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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 $116,156,250 Robocalling Fine for Over 20,000 Calls to Toll Free Numbers
  • Illinois Class A TV Station Pays Nearly Six-Figure Penalty for FCC Violations
  • FCC Proceeds with $4,000 Civil Penalty Against Alaska Broadcaster Following Investigation

Robocaller Fined Over $116 Million for TCPA Violations

The FCC issued a Forfeiture Order imposing a $116,156,250 penalty against one individual and three related companies (the Companies) for making 9,763,599 illegal robocalls to toll free numbers without the called party’s prior express consent.  The robocalls claimed to be a “Public Service Announcement” warning toll free customers about the dangers of illegal robocalls, and would repeat for up to ten hours unless the receiving party terminated the call.  This is one of the largest Telephone Consumer Protection Act (TCPA) robocall fines ever issued by the FCC.

As we discussed here, in July 2022 the FCC adopted a Notice of Apparent Liability for Forfeiture (NALF) in which it proposed a $116 million penalty.  The individual contested it, stating that he struggled to find anything in the NALF that is accurate, but offering no counterarguments to the FCC’s findings.  The individual asserted that he was not the party the FCC was after, that the calls were permissible because they were made in good faith, that he did not violate the TCPA “with intent” because he was purportedly advised by a lawyer that the robocalling operation did not violate the TCPA, and that the FCC should have issued a warning prior to releasing the NALF.

When the FCC assesses fines, it considers 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.”  After fully considering the individual’s responses to the NALF, the FCC affirmed the fine, stating that it was in accordance with Section 503(b) of the Communications Act of 1934 (the Act), Section 1.80 of the Commission’s Rules, and the FCC’s Forfeiture Policy Statement (Forfeiture Policy).

The TCPA, Section 227(b)(1)(A)(iii) of the Act, and Section 64.1200(a)(1)(iii) of the FCC’s Rules prohibit making prerecorded voice calls to numbers for which the called party is charged for the call (including toll free numbers) unless there is an emergency, or the recipient has given prior express consent to receive the call.  The FCC found that the Companies made 9,763,599 illegal robocalls to toll free numbers, and the FCC’s Enforcement Bureau (the Bureau) staff verified at least 20,650 of those calls were violations of the TCPA.

The FCC dismissed the individual’s ‘mistaken identity’ argument as meritless, explaining that its investigation identified the Companies as the source of the 20,650 verified robocalls.  In October 2020, an industry group tasked by the Bureau with tracing illegal robocalls alerted the Bureau that a caller was apparently targeting toll free services with robocalls.  The calls were traced to a competitive local exchange carrier (CLEC) which identified the sources of the calls as two of the Companies.  The CLEC supplied records showing that the individual signed a service agreement with the CLEC in July 2020 for several thousand direct inward dial telephone numbers and VoIP service.  Additionally, call records produced by the CLEC showed millions of calls to toll free numbers originating from the Companies’ account between January and March 2021.  The CLEC paid one of the Companies $0.0001 (one ten thousandth of a cent) for each minute of outbound calls that it made to toll free numbers.  The individual then used the revenue from the robocalls to fund telephone denial of service (TDoS) attacks against other companies. The individual offered no evidence to refute these findings, and the FCC concluded that the Companies made the calls identified in the NALF.

The FCC also dismissed the argument that the calls were permissible because the toll free customers receiving them were not charged for calls.  The FCC reviewed a number of the toll free service providers’ publicly available billing practices, and found that the providers do indeed charge their toll free customers on a per call basis or in bundles of minutes.  Thus, the robocalling scheme resulted in actual financial losses to the toll free customers receiving the calls.  Finally, the FCC explained that there is no “good faith” or “public safety doctrine” exception in the TCPA that would permit the calls, rejecting the individual’s claim that he “acted in good faith.”

Section 227(b)(4)(E) of the Act provides that the statute of limitations is four years (rather than one year) if the violation was committed “with the intent to cause such violation.”  In the NALF, the FCC stated that the Companies made prerecorded calls with the intent to violate the TCPA because the Companies (1) targeted protected toll free numbers; and (2) had no reasonable basis to believe they had consent for the calls.  The FCC noted that the individual’s response refuted neither of those findings, as he did not contest that he targeted toll free numbers, and merely argued that reliance on legal advice constituted a defense against liability.  The FCC disagreed, and cited the Companies’ complex calling scheme as further evidence of intentionality.

