Articles Posted in Ownership Law & Regulation

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As noted yesterday, the FCC announced in a robocall proceeding that all individuals and entities that have a Federal Registration Number (FRN) in the FCC’s CORES database are now required to update it within ten business days of any change in the associated information.  In the underlying Order, the FCC stated its reasons for doing so in relation to the Robocall Mitigation Database, which is one of the systems that automatically incorporates FRN information:

Requiring Filers to Update Information in CORES

To ensure that the Robocall Mitigation Database reflects up-to-date information, we adopt our proposal in the Notice that all entities and individuals that register in CORES in order to submit filings to the Database or that register for any other purpose be required to update any information submitted to CORES within 10 business days of any change to that information.

The FCC then made clear that its use of the phase “all entities and individuals that register in CORES” wasn’t accidental:

Additionally, keeping information in CORES up to date may have benefits outside the robocall proceeding as well. As we stated in the Notice, this procedural improvement will also benefit other Commission databases beyond the Database that make use of contact information imported from CORES.  We therefore implement a 10-business day deadline for all CORES registrants to submit updates after a change in information occurs.

In that same Order, the FCC also established base fines for (a) misrepresenting such information and (b) failing to keep such information up to date:

We agree with commenters that inadvertent errors or minor lapses in compliance should not result in the same penalties as willful misconduct. We therefore find that the base forfeiture should be significantly lower than the $10,000 base forfeiture we set for submitting false or inaccurate information.  That said, we agree with commenters who point out that inaccurate information in the Robocall Mitigation Database is still harmful—regardless of whether the inaccuracy results from malfeasance or neglect.  Finally, we look to the penalties assessed in similar circumstances and note that the Commission has already established a $1,000 base forfeiture for failure to maintain required records.  A base forfeiture in the amount of $1,000 in this instance creates a meaningful distinction between willful/malicious misconduct and inadvertent error.  We find that a separate penalty for failure to update information in the RMD after a change has occurred is a necessary addition in order to ensure that filers make accuracy a priority.  Finally, we hold that the integrity of the data in the RMD is no less critical than other records that licensees/authorization holders must maintain; accordingly, we apply a penalty, consistent with the fines applied in analogous circumstances.  We therefore adopt a $1,000 base forfeiture for failure to update Database information within 10 business days.

Like the earlier aspect of the Order that focused entirely on FRNs in the robocall context, but then proceeded to apply a new 10-business-day requirement to all FRN holders, the language above, while focused on robocalling, seems to suggest that the FCC believes a $1,000 a day base fine is appropriate for all such inadvertent failures to update information.  Supporting this view is the Order’s assertions that such a fine amount is based on “penalties assessed in similar circumstances” and the fact “that the Commission has already established a $1,000 base forfeiture for failure to maintain required records,” citing only on an FM radio decision to support both propositions.

Communications lawyers around DC, particularly those with broadcast clients, were alarmed by both the universally-applicable 10-business-day deadline to update FRNs, and the Commission’s suggestion that a $1,000 a day base fine seemed appropriate given the “analogous circumstances” of an FM radio decision.  Adding to that concern was the fact that the cited FM radio decision involved a “failure to maintain required records” where—surprise—the FCC’s base fine is $1,000.  Of course, that doesn’t mean the FCC would fine broadcasters with outdated FRNs $1,000 a day until their FRN is updated, but it certainly suggests they could.

Bulletins and alerts went out to clients from their DC law firms warning of the new 10-day requirement and the potential for fines for those failing to meet that deadline.  FCC regulatees rushed to update their FRNs today, only to be frustrated when the sheer amount of resulting traffic crashed the FCC’s systems, preventing such updates from being filed.

Seemingly in response, late today the FCC released a Public Notice with the exciting title Wireline Competition Bureau Reminds Robocall Mitigation Database (RMD) Filers of Increased Base Forfeitures for Submitting False or Inaccurate Information and for Failure to Update RMD Filings.  Not something a broadcaster or any other FCC licensee uninterested in robocall matters would typically read, but if there is anything to be learned from this episode, it is to read past the title of an FCC robocall document.

