Articles Posted in Transactions

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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:

  • Time Off the Air Leads to License Termination for North Dakota Radio Station
  • FCC Enters Into Consent Decree With Tech Company Imposing $250,000 Civil Penalty for Unlawful License Transfers and Failure to Disclose a Felony
  • Virginia Radio Station Faces Proposed $7,000 Fine and Reduced License Term Over Failure to Timely File its Renewal Application

The Sound of Silence: North Dakota Radio Station Faces License Termination After Prolonged Period Off-Air

After going off the air and remaining silent due to financial concerns, an FM station’s license was revoked for failure to timely resume operations.

Section 73.1740(a)(4) of the FCC’s Rules permits a licensee to temporarily discontinue operations for up to 30 days provided that the licensee: (1) notifies the FCC by the tenth day of discontinued operations, and (2) requests authorization from the Commission to remain silent for any period beyond 30 days. However, Section 312(g) of the Communications Act of 1934 provides that a broadcast station’s license automatically expires if it does not transmit a broadcast signal for 12 consecutive months. The FCC may extend or reinstate a license terminated by virtue of this provision if doing so would “promote equity and fairness.”

On August 15, 2018, the North Dakota licensee took the station off the air due to financial concerns. After several months of radio silence, the station finally requested special temporary authority (STA) to remain silent on October 30. Despite the delay, the FCC granted the STA for a period of 180 days, cautioning that the station’s license would expire as a matter of law if operations did not resume by 12:01 a.m. on August 16, 2019, when the station would reach 12 months of silent status. The Commission also noted that the STA request had failed to meet both the 10-day notification requirement and the 30-day deadline for seeking authorization for discontinued operations. At the end of the authorized 180 days, the licensee sought an extension of the STA, which the FCC granted, again reminding the licensee of the August 16, 2019 deadline to resume operations. 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:

  • Wireless Internet Provider Hit With $25,000 Proposed Fine for Interference Caused by Network Equipment
  • Unauthorized License Transfers Lead to Consent Decree and $70,000 Civil Penalty
  • FCC Issues Notice of Violation to AM Daytimer Operating Past Sunset

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On April 4, 2020, the White House issued an Executive Order creating the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (the “Committee”). The Committee, chaired by the Attorney General, includes the Secretaries of Homeland Security and Defense, and any other executive department head so designated by the President, is seen as an attempt to formalize the long-standing “Team Telecom” review process that began in the 1990s. The Committee’s stated goal is similar to Team Telecom’s, i.e., to assist the Federal Communications Commission (“FCC”) in its public interest review of national security and law enforcement concerns that may be triggered by foreign investment in the US telecommunications sector. But there may be some notable differences. 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:

  • FCC Settles With Golf Club Operator Over Unauthorized Transfer of 108 Private Wireless Licenses
  • FCC Warns Traffic Management Company Over Unlicensed Radio Operations
  • Months-Long Tower Lighting Outage Leads to Warning

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:

Headlines:

  • International Hotel Company Agrees to $504,000 Settlement for Overlooked Wireless License Transfers
  • Media Bureau Fines AM Licensee for Years-Old Unauthorized Transfers
  • Suburban Elementary School Busted as Pirate Radio Operator

Approval Needed: International Hotel Chain Settles with the FCC for $504,000 Over Unauthorized Transfers

The FCC recently entered into a Consent Decree with a global hotel company for violating the FCC’s rules governing transfers of control.  The company admitted to transferring dozens of private wireless licenses without prior FCC approval in the midst of its multi-billion dollar acquisition of another international hotel group.

In addition to regulating the transfer of broadcast licenses, Section 310 of the Communications Act (“Act”) prohibits the transfer of control of a private wireless license holder without prior FCC approval.  Under Section 1.948 of the FCC’s Rules, parties seeking consent to a transfer of control of such a license must first file FCC Form 603 and await Commission approval before completing the transfer.

