Articles Posted in Equipment Authorization

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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:

  • Felony Fraud Conviction Results in AM Station License Revocation Hearing
  • Dash Camera Retailer Enters $75,000 Consent Decree for Marketing Unauthorized Devices
  • Broadcaster Agrees to $9,000 Consent Decree for Violations Relating to Silent STA Rule, Translator Rebroadcasting Rule, and the Truthful and Accurate Statements Rule

Up in Smoke: Lying to IRS Leads FCC to Question AM Licensee’s Character Qualifications

The FCC recently issued a Hearing Designation Order and Order to Show Cause to determine whether the license of a Tennessee AM station should be revoked.  The licensee’s sole member, a former representative in the Tennessee legislature, purchased cigarette tax stamps in 2007 and sold them for a substantial profit following the legislature’s increase in the state’s cigarette tax.  He failed to include this profit in his 2008 individual income tax return and was convicted in 2016 of fraud and making false statements to the government.  The licensee reported the conviction to the FCC on April 14, 2017 – two weeks after the deadline set forth in Section 1.65(c) of the FCC’s Rules (which requires licensees to report adverse court and administrative findings bearing on character qualifications by the anniversary of their state’s renewal filing deadline).  The licensee also disclosed the conviction in the station’s March 18, 2020 license renewal application, along with failures to file Ownership Reports and to timely upload quarterly Issues/Programs lists.

Section 312 of the Communications Act of 1934 (the “Act”) permits the FCC to revoke a license if it determines that the licensee lacks the requisite character qualifications to remain a Commission licensee.  Key to the FCC’s character inquiry is the question of whether the licensee “is likely to be forthright in its dealings with the Commission and to operate its station consistent with the requirements of the Communications Act and the Commission’s Rules and policies.”  The FCC has previously explained that any violation of the Act or FCC’s Rules may be relevant to a licensee’s character qualifications.  With respect to non-FCC misconduct, the FCC has found that felonies and adjudicated fraudulent representations to other governmental units are relevant to a licensee’s character qualifications because they are indicative of the licensee’s propensity to obey the law or to engage in similar, non-truthful behavior before the FCC.  The FCC relies heavily on the candor of licensees, and therefore deems full and clear disclosure of all material facts as essential to its processes.

In this case, the individual’s felony conviction resulted from dishonest conduct: omission of material financial information resulting in a consequential inaccuracy in the information provided to the IRS.  The FCC concluded that the individual’s willingness to unlawfully conceal information from another federal agency, together with the licensee’s admitted failures to comply with certain FCC reporting requirements, called into question the licensee’s ability to provide complete and accurate information to the FCC.  Accordingly, the FCC commenced a hearing to determine whether the individual (and, by extension, the licensee) possesses the necessary character qualifications to remain a Commission licensee.

Dash Camera Retailer Settles Equipment Marketing Investigation for $75,000

The FCC entered into a consent decree with a Connecticut-based dash camera retailer, resolving an investigation into whether the company unlawfully marketed unauthorized vehicle dash cameras in the United States.  The investigation found, and the company admitted, that the retailer marketed several unauthorized camera models, failed to test its equipment’s radiofrequency (“RF”) emissions, and failed to retain measurement records in violation of the Act and the FCC’s Rules.

Section 302(b) of the Act prohibits, among other things, the sale or offering for sale of devices that fail to comply with the FCC’s RF equipment authorization regulations.  Similarly, Section 2.803(b) of the Commission’s Rules prohibits, with limited exceptions, the marketing of an RF device unless the device has first been properly authorized, identified, and labeled in accordance with the FCC’s Rules.

