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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 Six Major Radio Groups Over Political File Violations
• Texas Radio Stations Face Proposed Fines for Contest Rule Violations
• $15,000 Fine Proposed for LPFM Station Airing Commercial Ads

The Six Decrees of Compliance: Major Radio Broadcasters Settle with FCC Over Political File Violations

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Section 315(e)(1) of the Communications Act (“Act”) requires broadcast stations to retain records of requests to purchase political advertising time made (1) by or on behalf of a legally qualified candidate for public office; or (2) by third parties whose ads communicate a message relating to “a political matter of national importance.”  Under the Act and Section 73.1943 of the FCC’s Rules, stations must upload such records to their online political files “as soon as possible”, which means “immediately absent unusual circumstances.”  According to the FCC, maintaining a complete and current political file is critical, in part, because the information affects opposing candidates’ right to an equal opportunity to purchase airtime.  The FCC has also stated that political file disclosures promote the First Amendment goal of fostering an informed electorate capable of holding political interests accountable.

The six Consent Decrees are nearly identical, and concern the failure of the broadcasters’ respective stations to timely upload requests to purchase political advertising time.  Earlier this year, the broadcasters had voluntarily disclosed to the Commission that many of their stations had not timely uploaded the required documents.  One case, however, was prompted by a separate investigation involving an allegation that three New York stations had violated the “lowest unit charge” requirement, which prohibits stations from charging a candidate more than they charge their most favored advertiser for a spot of the same length, class, and daypart during certain periods before an election.  The investigation included a review of the stations’ political files and revealed wider recordkeeping issues.

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During the spring of 2020, the broadcasters had voluntarily adopted short-term compliance plans, which the FCC noted led to improvements in the stations’ compliance with the political file obligations during that time.  Citing this cooperation and the voluntary disclosures, as well as the significant stress on the radio industry brought on by the COVID-19 pandemic, the Commission ended its investigation by entering into settlements with the parties, declining to impose fines for these violations.

Under the terms of the settlements, the broadcasters agreed to implement additional measures, including: (1) a more comprehensive compliance plan, (2) periodic compliance reports to the Commission, and (3) cooperation with the National Association of Broadcasters and state broadcasters associations to encourage and promote education and training for all radio broadcasters on political file obligations.

Since late last year, the FCC has issued a series of decisions and clarifications involving stations’ obligations under the political broadcasting rules.  As FCC guidance in this area continues to evolve, stations are advised to work with counsel to ensure compliance with these complicated rules, particularly as political ad buying picks up in the course of this year’s election cycle.  Additional information on the recordkeeping requirements and other political broadcasting rules is included in our Advisory on the subject.

No-Win Situation: Pair of Texas Radio Stations Face Proposed Fines Over Contest Rule Violations

The FCC’s Enforcement Bureau recently issued Notices of Apparent Liability (“NAL”) against the licensees of an El Paso and a Houston-area FM station, each proposing fines for violations of the Commission’s rules governing on-air contests.

The FCC regulates on-air contests conducted by broadcasters to protect against practices that may deceive or mislead the public.  Section 73.1216 of the FCC’s Rules requires a licensee to “fully and accurately disclose the material terms of the contest” and the contest must be conducted consistent with those terms (“Contest Rule”).

The FCC’s investigation into the El Paso station’s contest began in March 2017, when it received a complaint alleging that the station failed to award concert tickets to the winner of an on-air contest that occurred at the end of the prior year.  The contest winner claimed that after being crowned the winning caller, they were informed by the station that the tickets were not yet available, and despite repeated requests over the next several months leading up to the concert, the station never awarded the prize.  The day after the concert, the caller filed their complaint.

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The complaint against the Houston-area station similarly alleged that the station failed to timely award an advertised prize, this time in the form of an all-expenses-paid vacation, to the winner of a 2016 fantasy sports contest.  In October 2018, the Enforcement Bureau issued an LOI to the station seeking information and documents related to the contest.  According to the station, the resort operator withdrew its commitment and the station employee overseeing the contest failed to inform station management or otherwise take action to make good on the prize.  Though the contestant eventually accepted a $3,600 cash replacement prize in return for withdrawing the FCC complaint, the Commission determined that this occurred only after the station received the LOI, and did not warrant ending the investigation.

Consistent with Commission precedent, the FCC found that the remedial measures taken did not negate the rule violation, as the station failed to promptly respond to the contestant’s inquiries about the prize, allowing the issue to remain unresolved for two years.  As a result, the FCC proposed an upward adjustment to the $4,000 base fine, resulting in a total proposed fine of $5,200.

Ads on Colorado Noncommercial LPFM Station Lead to Proposed $15,000 Fine

In an NAL issued this month, the FCC’s Enforcement Bureau proposed a $15,000 fine against the licensee of a Colorado low power FM (“LPFM”) station for violating the underwriting laws, which prohibit commercial advertisements on stations with noncommercial authorizations.