Despite the individual’s claim that he was entitled to a warning, the Commission noted that the TRACED Act allows the FCC to issue a Notice of Apparent Liability for violations of Section 227(b) of the Act without first issuing a warning citation.  The FCC affirmed its decision in the NALF, concluding that the $116,156,250 fine was warranted due to the Companies’ egregious conduct.  After considering the relevant factors and its Forfeiture Policy, the FCC found that the proposed base fine and upward adjustments applied in the NALF were consistent with the FCC’s rules.  The Commission therefore found the individual and Companies jointly and severally liable, and the $116,156,250 fine must be paid within 30 calendar days after the release of the Forfeiture Order.

Rule Violations by Illinois Class A TV Station Result in Consent Decree and $97,000 Penalty

In the course of processing the license renewal application of an Illinois Class A TV station, the FCC’s Media Bureau determined that (1) the license renewal application was filed nearly a month after the filing deadline; (2) the applicant certified that there had been no violations by the licensee of the Act or the rules or regulations of the FCC during the preceding license term; and (3) the applicant certified that all required documentation had been uploaded to the station’s Public Inspection File when required.  According to the Media Bureau, however, the licensee failed to timely upload 28 issues and programs lists, all of its records concerning commercial limits compliance in children’s programming, 23 children’s television programming reports, and copies of documents related to a 2014 forfeiture order issued to the licensee.

Section 73.3526 of the FCC’s Rules lists the materials a Class A TV station must upload to its Public Inspection File and the deadlines for making those submissions.  Under Sections 73.3514(a) and 1.65(a) of the FCC’s Rules, applications filed with the FCC must include all information called for by the application form, and the applicant must ensure the continuing accuracy and completeness of its application by making any necessary amendments within 30 days of a response becoming inaccurate.

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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:

  • LPFM Station Fined $15,000 for Airing Commercial Advertisements
  • FCC Issues Notices to the Landowners of Sixteen Pirate Radio Sites
  • Telecommunications Carrier Pays $227,200 To Resolve 911 Outage Investigation

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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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Broadband Providers Required to Display Point of Sale Labels

On November 17, 2022, the Federal Communications Commission (FCC) released a Report and Order (Order) adopting rules requiring broadband internet service providers (ISPs or providers) to prominently display labels disclosing information about broadband prices, rates, data allowances and broadband speeds. The FCC has not yet announced the effective date for ISPs to comply. The Order also includes a Further Notice of Proposed Rulemaking (FNPRM) in which the FCC seeks comment on the format and content of the label, as well as potential future changes. The comment deadline has been extended to February 16, 2023; reply comments are due by March 16, 2023.

Background

In November 2021, President Biden signed the Infrastructure Investment and Jobs Act (Infrastructure Act) into law. Among other things, the Infrastructure Act directed the FCC to create regulations requiring the display of broadband consumer labels that disclose information regarding broadband internet service plans. The label must also “include information regarding whether the offered price is an introductory rate and, if so, the price the consumer will be required to pay following the introductory period.” The FCC was also required to hold public hearings to evaluate (1) how consumers evaluate broadband internet access service plans; and (2) whether disclosures regarding broadband service plans are available and effective.

In response, the FCC released a Notice of Proposed Rulemaking (NPRM) in January 2022 in which it proposed requiring ISPs to disclose information to consumers by displaying labels at the point of sale. The FCC recommended basing the labels on the voluntary labels it previously approved in 2016. In the NPRM, the FCC asked whether broadband services, and consumers’ use of such services, have changed enough to require modifications to the labels.

Consistent with the Infrastructure Act’s mandate, the FCC held public hearings to gather feedback on the content, format and location of the labels. The FCC asked whether the label should vary depending on the consumer’s interaction with the provider, e.g., in person at a store, on the phone or online. Feedback from dozens of comments showed that consumers can be confused by the pricing, terminology and complexity of internet service plans, and most commenters asked the FCC to update the 2016 labels to better help consumers comparison shop for broadband services.

