Articles Posted in RF Devices

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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:

  • Virginia Sheriff and FCC Determine Public Safety Interference Caused by Handheld Radio
  • Unauthorized Operation by Puerto Rico AM Station Leads to Notice of Violation
  • Signal Booster Operated by Luxury Apartment Building in Texas Interferes with Local Public Safety System

Virginia Investigation Results in Notice of Unlicensed Operation for Interfering with a Public Safety Communications System

Following an investigation by a Virginia sheriff’s office into interference with the county’s public safety radio communications system, the FCC’s Enforcement Bureau conducted its own investigation and issued a Notice of Unlicensed Operation (NOUO) to an individual.

According to the NOUO, the sheriff’s office determined that a handheld Motorola two-way radio was transmitting signals in an attempt to self-authenticate and thereby access the county’s system.  The handheld unit used a unique identification code and had apparently been illegally programmed to operate on the county’s licensed frequencies.  The investigation led to an individual who admitted that he had programmed the radio to operate on the county’s frequencies and that he was the one operating it at the time the device attempted to self-authenticate and gain access to the county’s public safety radio system.

Under Section 301 of the Communications Act, use of radios like the one in question must generally be licensed by the FCC unless they transmit at a sufficiently low level of power to qualify under Part 15 of the FCC’s Rules for unlicensed operation.  The handheld radio in question was not certified as a Part 15 device.

In addition, any person operating a radio transmitter on frequencies exclusively licensed for public safety use needs an FCC license.  The NOUO stated that no such license had been issued to the individual.

Violators of Section 301 are subject to “substantial monetary fines, in rem arrest action against the offending radio equipment, and criminal sanctions including imprisonment.”  The individual has 10 days to respond to the FCC with a description of the steps he is taking to avoid future unlicensed operation and interference.

Puerto Rico AM Station Receives Notice of Violation for Unauthorized Operation

A Puerto Rico AM radio station recently received a Notice of Violation (NOV) from the FCC.  In the NOV, the FCC’s Enforcement Bureau stated that field agents out of its Miami office observed the station operating in violation of its license.  Specifically, the agents reported that the station was operating from a single tower with a non-directional pattern, whereas the station’s license specifies a directional antenna pattern using a two-tower array.  The station had not requested and obtained Special Temporary Authority from the FCC to operate at variance from its licensed parameters.

Within 20 days of the issuance of the NOV, the licensee is required to file a response which “(i) must fully explain each violation, including all relevant surrounding facts and circumstances, (ii) must contain a statement of the specific action(s) taken to correct each violation and preclude recurrence, and (iii) must include a timeline for completion of any pending corrective action(s).”  The licensee must also include “an affidavit or declaration under penalty of perjury, signed and dated by an authorized officer of [the licensee] with personal knowledge of the representations provided” in its response.  The FCC may then take additional enforcement action once it has the relevant facts in hand. Continue reading →

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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:

  • Sports Entertainment Company’s Malfunctioning Microphone Interferes with Public Safety Communications
  • Florida Radio Application Dismissed Over Disclosure Issues
  • Late Issues/Programs Lists and Children’s Television Programming Reports Causes $18,000 Proposed Fine for Maryland Television Station

Notice of Violation Issued After Malfunctioning Wireless Microphone Transmits on Wrong Frequency

A sports entertainment company with dozens of locations across the country received a Notice of Violation from the FCC for causing interference to a city’s licensed wireless operations. FCC field agents investigating interference complaints using direction finding techniques located “drifting” radio emissions in the area and determined that the source was a malfunctioning wireless microphone used by the sports entertainment company in its local operations.

The microphone was causing interference to the city’s 800 MHz communication system, and as noted by the Enforcement Bureau, the sports entertainment company did not hold a license to operate the microphone on that frequency. The city used the 800 MHz facilities for public safety operations, making the interference particularly concerning.

