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 $12,500 Fine for False Certification That FM Translator was Constructed as Authorized
- Telecommunications Company Warned Over Apparent Transmission of Illegal Robocalls
- Station Licenses in Danger Over Lack of Candor and Intentional Misrepresentation Claims Before the FCC
False Certification Brings $12,500 Proposed Fine for Louisiana FM Translator Station
The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to the licensee of a Louisiana FM translator for falsely certifying to construction as authorized (but without intent to deceive), failing to file a required form to obtain consent to change antennas, and for constructing and operating with an unauthorized antenna for approximately two months. The violations alleged were raised by a third party Petition for Reconsideration (Petition) asking the FCC to reconsider the grant of a license to the new FM translator station. The Commission found that the station apparently violated its rules and proposed a $12,500 fine.
In April 2018, the licensee applied for a permit to construct a new FM translator, proposing to use a directional antenna mounted 150 meters above ground level. The FCC granted a construction permit in May 2018, requiring completion by May 2021. The licensee completed construction in time and filed a license application in August 2019 certifying that the translator had been constructed as authorized. Fifteen days after the FCC issued a public notice for the application, the license was granted in September 2019. However, the Petition was filed in October, alleging that material in the license application was false, and that the translator had been constructed with an omnidirectional (rather than directional) antenna, and mounted at a height of 145 meters above ground level (5 meters lower than authorized).
In opposing the Petition, the licensee acknowledged it used an omnidirectional antenna for approximately two months in 2019, explaining that the authorized directional antenna had arrived damaged, and it was eager to commence operations. The licensee explained that it operated the facilities at a much lower power level than authorized to minimize any potential for interference from using an omnidirectional antenna. It further explained that it had no intent to deceive but did not know the significance of the antenna substitution, so it did not mention this to legal counsel who prepared the license application. In October 2019, the translator began operating with the repaired authorized antenna, but it was mounted at 146.6 meters. In December 2019, the Licensee filed an application for a minor modification, proposing to operate the antenna 143 meters above ground level and changing the translator’s community of license. The Commission granted a construction permit for this modification, and an application to license the modified facilities was filed in January 2020. The license was granted in February 2020.
Among other requirements, petitioners filing a petition for reconsideration must have either participated in the initial proceeding or show good reason why it was not possible for them to have participated earlier. In this case, the FCC found that the Petitioner had ample time to file an informal objection during the 15-day period that the license application was on public notice before it was granted. As such, the Commission dismissed the Petition as unacceptable under § 1.106(b) of its Rules. Nevertheless, the FCC acknowledged the licensee’s admissions and considered on its own motion an appropriate response.
Section 74.1251(b)(2) requires FM translator licensees to request and receive permission prior to making any changes to their antenna systems. Section 1.17(a)(1) of the FCC’s Rules prohibits individuals from intentionally providing incorrect “material factual information” or intentionally omitting “material information.” The Commission explained that “intent to deceive” is an essential element of “misrepresentation” and “lack of candor,” and thus submitting inaccurate information due to carelessness or gross negligence is not misrepresentation or lack of candor. However, Section 1.17(a)(2) of the Rules prohibits submission of incorrect information, even without deceptive intent.
The FCC found no evidence of deceptive intent and thus no misrepresentation or lack of candor. However, the FCC determined that the licensee acted negligently when it failed to tell its legal counsel that the antenna was not constructed as authorized and when it failed to review the application thoroughly before filing. The FCC found that the licensee apparently violated Section 1.17(a)(2) of the Rules because it had no reasonable basis to certify that the translator was constructed as authorized, Section 74.1251(b) by failing to file an application to alter an antenna system, and Section 74.1251(b)(2) by constructing and operating with an unauthorized antenna at an unauthorized height.
Section 1.80(b) of the Rules sets a base fine of $3,000 for failure to file a required form and $10,000 for construction or operation without an instrument of authorization. The guidelines do not list a base fine amount for a false certification. Thus, the FCC considers the relevant statutory factors in Section 503(b)(2)(E) of the Communications Act, including “the nature, circumstances, extent and gravity of the violation, and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.” In previous cases of false certifications by secondary stations without intent to deceive, the FCC has found a $5,000 fine appropriate. Taking into consideration all relevant factors, especially that the translator is providing secondary service, the FCC decided to reduce the combined fine here for failing to file an application and unauthorized operation from $13,000 ($3,000 + $10,000 base fines) to $7,500. With respect to false certification, the FCC proposed an additional fine of $5,000, consistent with the prior cases involving secondary stations. Thus, the total proposed fine is $12,500 ($7,500 + $5,000). Continue reading →
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