While noncommercial stations may broadcast announcements acknowledging their financial supporters, Section 399B of the Communications Act and Section 73.503(d) of the FCC’s Rules prohibit such stations from airing paid advertisements on behalf of for-profit entities.  The FCC has explained that these rules are meant to preserve a locally focused, commercial-free service, and in turn, these stations benefit from access to spectrum designated for their service and fewer regulatory requirements.  Although the Commission permits noncommercial licensees to exercise reasonable “good faith” judgment in determining whether an announcement complies with the Commission’s underwriting requirements, it has also established categorical prohibitions on certain forms of announcements.

Since 2015, the FCC had received complaints from local listeners alleging that the licensee was airing advertisements on the station.  After reviewing these complaints, local FCC field agents began monitoring the station, and recorded what sounded like commercial announcements for 14 different sponsors.  The FCC followed up with an LOI, to which the licensee responded.  The response acknowledged that more than 1,600 advertisements were aired on the station over a three-month period in late 2018, and that the licensee had entered into contracts to air paid announcements for over a dozen for-profit entities.

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The FCC’s forfeiture guidelines establish a base fine of $2,000 for underwriting violations, which may be adjusted upward based on the specific facts of the case.  In light of the protracted period of time over which the violations occurred, and the number of announcements at issue, the FCC proposed a $15,000 fine.

A PDF version of this article can be found at FCC Enforcement Monitor ~ July 2020.

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• Time Off the Air Leads to License Termination for North Dakota Radio Station
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• Virginia Radio Station Faces Proposed $7,000 Fine and Reduced License Term Over Failure to Timely File its Renewal Application

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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 →

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

Continue reading →

With much of the United States under COVID-19 stay-at-home directives, and frost warnings still in the forecast, it’s as good a time as any to review the upcoming cable and satellite carriage election process for television broadcasters. The FCC recently completed an overhaul of its rules governing how eligible television broadcasters provide notice of their carriage elections to cable and satellite companies. The first deadline under those new procedures is July 31, 2020, when broadcasters must update their online contact information at the FCC as a precursor to implementing the FCC’s new paperless MVPD carriage notification procedures.

Continue reading →

This afternoon, the FCC released a brief Order looking toward the day when life in the U.S. hopefully returns to normal, and broadcast stations begin rehiring furloughed workers.

In the two-page Order, the FCC waived the requirement in its EEO Rule that broadcasters and MVPDs engage in “broad outreach” when filling each full-time job position.  Making clear that this relief is restricted to the circumstances of COVID-19, the FCC limited application of the waiver to the rehiring of station employees that were laid off due to the pandemic, and only where the employee is then rehired within nine months of being laid off.

The FCC reasoned that:

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While the FCC has long recognized a narrow exception to its broad recruitment requirement where a hire occurs under “exigent circumstances” (and it’s hard to imagine more exigent circumstances than a station bringing its employees back on board after a pandemic), today’s waiver avoids the need for stations to have to prove exigent circumstances existed when facing an EEO audit or other EEO review down the road.

The good news is that today’s waiver gives broadcasters and MVPDs one less thing to worry about during the pandemic.  The bad news is that it still leaves about 999,999 others for them to address in the coming months.

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:

• Radio Skit Gone Wrong Draws $20,000 Proposed Fine for False Emergency Alert
• 手机怎么浏览外国网站Operating on Unauthorized Frequencies Generate Hefty Proposed Fine
• FCC Issues Citation to Convenience Store Over Errant Surveillance Equipment

No Laughing Matter: Emergency Alert Parody Leads to Proposed $20,000 Fine Against New York FM Station

The FCC recently issued a Notice of Apparent Liability for Forfeiture proposing a $20,000 fine against a New York radio station for airing a false emergency alert.  As we have written in the past, the FCC strictly enforces its rules against airing false Emergency Alert System (“EAS”) tones, arguing that false alerts undermine public confidence in the alert system.

The EAS system is a public warning system utilizing broadcast stations, cable systems, satellite providers, and other video programming systems to permit the President to rapidly communicate with the public during an emergency.  Federal, state and local authorities also use the EAS system to deliver localized emergency information.  The FCC’s rules expressly forbid airing EAS codes, the EAS Attention Signal (the jarring long beep), or a recording or simulation of these tones in any circumstance other than in an actual emergency, during an authorized test, or as part of an authorized public service announcement.  Besides desensitizing the public to alerts in cases of real emergencies, the data embedded in the codes can trigger false activations of emergency alerts on other stations.

On October 3, 2018, FEMA, in coordination with the FCC, conducted a nationwide test of the EAS and Wireless Emergency Alert (“WEA”) systems.  Shortly afterwards, the FCC received a complaint that a New York FM station transmitted an EAS tone during an on-air skit lampooning the scheduled test.  The FCC issued a Letter of Inquiry to the station, demanding a recording of the program and sworn statements regarding whether the tone was, in fact, improperly transmitted.

