016, covering the period from July 1, 2016 through September 30, 2016. All TV stations must post their Quarterly Lists to the online public inspection file. Additionally, commercial radio stations in the Top-50 Nielsen Audio markets that have five or more full-time employees are now required to post their Quarterly Lists to the online public inspection file as a result of the FCC’s January 2016 decision to extend the online public file requirement to broadcast radio stations. Note that, effective as of June 24, 2016, the website for the new online public inspection file for both TV and radio stations is https://publicfiles.fcc.gov/.

Stations should keep the following in mind:

  • Stations should maintain routine outreach to the community to learn of various groups’ perceptions of community issues, problems, and needs. Stations should document the contacts they make and the information they learn. Letters to the station regarding community issues should be made a part of the station’s database.
  • There should be procedures in place to organize the information that is gathered and bring it to the attention of programming staff with a view towards producing and airing programming that is responsive to significant community issues. This procedure and its results should be documented.
  • Stations should ensure that there is some correlation between the station’s contacts with the community, including letters received from the public, and the issues they have identified in their Quarterly Lists. A station should not overlook significant issues. In a contested license renewal proceeding, while the station may consider what other stations in the market are doing, each station will have the burden of persuading the FCC that it acted “reasonably” in deciding which issues to address and how.
  • Stations should not specify an issue for which no programming is identified. Conversely, stations should not list programs for which no issue is specified.
  • Under its former rules in this area, the FCC required a station to list five to ten issues per Quarterly List. While that specific rule has been eliminated, the FCC has noted that such an amount will likely demonstrate compliance with the station’s issue-responsive programming obligations. However, the FCC has noted that some licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth. Conversely, the FCC has noted that other broadcasters may address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly Lists should reflect a wide variety of significant issues. For example, five issues affecting the Washington, DC community might be: (1) the fight over statehood for the District of Columbia; (2) fire code violations in DC school buildings; (3) clean-up of the Anacostia River; (4) reforms in the DC Police Department; and (5) proposals to increase the use of traffic cameras on local streets. The issues should change over time, reflecting the station’s ongoing ascertainment of changing community needs and concerns.
  • Accurate and complete records of which programs were used to discuss or treat which issues should be preserved so that the job of constructing the Quarterly List is made easier. The data retained should help the station identify the programs that represented the “most significant treatment” of issues, e.g., duration, depth of presentation, frequency of broadcast, etc.
  • The listing of “most significant programming treatment” should demonstrate a wide variety in terms of format, duration (long-form and short-form programming), source (locally produced is presumptively the best), time of day (times of day when the programming is likely to be effective), and days of the week. Stations should not overlook syndicated and network programming as ways to address issues.
  • Stations should prepare each Quarterly List in time for it to be placed in their public inspection file on or before the due date. If the deadline is not met, stations should give the true date when the document was placed in the public inspection file and explain its lateness. Stations should avoid creating the appearance that a document was timely placed in the public inspection file when it was not.
  • Stations should show that their programming commitment covers all three months within each quarter.

A PDF version of this article can be found at 2016 Third Quarter Issues/Programs List Advisory for Broadcast Stations.

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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:

Headlines:

  • Florida AM Licensee Hit with $15,000 Fine for Failing to Maintain Public Inspection File and Provide Immediate Access to It
  • New York Amateur Radio Operator Fined $23,000 and Arrested for Unlicensed Operations and False Officer-in-Distress Call
  • Late-Filed License Renewal Nets Washington AM Station $1,500 Fine

FCC Fines AM Licensee $15,000 for Public Inspection File Violations

The FCC’s Media Bureau fined a Florida AM licensee $15,000 for failing to provide immediate access to the station’s public inspection file and for failing to maintain the file in accordance with FCC Rules. It also admonished the licensee for making a false certification to the FCC.

Under Section 73.3526 of the FCC’s Rules, each commercial broadcast station is required to maintain a public inspection file containing specific information related to station operations. Subsection 73.3526(e) lists the required information, and subsection 73.3526(c)(1) directs stations to make the file available for public inspection at all times during regular business hours.

