Articles Posted in FCC Enforcement

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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:

  • TV Station Agrees to $17,500 Consent Decree for Failure to Properly Identify Children’s Programming and Other Violations
  • FCC Proposes $22,000 Fine Against Store for Operating Cell Phone Jammer
  • Marketing of Unauthorized Radio Frequency Devices Leads to $30,000 Civil Penalty

Failure to Properly Identify Children’s Programming and Related Violations Lead to $17,500 Settlement with FCC

The FCC entered into a Consent Decree with a New Jersey commercial TV station to resolve an investigation into whether the station failed to properly identify children’s programming on-air, failed to provide publishers of program guides with necessary children’s programming information, failed to report these violations in its license renewal application, and failed to provide complete and accurate information in its Children’s Television Programming Reports.

The Children’s Television Act of 1990 introduced an obligation for television broadcast stations to offer programming that meets the educational and informational needs of children, known as “Core Programming.” Section 73.671(c)(5) of the FCC’s Rules expands on this obligation by requiring that broadcasters identify Core Programming by displaying the “E/I” symbol on the television screen throughout the program. Section 73.673 of the Rules requires a commercial broadcast television station to provide the publishers of program guides with “information identifying programming specifically designed to educate and inform children,” including the age group of the intended audience. Finally, Section 73.3526 of the FCC’s Rules requires each commercial broadcast station to prepare and place in its public inspection files a Children’s Television Programming Report for each calendar quarter showing, among other things, the efforts made during that three-month period to serve the educational and informational needs of children.

The station’s license renewal application was filed in January 2015. In reviewing the application, the FCC looked at the station’s previously filed Children’s Television Programming Reports and learned that the station’s second quarter 2010 report indicated that certain Core Programming failed to display the “E/I” symbol. The FCC subsequently sent an informal inquiry to the station requesting an explanation, which eventually led to the station filing an amended license renewal application.

In its amended application, the station conceded that it: (1) failed to display the “E/I” symbol during certain Core Programming aired on its multicast streams between the fourth quarter of 2009 and the second quarter of 2015; (2) failed to provide the publishers of program guides the necessary children’s programming information between the second quarter of 2007 and the third quarter of 2016; and (3) failed to provide complete and accurate Children’s Television Programming Reports between the second quarter of 2007 and the fourth quarter of 2016. The amended application also revealed that the station failed to disclose these violations in its 2015 license renewal application.

To resolve the investigation of these violations, the station subsequently entered into a Consent Decree with the FCC under which the station: (1) admitted liability for the violations; (2) agreed to make a $17,500 settlement payment; and (3) agreed to implement a three-year compliance plan to ensure future compliance. The FCC stated that it would grant the station’s license renewal application conditioned upon the station “fully and timely satisfying its obligation to make the Settlement payment….”

Texas Store Faces $22,000 Fine for Operating Cell Phone Jammer

The FCC proposed a $22,000 fine against a Texas store for operating a cell phone jammer.

Section 301 of the Communications Act bans the use or operation of “any apparatus for the transmission of energy or communications or signals by radio” without a license. Section 302(b) of the Act states that “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to this section.” And Section 333 of the Act provides that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government.” 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:

Headlines:

  • FCC Proposes $66,000 Fine Against Alaska Noncommercial FM Station for EAS and Other Violations
  • Man Faces $120 Million Fine for “Massive” Robocall Operation
  • FCC Proposes $1,500 Fine Against South Carolina AM Station for Late-Filed License Renewal

Alaska Noncommercial FM Station Faces $66,000 Fine for EAS and Other Violations

The FCC proposed a $66,000 fine against an Alaska noncommercial FM station for a number of violations, including actions that the FCC says “undermine the effectiveness of the Emergency Alert System (EAS).”

Section 11.15 of the FCC’s Rules requires that a copy of the EAS Operating Handbook be located “at normal duty stations or EAS equipment locations when an operator is required to be on duty.” In addition, Section 11.35(a) of the Rules states that EAS participants are responsible for ensuring that EAS equipment, such as encoders and decoders, are installed such that “monitoring and transmitting functions are available during the times the stations and system are in operation.” Also, Section 11.52(d)(1) requires EAS participants to monitor two EAS sources.