Those that did were rewarded in the second to last sentence which, to the FCC’s credit, was bolded and underlined, stating:

The Robocall Mitigation Database Report and Order did not address or change any forfeiture amounts that may be associated with failures to update the CORES information by non-RMD filers.

So it doesn’t say there won’t be fines associated with failures by those outside the robocall world to update their FRN information within 10 business days, but it at least states that the Order didn’t “address or change” those fines.  We’ll call that a win.  Still, I can’t help but wonder—if  an FM radio station’s “failure to maintain required records” is “analogous” to a telecom provider’s failure to keep its contact information up to date in the Robocaller Mitigation Database, doesn’t that analogy run the other direction as well?

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Let’s state the obvious. The FCC’s use of mandatory Federal Registration Numbers was a bad idea from the start. It became monumentally worse today, when the FCC quietly announced that anyone whose Federal Registration Number contact information isn’t updated within 10 business days is subject to a $1,000 per day fine until it is updated, up to the current statutory maximum of $628,305.

Continue reading →

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While at this stage it is only a temporary win, in the spirit of Chairman Carr’s Delete, Delete, Delete proceeding, the FCC today released a Public Notice announcing that the Commission is suspending the requirement that broadcasters file Biennial Ownership Reports until June 1, 2027 or further notice, whichever occurs first.  The reports are normally due by December 1 of odd-numbered years (like 2025) and report a broadcaster’s ownership as it existed on October 1 of that year.

A number of commenters in the Delete, Delete, Delete proceeding, including the State Broadcasters Associations and NAB, noted that the reports tend to be paperwork-heavy, and of limited utility given that broadcasters must already file Ownership Reports after each assignment, transfer, or initial grant of a broadcast station construction permit or license.  The FCC appeared today to at least tentatively agree, stating in the Public Notice that:

In the Commission’s proceeding “In re: Delete, Delete, Delete,” multiple commenters have urged the Commission to revisit the current biennial ownership filing requirement, which they maintain is a costly and burdensome requirement without a sufficient offsetting public benefit.  With the next filing window approaching, we find there is good cause to waive the biennial ownership report filing requirement for a period of 18 months and set a new filing deadline of June 1, 2027 or until further notice, whichever comes first.

Broadcasters certainly hope that today’s announcement is an indication the FCC is interested in permanently eliminating the biennial ownership reporting requirement, and just needs time to analyze and implement a longer-term approach to eliminating it.  Note that today’s waiver does not affect the requirement that broadcasters file Ownership Reports after each station assignment or transfer, as well as after grants of initial construction permits and licenses.  If the Commission should decide to permanently eliminate the biennial ownership reporting requirement, it is likely these other types of Ownership Reports that the FCC will rely upon for broadcast ownership information going forward.

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Pillsbury’s communications lawyers have published the 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:

  • Puerto Rico Broadcaster Agrees to $4,500 Consent Decree for Unauthorized LPTV Operation
  • Eleventh Circuit Rejects FCC’s Rationale for Broadcast Ownership Fine
  • FCC Proposes $325,322 Fine for Miami Radio Pirate

Unauthorized Operation Leads to $4,500 Consent Decree for Puerto Rico LPTV Station

The licensee of a Puerto Rico LPTV station and the FCC’s Media Bureau entered into a Consent Decree to resolve an investigation into whether the licensee engaged in unauthorized operation.

The LPTV station was displaced by the FCC’s broadcast Incentive Auction and subsequent spectrum repack.  The licensee filed a displacement application to move to Channel 14, and a construction permit was granted in July 2018 with a July 2021 expiration date.  Because land mobile operations can be affected by TV transmissions on Channel 14, the construction permit contained a condition that the station “identify and substantially eliminate objectionable interference” and required the station to submit documentation showing “that objectionable interference will not be caused….”  Section 73.617(b)(2)(ii) of the FCC’s Rules requires TV permittees for new operations on Channel 14 to take steps prior to construction to identify potential interference.