At issue in this case were the transfers of 65 wireless licenses controlled by entities owned or operated by the acquired company.  Unlike commercial wireless services such as wireless broadband, private wireless licenses are generally used for internal communications, like those associated with company operations or security.  According to the late-filed transfer applications, these wireless licenses were used for “operational efficiency and safety of employees and guests” at the company’s various properties.  Prior to the transaction, the acquired company’s employees controlled the use of the licenses as part of their regular operational duties.  Though the day-to-day use of the licenses did not change as a result of the company’s acquisition, ultimate control of the licenses did.

In February 2017, several months after the deal was completed, the hotel company voluntarily disclosed the violations to the FCC, chalking up the missing applications to “administrative oversight … during a larger transaction.”  By January 2018, applications for transfer of control of all 65 licenses were submitted to the FCC’s Wireless Bureau.  Those applications remain pending.

To resolve the FCC’s investigation of the violations, the acquiring company entered into a Consent Decree with the Commission.  Under the terms of the Consent Decree, the hotel company agreed to (1) admit liability for violations of the FCC’s unauthorized transfer rules; (2) develop and implement a compliance plan to prevent further violations of the FCC’s Rules; and (3) pay $504,000 to the United States Treasury.

Trust Issues: “Ridiculously Complicated” Estate Planning Leads to $8,000 Fine

The Media Bureau entered into a Consent Decree with the licensee of three Georgia AM radio stations to resolve an investigation into an unauthorized transfer of control of the station licenses.

Section 310 of the Act and Section 73.3540 of the FCC’s Rules prohibit transfers of control of broadcast licensees from one individual, entity, or group to another without prior FCC approval.  In the case of full-power broadcast stations, parties must file FCC Form 315 applications and receive FCC consent before a transfer of control can be consummated.

The applications ultimately leading to the Consent Decree were filed with the FCC in March 2018, but the licensee’s problems began nearly two decades earlier when the licensee’s sole owner created an irrevocable trust and named two of his sons as co-trustees.  That same day, the FCC approved the licensee’s acquisition of the Georgia stations.  The following day, the licensee’s owner, functioning as de facto trustee of the irrevocable trust (and without his sons’ knowledge), transferred 90% of his equity in the licensee to the trust in the form of non-voting shares.  When the station acquisition was consummated a few days later, the licensee failed to report the existence of the trust to the FCC and did not subsequently report it until earlier this year.

In 2010, the trust was divided into sub-trusts for each of the father’s six children—each of whom was then unaware that they were to serve as trustee of their respective sub-trust.  Shortly before their father’s passing in 2013, the children assumed control of the overall trust (as trustees of the individual sub-trusts).  They converted the trust’s stock in the licensee to voting shares and cancelled all other shares of licensee stock, resulting in a transfer of control of the licensee to the children as trustees of the trust. 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:

Headlines:

  • Louisiana Class A TV Station Settles Online Public File Violations for $50,000 Ahead of License Renewal
  • FCC and Michigan Teenager Enter Into Consent Decree After Misuse of Public Safety Communications System
  • Missouri Telco Agrees to $16,000 Settlement Over Unauthorized Transfers

When Violations Accumulate: Online Public File Violations Lead to $50,000 Settlement with the FCC

The FCC recently entered into a Consent Decree with a Louisiana Class A TV station licensee to resolve an investigation into the station’s failure to comply with its online Public Inspection File obligations.

Section 73.3526 of the FCC’s Rules requires licensees to timely place certain items in their online Public Inspection File relating to a station’s programming and operations.  For example, Section 73.3526(e)(11)(i) requires stations to place an issues/programs list in their Public Inspection File each quarter.  That document must list programs aired during the preceding quarter that are responsive to issues identified by the station as important to its community.  Section 73.3526(e)(11)(ii) requires broadcasters to quarterly certify their compliance with the commercial limits on children’s television programming.

Also on a quarterly basis, Section 73.3526(e)(11)(iii) requires stations to file a Children’s Television Programming Report detailing their efforts to air programming serving the educational and informational needs of children.  Section 73.2526(e)(17) similarly requires Class A TV stations to provide documentation demonstrating continued compliance with the FCC’s eligibility and service requirements for maintaining their Class A status.

