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:

  • FCC Proposes $20,000 Fine for Broadcast of False EAS Alert Tone
  • Mississippi Television Station Fined $18,000 for Late Issues/Programs Lists and Failure to Disclose Violation
  • Illinois High School Agrees to Consent Decree for Violations Relating to Periods of Silence, Late Issues/Programs Lists, and Failing to File a Biennial Ownership Report and EEO Program Report

Nevada Radio Licensee Receives Proposed Fine of $20,000 for Transmitting False EAS Tone

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to a radio station licensee for violating the Commission’s Emergency Alert System (EAS) rules—specifically Section 11.45 of the Commission’s Rules, which prohibits the transmission of false or deceptive EAS tones.

The EAS is a nationwide public warning system designed to alert the public in an emergency. In order to maintain the effectiveness of such emergency alerts, EAS tones may only be aired in specific circumstances, such as an actual emergency, an authorized test, or a public service announcement educating the public about EAS. Section 11.45 strictly prohibits airing an EAS tone, or simulations thereof, except in connection with of one of these permitted uses.

In October 2020, the FCC received a complaint alleging that a Nevada radio station had transmitted EAS tones during a talk show that were not connected to an actual emergency. In January 2021, the FCC’s Enforcement Bureau sent a Letter of Inquiry to the broadcaster seeking information regarding the potential violation.

The broadcaster responded that the tones had indeed aired, and included an audio recording of the program in question. The broadcaster indicated it did not review the program containing the EAS tones prior to broadcast as the program was part of a programming block purchased by the talk show’s host.  It noted that the program containing the EAS tones was also simulcast on the digital subchannel of another co-owned radio station and on an FM translator.

Based on the broadcaster’s admissions and the FCC’s review of the audio recording, the Commission found that the broadcaster willfully violated Section 11.45 of the Commission’s Rules. The FCC also noted that while the base fine for violations of the EAS rule is $8,000, it looks at the particular facts of each case and may upwardly adjust that amount based on a number of specific factors, including the number of repetitions, the duration of the violation, the audience reach of the transmission, and the public safety impact.

In this instance, the FCC emphasized the stations’ sizeable audience reach, noting that the violation was exacerbated by rebroadcasts on the digital subchannel and FM translator. Because all three stations are located in Las Vegas, a top 50 market, the audience reach was substantial. The FCC therefore concluded that an upward adjustment was warranted, proposing a total fine of $20,000. The company has 30 days from release of the NAL to pay the fine or file a written statement seeking reduction or cancellation of the proposed fine.

FCC Proposes $18,000 Fine for Mississippi Television Station’s Late-Filed Issues/Programs Lists

The FCC fined a Mississippi television station $18,000 for failing to timely upload all of its quarterly Issues/Programs Lists to its Public Inspection File. The station recently filed a license renewal application, and an FCC staff review of the station’s Public Inspection File revealed that during the license term, the station uploaded twenty-one of the Lists late and failed to properly disclose these violations in its application.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires every commercial television station to place in its Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the Public Inspection File on a quarterly basis within 10 days of the end of each calendar quarter.

The FCC noted that six of the Lists created during the license term were uploaded more than one year late, eleven Lists were uploaded between one month and one year late, and four Lists were uploaded between one day and one month late. The licensee also did not disclose the violations in its license renewal application. When the licensee failed to provide an adequate explanation for the late uploads, the Commission concluded that the licensee willfully and repeatedly violated Section 73.3526 of the FCC’s Rules. The FCC also found that the failure to report the violations constituted an apparent violation of Section 73.3514(a) of its Rules, which requires that applications filed with the Commission be accurate and complete.

Section 1.80(b)(10) of the FCC’s Rules establishes a base fine of $10,000 for Public Inspection File violations and a base fine of $3,000 for failure to file a required form or information. However, the Commission may adjust the amount upwards or downwards based upon factors such as the “nature, circumstances, extent and gravity of the violation,” in addition to the licensee’s “degree of culpability” and “any history of prior offenses.” Taking those factors into account, the FCC proposed a fine of $15,000 for the late-filed Lists and a fine of $3,000 for the failure to disclose those violations in the license renewal application, resulting in a total proposed fine of $18,000. Noting that the violation did not constitute a “serious violation” nor a pattern of abuse that would prevent renewal of the station’s license, the FCC indicated it would grant the license renewal application by separate action if no other issues arose.