When construction of the station was completed, the licensee filed an application to license the facility which contained a statement that the station complied with the special condition in the construction permit, but did not provide any technical proof to support that statement.  The station then began operations prior to receiving FCC approval to do so.  Media Bureau staff requested an amendment to supplement the “no objectionable interference” exhibit at the time the application was filed, and again in October 2024 when no amendment was received in response to the first request.  Responding to the second request, the licensee submitted an exhibit demonstrating there would be no objectionable interference, and then filed for Special Temporary Authority (STA) to continue operating while the license application was pending.

Section 73.1745(a) of the FCC’s Rules and Section 301 of the Communications Act require that a station have an FCC license in order to operate.  The FCC found that in the absence of either an STA or a license, the station had been operating without authorization for over three years. Continue reading →

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One thing about being part of a heavily regulated industry—you know well in advance most of the regulatory obligations and deadlines you’ll be facing in the year ahead.  While that brings no solace to broadcasters, it does lend a certain level of predictability to an often unpredictable industry.

For more decades than most of us can remember, Pillsbury’s Communications Practice has published its annual Broadcasters’ Calendar detailing filing deadlines facing broadcasters in the coming year.  As the Calendar itself warns, however, these obligations can expand or contract (though expansion has unfortunately been the historical norm), and deadlines can appear, disappear, and move with great rapidity.

Broadcasters have therefore long known that you start the year with the Broadcasters’ Calendar close at hand, while keeping an eye on CommLawCenter and the industry trades to see what obligations and deadlines will be added, subtracted, or altered over the course of the year.

Thus it has been, and thus shall it always be.

Some years are more likely than others to bring surprises, however.  With Trump 2.0 arriving upon the scene and new leadership coming to the FCC in January, the winds of change are likely to blow particularly hard in 2025.  Broadcasters are hoping those winds will be at their backs, bringing long overdue deregulation before social media giants drive broadcasters over the same ledge that the remaining newspapers cling to by their fingertips.

While broadcasters are admittedly nervous regarding soon-to-be Chairman Carr’s comments about reinvigorating the public interest standard for broadcasters given that the phrase has lost all meaning under recent Commissions, his clarification that his focus rests primarily upon the national networks rather than local broadcasters has brought a limited degree of relief.  Still, broadcasters will need to keep a close eye on regulatory developments in 2025, which promises to be a very eventful year.

So keep the 2025 Broadcasters’ Calendar close at hand in the coming year, and hope that the 2026 edition will be appreciably thinner.

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Bookending the Christmas weekend, the FCC’s long-awaited 2018 Quadrennial Review Report and Order was adopted on Friday, December 22 and released Tuesday, December 26.  The Commission is required by Congress to conduct a regulatory review of its broadcast ownership rules every four years and was directed by the U.S. Court of Appeals for the D.C. Circuit to conclude this particular review no later than December 27 (or to show cause why that couldn’t be done).

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The filing window for broadcast station Biennial Ownership Reports (FCC Form 323 for commercial stations and 323-E for noncommercial stations) opened on October 2, 2023.  All licensees of commercial and noncommercial AM, FM, full-power TV, Class A TV and Low Power TV stations must submit their Ownership Reports by December 1, 2023.

To simplify the process, the FCC’s filing system permits parties to validate and resubmit previously filed ownership reports so long as those reports were submitted through the current filing system and remain accurate.  Parties also have the ability to copy and then make changes to information included in a previously-filed report.  To facilitate this approach, there is a search page allowing filers to search for and review their prior Ownership Reports.

For additional information on preparing and filing Biennial Ownership Reports, note that the FCC hosted a video information session in 2021 which is available at Information Session on Filing Biennial Ownership Reports, Forms 323 and 323-E.  A PDF copy of the presentation materials is available here.

As a reminder, Biennial Ownership Reports submitted during this filing window must reflect a station’s ownership as it existed on October 1, 2023, even if the station was later assigned or transferred between October 1, 2023 and December 1, 2023.  Should you need assistance preparing and filing your Biennial Ownership Reports, please contact your Pillsbury counsel or any of the attorneys in Pillsbury’s Communications Practice.