In this case, the licensee filed a license renewal application on September 20, 2011 in which it certified that the public file had been maintained throughout the term in compliance with the FCC’s Rules. On December 27, 2011, however, a petition to deny the application was filed with the FCC. The petitioner claimed that on the morning of December 5, 2011, the station’s staff denied him immediate access to the public inspection file and treated him disrespectfully. The petitioner stated that he returned in the afternoon, as station staff requested, at which point he was allowed to view the file, but was not allowed to make copies of anything in the file. The petitioner further alleged that the file was missing information related to its authorization, applications filed with the FCC, the political file, all issues/programs lists, and the most recent ownership report. The petitioner claimed that the file was also missing letters and emails from the public, material related to FCC investigations or complaints, and certain agreements – but failed to demonstrate any basis for these claims.

In response, the licensee asserted that the petition was filed as “payback” for not hiring the petitioner as a station employee. The licensee also explained that the petitioner was not granted immediate access because the station was on-air at the time of his request. The station noted that access to the public file was subsequently granted, and that the file was “in order” for the inspection.

In response, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”), and determined that the licensee apparently violated subsections 73.3526(c)(1) and 73.3526(e). Specifically, the FCC was concerned that the licensee (1) conceded that it did not provide immediate access to the petitioner, (2) did not deny that it refused to allow the petitioner to make copies, and (3) provided only a brief and general response to the allegation that the public file was deficient. Most importantly, according to the FCC, the licensee never stated that the public file was properly maintained for the entire license term.

The FCC’s Rules establish a base fine of $10,000 for violating Section 73.3526, but because this was not the licensee’s first public inspection file violation, the FCC determined that an upward adjustment to $15,000 was warranted based on the licensee’s “pattern of abuse.” The FCC also admonished the licensee for falsely certifying in its license renewal application that it had properly maintained the public file. The FCC stated it would withhold grant of the license renewal application until the licensee paid the fine in full, and would then grant renewal for only a two-year term instead of the standard eight-year term.

False Police Distress Call Causes Arrest and Associated Distress for Unlicensed Amateur Radio Operator

The FCC proposed a fine of $23,000 against an amateur radio station operator for operating without FCC authorization and falsely transmitting an officer-in-distress call from his residence in New York. The FCC explained that such fraudulent transmissions potentially impact public safety and property, and place unnecessary strain on safety and rescue agencies.  Continue reading →

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You can almost hear Agent Maxwell Smart’s trademark “Missed it by that much!”  The FCC quietly announced just after C.O.B. today that “[b]idding in the forward auction has concluded for Stage 1 without meeting the final stage rule and without meeting the conditions to trigger an extended round. The incentive auction will continue with Stage 2 at a lower clearing target.”

When the FCC wrote in its 2014 Spectrum Auction Report and Order that “[w]e are designing the forward auction for speed, so that reverse auction participants need not await its outcome for week or months,” it wasn’t kidding.  The forward auction took just two weeks to conclude, but only because it yielded a highly disappointing $23.1 billion (netting $22.5 billion after auction discounts), a mere quarter of the $88.4 billion the FCC was targeting.  The result is surely disappointing for those intent upon repurposing a big chunk of TV broadcast spectrum for what we were told was an insatiable appetite for mobile broadband spectrum, but even more so for broadcasters that had been told by the FCC that their spectrum was far more valuable for purposes other than broadcasting.

So what’s next? The FCC’s Public Reporting System states that a public notice is on the way, which will announce “details about the next stage, including the clearing target for Stage 2, and the time and date at which bidding in Stage 2 of the reverse auction will begin.”  Given the large mismatch between the amount of spectrum sought by the FCC in Stage 1, and the rather paltry demand revealed by Stage 1, the FCC will have some thinking to do about how many stages of the auction it is willing to endure to achieve equilibrium between spectrum supply and demand.

In the meantime, broadcasters remain subject to the FCC’s rules prohibiting certain communications (a/k/a the “quiet period”) until the FCC releases a public notice announcing the successful completion of the auction.  It looks like that may be a while.