When the broadcaster filed its license renewal application in February 2013, it disclosed that it had failed to comply with certain Public File requirements during its most recent license term.  Over the next year and a half, the FCC sent letters to the broadcaster requesting that it (1) upload the missing and late-filed documents and (2) provide an explanation for its failure to comply with the Rules.  The FCC did not receive a response until, in 2015, the broadcaster uploaded the required documents to its online Public File.

The broadcaster subsequently admitted that, since 2005, it had not prepared and would be unable to recreate 16 quarters worth of issues/programs lists.  The broadcaster also stated that it had failed to timely file dozens of other issues/programs lists, Class A certifications, Children’s Television Programming Reports, and children’s programming commercial limits certifications.

Under the terms of the Consent Decree, the broadcaster agreed to (1) admit its violations of the Rules; (2) pay a $50,000 civil penalty to the United States Treasury; and (3) implement and maintain a compliance plan to avoid future violations.  The compliance plan must remain in effect until the FCC finalizes its review of the broadcaster’s next license renewal application.  In return for the station’s timely payment, the FCC will end the investigation and grant the station’s pending license renewal application for a term ending in June 2021.

The next application cycle for broadcast license renewals begins in June 2019, and the FCC’s license renewal application form requires stations to certify that their Public Inspection File has been complete at all times during the license term, in compliance with Section 73.3526 (or Section 73.3527 in the case of noncommercial stations).

As the last radio stations moved their Public Files online in March of this year, missing and late-filed documents now can be easily spotted by the FCC, increasing the likelihood of penalties not just for Public File violations, but for falsely certifying Public File compliance in the license renewal application.  With that in mind, the FCC recently encouraged licensees to address Public File compliance issues as soon as possible to reduce the impact on upcoming license renewals.

Sounds Like Teen Spirit: Traffic Stop Results in Michigan Teenager’s Consent Decree for Misuse of a Public Safety Network

The Enforcement Bureau entered into a Consent Decree with a 19-year old amateur radio licensee who made unauthorized radio transmissions on the Michigan Public Safety Communications System (MPSCS).  The agreement concludes an investigation that began when Michigan State Police discovered a cloned radio device during a routine traffic stop.

Section 301 of the Act prohibits the transmission of radio signals without prior FCC authorization, Section 333 of the Act prohibits willful or malicious interference with licensed radio communications, and Section 90.20 of the Rules establishes the requirements to obtain authorization to use frequencies reserved for public safety uses.  In addition, Sections 90.403, 90.405, and 90.425 of the Rules set operating requirements for using these public safety frequencies. Continue reading →

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Next week, the eyes of the broadcast world shift to Nashville, where the National Association of Broadcasters is holding this year’s Radio Show. Pillsbury will again be kicking off the Show with its annual broadcast finance session at 8:30am on Wednesday, September 21.

This year’s event is titled Pillsbury’s Broadcast Finance Forecast – 2016 Leadership Breakfast, and will feature the expanded format we used for last year’s 25th anniversary broadcast finance session.  It will start with a visual analysis of the 2016 financial performance of the radio industry and its major players by Davis Hebert of Wells Fargo. An advance peek at some of the slides from his presentation drew attention in the radio trade press a few weeks ago, and he has many more where those came from.  The Wells Fargo analysis is always packed with information and economic insight and, having seen the slide deck, I can tell you that this year will be no exception.

Davis’s “State of the Industry” presentation will be followed by our six-member “broadcasters and bankers” panel discussing a wide variety of issues impacting the radio industry and its financing. These include the uptick in radio M&A activity represented by Beasley’s recently-announced acquisition of the Greater Media stations, the obstacles in obtaining financing for radio acquisitions and debt restructuring, and the competitive and other challenges facing radio stations as they seek to ride the economic wave generated by the end of the Great Recession.

We have a particularly well-qualified panel to tackle these tough topics, including Caroline Beasley of Beasley Broadcast Group and Larry Wilson of Alpha Media, representing two of the most active players in radio station acquisitions the past few years, Bill Hendrich of Cox Media, who has a long history of radio operations, and Garret Komjathy (U.S. Bank) and Ray Shu (Capital One), two of the most experienced lenders in the radio world.