A PDF of this article can be found at Broadcast Station Biennial Ownership Reports Due December 1, 2023.

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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 $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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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:

  • Foreign Ownership Violation by Telecommunications Provider Leads to $50,000 Penalty and Four-Year Compliance Plan
  • Arizona LPFM Station Hit with $20,000 Penalty and $41,500 Suspended Penalty for Underwriting Violations
  • Unauthorized Station Transfers Result in $8,000 Consent Decree

Telecommunications Provider to Pay $50,000 and Implement Four-Year Compliance Plan After Foreign Ownership Violations

A Guam-based telecommunications provider (Telecom Provider) settled an investigation by the Federal Communications Commission (FCC) into its ownership structure by entering into a consent decree that requires a $50,000 payment to the government and implementation of a 48-month compliance plan.  The Telecom Provider holds domestic and international Section 214 authorizations, 84 wireless licenses, three submarine cable licenses, and an earth station satellite license.  The FCC’s investigation concerned the Telecom Provider’s ownership, which includes two foreign corporations and a foreign government’s finance ministry.

Section 310(b)(4) of the Communications Act of 1934, as amended (Act), places a 25 percent limit on ownership by foreign individuals, corporations, and governments in U.S.-organized entities controlling common carrier licensees.  Under the Act, the FCC may permit higher levels of foreign ownership of an FCC licensee if it determines it is not contrary to the public interest.  Since 2013, FCC approval has also been required for any foreign individual or entity not previously approved by the FCC to acquire more than a five percent equity or voting interest in the entity.  These public interest determinations by the FCC incorporate input from a federal Executive Branch review of national security, law enforcement, foreign policy, and trade policy concerns conducted by a multi-agency group known as Team Telecom.

In 2015, the FCC granted an application that allowed the Telecom Provider to have 100 percent foreign ownership consisting of a parent entity two steps up in the ownership chain (Indirect Parent Entity) (owning up to 65.15 percent of the equity and voting interests) and the finance ministry (owning up to 26.95 percent of the equity interests and 41.53 percent of the voting interests).  Five years later, the Indirect Parent Entity commenced a tender offer for outstanding shares in the parent entity directly above the telecom provider (Direct Parent Entity).  Two months later, the Indirect Parent Entity acquired the tendered shares, which increased its indirect ownership interests in the Telecom Provider to 91.46 percent.  At the end of 2020, the Indirect Parent Entity also acquired all shares of the Direct Parent Entity’s common stock held by the remaining minority shareholders, resulting in it owning 100 percent of the equity and voting interests of the Telecom Provider.  These transactions led to the finance ministry having an indirect ownership interest in the Telecom Provider (held through Indirect Parent Entity) of 33.93 percent equity and voting.  The result was higher levels of foreign ownership in the Telecom Provider than had previously been approved by the FCC.

The Telecom Provider attempted to correct the problem by filing a Petition for Declaratory Ruling seeking approval for the Indirect Parent Entity and finance ministry to exceed their previously approved foreign ownership limits.  In late 2021, the International Bureau granted the Petition, but the FCC’s Enforcement Bureau pursued the prior foreign ownership violation, resulting in a Consent Decree with the Telecom Provider.

In addition to paying a $50,000 civil penalty for exceeding the foreign ownership levels approved by the FCC, the Telecom Provider must implement a plan to ensure compliance with the terms of the Consent Decree, including developing a compliance manual, administering employee compliance training, and submitting compliance reports to the Commission for four years regarding foreign ownership compliance.  During that time, the Telecom Provider must also report instances of noncompliance with the FCC’s foreign ownership rules and the terms of the Consent Decree within 15 days of discovering them.