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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:

Headlines:

  • Spoofed Calls Lead to Multiple $25,000 Fines and Ongoing Criminal Case
  • Amateur Radio Licensee Fined $25,000 for Intentional Interference
  • Failure to Timely Request STA Results in $5,000 Fine and Shortened License Term

Spoofing’s No Joke: Two Men Face $25,000 Fine Each for Harassing Phone Call Scheme

The FCC proposed to fine two New York men for apparently using false caller ID numbers – a practice commonly known as “spoofing” – to place harassing phone calls to the ex-wife of one of the men.

The Truth in Caller ID Act of 2009, as codified in Section 227(e) of the Communications Act and Section 64.1604 of the FCC’s Rules, prohibits any person, in connection with any telecommunications service or IP-enabled voice service, to knowingly cause, directly or indirectly, any caller ID service to transmit or display misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value.

In September 2015, the National Network to End Domestic Violence contacted the FCC on behalf of one of their clients and explained that someone was using spoofing services to stalk and harass her. The FCC subsequently opened an investigation into the matter.

Using information and call logs provided by the woman, the investigation found that between May 2015 and September 2015, 31 harassing phone calls were made. It found that the callers used a spoofing service provider to make the woman believe she was answering calls from sources such as local jails and prisons, the school district where her child attends school, and her parents’ home. In addition, it found that the callers used a voice modulation feature of the spoofing service to disguise their voices, and conveyed threatening and bizarre messages. For example, calls that spoofed the caller ID information of Sing Sing correctional facility threatened “we are waiting for you.” Other calls referenced personal information specific to the woman and her minor child.

FCC staff subpoenaed call records for the cell phone of a friend of the woman’s ex-husband after the woman told staff that she believed her ex-husband – against whom she had a restraining order during the time period in question – and his close friend were behind the calls. The woman explained to FCC staff that for some of the calls she had used a third-party “unmasking” service to reveal that the true caller ID was that of her ex-husband’s friend, with whom she had no independent relationship. The call records showed that each time the friend called the spoofing service, the woman received a spoofed call. The parent company of the spoofing service confirmed that the friend used its service to make spoofed calls to the woman.

The FCC also found that the ex-husband was directly involved in at least some of the calls. For example, the FCC found that the friend made a spoofed call moments after he was called by the ex-husband, and while he was still on the phone with the ex-husband. The FCC explained that the fact that the ex-husband “did not dial the spoofed calls himself does not absolve him of liability for the harassment and stalking of his ex-wife.”

The Communications Act and the FCC’s Rules authorize a fine of up to $10,000 for each spoofing violation, or three times that amount for each day of a continuing violation, up to a statutory maximum of $1,025,000. The FCC may adjust a fine upward or downward depending on the circumstances of the violation. Citing the “egregious” nature of the violation, the FCC proposed to fine the ex-husband and the friend $25,000 each. The friend was also arrested and charged with stalking and aggravated harassment after the woman filed a complaint with local police.

Haters Gonna Hate: Amateur Radio Licensee Fined $25,000 for Racial Slur-Filled Interference

A California amateur radio licensee received a $25,000 fine from the FCC for intentionally interfering with the transmissions of other amateurs radio operators and transmitting prohibited communications, including music.

Section 333 of the Communications Act states that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any stations licensed or authorized by or under the Act or operated by the United States Government.” Similarly, Section 97.101(d) of the FCC’s Rules states that “[n]o amateur operator shall willfully or maliciously interfere with or cause interference to any radio communication or signal.” In addition, Section 97.113(a)(4) of the Rules states that “[n]o amateur station shall transmit . . . [m]usic using a phone emission except as specifically provided elsewhere in this section.”

After receiving multiple complaints of interference, primarily from the Western Amateur Radio Friendship Association (“WARFA”), FCC field agents, with assistance from the FCC’s High Frequency Direction Finding (“HFDF”) Center, conducted investigations to find the source of the interference. On August 25 and 27, 2015, between 7:45 p.m. and 9:45 p.m., the agents observed at least 12 instances of the licensee intentionally transmitting on top of, and interrupting, WARFA amateurs. The interruptions lasted from 30 seconds to at least 4 minutes, and included noises, recordings, music, and talking over WARFA users. The transmissions included racial, ethnic, and sexual slurs. The licensee ended his transmissions each night when WARFA members ended their transmissions.

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