A June 2013 FCC inspection of the station’s main studio revealed several violations of the FCC’s EAS Rules. Specifically, the FCC agent found that the station (1) did not have an EAS Handbook; (2) did not have properly operating EAS equipment (because the programming and identification of the station’s EAS device was for another station); and (3) was only monitoring one EAS source.

In addition, the agent found numerous violations of the FCC’s other broadcast rules, including: (1) failure to post a valid license as required by Section 73.1230; (2) failure to maintain a public inspection file as required by Section 73.3527; (3) failure to retain the logs required by Section 73.1840; (4) failure to maintain a main studio staff under Section 73.1125(a); (5) inability to produce documentation designating a chief operator as required by Section 73.1870; and (6) failure to ensure that the station was operating in accordance with the terms of the station authorization or within variances permitted under the FCC’s technical rules, as required by Section 73.1400.

The FCC subsequently issued a Notice of Violation (“NOV”) to the station in August 2013. When the FCC did not receive a response from the station within the 20-day deadline specified in the NOV, the FCC sent a Warning Letter to the station in September 2013, and issued two additional NOVs in November 2013 and April 2016 directing the station “to provide information concerning the apparent violations described in the August 2013 NOV.” Despite signing a receipt for the April 2016 NOV, the station again failed to respond.

The base fine amounts for the apparent EAS violations, broadcast violations, and failures to respond to the NOVs total $11,000, $23,000, and $16,000 respectively. The FCC may adjust a fine upward or downward after taking into account the particular facts of each case. Here, citing the station’s failure to respond to FCC documents of four occasions, the FCC concluded that a 100 percent upward adjustment of the base fine for the failures to respond, or an additional $16,000, was warranted. As a result, the FCC proposed a total fine against the station of $66,000.

FCC Proposes $120 Million Fine for Caller ID Spoofing Operation

A Florida man’s spoofing campaign has earned him a proposed $120 million fine. The man apparently caused the display of misleading or inaccurate caller ID information (“spoofing”) on millions of calls to perpetrate an illegal robocalling campaign.

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 from knowingly causing, 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. 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:

Headlines:

  • TV Broadcaster Agrees to $55,000 “Civil Penalty” for Airing False EAS Tones
  • Radio Broadcaster to Donate or Surrender Nine FM Stations to Resolve Investigation of Stations Being Silent for Extended Periods
  • FCC Proposes $6,000 Fine Against California TV Station for Public File and Related Violations

Broadcast of False EAS Tones Leads to $55,000 Settlement with FCC

The FCC entered into a Consent Decree with the parent company of a Florida TV station to resolve an investigation into whether the station transmitted Emergency Alert System (“EAS”) tones outside of an actual emergency.

Section 325(a) of the Communications Act prohibits any person from transmitting “any false or fraudulent signal of distress” or similar communication. Further, Section 11.45 of the FCC’s Rules prohibits transmission of “the EAS codes or Attention Signal, or a recording or simulation thereof,” unless it is “an actual National, State, or Local Area emergency or authorized test of the EAS” (emphasis added).

On August 9, 2016, the FCC received a complaint alleging that the station had “aired a commercial multiple times that improperly used the EAS data burst and tone.” The FCC subsequently began an investigation into whether the station had violated its rules governing EAS, and directed the station to respond to the allegations.  In its response, the station explained that it started airing an advertisement on August 6, 2016 for a professional football team which opened with EAS Tones, the sounds of wind and thunder, and a voiceover stating: “This is an emergency broadcast transmission. This is not a test. This is an emergency broadcast transmission. This is not a test. Please remain calm. Seek shelter.”

The station claimed that its policies and practices do not allow transmission of false EAS tones, but that it received the advertisement from an outside source and the station’s “employees apparently failed to screen the Promotion before airing it.” The station explained that when a senior member of the station’s staff saw the advertisement on August 8, 2016, he notified the general manager that it contained a prohibited use of an EAS tone, and told staff not to air it again.