Illinois High School Enters Into Consent Decree for Violations Relating to Periods of Silence, Late Issues/Programs Lists, and Failure to File a Biennial Ownership Report and EEO Program Report

An Illinois High School, the licensee of a noncommercial radio station, recently entered into a Consent Decree with the FCC for failing to (i) promptly notify the Commission that the station was silent for more than ten days, (ii) request Commission authorization to remain silent for more than 30 days, (iii) file required Biennial Ownership Reports, (iv) submit an EEO Program Report, and (v) timely upload its quarterly Issues/Programs Lists to its Public Inspection File throughout the license term.

Section 73.561(d) of the FCC’s Rules permits stations to limit or discontinue operation for a period of no more than 30 days, but requires licensees to notify the Commission no later than the 10th day of limited or discontinued operation. If the station needs to remain silent beyond 30 days, a licensee must request Special Temporary Authority (an “STA”) from the FCC to do so. In this case, the station discontinued operations on June 1, 2019 but did not notify the FCC until September 24, 2019, when it sought an STA.

The FCC granted the STA request on October 10, 2019 for a period of no longer than 180 days. The licensee requested an STA extension on March 10, 2020 which was granted on March 17, 2020 for a period ending June 1, 2020.  Citing reasons associated with the COVID-19 pandemic, the licensee filed a final extension request on June 1, 2020 which the FCC granted on July 15, 2020 for a period ending December 1, 2020. During this time, the licensee filed the station’s license renewal application on August 3, 2020. The station resumed operations on November 14, 2020.

In October 2020, an informal complaint was filed against the license renewal application, arguing that the station was silent for longer than 12 months and that granting the application would be unfair to other high school stations in the region. The complaint also pointed out that the application falsely certified that the station had not been silent for any consecutive 12-month period.  Section 312(g) of the Communications Act states that a license shall automatically expire if a broadcast station “fails to transmit broadcast signals for any consecutive 12-month period.”

In response, the FCC noted its discretion under Section 312(g) to extend or reinstate a license “to promote equity and fairness.” The FCC also noted that the station did resume operations on November 14 – prior to the STA expiring on December 1. The Commission agreed that the licensee incorrectly certified compliance with Section 312(g), but indicated it did not believe the licensee’s incorrect certification was intentionally false, as the station had an STA allowing it to remain silent. However, the FCC did conclude that the licensee violated Section 73.3615(d) (failing to file required Biennial Ownership Reports), Section 73.2080(f)(1) (failing to submit an EEO Program Report with the license renewal application), and Section 73.3527(b)(2)(i) (failing to timely upload Issues/Programs Lists to the Public Inspection File).

In light of the Commission’s findings, the licensee elected to enter into a Consent Decree with the FCC to resolve the matter rather than face an extended FCC proceeding. Pursuant to the Consent Decree, the licensee admitted the violations and agreed to pay a civil penalty of $1,000. The Consent Decree also requires the licensee to file an EEO Program Report within 10 days, and implement a compliance program, including appointment of a compliance officer, development of a compliance manual, implementation of a training program, filing of a compliance report with the FCC a year after entering into the Decree, and reporting to the FCC any violation of the Consent Decree, the Silent Notification Rule, the Ownership Report Rule, the EEO Program Report Rule, or the Public Inspection File Rule within 10 days of discovering a violation.

A PDF version of this article can be found at FCC Enforcement ~ December 2021.

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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:

  • Florida Broadcaster Pays $20,000 for Unauthorized Tower Construction Work
  • Colorado Broadcaster Issued Notice of Violation for Operating FM Translator on Wrong Frequency
  • Telecommunications Company Receives Cease-and-Desist Letter From FCC for Transmitting Illegal Robocalls

FCC Fines Florida Broadcaster $20,000 for Commencing Tower Construction Prior to Completing Required Environmental Review

The FCC’s Enforcement Bureau and a Florida broadcaster entered into a Consent Decree to resolve an investigation into whether the broadcaster began clearing land for a wireless telecommunications tower before it completed the required environmental review. Environmental reviews are required by the FCC’s Rules, including rules implementing the National Environmental Policy Act of 1969 (NEPA). To settle the matter, the broadcaster admitted violating the FCC’s environmental and antenna structure rules, and agreed to implement a compliance plan while making a $20,000 penalty payment.