Violations of Noncommercial Broadcast Underwriting Laws Result in $20,000 Penalty and a $41,500 Suspended Penalty for Low Power FM Station

The FCC’s Enforcement Bureau entered into a Consent Decree with the licensee of an Arizona LPFM station to resolve an investigation into violations of the FCC’s rules regarding underwriting.  Under the Consent Decree, the licensee agreed to implement a compliance plan and pay a $20,000 civil penalty, with a suspended civil penalty of $41,500 to be levied in the event of default. Continue reading →

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With the end of another year soon upon us, we have begun to look forward to the highs, lows, joys, and filings that 2023 has in store.  In accordance with a Pillsbury holiday tradition, earlier this month we published our annual Broadcasters’ Calendar of upcoming regulatory deadlines for broadcasters–a compendium of the currently known deadlines occurring throughout 2023. It’s full of dates and deadlines affecting TV and radio in the coming year, and cross-references some of our other Advisories to help stations meet their regulatory obligations in the year ahead. We hope this Calendar helps guide you into and through the new year.  Happy 2023 to all.

Items of Note in 2023[1]

  1. Commercial and Noncommercial Biennial Ownership Report: December 1, 2023 is the deadline by which all commercial and noncommercial radio and television stations must file their biennial ownership reports. Commercial stations will file FCC Form 2100, Schedule 323, and noncommercial stations will file FCC Form 2100, Schedule 323-E. The filing window opens October 1, 2023, and all ownership reports must reflect information current as of that date.
  2. Applications for Renewal of License: The three-year long state-by-state license renewal cycle ends in April 2023 for stations in the television services (full-power television, Class A television, LPTV, and TV Translator). The three-year renewal cycle for stations in the radio services (AM, FM, FM Translator, and LPFM) ended in April 2022. Stations will file their license renewal applications on FCC Form 2100, Schedule 303-S (“Form 303-S”) along with their Equal Opportunity Employment Reports on Form 2100, Schedule 396 (“Form 396”). The date by which the licensee must file a station’s application for license renewal depends on the state or territory of the station’s community of license. All licensees should familiarize themselves now with the dates associated with this important filing. As noted in previous Calendars, stations are no longer required to air pre-filing announcements during the two months preceding the filing of their license renewal application and instead need only air six post-filing announcements over four consecutive weeks, beginning within five business days after the FCC has “accepted for filing” their license renewal application. Additional information can be found in our License Renewal Advisories published on CommLawCenter prior to each state-by-state application deadline.
  • TV Spectrum Repack Progress Report and Reimbursement Deadlines: Because the 39-month post-auction transition period for full-power and Class A television stations ended in 2020, the post-repack Transition Progress Report (FCC Form 2100, Schedule 387) filing deadlines are not noted in this year’s calendar. However, stations that received an extension of time to complete their transition must continue to file Transition Progress Reports on a quarterly basis until they have ceased operating on their pre-repack channels, completed construction of their post-repack facilities, and reported that information to the FCC. In addition to these quarterly reports, transitioning stations must file Transition Progress Reports ten weeks before the end of their assigned construction deadline, ten days after completion of all work related to constructing their post-repack facilities, and five days after ceasing operations on their pre-auction channel. Throughout 2021 and 2022, all repacked full-power and Class A television stations and FM stations and LPTV/translator stations that sought reimbursement had to submit all invoices and supporting documentation, and initiate interim close-out procedures. The FCC announced in February 2022 that it intends to visit a random sample of Broadcaster Relocation Fund participants to verify the existence and operational status of equipment for which the participant received reimbursement.

January 1

Audio Description Requirements Extend to Nielsen Designated Market Areas 81 to 90—Commercial television stations affiliated with one of the top four broadcast networks and assigned to the Madison, Waco-Temple-Bryan, Harlingen-Weslaco-Brownsville-McAllen, Paducah-Cape Girardeau-Harrisburg, Colorado Springs-Pueblo, Shreveport, Syracuse, Champaign and Springfield-Decatur, Savannah, or Cedar Rapids-Waterloo-Iowa City and Dubuque Nielsen Designated Market Areas must comply with the FCC’s audio description (formerly video description) rules.

January 10

Quarterly Issues/Programs List Due—All full-power radio, full-power television, and Class A television stations must upload to their Public Inspection File by this date the Quarterly Issues/Programs List covering the period October 1, 2022 through December 31, 2022. Continue reading →