The station’s parent company subsequently entered into a consent decree with the FCC to resolve the investigation, under which the company (1) admitted that the station aired material that contained simulated EAS tones absent an actual emergency or authorized test of the EAS, (2) agreed to pay a $55,000 civil penalty, and (3) agreed to implement a three-year compliance plan.

Radio Broadcaster Agrees to Donate or Surrender Nine FM Station Licenses for Failure to Operate Stations

The owner of a number of radio stations entered into a Consent Decree with the FCC to resolve an investigation into the company’s alleged failure to operate its stations during their most recent license terms.

Section 312(g) of the Communications Act prohibits extended periods of silence by licensed stations because of their obligation to serve the public by broadcasting on their allocated spectrum. Specifically, a station’s license will automatically terminate if it remains silent for twelve consecutive months unless the FCC acts to extend or reinstate the license where “the holder of the station license prevails in an administrative or judicial appeal, the applicable law changes, or for any other reason to promote equity and fairness.”  Additionally, the Act authorizes the FCC to revoke any station license for failure to operate substantially as set forth in that license, and Section 73.1740 of the FCC’s Rules establishes minimum operating requirements for broadcast stations. 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:

Headlines:

  • Former Broadcast Licensee Faces $144,344 Fine for Operating Kentucky LPTV Station Without a License for 18 Years
  • FCC Proposes $20,000 Fine Against California Noncommercial TV Station for Public File and Related Violations
  • FCC Agrees to Reduce Fines for Untimely Children’s Television Programming Reports Based on Inability to Pay

A “Harmless Chihuahua” No More: FCC Proposes Maximum Fine for Operating Low Power TV Station Without a License

Two individuals are facing a $144,344 proposed fine for operating a Kentucky low power TV (“LPTV”) station without a license for the last 18 years. Section 301 of the Communications Act prohibits any person from operating any apparatus for the transmission of energy, communications, or signals by radio within the United States without FCC authorization. Additionally, Section 74.765 of the FCC’s Rules requires licensees to ensure that a copy of the license is placed in the station’s records and is available for public inspection.

The FCC initially authorized construction of the station in 1987, and the station’s license application was granted in 1990. In April 1993, the FCC granted an application to renew the station’s license for a term expiring August 1, 1998. However, no subsequent license renewal application was ever filed for the station. In April 2004, the FCC sent a letter to the station stating it had not received a license renewal application, and set a 30 day deadline to prove that a renewal application had been filed before the FCC would update its CDBS database to reflect that the license had been cancelled. After receiving no response, the FCC updated CDBS to list the station’s license as “cancelled”.

The FCC later came to learn through an unrelated Experimental STA application that the station was still operating. As a result, in August 2016, FCC agents traveled to the station’s formerly authorized antenna site, where a technician confirmed that the station was, in fact, still operating. The agents then traveled to the station’s studio and spoke with an individual who identified himself as the “operations manager”. The operations manager was unable to provide the agents with evidence of a valid license to operate the station, but asserted that the station’s license renewal application had been filed in 1993, implied that the FCC lost the 1993 filing, and that, as a result, the license remained in effect. The agents informed the operations manager that a current, valid license was necessary to operate the station and that, without one, the station’s transmissions must immediately stop. The agents also issued a Notice of Unlicensed Radio Operation (“NOURO”) stating in bold, capital letters: “UNLICENSED OPERATION OF THIS RADIO STATION MUST BE DISCONTINUED IMMEDIATELY.”

In response to the NOURO, the operations manager reiterated the argument he made to the FCC agents at the station. In addition to asserting that the station never received confirmation of grant of the 1993 renewal, the response stated the station operators had never received any other communication from the FCC about the station, and CDBS showed “that the [1993] renewal was granted on 7/27/1993 without an expiration.” The response argued that the failure to file a renewal application in 1998 should therefore be excused. Further, the response indicated that despite the NOURO’s “request” to cease operations, the station remained on air so as to not deprive its viewers of “their only source of news and other events.” FCC agents returned to the station’s antenna site in September and confirmed that the station was still transmitting.