The FCC’s Environmental Rules require applicants and licensees to assess whether proposed facilities may significantly affect the environment. Under Section 1.1307(a)(3) of the Commissions Rules, an applicant must prepare an Environmental Assessment for facilities that could have a significant environmental effect. When considering whether an action may have a significant environmental effect, one of the factors an applicant must consider is whether the proposed site may affect threatened or endangered species or designated critical habitats.

Additionally, the FCC’s Antenna Structure Registration (ASR) rules require the owner of a proposed or existing antenna structure to follow registration procedures prior to constructing or altering a tower. If an Environmental Assessment is required by the rules, it must be included in the ASR application.

In July and August of 2020, the broadcaster hired contractors to perform the necessary environmental review and construct a wireless communications tower located within the designated critical habitat of the endangered Florida bonneted bat. When the broadcaster filed its ASR application in November 2020, it included an Environmental Assessment depicting premature clearing and admitted to preconstruction activities.

Although the environmental review was later completed and the FCC authorized construction of the tower, the FCC issued a Letter of Inquiry to the broadcaster in April 2021 asking a series of questions related to its compliance with the Commission’s Environmental and ASR rules. The broadcaster responded in July 2021, admitting that it began construction by clearing vegetation from the tower site around August 3, 2020 – before it prepared an Environmental Assessment and before applying for an ASR.

To resolve the investigation, the broadcaster agreed to enter into a Consent Decree in which it admitted its actions violated the FCC’s Environmental and ASR rules. As part of the Decree, the broadcaster must designate a compliance officer, implement a multi-part compliance plan, including developing a compliance manual and compliance training program, disclose within fifteen days any violations of the Consent Decree or the Environmental and ASR rules, file annual compliance reports with the FCC for the next three years, and pay a $20,000 civil penalty.

FCC Issues Notice of Violation to Colorado Licensee for Operating FM Translator on Unauthorized Frequency

Earlier this month, the FCC issued a Notice of Violation to the licensee of a Colorado FM Translator asserting violations of Sections 1.903(a) and 74.14(a) of the FCC’s Rules by operating a station on a channel for which it wasn’t licensed.

Section 1.903(a) requires stations to be used and operated only in accordance with the rules applicable to their particular service and with a valid authorization granted by the Commission. Pursuant to Section 74.14(a), once an FM Translator has been built in accordance with the terms of its construction permit and a license application has been filed showing the station is in satisfactory operating condition, it may commence service or program tests.

On three different dates between October 2020 and January 2021, an agent of the Denver Office of the FCC’s Enforcement Bureau observed the FM Translator operating on Channel 282 despite being licensed to operate on Channel 272. While the licensee had obtained a construction permit authorizing it to modify the station to operate on Channel 282, at the time of the three separate observations, it had not yet filed an FM Translator License Application. Until a license application is filed, the facility lacked authority to operate with the parameters outlined in the construction permit, and any such operation would violate Section 74.14(a).

The Notice of Violation seeks additional information from the broadcaster concerning these apparent violations. It instructs the broadcaster to submit within 20 days a written response fully explaining each apparent violation and all relevant surrounding facts and circumstances, including the specific actions taken to correct any violations and prevent them from recurring. The Notice also requires the broadcaster to include a timeline for completing any pending corrective actions.

FCC Issues Cease-and-Desist Letter to Telecommunications Company for Transmitting Illegal Robocalls

The FCC’s Enforcement Bureau issued a cease-and-desist letter to a telecommunications company for apparently transmitting illegal robocalls. The letter instructs the company to investigate, and if necessary, cease transmitting any illegal robocall traffic immediately and take steps to prevent its network from being used to transmit illegal robocalls.

The Enforcement Bureau issued the letter after an investigation revealed the company apparently originated multiple illegal robocall campaigns. The Bureau works closely with the USTelecom Industry Traceback Group (“Traceback Consortium”), which is the consortium selected pursuant to the TRACED Act to conduct tracebacks. The Traceback Consortium investigated prerecorded voice message calls that voice service providers and customers of YouMail flagged as illegal robocalls made without consent of the called party.

Between August 24, 2021 and October 15, 2021, the Traceback Consortium conducted tracebacks and concluded that the company originated over 80 calls that appeared to be illegal robocalls, including substantial numbers of government imposter scam calls such as posing as the Social Security Administration and the Federal Reserve, as well as calls threatening utility discontinuation, offering fake credit card rate reductions, and arrest warrant scams. Furthermore, the Traceback Consortium notified the company about the calls and provided access to supporting data identifying each call prior to the cease-and-desist letter being sent.

