FCC Enforcement Monitor ~ November 2017

by Pillsbury - CommLawCenter
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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:

  • FCC Fires Broadside at Pirate Stronghold: Nearly Half of November Pirate Radio Notices Go to NY/NJ/CT Area
  • Sorry About That: Wireless Broadband Manufacturer Pays $95,000 to End Investigation of Failure to Prevent Harmful Manipulation of Its Products
  • Not Too Bright: FCC Proposes $25,000 Fine for Marketing Unlabeled Fluorescent Lights

No Parlay for Pirates: FCC Turns Up the Heat on Dozens of Alleged Pirate Radio Operators

In its most recent salvo against pirate radio operators, FCC field agents issued dozens of Notices of Violation (“NOV”) or Notices of Unauthorized Operation (“NOUO”) against alleged operators of unlicensed radio stations, particularly in New York, New Jersey, and Connecticut.

Under Section 301 of the Communications Act, transmission of radio signals without FCC authorization is prohibited. Unlicensed radio operators risk seizure of their equipment, heavy fines, and criminal sanctions issued for Connecticut pirate radio operations.

On just two consecutive days in October, agents from the New York field office investigated no fewer than eight pirate radio operations in New York and New Jersey, and the past month saw half a dozen NOUOs issued for Connecticut pirate radio operations.

In a similar show of force to the south, the FCC warned a dozen Florida residents of potential violations. The FCC also handed out a Notice of Apparent Liability for Forfeiture (“NAL”) to an alleged California pirate, proposing a $15,000 fine.

For many years, broadcasters complained bitterly about both the interference from multiplying pirate stations and the FCC’s glacial response to these illegal operations. Too often, the FCC’s response was to shrug its bureaucratic shoulders and note that it had limited resources. Broadcasters thus became even more disheartened when the FCC greatly reduced its field offices and staffing in 2016, making it harder for FCC personnel to quickly reach and investigate pirate operations, even if given authority to do so.

Fortunately, Commissioner O’Rielly took up the cause early in his tenure at the FCC, and under Chairman Pai, the FCC has made prosecution of unauthorized radio operations a priority. While broadcasters are certainly appreciative of the change, the sudden uptick in enforcement actions by a reduced number of field offices and agents has made clear that it was never a matter of resources, but of regulatory will. If you want to hunt pirates, you have to leave port.

Consent Decree Ends FCC Investigation Into Company’s Modifiable Wireless Broadband Devices

The FCC entered into a Consent Decree with a wireless device manufacturer after investigating whether the company violated various rules pertaining to the authorization and marketing of devices that emit radio frequency (“RF”) radiation.

In particular, the FCC looked into the manufacturer’s U-NII (Unlicensed National Information Infrastructure) devices. These devices are commonly used for Wi-Fi and other broadband access technology. However, U-NII devices that operate in the 5 GHz radio band risk interfering with certain weather radar systems. As a result, the FCC regulates how manufacturers make these devices available to the public.

Section 15.407(i) of the FCC’s Rules requires all U-NII devices to “contain security features to protect against” third-party modifications to the devices. The FCC promulgated this rule in 2014 after a series of investigations found that modified U-NII devices had been negatively affecting the Federal Aviation Administration’s Terminal Doppler Weather Radar (“TDWR”) system. Air traffic controllers use TDWR to monitor potential weather-related risks for aircraft.

Section 2.803 of the Rules prohibits parties from marketing devices that do not comply with the FCC’s authorization, technical, and labelling requirements.

Earlier this year, the FCC’s Enforcement Bureau sent a Letter of Inquiry to the device manufacturer in response to questions raised by the FCC’s Office of Engineering and Technology. During the investigation, the FCC found that private users were able to disable the device’s dynamic frequency selection (“DFS”) mechanism. DFS detects radar signals like TDWR and prevents the U-NII device from interfering with them.

The manufacturer cooperated with the FCC’s investigation and took remedial action, removing the ability to disable the DFS mechanism from its new devices, and deploying software updates to disable the feature in its already-deployed products. The company subsequently negotiated a settlement with the FCC, resulting in the Consent Decree to resolve the investigation.

In addition to a formal admission of liability, the Consent Decree requires the company to make a $95,000 payment and to implement a company-wide compliance plan. The compliance plan mandates the appointment of a compliance officer, implementation of new operating procedures, creation of a compliance manual, employee training, and annual compliance reports to the FCC for the next three years. In addition, the company must report any violation of the FCC’s rules or the Consent Decree within 15 days of discovery of the violation.

FCC Shines Light on RF Labelling Requirements by Proposing a $25,000 Fine

The FCC proposed a $25,000 fine against a company marketing RF devices for failing to mark its devices with the FCC logo.

Section 2.803 of the FCC’s Rules requires RF devices to meet the FCC’s labelling requirements before going to market. Until recently, Section 18.209(b) of the Commission’s Rules required RF devices authorized under the FCC’s “Declaration of Conformity” procedure to be labeled with the FCC logo.

The FCC initiated an investigation into the company after it received complaints that the company’s fluorescent light ballasts were causing interference. In response to the FCC’s June 2016 Letter of Inquiry (“LOI”), the company responded that the ballasts were compliant with the FCC’s technical standards, but three models of consumer-grade fluorescent light ballasts had not been properly labelled with the FCC logo. The company admitted that it had been selling the mislabeled models for at least eight years.

While the FCC recently updated Section 18.209 to make use of the FCC logo voluntary for some devices, the company’s actions took place while the previous rule was in effect. As a result, the FCC held the company to the earlier requirements and issued an NAL. In the NAL, the FCC stated that—despite being on notice of the violation and discontinuing marketing of one of the three models of non-compliant lights after receiving the LOI in 2016—the company continued marketing two non-compliant models until February of this year.

The FCC’s base fine for such a violation is $7,000. Under its statutory authority to penalize any party that “willfully or repeatedly fails to comply” with the Communications Act or the FCC’s Rules, the FCC proposed that base fine amount for each of the two unauthorized ballast models that the company continued to market following receipt of the LOI. Because of the duration and nature of the violations as well as the billion-dollar company’s ability to pay, the FCC then adjusted the amount upward by an additional $11,000, resulting in a total proposed fine of $25,000.

A PDF version of this article can be found at FCC Enforcement Monitor – November 2017.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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