Consequently, the FCC determined that the station operators had willfully and repeatedly violated Section 301 of the Act. According to FCC records, the Media Bureau mailed the 1993 license renewal to the station’s address of record. The FCC emphasized, however, that regardless of whether the license renewal was actually received, licensees are responsible for knowing their obligations, including their duty to seek timely license renewals. In this regard, the FCC noted that license renewal reminders are “merely provided as a courtesy.” The FCC also rejected the operators’ CDBS argument because (1) CDBS did not exist in 1998, so the station could not have relied on it at the time the license renewal was due, and (2) both CDBS and the 1993 renewal authorization state that the license expired August 1, 1998.

The FCC’s base fine for operation of a station without authorization is $10,000 for each violation or each day of a continuing violation. Citing the “egregious” and “longstanding” nature of the apparent violations, the FCC proposed to fine the station operators $10,000 for each of the 22 days between the day FCC agents spoke to the station’s operations manager in August 2016, and when agents confirmed that the station was still transmitting in September 2016, for a total proposed fine of $220,000. However, because the Communications Act sets the maximum fine amount for continuing violations arising from a single act or failure to act at $144,344, the FCC capped the proposed fine at $144,344. The FCC noted that, absent the statutory maximum, an upward adjustment would have been warranted because the station was operated for more than 18 years after its license expired, and more than 12 years after the FCC declared the station’s license cancelled.

In a separate statement, FCC Commissioner Michael O’Rielly supported the proposed fine, but was appalled that the station “[got] away with operating a pirate TV station for almost twenty years.” He lamented that under past leadership the FCC had “been reduced to a sometimes annoying, sometimes sleepy, but ultimately harmless Chihuahua when it came to protecting broadcast spectrum licenses,” but hoped that pirate operators were now on notice that the FCC “can and will turn that situation around.”

California Noncommercial TV Station Licensee Faces $20,000 Proposed Fine for Public Inspection File and Related Violations

The FCC proposed a $20,000 fine against a California noncommercial educational (“NCE”) TV station licensee for public inspection file and related violations.

Section 73.3527 of the FCC’s Rules requires NCE licensees to maintain a public inspection file containing specific types of information related to station operations, and subsection 73.3527(b)(2) requires NCE stations to upload most of that information to the FCC-hosted online public inspection file. Among the materials required to be in the file are a station’s Quarterly Issues/Programs Lists, which must be retained until final FCC action on the station’s next license renewal application. Issues/Programs Lists detail programs that have provided the station’s most significant treatment of community issues during the preceding quarter. Section 73.3527 also requires stations to keep in their public file for two years from the date of broadcast a list of donors that have supported specific programs. Continue reading →

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:

Headlines:

  • Michigan Class A TV Station Agrees to Pay $45,000 for Numerous Children’s Programming and Public Inspection File Violations
  • New York TV Station Agrees to $10,000 Consent Decree to End FCC Investigation into Indecency Allegations
  • California Radio Licensee Agrees to $8,000 Consent Decree for Unauthorized Transfer of Control

Michigan Class A TV Station Acknowledges Children’s Programming and Public Inspection File Problems

The FCC entered into a Consent Decree with a Class A TV station in Michigan to resolve an investigation into violations of the Children’s Television Act (“CTA”) and the FCC’s public inspection file rule.

The CTA, as implemented by Section 73.671 of the FCC’s Rules, requires full power TV stations to provide sufficient programming designed to serve the educational and informational needs of children, known as “Core Programming”, and Section 73.6026 extends this requirement to Class A stations. The FCC’s license renewal application processing guidelines direct Media Bureau staff to approve the CTA portion of any license renewal application where the licensee shows that it has aired an average of 3 hours per week of Core Programming per program stream. Staff can also approve the CTA portion of a license renewal application where the licensee demonstrates that it has aired a package of different types of educational and informational programming that, even if less than 3 hours of Core Programming per week, shows a level of commitment to educating and informing children equivalent to airing 3 hours per week of Core Programming. Applications that do not satisfy the processing guidelines are referred to the full Commission, where the licensee will have a chance to demonstrate its compliance with the CTA.