As detailed in Pillsbury’s Primer on FCC Radio Frequency Device Equipment Authorization Rules, equipment authorization procedures differ depending on whether the device is an “unintentional radiator” (a device that emits signals to other parts of the device or to an attendant device, such as a universal remote control”) or an “intentional radiator” (a device that intentionally emits RF energy outside of the device).  Section 2.906 of the Rules sets forth the relatively simple Supplier’s Declaration of Conformity (“SDoC”) procedures that apply to unintentional radiators.  Section 2.907 of the FCC’s Rules sets forth the more stringent Certification process required for intentional radiators.  Section 2.938 of the Rules requires that manufacturers or other responsible parties retain test measurement records and other data demonstrating that each RF device has been properly tested and authorized under the appropriate equipment authorization procedures prior to marketing. Continue reading →

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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 Orders Dismantling of Unlit Arkansas Tower
  • New York Man Ordered to Cease Operating Interference-Causing Device
  • Louisiana Corporation Fined for Engaging in Prohibited Communications during FCC Auction

FCC Orders Unlit, Unmarked Tower Dismantled

In a recent Order, the FCC directed the owners of a parcel of land where an unlit tower in Arkansas sits to dismantle the structure because it is not lit or marked according to the FCC’s Rules or the Communications Act (the “Act”).  The Federal Aviation Administration had declared the structure to be a “menace to aviation.” Section 303(q) of the Act allows the FCC to require the painting and/or illumination of radio towers where those towers are a menace to air navigation. That provision also requires that when a tower ceases to be licensed by the FCC, the tower owner must continue to maintain the painting and/or lighting of the tower, and the FCC can order it dismantled if the FCC determines the tower is a menace to air navigation.

The tower “owner” may include an “individual or entity vested with ownership, equitable ownership, dominion or title to the [tower] structure.” The FCC has determined that if the title holder of the tower does not own the land where the structure is located (i.e., if the tower owner has leased the land), the title holder of the structure is deemed the owner until the landowner acquires possession of the structure. After that occurs, the landowner will be considered the owner of the structure.

This particular situation was unusual in that the tower owner could not definitively be determined. In 1990, the then-current landowner granted an easement allowing an individual to build the tower structure and required an annual $12,000 payment for the easement. The easement was to run with the land, but the landowner could terminate the easement if the payments were more than 45 days late. In subsequent years, the tower was sold several times. Ultimately, it was registered with the FCC in 1998, given an Antenna Structure Registration number, and required to have a steady-burning obstruction light at the top of the tower.

The tower and associated station were later sold to an entity that is no longer in existence. Through public property records in Arkansas, the FCC determined the identity of the owner of the land and sent a letter to the owner in 2017. In her response, the landowner told the Commission that she jointly owns the land with two other individuals, has never received any payments for the easement, and that the electricity to the tower was disconnected in 2005 at her request. She also expressed interest in quieting title to the structure and indicated a desire to have it dismantled. The FCC sent letters to the two other landowners identified, seeking to confirm that no landowner had received the annual fee for the easement, but received no response.

In the Order, the FCC indicated that the landowners possess the structure for the limited purpose of invoking Section 303(q) of the Act, and ordered them to dismantle the structure. In case another party comes forward to challenge the dismantling of the tower, the FCC held that any person having a “remaining interest in the Structure” is subject to the Order as well. The Commission ordered the structure to be dismantled within 90 days of the release of the Order.

New York Resident Ordered to Cease Operating Interference-Causing Equipment

The FCC recently issued a Citation and Order (“C&O”) directing a New York man to stop operating a device at his home that was causing harmful interference to a wireless provider’s licensed operations. The Commission warned him that he may be liable for fines of up to $22,021 per day if he does not comply with the order.

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Today, the deadline was established for filing comments in response to a Notice of Proposed Rulemaking (NPRM) pertaining to the marketing, sale and importation of radiofrequency (RF) devices that have not yet obtained equipment authorization.  Specifically, the NPRM proposes to allow manufacturers to make conditional sales of pre-authorization devices directly to consumers, and would also permit the importation of a limited number of pre-authorization RF devices for new types of pre-sale activities.  Last month, the FCC unanimously voted to approve the NPRM in response to a Petition for Rulemaking filed by the Consumer Technology Association (CTA).

Section 302 of the Communications Act empowers the FCC to create rules governing the interference potential of devices capable of emitting radio frequency energy and which can cause harm to consumers or other radio communications.  This authority covers multitudes of everyday consumer objects, from toaster ovens to the most advanced mobile communication devices. To keep pace with the speed of innovation and consumer demand, the FCC regularly updates its equipment authorization rules for such devices.  In its petition, CTA argued that the FCC’s existing rules act as a “speed bump” in the race to develop and deploy new products and do not reflect the current direct-to-consumer online marketplace. Continue reading →