The FCC noted that in addition to the Traceback Consortium previously notifying the company, the numerous tracebacks to the company as an originator indicated that the company is apparently knowingly or negligently originating illegal robocall traffic. The letter instructs the company to take steps to “effectively mitigate illegal traffic within 48 hours” and inform the FCC and the Traceback Consortium within 14 days of the date of the letter of the steps it has taken to “implement effective measures” to prevent customers from using the network to make illegal calls.

If the company fails to properly take the actions listed in the letter or fails to take sufficient mitigating actions to prevent customers from using its network to make illegal robocalls, downstream U.S.-based providers may block calls transmitted by the company. Additionally, the FCC may find that the company’s certification in the Robocall Mitigation Database is deficient and direct the removal of its certification from the database. If its certification is removed from the Robocall Mitigation Database, all intermediate and terminating voice service providers would be required to immediately cease accepting calls from the company.

A PDF version of this article can be found at FCC Enforcement ~ November 2021.

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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:

  • Streaming Service Agrees to Pay $3.5 Million for Violating FCC’s Closed-Captioning Rules
  • FCC Enters Consent Decree with Kentucky Broadcaster for Failing to Timely File License Renewal Application
  • Alabama Television Station Fined for Late Issues/Programs Lists

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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 Largest Robocalling Fine Under TCPA
  • Tennessee Broadcaster Fined for Failing to File License Applications for FM Translators
  • FCC Fines Rhode Island Broadcaster for Late-Filed License Renewal Application

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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:

  • Broadcasters Fined for Late-Filed Issues/Programs Lists
  • Cable Sports Network Receives Proposed Fine of $20,000 for EAS Violation
  • FCC Enters Consent Decrees with Wireless Providers for Engaging in Prohibited Communications During Spectrum Auction

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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 Asserts Violation of Prohibition Against Owning Two Top-Four Stations in the Same Market and Proposes $518,283 Fine
  • FCC Admonishes Indiana Broadcaster for Failing to Timely File License Renewal Application
  • Noncommercial Broadcaster Fined $9,000 for Late-Filed Issues/Programs Lists

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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:

  • Online Drone Retailer Fined Nearly $3 Million for Marketing Unauthorized Devices
  • FCC Denies Motion to Quash Letter of Inquiry Concerning Unauthorized Operation of Nevada LPFM Station
  • Unauthorized License Transfers Lead to $104,000 Consent Decree for New Jersey Water Service Company

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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 Fines Colorado Wireless Operators for Use of Unauthorized Equipment and Unauthorized Operations
  • VoIP Provider Enters Into Consent Decree With $180,000 Penalty Over Failure to Meet FCC Filing Requirements
  • FCC Investigates Colorado Manufacturer’s Unauthorized Signal Booster

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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 Fines Long-Distance Carrier $4.1 Million Over Cramming and Slamming Violations
  • Wireless Internet Service Provider’s Unauthorized Operations Lead to Consent Decree
  • Mississippi and Michigan Radio Station Licensees Admonished for Late License Renewal Filings

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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:

  • Texas-Based Telemarketers Fined Record $225 Million for Robocall Campaign
  • Georgia AM License Renewal Designated for Hearing Over Extended Periods of Silence
  • Public File Violations Lead to Consent Decree for Arkansas Noncommercial FM Station

FCC Issues Record Fine of $225 Million Against Texas-Based Telemarketers for Illegal Robocalls

The FCC recently issued a $225 million fine, the largest in its history, against a Texas company and its owners for transmitting approximately one billion robocalls, many of which were illegally spoofed.

The Truth in Caller ID Act, codified at Section 227(e) of the Communications Act of 1934, and Section 64.1604 of the FCC’s Rules, prohibits using a caller ID service to “knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value”—a practice known as “spoofing.”  Additionally, the Telephone Consumer Protection Act (TCPA), and the FCC’s implementing rules, prohibit prerecorded voice messages to wireless telephone numbers absent the subscriber’s express consent unless the call is for an emergency purpose.

In September 2018, a telecommunications industry trade group provided information to the FCC’s Enforcement Bureau regarding millions of robocalls that had been transmitted over its members’ networks.  The trade group estimated that 23.6 million health insurance robocalls crossed the network of the four largest wireless carriers each day and that many, possibly all, of those robocalls contained false caller ID information.  In response, the Bureau began an investigation to determine the origin of the spoofed robocalls.