The Label

The FCC’s Order adopted a new, single version of the label (for both fixed and mobile broadband service offerings) and requires providers to display, at the point of sale, a label containing information regarding the provider’s service offerings, prices, introductory rates, data allowances, broadband speeds and whether the provider participates in the FCC’s Affordable Connectivity Program (ACP). The Order defines the format in which the label must appear and the display location. It must also be accessible for people with disabilities and should appear in machine-readable format.

Below is an image of the label template from the FCC’s Order and details outlining the content, formatting and display location requirements:

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The FCC’s Public Safety & Homeland Security Bureau has announced that technical updates to the EAS Test Reporting System (“ETRS”) have been completed and the ETRS is open and available to accept filings of Form One by EAS participants. Under the FCC’s EAS Rules, EAS participants must update their identifying information annually via a Form One filing. This is typically done in connection with a nationwide EAS test. However, the Federal Emergency Management Agency did not conduct such a test in 2022, and has not yet announced a 2023 nationwide test. Therefore, the Form One must be submitted independently of a test to comply with the annual updating requirement.

All broadcasters are generally required to submit a Form One, including low power FM stations, Class D noncommercial educational FM stations, and stations that are silent pursuant to a grant of Special Temporary Authority. Certain broadcasters are exempt from filing a Form One, including:

  • TV translator stations;
  • FM booster stations;
  • FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations; and
  • Stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point). Note that the hub station (or common studio or control point) must file a Form One.

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Full power commercial and noncommercial radio stations and LPFM stations, licensed to communities in Iowa and Missouri, and full power TV and Class A TV stations, as well as LPTV stations capable of local origination, licensed to communities in Florida, Puerto Rico, and the Virgin Islands, must file their license renewal applications by October 1, 2020.

October 1, 2020 is the license renewal application filing deadline for commercial and noncommercial radio and TV broadcast stations licensed to communities in the following states:

Full Power AM and FM, Low Power FM, and FM Translator Stations:
Iowa and Missouri

Full Power TV, Class A, LPTV, and TV Translator Stations:
Florida, Puerto Rico, and the Virgin Islands

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations.  Radio and TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation.  This includes familiarizing themselves with not only the filing deadline itself, but with the requirements for this important filing, including recent changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions.  The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct.  Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification.  The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.”  An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term.  If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term.  Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Stations can find more detail on the FCC’s license renewal application process in our most recent Advisory on the subject. Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations, licensed to communities in Illinois and Wisconsin, and full power TV and Class A TV stations, as well as LPTV stations capable of local origination, licensed to communities in North Carolina and South Carolina, must file their license renewal applications by August 3, 2020.

August 3, 2020 is the license renewal application filing deadline for commercial and noncommercial radio and TV broadcast stations licensed to communities in the following states:

Full Power AM and FM, Low Power FM, and FM Translator Stations:
Illinois and Wisconsin

Full Power TV, Class A, LPTV, and TV Translator Stations:
North Carolina and South Carolina

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations.  Radio and TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation.  This includes familiarizing themselves with not only the filing deadline itself, but with the requirements for this important filing, including recent changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions.  The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct.  Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification.  The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.”  An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term.  If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term.  Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Stations can find more detail on the FCC’s license renewal application process in our most recent Advisory on the subject.

Certifications for Full Power and Class A TV Stations Only

While there is significant overlap between the certifications included in both the radio and TV applications, an important portion of the license renewal application specific to full power and Class A TV stations concerns certifications regarding the station’s children’s television programming obligations.

The Children’s Television Act of 1990 provides that commercial full power and Class A TV stations must: (1) limit the amount of commercial matter aired during programming designed for children ages 12 and under, and (2) air programming responsive to the educational and informational needs of children ages 16 and under.  While stations have been required to submit Children’s Television Programming Reports and commercial limits certifications demonstrating their compliance with these requirements on a quarterly or annual basis,[1] the license renewal application requires applicants to further certify that these obligations have been satisfied and documented as required over the entire license term and to explain any instances of noncompliance.  Stations can find additional information on the children’s television programming and reporting obligations in our most recent Children’s Television Programming Advisory.

