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:
- Media Bureau Hits Michigan Radio Station for Low Power Snafu
- Online Retailer Faces $2,861,128 Forfeiture for Selling Unauthorized Drone Parts
- Enforcement Bureau Issues Advisory on Drone Accessories
Weathering the Storm: Media Bureau Proposes Fine for Botched Low Power Operation
The FCC’s Media Bureau issued an $18,000 Notice of Apparent Liability for Forfeiture (“NAL”) to a Michigan radio licensee accused of omitting material facts from an FCC application and operating its station at variance from its license.
Under Section 312(g) of the Communications Act of 1934 (“Act”), a broadcast station’s license automatically expires after the station fails to broadcast for 12 consecutive months. Section 73.1745(a) of the FCC’s Rules requires a station to broadcast according to the “modes and power” specified by its license, and Section 73.1765 permits licensees to request special temporary authority (“STA”) to operate at variance from their license for a limited time.
The licensee originally applied for renewal of its license in May of 2012. Section 309(k) of the Act provides several criteria that the FCC must consider when reviewing license renewal applications. The FCC will grant an application if: (1) “the station has served the public interest, convenience, and necessity;” (2) the licensee has not committed any serious violations of the Act or the FCC’s Rules; and (3) the licensee has not committed any other violations of the Act or the FCC’s Rules that, taken together, would indicate a pattern of abuse.
In February 2015 (while the renewal application was still pending), the licensee requested an STA to remain silent, claiming that his facilities would require significant repair after a broken water main flooded the studio.
The following month, the licensee of several religious broadcast stations filed an objection to the license renewal application, alleging that the broadcaster was “untruthful” about the circumstance of the flood. It also claimed that the licensee had broken a contract between the two parties, “attempted to extort money” from a Texas broadcaster, and failed to pay money to another broadcaster.
In May 2016, the Media Bureau inquired into the length of time the licensee’s station had been silent. The licensee responded that the station had returned to air shortly after the STA was filed, but a “clerical error” had prevented the licensee from notifying the FCC. As evidence, the licensee provided sworn declarations, as well as bills and ad orders for another one of the licensee’s stations. The licensee also indicated that the station was operating with a lower-powered transmitter than specified in the license due to a lightning-related power surge the previous year.
Unsatisfied, the Media Bureau sent the licensee a second letter demanding more information about the station’s operations. The licensee responded with more information relating to the station in question, including a letter from an engineer which confirmed that while the station was licensed to operate at 50 kW, it was only operating at 1.4 kW.
That same day, the licensee requested an STA to operate at that reduced power level, stating that the station was “currently operating at the reduced power level of 1.4 kW” and needed to continue at this reduced power for the next 180 days. The requested STA was not granted until over a year later.
The Media Bureau ultimately concluded that the station was operating with a “non-conforming” transmitter and at significant variance from its 50 kW authorization. The Bureau also found that the licensee failed to timely request an STA to operate at that reduced power, and failed to disclose a material fact in its second STA request when it said that it was “currently operating” at the lower level despite having operated at that reduced power for over a year. The NAL also indicated that it was “at best misleading” to suggest that the station would be back to full power within 180 days. Section 1.17(a)(1) of the FCC’s Rules prohibits individuals from intentionally providing incorrect “material factual information” or intentionally omitting “material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading.”
As a result, the Media Bureau proposed: (1) a fine of $10,000 for operating without the appropriate authorization for the service; (2) an additional $3,000 fine for failing to file a required form; and (3) a $5,000 fine for failing to disclose a material fact in the STA request.
Fortunately for the licensee, the Media Bureau did not find these acts to be “serious violations” or a pattern of abuse, and therefore granted the station’s license renewal application in a separate action. In doing so, the Media Bureau denied the religious licensee’s objections, noting that the FCC does not adjudicate private contractual disputes.
Flight Delay: Online Drone Retailer Dinged for Marketing Dozens of Noncompliant Drone Parts
The FCC proposed a $2,861,128 penalty against a group of commonly-owned companies in the United States and Hong Kong for marketing unauthorized drone equipment.
Pursuant to Section 302 of the Act, the FCC regulates radio-frequency energy-emitting devices (“RF” devices) that can potentially interfere with radio communications. The FCC sets limits on a device’s spurious emissions, transmission power, and on which bands it may operate. Generally, noncompliant devices may not be imported, marketed or sold in the United States. Continue reading →