Section 73.3526 of the FCC’s Rules requires commercial broadcasters to maintain public inspection files containing specific types of information related to station operations, and subsection 73.3526(b)(2) requires TV and non-exempt radio stations to upload most of that information to the FCC-hosted online public inspection file. For example, subsection 73.3526(e)(11) requires TV stations to place in their public inspection file (i) Quarterly Issues/Programs Lists describing the “programs that have provided the station’s most significant treatment of community issues during the preceding three month period” and (ii) certifications of compliance with the commercial limits on children’s programming. In addition, subsection 73.3526(e)(17) requires Class A stations to place in their public files documentation demonstrating compliance with Class A eligibility requirements.

In May 2013, the station filed its license renewal application. Upon review of the station’s public file, the FCC found that the station had failed to timely file Children’s TV Programming Reports for 35 quarters, and failed to place in its public file numerous required documents, such as Issues/Programs Lists, Commercial Limit Certifications, and Class A Eligibility Certifications. In May 2016, upon request of the FCC, the station amended its renewal application to acknowledge and describe the violations. The station made additional clarifications to the application in November 2016.

The Media Bureau’s audit of the station’s children’s programming revealed that the station failed to meet the three hour Core Programming processing guideline for ten quarters, for an aggregate shortfall of 110 hours, with quarterly deficiencies ranging from one hour to 22 hours. As a result, the station’s application was referred to the full Commission for consideration.

The station subsequently entered into a Consent Decree with the FCC to resolve the investigation into public file and children’s programming violations. As part of the Consent Decree, the station admitted liability, agreed to make a $45,000 settlement payment to the government, and agreed to implement a compliance plan. In turn, the FCC agreed to grant the station’s license renewal application for a short-term period of two years instead of the regular eight-year term.

Under the compliance plan, the station must, among other things, designate a compliance officer responsible for compliance with the FCC’s Rules, air at least four hours of Core Programming per week (as averaged over a six-month period), provide training to staff on compliance with the FCC’s Rules, and work with outside legal counsel to obtain guidance on FCC compliance issues. The compliance plan will stay in effect until final FCC action is taken on the station’s next license renewal application.

New York TV Station Agrees to $10,000 Consent Decree to End FCC Investigation into Indecency Allegations

The FCC entered into a Consent Decree with a New York TV station to resolve an investigation into whether the station aired indecent programming.

Section 73.3999 of the FCC’s Rules restricts the broadcast of indecent material between 6:00 a.m. and 10:00 p.m. In addition, Section 73.1217 (the “broadcast hoax rule”) forbids the broadcast of “false information concerning a crime or catastrophe if: (a) The [station] knows the information is false; (b) It is foreseeable that broadcast of the information will cause substantial public harm; and (3) Broadcast of the information does in fact cause substantial public harm.”

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:

  • Failing to Make Timely Uploads to Online Public File Costs TV Station $13,500
  • FCC Fines Church’s Pirate Radio Station $25,000
  • FCC Proposes $7,000 Fine Against TV Station for Public File Violations

Slow Upload Speed: TV Licensee Agrees to Pay $13,500 to Settle FCC Investigation into Online Public File Violations

The FCC entered into a Consent Decree with an Iowa TV station to resolve an investigation into the licensee’s failure to timely upload required documents to its online public inspection file.

Section 73.3526 of the FCC’s Rules requires commercial broadcasters to maintain public inspection files containing specific types of information related to station operations, and subsection 73.3526(b)(2) requires TV and non-exempt radio licensees to upload most of that information to the FCC-hosted online public inspection file. For example, subsection 73.3526(e)(7) requires broadcasters to retain records that document compliance with equal employment opportunity rules; subsection 73.3526(e)(10) requires broadcasters to maintain materials relating to FCC investigations or complaints; and subsection 73.3526(e)(11) requires TV stations to place in their public inspection file (i) Quarterly Issues/Programs Lists describing the “programs that have provided the station’s most significant treatment of community issues during the preceding three month period” and (ii) certifications of compliance with the commercial limits on children’s programming.