Although noncommercial TV stations are not subject to commercial limitations or required to file Children’s Television Programming Reports, such stations are required to air programming responsive to children’s educational and informational needs.  In preparation for license renewal, such stations should therefore ensure they have documentation demonstrating compliance with this obligation in the event their license renewal is challenged.

For Class A television stations, in addition to certifications related to children’s television programming, the application requires certification of compliance with the Class A eligibility and service requirements under Section 73.6001 of the FCC’s Rules.  Specifically, the Rules require such stations to broadcast a minimum of 18 hours a day and average at least three hours per week of locally produced programming each quarter to maintain their Class A status.  Applicants must certify that they have and will continue to meet these requirements.

Post-Filing License Renewal Announcements

In prior license renewal cycles, stations were required to give public notice of a license renewal application both before and after the filing of that application.  For the current cycle, the FCC eliminated the pre-filing public notices and modified the procedures for post-filing notices. These changes modify the timing and number of on-air announcements required and revise the text of the announcements themselves.  While these changes are subject to Office of Management and Budget (“OMB”) approval and therefore have not yet gone into effect, such approval could be received at any time.  Accordingly, stations should continue to follow the prior rule for the moment, but remain alert for an announcement that the new rules have gone into effect.

As such, full power radio and LPFM stations, and full power TV and Class A TV, as well as LPTV stations capable of local origination, must broadcast six post-filing license renewal announcements.  These announcements must air once per day on August 1,[2] August 16, September 1, September 16, October 1, and October 16, 2020.

For full power radio and LPFM stations, at least three of these announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.  At least one announcement must also air in each of the following time periods: between 9:00 am and noon, between noon and 4:00 pm, and between 7:00 pm and midnight.  For commercial stations not operating between either 7:00 am and 9:00 am or 4:00 pm and 6:00 pm, at least three of these announcements must air during the first two hours of operation.

For full power TV and Class A TV stations, at least three of these announcements must air between 6:00 pm and 11:00 pm (Eastern/Pacific) or 5:00 pm and 10:00 pm (Central/Mountain).  At least one announcement must also air in each of the following local time periods: between 9:00 am and 1:00 pm, between 1:00 pm and 5:00 pm, and between 5:00 pm and 7:00 pm.  LPTV stations capable of local origination must broadcast these announcements at these times or as close to the above schedule as their operating schedule permits.

The text of the post-filing announcement is as follows:

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until December 1, 2020.  [Stations that have not received a renewal grant since the filing of their previous license renewal application should modify the foregoing to read: “(Call letters) is licensed by the Federal Communications Commission to serve the public interest as a public trustee.”]

Our license will expire on December 1, 2020.  We have filed an application for renewal with the FCC.

A copy of this application is available for public inspection at www.fcc.gov.  It contains information concerning this station’s performance during the last eight years [or such other period of time covered by the application, if the station’s license term was other than a standard eight-year term].

Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the FCC by November 1, 2020.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station] or may be obtained from the FCC, Washington, DC 20554, www.fcc.gov.

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On April 2, 2020, the FCC established the COVID-19 Telehealth Program (Program), which will guide the disbursement of $200 million to health care providers for connected care services to their patients. We published our summary of the Program on April 3, 2020, and followed up with a discussion of the FCC’s application procedures on April 9, 2020, and a review of the first wave of proposals granted on April 16, 2020.

With the fourth tranche of proposals approved on April 29, 2020, the FCC has now granted 30 funding proposals in 16 states. The FCC has pledged to review and grant eligible proposals on a rolling basis until either the FCC runs out of funds or the national pandemic ends.

As discussed in our prior alerts, the CARES Act of 2020 provided $200 million for the FCC to distribute to eligible parties with proposals to provide connected care services in response to the COVID-19 pandemic. The funds could be used for (i) telecommunications services and broadband connectivity services, (ii) data and information services, and (iii) internet-connected devices and equipment.

While the FCC has not released for public review most of the approved proposals, based on the public notices that have been released, it is clear that the FCC is willing to provide funding for proposals to implement connected care services and devices. Most of the approved proposals requested funding for a combination of:

  • Remote patient monitoring;
  • Portable equipment for screening at remote centers and nursing homes;
  • Video services including patient visits; and
  • Connected devices (tablets) for staff and high-risk patients.