I’ll be moderating the panel (no event is perfect), and Media Services Group is again providing the breakfast, ensuring that when the session is over, attendees will leave with not just full minds, but full stomachs.

My partner, Lew Paper, started this event many years ago (26, to be exact), and a lot of people, both at Pillsbury and NAB, work hard to put it together every year. When Lew handed the reins to me a few years ago, I think only he knew how hard it is pull together all the pieces and make it look as easy as he did (turns out he’s sneaky that way).  Fortunately, with this year’s panel, my job has been made easy.  For those that will be in Nashville, we hope to see you there.

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Today, the FCC released a document entitled Fact Sheet: Updating Media Ownership Rules in the Public Interest.  The driver behind the Fact Sheet is the Chairman’s promise to the Third Circuit Court of Appeals that draft multiple ownership rules would be circulated among the commissioners by June 30, with the intent of adopting final rules by the end of 2016.  The Fact Sheet trumpets the accomplishment of that task.  It also makes clear, however, that the path the Chairman has chosen in proposing new rules is to further regulate rather than deregulate broadcasters, and to do so without gathering any additional record evidence to defend that regulatory initiative.  This once again places the Commission on the well-trod path of adopting its desired result and leaving the task of defending it in court to a future FCC.  In the meantime, broadcasters remain in regulatory limbo.

In the Fact Sheet, the Commission explains that the record in the proceeding, which consists of the record of the 2010 quadrennial review as supplemented by comments received in response to the Further Notice of Proposed Rule Making (FNPRM) that commenced the 2014 quadrennial review, is sufficient to conclude that traditional media outlets remain “of vital importance to their local communities.”  Based on this finding, it concludes that continued regulation of the industry is in the public interest.  The Fact Sheet goes on to detail how each of the Commission’s existing media ownership rules will be “tweaked”, but otherwise reaffirmed, save the rules affecting television ownership, which will be tightened.

The Fact Sheet summarizes the proposed rules as follows:

  • The local television ownership rule, which prohibits common ownership of two full-power television stations in a market with fewer than eight independent television owners, and the common ownership of two Top-Four television stations in any market, will be left intact other than to update it to reflect the transition to digital television. However, the new rules will expand the prohibition against ownership of two Top-Four stations in the same market to apply to “network affiliation swaps, to prevent broadcasters from evading” the local ownership limits.
  • The controversial rule that the Commission adopted in 2014 treating TV Joint Sales Agreements (JSAs) as ownership interests (which the Third Circuit recently invalidated) will be reinstated, although existing JSAs will be granted some type of grandfathering relief, consistent with what the Fact Sheet terms Congress’ “guidance” on that issue. The Fact Sheet does not provide any details, nor address whether such grandfathered JSAs will be assignable.
  • TV Shared Services Agreements (SSAs) will now have to be placed in television stations’ online public inspection files. The agreements subject to this provision will be numerous, as SSAs are broadly defined by the Fact Sheet as “[a]ny agreement in which (1) a station provides another station, not commonly owned, with any station-related services, including administrative, technical, sales, and/or programming support; or (2) stations not commonly owned collaborate to provide station-related services, including administrative, technical, sales and/or programming support.”
  • The existing radio ownership rules will remain unchanged except for some “minor clarifications to assist the Media Bureau in processing license assignment/transfer applications.” An example provided of such a clarification is addressing how to define radio markets in Puerto Rico.
  • While the FCC tentatively concluded in the 2014 FNPRM that the Radio/TV Cross-Ownership prohibition is no longer needed for competition or localism purposes, and that the record indicated elimination of the prohibition would not adversely impact ownership diversity, the Fact Sheet, in keeping with its pro-regulation theme, reverses course and states the rule will be retained unchanged except for an update to reflect the transition to digital television.
  • Similarly, while the FCC suggested in the 2014 FNPRM that radio should be eliminated from the Newspaper/Broadcast Cross-Ownership prohibition, the Fact Sheet indicates that the current rule will be retained, but updated for digital television, and will now incorporate a failing or failed station/newspaper waiver standard.
  • The Dual Network Rule, which prohibits common ownership of ABC, CBS, NBC or Fox, will remain unchanged.
  • The Eligible Entity Standard, which determines which entities are eligible for favored regulatory treatment under the multiple ownership rules, was also affected by the recent Third Circuit decision.  The court ordered the FCC to collaborate with advocacy groups on a timeline to adopt a new standard and urged the Commission to engage with those groups on the substance of that standard as well.  The Fact Sheet indicates that the FCC will simply reinstate the prior revenue-based standard, rejecting the advocacy groups’ proposals to use a race or gender-based standard.