In response, the station confirmed that it aired the EAS Attention Signal as part of a skit produced by a station employee.  When reviewing the skit before airing, the station spotted an improper EAS header code in it, and told the employee to delete it.  However, the employee merely replaced the header code with a one-second portion of the EAS Attention Signal.  The station then approved and aired the program.

In response, the FCC found that the segment violated its rules, noting that the “use of the Attention Signal in a parody of the first nationwide test of the EAS and WEA is specifically the type of behavior section 11.45 seeks to prevent.”  The FCC also noted that the brief duration of the tone aired was not a defense to a finding of violation.

As a result, the FCC proposed a $20,000 fine.  Although the base fine for airing a false EAS alert is $8,000, the FCC concluded that the circumstances surrounding this case warranted an upward adjustment.  In particular, the FCC stressed the gravity of the situation, noting that the broadcaster aired the false alert on one of the highest-ranking stations in New York City, which itself is the nation’s largest radio market.  Given these facts, the FCC proposed a $20,000 fine.  The station has thirty days to either pay the fine, or present evidence to the FCC justifying reduction or cancellation of it.

A Broad Spectrum of Violations Creates Problems for Wireless Microphone Retailer

In a recently-issued Notice of Apparent Liability for Forfeiture, the FCC proposed a $685,338 fine against a seller of wireless microphones, asserting that the retailer advertised 32 models of noncompliant wireless microphones.

The FCC allocates radiofrequency spectrum for specific uses, with particular attention given to the potential for harmful interference to other users.  The FCC has made certain bands available for use by wireless microphones, with technical rules varying depending on the particular band used.  For manufacturers and retailers, this means their devices must be designed to operate only within the permitted frequency bands.

Under Section 302(b) of the Communications Act, “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to [FCC Rules]”.  Section 74.851(f) of the FCC’s Rules requires devices that emit radiofrequency energy (like wireless microphones) to be approved in accordance with the FCC’s certification procedures before being marketed and sold in the United States.  Such devices are also subject to identification and labeling requirements. Continue reading →

On March 31, 2020, the FCC adopted a Report and Order to implement the COVID-19 Telehealth Program.  The Program was established in the CARES Act, and the FCC was appropriated $200 million to provide to eligible medical facilities to provide telehealth services to their patients.

A more detailed discussion of the FCC’s Report and Order creating the Program, and a discussion of the procedures to apply for funding, can be found here and here.  The Program’s intended purpose is to provide emergency funding for expenses arising from the COVID-19 pandemic that fall outside of the normal procurement process.  Under the new program, non-profit hospitals, teaching hospitals, rural health clinics and skilled nursing facilities can apply for funds from the FCC to be used for voice and internet service, remote patient monitoring platforms, and Internet-connected devices and equipment.

The window for submitting applications opened on Monday, April 13th, and the FCC announced today that the first wave of applications had been granted.  Below is a summary of each approved funding proposal:

• Grady Memorial Hospital in Atlanta, Georgia, was awarded $727,747 to implement telehealth video visits, virtual check-ins, remote patient monitoring, and e-visits to patient’s hospital rooms, which it said would enable it to continue to provide high quality patient care, keep patients safe in their homes, and reduce the use of personal protective equipment during the COVID-19 pandemic.
• Hudson River HealthCare, Inc., in Peekskill, New York, was awarded $753,367 for telehealth services to expand its COVID-19 testing and treatment programs serving a large volume of low-income, uninsured, and/or underinsured patients throughout southeastern New York State, encompassing the Hudson Valley, New York City, and Long Island.
• Mount Sinai Health System, in New York City, was awarded $312,500 to provide telehealth devices and services to geriatric and palliative patients who are at high risk for COVID-19 throughout New York City’s five boroughs.
• Neighborhood Health Care, Inc., in Cleveland, Ohio, was awarded $244,282 to provide telemedicine, connected devices, and remote patient monitoring to patients and families impacted by COVID-19 in Cleveland’s West Side neighborhoods, targeting low-income patients with chronic conditions.
• Ochsner Clinic Foundation, in New Orleans, Louisiana, was awarded $1,000,000 for telehealth services and devices to serve high-risk patients and vulnerable populations in Louisiana and Mississippi, to treat COVID-19 patients, and to slow the spread of the virus to others.
• UPMC Children’s Hospital of Pittsburgh was awarded $192,500 to provide telehealth services to children who have received organ transplants and are thus immune-compromised and at high risk for COVID-19.

The FCC will continue to process applications until the earlier of (i) granting proposals for the full $200 million budgeted; or (ii) the end of the national emergency.