On May 1, 2020, the FCC announced that, as of May 3, 2020, all applicants must submit their applications through the online portal.

Recently, there has been a push by groups to expand the pool of eligible entities. The American Hospital Association requested that the FCC reconsider its decision to only provide funding for nonprofit applicants. Other organizations like HCA Healthcare and the American Dental Association supported the expansion of eligible entities, arguing that the COVID-19 pandemic has affected all health care providers (including dentists) and that the CARES Act did not require the nonprofit limitation. The U.S. Chamber of Commerce also supported the expansion of funding opportunities, noting that 20 percent of the nation’s hospitals are prevented from filing proposals for COVID-19 funds.

It is unclear whether the FCC will adjust its eligibility standards to include for-profit hospitals and medical practices, especially in light of the availability of funds that have yet to be allocated. We will continue to monitor the program’s progress and report any changes in the FCC’s rules.

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The Federal Communications Commission released a Public Notice reminding broadcast licensees that the filing window for Broadcast Biennial Ownership Reports (FCC Form 323 and 323-E) will open on November 1, 2019.  All licensees of commercial and noncommercial AM, FM, full-power TV, Class A Television and Low Power Television stations must submit their ownership reports by January 31, 2020.

We previously reported that the FCC had modified the dates for the filing window.  At that time, the FCC explained that there would be “additional technical improvements” that required the FCC to delay the opening of the filing window.  Now, we know more about those improvements.

In particular, the FCC modified its filing system to permit parties to validate and resubmit previously-filed ownership reports, so long as those reports were submitted through the current filing system.  Further, filers will be able to copy and then make changes to information included in previously-submitted reports.  The FCC also created a new search page dedicated solely to reviewing submitted ownership reports.

As a reminder, biennial ownership reports submitted during this filing window must reflect the ownership interests associated with the facility as of October 1, 2019, even if an assignment or transfer of control was consummated after October 1, 2019.

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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 special issue takes a look at the government’s renewed efforts to scuttle Pirate Radio operations.

Since the government first began regulating the airwaves, it has struggled to eliminate unlicensed radio operators.  In its latest effort, the FCC is taking a hardline approach to this illegal behavior and is partnering with local and federal law enforcement, as well as Congress, to accomplish the task. While Chairman Pai has made clear that pirate radio prosecutions are once again a priority at the FCC, it is Commissioner O’Rielly who has been the most vocal on this front, calling for more aggressive action against unauthorized operators.  The continued prevalence of pirate radio operations has been chalked up to several factors, including insufficient enforcement mechanisms and resources, the procedural difficulties in tracking down unregulated parties, and lackadaisical enforcement until recently. Regulators and broadcast industry leaders have also expressed frustration with the whack-a-mole nature of pirate radio enforcement—shutting down one operation only to have another pop up nearby.

Real Consequences

Congress has also begun to take an interest in the issue, with the House Subcommittee on Communications and Technology holding a hearing last week discussing the subject.  One of the witnesses was David Donovan, president of the New York State Broadcasters Association.  In his testimony, he listed numerous risks that unlicensed operations present to the public, including failure to adhere to Emergency Alert System rules and RF emissions limits (which can be critically important where a pirate’s antenna is mounted on a residential structure).  Pirate operators also create interference to other communications systems, including those used for public safety operations, while causing financial harm to legitimate broadcast stations by diverting advertising revenue and listeners from authorized stations.

Despite these harms, pirate operations continue to spread.  This past month, the FCC issued a Notice of Unlicensed Operation (“NOUO”) to a New Jersey individual after the FCC received complaints from the Federal Aviation Administration (“FAA”) that an FM station’s broadcasts were causing harmful interference to aeronautical communications operating on air-to-ground frequencies.  FCC agents tracked the errant transmissions to the individual’s residence and confirmed that he was transmitting without authorization.

Days later, the FCC issued an NOUO to another New Jersey resident who was transmitting unlicensed broadcasts from a neighborhood near Newark Airport.  Once again, FCC agents were able to determine the source of the signal and found that the property owner was not licensed to broadcast on the frequency in question.

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