Under the Notice of Violation, the company must respond within twenty days and (1) fully explain each violation, including all relevant surrounding facts and circumstances, (2) include a statement of the specific action(s) taken to correct each violation and prevent recurrence, and (3) include a timeline for completion of any pending corrective action(s). The Notice of Violation also indicated the possibility of further enforcement action “to ensure compliance.”

Applicant Loses Chance at Noncommercial Radio Station After Failing to Make Required Disclosures

An applicant seeking to build a new noncommercial educational (NCE) station in Florida saw its application dismissed after a petition to deny raised disclosure issues with it. The company filed the application in November 2021 during the most recent filing window for new NCE applications. Applicants with applications deemed to be mutually exclusive (MX) are given an opportunity to work together to resolve technical conflicts through settlement arrangements. If the conflicts are not resolved, the FCC compares and analyzes the competing applications and tentatively selects a winning application.

The FCC’s comparative analysis of MX NCE applications generally consists of three main components. When NCE FM applicants in an MX group propose service to different communities, the FCC performs a threshold fair distribution analysis under Section 307(b) of the Communications Act of 1934 to determine if one of the applicants is proposing service to an underserved area. Application conflicts that are not resolved under this “fair distribution” analysis are next compared by the FCC under an NCE point system, which is a simplified, “paper hearing” process. If necessary, the FCC then makes a tie-breaker determination, based on applicant-provided data and certifications. 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:

  • TV Network Draws Proposed Fine of $504,000 for Transmitting False EAS Tones
  • FCC Cites Equipment Supplier for Marketing Unauthorized Devices
  • FCC Proposes $62 Million Penalty Against Wireless Provider for Excessive Connected Devices Reimbursement Claims

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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:

  • Broadcaster Receives $518,283 Fine for Local TV Ownership Rule Violation
  • Ohio LED Sign Manufacturer Enters $47,600 Consent Decree for Marketing Unauthorized Devices
  • FCC Reduces Fine to $3,400 for Washington LPTV Licensee’s Unauthorized Operation and Untimely License Applications

TV Broadcaster Receives Statutory Maximum Fine for Violating FCC Multiple Ownership Rule

A large multi-market television company (the “Company”) was fined $518,283 for violating the FCC’s rule prohibiting one entity from owning two top-four rated TV stations in the same Nielsen Designated Market Area (“DMA”).  This Forfeiture Order follows a July 2021 Notice of Apparent Liability (“NAL”), which we wrote about here.

In July 2020, the Company acquired the non-license assets and network affiliation of a top-four rated station in the Anchorage, Alaska DMA and placed the network’s programming on a non-top-four rated station that was already owned by the Company.  At the time of the transaction, the Company owned one top-four station in the market and one that it claimed organically improved its ratings to join the top four and therefore was not in violation of 47 C.F.R. 73.3555, which includes the Local Television Ownership Rule (the “Rule”).  The Rule prohibits an entity from owning two full-power television stations in the same DMA if both commonly owned stations are ranked among the top-four rated stations in the market.  However, the Rule permits a top-four duopoly if one of the stations was outside the top four and organically improved its ratings to join the top four.  Note 11 (the “Note”), which was added to the Rule in 2016, bars the common ownership of two top-four stations with overlapping contours in the same DMA through the acquisition of a network affiliation and says:

An entity will not be permitted to directly or indirectly own, operate, or control two television stations in the same DMA through the execution of any agreement (or series of agreements) involving stations in the same DMA, or any individual or entity with a cognizable interest in such stations, in which a station (the “new affiliate”) acquires the network affiliation of another station (the “previous affiliate”), if the change in network affiliations would result in the licensee of the new affiliate, or any individual or entity with a cognizable interest in the new affiliate, directly or indirectly owning, operating, or controlling two of the top-four rated television stations in the DMA at the time of the agreement.