Even though the FCC stated that it would likely not grant proposals for more than $1 million, considering the rapid processing and approval of the first seven applications, interested parties will want to move quickly to submit their applications.

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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:

• Rebroadcast Changes Lead to FM Translator Station Fine
• Delinquent Regulatory Fees Threaten AM Station License
• Procedural Missteps Lead to Dismissal of Stations’ Applications in Administrative Proceeding

North Carolina FM Translator’s Primary Station Change Leads to Fine

Following a Notice of Apparent Liability issued last year, the FCC recently issued a Forfeiture Order fining a North Carolina FM Translator station $2,000 for changing the station it rebroadcasts without notifying the Commission.  However, in an oversight by the FCC, the Order was issued in error as the station had already paid the outstanding fine.

Sections 74.1232(b) and 74.1251(c) of the FCC’s Rules set forth eligibility, licensing, and other technical rules applicable to FM translator stations.  Under Section 74.1232(b), an entity may not hold multiple FM translator licenses to retransmit the same signal to substantially the same area without showing a “technical need” for an additional station.  Section 74.1251(c) requires a translator licensee to notify the FCC in writing if it changes the primary station it rebroadcasts.

The Media Bureau’s investigation began in response to a Petition for Reconsideration challenging the grant of a construction permit for the translator station.  The licensee originally applied for the permit in July 2018, but amended its application to change its primary station.  The Bureau granted the amended application the following month.

In its filing, the petitioner acknowledged that it was not a party to the application proceeding, but argued that it was effectively precluded from participating because the FCC granted the application only ten days after the amended application was placed on public notice.  The Commission ultimately dismissed the challenge, determining that ten days is a reasonable amount of time to prepare and file a pleading and further concluded that the petitioner had sufficient notice of the amended application.  The Commission also found that reconsideration of the application grant is not required in the public interest under the FCC’s rules.

In April 2019, the station filed a license application for the now-constructed station, which the Commission granted shortly thereafter.  In response, the petitioner filed a new petition contesting the grant of the license itself claiming that (1) there was no “technical need” for the translator, such as issues with poor signal quality, and (2) the translator was not operating as authorized.  This petition prompted the FCC’s review of the station’s rebroadcasting practices.

In December 2019, the FCC issued a Memorandum Opinion and Order and Notice of Apparent Liability that again rejected the petitioner’s argument that there was no “technical need” for the translator station, noting that this issue is considered at the permitting, not the licensing phase, and that a showing of technical need is only required when the same party proposes to own more than one translator rebroadcasting the same signal in substantially the same area.

The FCC did, however, conclude that the station violated the FCC’s rules by rebroadcasting a station not specified in its authorization without notifying the FCC.  The FCC found that for roughly a month, the translator rebroadcast a nearby AM station, rather than the FM station specified in its license.

Despite these violations, the FCC concluded that permittees are entitled to a “high degree of protection” and a presumption that the Commission’s public interest determination in granting the permit should remain in effect unless it is shown that the station’s operation would go against the public interest.  As a result, the Commission dismissed the license challenge and instead proposed a fine to resolve the violations.

The Notice of Apparent Liability proposed a $2,000 fine.  Although the base fine amount for failure to file required information is $3,000, and $4,000 for unauthorized transmissions, the FCC proposed the reduced fine due to the short duration of the violations and a lack of history of prior offenses.  The Commission recently followed this NAL with a Forfeiture Order requiring the station to pay the $2,000 fine or file a written statement justifying a reduction or cancellation of the fine.  Days later, however, the Commission issued a separate order cancelling the Forfeiture Order, noting that the station had actually already paid the fine, and indicating that the Forfeiture Order was therefore “issued in error”.

Delinquent Payments Come at a High Price: Failure to Pay Regulatory Fees Threatens California AM Station

As previous CommLawCenter posts demonstrate, failure to pay regulatory fees can lead to significant penalties, including license revocation.  In one recent example, the FCC initiated a license revocation proceeding against a California AM station, ordering it to either pay its delinquent regulatory fees or demonstrate why no payment is due.

Section 9 of the Communications Act (the “Act”) requires the FCC to “assess and collect regulatory fees” to recover the costs of its regulatory activities.  When a payment is late or incomplete, a monetary penalty equal to 25 percent of the fee amount owed will be assessed.  The Act also requires the FCC to charge interest on the debt owed.  In addition to these monetary penalties, Section 9A(c)(4) of the Act and Section 1.1164(f) of the FCC’s Rules provide that the FCC may revoke a licensee’s authorization for failure to timely pay regulatory fees.  If the FCC wishes to pursue that option, the licensee must be given at least 60 days to either pay the debt or demonstrate why the fees are inapplicable.  Although applied sparingly by the FCC, the Commission may waive, reduce, or defer payment of the debt where a party demonstrates “extraordinary circumstances” that outweigh the public interest in recovering the regulatory fees. Continue reading →