While today’s news is hardly surprising, it is disappointing for those waiting for the FCC to address (or even acknowledge) competitive realities that weren’t dreamed of when the FCC completed the 2006 quadrennial review.  For the most part, the Fact Sheet tracks the rules proposed in the even-further-out-of-date-now-than-it-was-then March 2014 FNPRM.  To the extent it varies from the FNPRM, it does so by rejecting any deregulatory proposals, increasing the regulatory burden on broadcasters beyond what was contemplated in 2014.

It wouldn’t be the first time the FCC has had to proceed on an out-of-date record, this time under pressure from the Third Circuit to do something (anything?) before the year is out.  However, expanding TV regulations beyond what the FCC felt could be justified a decade ago will take more than wishful thinking to defend in court, and the decision to go down that path without seeking further comments on the specific new proposals means that the regulatory uncertainty for broadcasters will continue until the courts have had a chance to weigh in.  It is therefore becoming increasingly clear that it is judicial review, and not the FCC’s quadrennial review, that will determine the rules under which 21st Century broadcasters will operate.

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We tend to focus on regulatory and legislative issues here at CommLawCenter, as that is the common ground for many of our media clients.  However, the truth is that—just like our clients—we spend more time working on business issues than regulatory ones.  Whether it’s mergers and acquisitions informed by regulatory rules, program negotiations, or novel business arrangements like channel-sharing agreements, the transactions are driven by business needs, regulatory needs, or both.

Continue reading →

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It sounds like the setup for a joke: a broadcaster, a broker, a banker, a broadcast lawyer, and a backer all walk into a bar. There is no punch line, however, as that will happen innumerable times over the next week, and that just means it’s time for this year’s NAB Show!

What started as a simple gathering of broadcasters and broadcast equipment vendors has grown to mammoth proportions, now encompassing not just broadcasting, but every aspect of content and content delivery, as well as mountains of technology for creating and distributing that content. Billed as “the world’s largest media and entertainment event” with around 100,000 attendees, it is also one of the largest conventions in Las Vegas each year, nearly doubling the attendance (I kid you not) of February’s “World of Concrete” convention.

As it has grown, the NAB Show has become a magnet for those of us that work in and around the industry, as you can accomplish in an afternoon what would otherwise take dozens of plane trips. As a result, lots of transactions are launched or sealed in the confines of the hotels surrounding the Convention Center. While that may not be different from any other week in Vegas, these deals will often involve broadcast stations and program content.

The Great Recession battered all conventions, including the NAB Show, but pre-Show levels of activity seem to indicate that this year’s Show will be a return to form, bringing back people that may have skipped the past few years. Perhaps more important is an accompanying shift in attitude. It seems attendees are back to looking for ways to expand their businesses rather than just survive until economic conditions improve.

I will be there along with the rest of the Pillsbury contingent going this year—Lew Paper, Miles Mason, Lauren Lynch Flick, and our newest addition, David Burns. There will be much to see, and I know the other lawyers on Pillsbury’s Unmanned Aircraft Systems team are jealous, as the number of drones on display in the Convention Center will likely exceed that of both the CIA and the Air Force (minus the Hellfire missiles).

So we look forward to seeing you there, and if it isn’t everything you are hoping for, don’t worry; there’s another World of Concrete expo coming in 2016!

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