The FCC found that the transaction—acquiring the network affiliation and placing that programming on a lower-rated station—was the functional equivalent of a license transfer or assignment and effectively turned the station into a top-four station in violation of the Rule.  The Forfeiture Order noted that the Company had not sought a waiver of the Rule or contacted FCC staff about the permissibility of the transaction.

In response to the NAL, the Company argued that (1) because one of its stations had improved its ratings and already achieved top-four status prior to the transaction, the “plain language” of the Note was not implicated by the transaction; (2) the Company lacked notice that the Note prohibits purchases of network affiliations, rather than just affiliation swaps; and (3) the FCC’s interpretation of the Note constitutes impermissible regulation of the Company’s content choices for its station.  The FCC rejected these arguments.  It found that the relevant ratings showed the station as the fifth-ranked (not top four, as the Company contended) station in the market before the network’s programming caused it to enter the top four.  It also found that the Company could not rely on an exemption to the Rule that allows a network to offer an affiliation to a duopoly owner (one top-four station and one non-top-four station) if the network is unhappy with its current affiliate and the proposed affiliate has “demonstrated superior station operation.”  In this case, the Company indicated it declined an offer from the network to acquire the affiliation and instead bought the affiliation from the current affiliate.  The FCC also pointed to its Second Report and Order that provided more detail on affiliation acquisitions as notice of permissible transactions and stood by its finding that the Rule and accompanying Note 11 do not regulate a Company’s content choices, but merely market concentration.

The FCC concluded that the appropriate fine would be $8,000 for each day the violation persisted, which would result in a total fine of $1,720,000.  However, the statutory cap on fines for a single violation is $518,283.  As a result, the Commission reduced the proposed fine to that amount and indicated it did not see a justification for any further reduction when considering the nature and duration of the violation and the Company’s ability to pay.

LED Sign Manufacturer Settles Equipment Marketing Investigation for $47,600

The FCC entered into a Consent Decree with an Ohio-based sign manufacturer, resolving an investigation into whether the manufacturer unlawfully marketed light-emitting diode (“LED”) signs in the United States.  The entity manufactures, advertises, and sells fully assembled LED signs.  The investigation found, and the manufacturer admitted, that it marketed several unauthorized LED signs without the required FCC equipment authorization, labeling, and user manual disclosures and failed to retain required test records in violation of the Communications Act and the FCC’s Rules. 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:

  • Felony Fraud Conviction Results in AM Station License Revocation Hearing
  • Dash Camera Retailer Enters $75,000 Consent Decree for Marketing Unauthorized Devices
  • Broadcaster Agrees to $9,000 Consent Decree for Violations Relating to Silent STA Rule, Translator Rebroadcasting Rule, and the Truthful and Accurate Statements Rule

Up in Smoke: Lying to IRS Leads FCC to Question AM Licensee’s Character Qualifications

The FCC recently issued a Hearing Designation Order and Order to Show Cause to determine whether the license of a Tennessee AM station should be revoked.  The licensee’s sole member, a former representative in the Tennessee legislature, purchased cigarette tax stamps in 2007 and sold them for a substantial profit following the legislature’s increase in the state’s cigarette tax.  He failed to include this profit in his 2008 individual income tax return and was convicted in 2016 of fraud and making false statements to the government.  The licensee reported the conviction to the FCC on April 14, 2017 – two weeks after the deadline set forth in Section 1.65(c) of the FCC’s Rules (which requires licensees to report adverse court and administrative findings bearing on character qualifications by the anniversary of their state’s renewal filing deadline).  The licensee also disclosed the conviction in the station’s March 18, 2020 license renewal application, along with failures to file Ownership Reports and to timely upload quarterly Issues/Programs lists.