In October 2013, the licensee filed its license renewal application, certifying that it timely placed in its public file all required documentation. However, an FCC investigation found that, with the exception of electronically submitted documents that the FCC automatically places in a station’s online file, the station’s online file was empty, meaning the licensee failed to upload any of the other required documents.

The FCC contacted the licensee in March 2014 to request that the station upload all required documents, and the licensee subsequently complied. However, the FCC discovered in January 2016 that the licensee failed to upload Issues/Program Lists and Commercial Limits Certifications for four quarters in 2014 and 2015. The FCC again contacted the licensee, at which point the licensee uploaded the missing documents. Still, in April 2016, the FCC found yet again that the licensee had failed to upload a required Issues/Programs List and commercial limits certification.

The licensee subsequently entered into a Consent Decree with the FCC to resolve the investigation into these public inspection file violations. As part of the Consent Decree, the licensee admitted liability, agreed to make a payment of $13,500 to the U.S. Treasury, and agreed to implement a compliance plan. The compliance plan must, among other things, designate a compliance officer responsible for ensuring compliance with the FCC’s Rules. The compliance officer must conduct training for all station employees and management at least once every 12 months. The compliance plan will remain in effect until FCC action on the station’s next license renewal application (which will be filed in 2021) is complete. Ultimately, the FCC decided to grant the station’s pending license renewal application, provided that the licensee makes the $13,500 payment on time and in full.

Praying with Fire: Church’s Pirate Radio Station Fined $25,000

After repeated warnings, the FCC fined the operators of an unlicensed radio station in California $25,000. Section 301 of the Communications Act prohibits any person from operating any apparatus for the transmission of energy, communications, or signals by radio within the United States without FCC authorization. Continue reading →

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:

  • FCC Proposes $25,000 Fine Against Individual for Operating a Pirate Radio Station
  • FCC Admonishes Wireless Carrier for Data Breach
  • Telecommunications Relay Service Providers Agree to $9.1 Million Settlement

Pirate Radio Operator Faces $25,000 Proposed Fine After Flaunting Multiple FCC Warnings

After issuing multiple warnings, the FCC proposed a $25,000 fine against a New Jersey man for operating an unlicensed radio station. Section 301 of the Communications Act prohibits any person from operating any apparatus for the transmission of energy or communications or signals by radio within the United States without FCC authorization.

In October 2015, the licensee of an FM translator station in Jersey City complained to the FCC that an unauthorized station was causing co-channel interference. FCC agents verified the complaint and issued a Notice of Unlicensed Operation (“NOUO”) to the owner of the apartment building where the unlicensed station was operating. The unauthorized broadcast subsequently stopped. However, in May 2016, the FCC received another complaint and found that the unlicensed station was operating again. FCC agents issued a second NOUO, this time to both the individual operating the pirate station and the building owner. The individual contacted the FCC in June 2016, at which time he was warned he could face additional enforcement action if unlicensed operations continued.

Despite that admonition, FCC agents found the individual again engaged in unlicensed operation in August 2016, this time at a different site. The FCC issued another NOUO, but later that month found the individual operating without a license again, this time at yet another site.

FCC guidelines set a base fine for unauthorized operation of $10,000 for each violation or each day of a continuing violation. The FCC may adjust the fine upward or downward after taking into account the particular facts of each case. Here, the FCC found that a “significant upward adjustment was warranted” due to the individual’s disregard of multiple warnings. As a result, the FCC proposed a $20,000 base fine—$10,000 for the May 2016 operations and another $10,000 for the August 2016 operations—and applied a $5,000 upward adjustment, for a total proposed fine of $25,000.

Hack of Wireless Carrier Leads to Admonishment by FCC

The FCC admonished a national wireless phone carrier for a 2015 data breach in which a third party gained unauthorized access to personal information collected by the carrier to run credit checks on customers.

Section 222(a) of the Communications Act requires telecommunications carriers to “protect the confidentiality of proprietary information of, and relating to . . . customers.” It also requires carriers to “take every reasonable precaution” to protect personal customer information. Section 201(b) of the Act requires practices related to interstate or foreign telecommunications to be “just and reasonable.” Continue reading →

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:

  • 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 →

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:

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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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.