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:
- Violations of Environmental, Historic Preservation and
Tribal Notification Rules Lead to $950,000 Penalty - Proposed $300 Million Fine Follows Largest-Ever FCC
Robocall Investigation - Deceased Licensee’s Estate to Pay $7,000 Penalty for
Failing to File Required Applications and Documents
Wireless Provider Pays $950,000 for Violating Environmental,
Historic Preservation, and Tribal Notification Rules
A national wireless provider entered into a consent decree with
the FCC’s Enforcement Bureau, agreeing to pay $950,000 for
violating the FCC’s environmental and historic preservation
rules, as well as rules requiring entities to coordinate with
relevant state governments and tribal nations in the construction
of communications sites.
To resolve the FCC’s investigation, the company admitted to
prematurely constructing wireless facilities before completing the
required environmental and historic preservation reviews and by
constructing wireless facilities without onsite monitoring as
requested by the affected tribes. Under Section 1.1307(a)(4) of the
FCC’s Rules, applicants and licensees must assess whether
proposed facilities may significantly affect the environment and
whether the proposed facilities may affect districts, sites,
buildings, structures, or objects that are listed (or eligible for
listing) in the National Register of Historic Places, or may affect
Native American religious sites. Applicants must also follow other
rules set out by the Advisory Council on Historic Preservation or
the National Historic Preservation Act Review Process, as
applicable.
By early 2020, the company began deploying newer wireless
technology, commonly known as small cells. Small cell antennas are
used to improve wireless service and can be mounted to streetlight
poles, utility poles, or even traffic control structures. During
the summer of 2020, the company began constructing the small cell
antennas that are the subject of the Consent Decree. After the
company reported concerns regarding its compliance with the
environmental rules to the FCC, the Commission opened an
investigation and issued a Letter of Inquiry (“LOI”) to
the company in January 2022. The company filed several responses to
the LOI throughout 2022. Ultimately, the Commission determined that
the company began and or/completed building wireless facilities in
three states prior to, or without completing, the required review
process and Tribal notification process. The FCC also concluded
that the company failed to comply with Tribal notification
procedures in two states. While some of the noncompliant
construction was found to have been caused by a miscommunication
between the company and its third-party contractors, other
violations were the result of a company employee who lacked
expertise on the National Environmental Policy Act and National
Historic Preservation Act requirements. Before and during the
FCC’s investigation, the company stated that it had begun the
process of removing any wireless facilities found to have an
adverse effect on historic streets.
Under the terms of the Consent Decree, the company must appoint
a compliance officer to implement and administer a compliance plan
and to ensure that the company complies with the terms of the
Consent Decree. The compliance plan must include operating
procedures for company employees to follow designed to ensure that
environmental review and historic preservation obligations are
satisfied prior to future construction. All appropriate employees
and third-party vendors/contractors must receive a compliance
manual that explains the applicable FCC rules and the company’s
operating procedures developed in response to its violations.
Appropriate employees and third-party vendors/contractors must also
undergo ongoing compliance training. Finally, the company must
submit a compliance report within 90 days, submit compliance
reports annually for the next three years, and pay a $950,000 civil
penalty within 30 days.
FCC Proposes Nearly $300 Million Penalty for Alleged Robocall
Scam
Following an investigation of years of auto warranty robocalls,
the FCC proposed a $299,997,000 fine against two individuals and
their associated domestic and international entities and cohorts
(the “Enterprise”). In a Notice of Apparent Liability
(“NAL”), the FCC alleged that the Enterprise had run
since at least 2018 a complex robocall scheme designed to sell auto
service contracts marketed as car warranties to Americans. For
enforcement purposes, specifically at issue were more than 5
billion robocalls made to more than 500 million phone numbers
during three months in 2021, using more than one million unique
caller ID numbers. Prerecorded voice calls told consumers to speak
to a “warranty specialist” about extending or reinstating
their vehicle’s warranty. In an episode the FCC found
particularly egregious, the Enterprise spoofed hospital phone
numbers and called health care workers during a pandemic, causing
recipients to tie up the hospitals’ phone lines when calling
back to complain. The scheme marked the largest robocall operation
the FCC had ever investigated.
The NAL follows a July 2022 action by the FCC in which it first
authorized all US-based phone companies to block voice calls
originating from the Enterprise and then ordered all
US-based phone companies to stop carrying such traffic. These
measures resulted in a 99% decrease in the offending call
traffic.
Various federal laws prohibit the alleged actions of the
Enterprise. Under the Telephone Consumer Protection Act, robocalls
to mobile phones require the express consent of the called party,
must include a prerecording at the start of the message identifying
the caller, and must include a callback number that allows
consumers to opt out of future calls. The calls at issue were
apparently made without prior called party consent and without the
necessary disclosures. The calls also apparently violated the Truth
in Caller ID Act, which prohibits harmful spoofing. Many of the
Enterprise’s calls originated overseas but appeared to called
parties as originated locally.
As is the case with all NALs, the Enterprise will now have an
opportunity to submit evidence and legal arguments to the FCC as to
why the proposed fine should either not be imposed or should be
reduced.
Failure to File Required Application and Other Violations
Yields $7,000 Penalty and Consent Decree
The estate of a deceased FM radio station licensee has entered
into a consent decree with the FCC’s Media Bureau and agreed to
pay a $7,000 penalty to resolve an investigation into the
circumstances of the estate’s handling of the station license
and violations of the FCC’s Online Public Inspection File and
Biennial Ownership Report rules.
In April of 2021, the deceased licensee’s daughter filed the
station’s license renewal application on behalf of the
decedent’s estate. The renewal application disclosed that,
preceding the filing of the license renewal application, an
involuntary assignment of license application had been filed. If
granted, that assignment application would formally assign the
station license to the licensee’s estate nine years following
his death. The daughter also filed, on behalf of the estate and as
successor-in-interest, a voluntary assignment of license
application seeking consent to next assign the station license from
the estate to herself. The license renewal application also
disclosed failures to comply with the Online Public Inspection File
and Biennial Ownership Report rules during the license term.
Section 310(d) of the Communications Act and the FCC’s
implementing rules require that any transfer or assignment of a
station license, even in the case of the death of the licensee,
must be approved by the FCC before the transfer or assignment
occurs. Here, the licensee died and his brother and daughter
operated the station for more than nine years without prior FCC
consent to do so. An application requesting permission to assign
the license to the estate should have been filed within 30 days of
the licensee’s death.
Rather than endure a protracted investigation and any fines that
might have resulted, the parties entered into a consent decree with
the FCC’s Media Bureau to conclude the matter. The Consent
Decree requires designation of a senior manager to serve as
compliance officer, who is charged with developing and implementing
a compliance plan within 30 days, and then ensuring the licensee
complies with that plan and the other terms of the Consent Decree.
The compliance plan will be in effect for three years and is meant
to ensure compliance with the FCC’s Transfer of Control, Online
Public Inspection File, and Ownership Report rules. The licensee
must include employee training as part of the compliance plan,
promptly report any violations that occur to the FCC, and file
annual reports with the FCC regarding compliance with these rules
for the next three years.
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