The FCC found that many of the calls included false or misleading information about the identity of the caller and that the Texas company made the spoofed calls on behalf of its health care industry clients.  The pre-recorded messages at issue claimed to offer health insurance from well-known health insurance providers such as Aetna, Blue Cross Blue Shield, Cigna, and UnitedHealth Group, yet the FCC found no evidence that the company had any connection with these providers.  Part of the FCC’s findings were based upon recorded conversations between the owners, which included numerous discussions of the company’s robocalling operations, from a roughly three-month period when one of the owners was incarcerated for an unrelated matter.

Between January and May 2019, the company made more than one billion robocalls to American and Canadian consumers on behalf of its clients, a portion of which the Enforcement Bureau reviewed and confirmed were spoofed.  The trade group followed up with the company directly multiple times in 2019 to notify the owners that the robocalls appeared to violate prohibitions against unsolicited telemarketing calls and malicious spoofing.  In response, one of the company owners admitted to making millions of robocalls daily and even admitted to making calls to numbers registered to the Do Not Call Registry in an effort to increase sales.  Although the company informed the trade group that it ceased spoofing caller ID information in September 2019, the robocalls continued.

In June 2020, the FCC issued a Notice of Apparent Liability (NAL), proposing a $225 million fine against the company for violating the Communications Act and the FCC’s rules by spoofing caller ID information with the intent to cause harm and wrongfully obtain something of value.  The company responded to the NAL, claiming that: (1) it did not itself initiate any calls because it was acting as a technology consultant for its client’s calling campaigns; (2) it had only a limited role in the robocall campaigns, did not draft the messages, and believed that it had consent and therefore did not intend to defraud, cause harm, or wrongfully obtain anything of value; (3) the NAL impermissibly lumped the owners and the company (and its affiliates) together rather than attributing wrongful conduct to each party; (4) the owners cannot be held personally liable; and (5) the FCC failed to consider the company’s inability to pay and lack of any prior violations.

The FCC considered but was ultimately not persuaded by any of the company’s arguments.  In issuing the $225 million fine, the FCC noted that, among other things, the company did not contest that it spoofed more than 500 million calls and thus knowingly caused the display of inaccurate caller ID information.  While the company argued that it had only a limited role in initiating these calls, as it was acting in accordance with its client’s wishes, the FCC found that, even if the company was acting at a client’s request, it still knowingly agreed to display the inaccurate information.  The FCC also found that the company acted with wrongful intent by executing a telemarketing campaign in which call recipients were deceived by offers of health insurance from well-known providers.  Because the calls were spoofed, consumers could not identify the caller or easily choose to ignore or block the call and therefore the FCC concluded that the company employed spoofing in furtherance of the fraudulent scheme.

With respect to the owners’ personal liability, the FCC’s analysis of the company’s corporate structure and the public policy implications of broadly shielding individuals from liability for evading legal obligations led the FCC to conclude that it was necessary to hold the owners liable for their actions as officers of the company.  The FCC also distinguished this case from past decisions supporting reductions of proposed fines, noting that the decisions cited by the company did not involve spoofing.  Finally, the FCC noted that the company failed to provide the financial information required to support a claim of inability to pay.

The $225 million fine must now be paid within 30 days following release of the Order.  The FCC noted that if it is not paid within that time, the matter may be referred to the U.S. Department of Justice for enforcement.

Extended Periods of Silence Lead to Hearing Designation Order for Georgia AM Station

The Media Bureau has designated for hearing the license renewal application of a Georgia AM station based on the station’s extended periods of silence during the most recent license term.

Under Section 312(g) of the Communications Act of 1934, a station’s license automatically expires if the station “fails to transmit broadcast signals for any consecutive 12-month period.”  Where silent stations resume operations for only a short-period of time before the one-year limit passes, the FCC has cautioned that such stations will face a “very heavy burden in demonstrating that [they have] served the public interest,” noting that extended periods of silence are an inefficient use of the nation’s limited broadcast spectrum.

Section 309(k)(1) of the Communications Act provides that in determining whether to grant a license renewal application, the FCC must consider whether, in the previous license term, the licensee: (1) served the public interest; (2) has not committed any serious violations of the Act or of the FCC’s rules; and (3) has not committed other violations that, taken together, would constitute a pattern of abuse.  If the licensee falls short of this standard, the FCC can either grant the renewal application with conditions, including an abbreviated license term, or deny it after a hearing to more closely examine the station’s performance. Continue reading →