Section 312 of the Communications Act of 1934 (the “Act”) permits the FCC to revoke a license if it determines that the licensee lacks the requisite character qualifications to remain a Commission licensee.  Key to the FCC’s character inquiry is the question of whether the licensee “is likely to be forthright in its dealings with the Commission and to operate its station consistent with the requirements of the Communications Act and the Commission’s Rules and policies.”  The FCC has previously explained that any violation of the Act or FCC’s Rules may be relevant to a licensee’s character qualifications.  With respect to non-FCC misconduct, the FCC has found that felonies and adjudicated fraudulent representations to other governmental units are relevant to a licensee’s character qualifications because they are indicative of the licensee’s propensity to obey the law or to engage in similar, non-truthful behavior before the FCC.  The FCC relies heavily on the candor of licensees, and therefore deems full and clear disclosure of all material facts as essential to its processes.

In this case, the individual’s felony conviction resulted from dishonest conduct: omission of material financial information resulting in a consequential inaccuracy in the information provided to the IRS.  The FCC concluded that the individual’s willingness to unlawfully conceal information from another federal agency, together with the licensee’s admitted failures to comply with certain FCC reporting requirements, called into question the licensee’s ability to provide complete and accurate information to the FCC.  Accordingly, the FCC commenced a hearing to determine whether the individual (and, by extension, the licensee) possesses the necessary character qualifications to remain a Commission licensee.

Dash Camera Retailer Settles Equipment Marketing Investigation for $75,000

The FCC entered into a consent decree with a Connecticut-based dash camera retailer, resolving an investigation into whether the company unlawfully marketed unauthorized vehicle dash cameras in the United States.  The investigation found, and the company admitted, that the retailer marketed several unauthorized camera models, failed to test its equipment’s radiofrequency (“RF”) emissions, and failed to retain measurement records in violation of the Act and the FCC’s Rules.

Section 302(b) of the Act prohibits, among other things, the sale or offering for sale of devices that fail to comply with the FCC’s RF equipment authorization regulations.  Similarly, Section 2.803(b) of the Commission’s Rules prohibits, with limited exceptions, the marketing of an RF device unless the device has first been properly authorized, identified, and labeled in accordance with the FCC’s Rules.

As detailed in Pillsbury’s Primer on FCC Radio Frequency Device Equipment Authorization Rules, equipment authorization procedures differ depending on whether the device is an “unintentional radiator” (a device that emits signals to other parts of the device or to an attendant device, such as a universal remote control”) or an “intentional radiator” (a device that intentionally emits RF energy outside of the device).  Section 2.906 of the Rules sets forth the relatively simple Supplier’s Declaration of Conformity (“SDoC”) procedures that apply to unintentional radiators.  Section 2.907 of the FCC’s Rules sets forth the more stringent Certification process required for intentional radiators.  Section 2.938 of the Rules requires that manufacturers or other responsible parties retain test measurement records and other data demonstrating that each RF device has been properly tested and authorized under the appropriate equipment authorization procedures prior to marketing. 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:

  • 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 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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Today, the deadline was established for filing comments in response to a Notice of Proposed Rulemaking (NPRM) pertaining to the marketing, sale and importation of radiofrequency (RF) devices that have not yet obtained equipment authorization.  Specifically, the NPRM proposes to allow manufacturers to make conditional sales of pre-authorization devices directly to consumers, and would also permit the importation of a limited number of pre-authorization RF devices for new types of pre-sale activities.  Last month, the FCC unanimously voted to approve the NPRM in response to a Petition for Rulemaking filed by the Consumer Technology Association (CTA).

Section 302 of the Communications Act empowers the FCC to create rules governing the interference potential of devices capable of emitting radio frequency energy and which can cause harm to consumers or other radio communications.  This authority covers multitudes of everyday consumer objects, from toaster ovens to the most advanced mobile communication devices. To keep pace with the speed of innovation and consumer demand, the FCC regularly updates its equipment authorization rules for such devices.  In its petition, CTA argued that the FCC’s existing rules act as a “speed bump” in the race to develop and deploy new products and do not reflect the current direct-to-consumer online marketplace. Continue reading →