The Federal Communications Commission (“FCC”) recently took steps to preserve the status quo for existing users in the 3.7-4.2 GHz band (the “4 GHz Band”) while it considers myriad options to restructure that spectrum for commercial flexible mobile use and more intensive fixed use. The FCC appears set to move forward with deliberation while it considers modifications to the regulatory structure in the adjacent 3.5 GHz Band (3.55-3.70 GHz). Both bands are touted by the mobile industry, and the FCC itself, as key mid-spectrum bands for next generation networks and applications, including 5G and the Internet of Things.
On June 28, 2018, the FCC’s Enforcement Bureau announced a Consent Decree with AT&T Mobility, LLC (“AT&T”) to resolve investigations into two 911 service outages in 2017. The outages lasted for more than five hours and resulted in approximately 15,000 failed calls. The settlement was somewhat unexpected because more than a year had passed since the FCC issued its report on the outages, which did not indicate that enforcement action was coming. The penalty levied against AT&T underscores that improving the nation’s 911 capabilities continues to be a top priority for the FCC and that outages will be met with significant fines.
Kelley Drye introduces a new Full Spectrum series, “Inside the TCPA,” which will offer a deeper focus on TCPA issues and petitions pending before the FCC. Each episode will tackle a single TCPA topic or petition that is in the news or affecting cases around the country. In this inaugural episode, partner Steve Augustino and associate Jenny Wainwright discuss the definition of an autodialer or ATDS. This episode addresses the 2018 D.C. Circuit decision in ACA International and the FCC’s new proceeding to examine the definition. With initial comments filed on June 13th, Steve and Jenny analyze the principal arguments made by commenters and discuss whether Congress will weigh in on the matter. To listen to this episode, please click here.*
On June 5, 2018, the Federal Communications Commission’s (“FCC’s” or the “Commission’s”) Enforcement Bureau (“Bureau”) issued a Notice of Apparent Liability against a manufacturer and retailer for marketing non-compliant RF devices, a dozen models of which were capable of operating in restricted spectrum bands. The FCC proposes to assess a total fine of $2,861,128.00 against ABC Fulfillment Services LLC and Indubitably, Inc. (collectively, “HobbyKing”) for equipment authorization rule violations involving 65 models of recreational audio/video transmitters (“AV Transmitters”) used with model airplanes drones. But more than $2.2 million of that resulted from the fact that twelve models apparently operates in restricted radio bands and three at higher powers than authorized in other bands. The restricted bands are those in which unlicensed transmitters are not allowed to operate because of potential interference to sensitive radio communications. In the case of HobbyKing’s the Commission found that its AV transmitters operated in bands where important government and public safety operations, such as those of the Federal Aviation Administration managing commercial and passenger flight traffic, doppler weather radar, flight testing, and other activities the FCC has determined are particularly worthy of heightened interference protection take place. In other words, the moral is that marketing devices that do not have proper equipment authorization is bad, but doing so when the devices operate within restricted bands is quite simply “egregious,” as the NAL put it.
Simultaneously with issuing a nearly $3,000,000 fine to HobbyKing for marketing unauthorized (and in some cases not capable of being authorized) audio/video (“AV”) transmitters for use with drone mounted cameras, the Federal Communications Commission’s (“FCC’s” or “Commission’s”) Enforcement Bureau issued an Advisory Tuesday reminding retailer manufacturers, and operators of their obligations: no marketing or operation of unauthorized equipment except under very limited exceptions.
On May 30, 2018, the Commission issued a Notice of Apparent Liability (“NAL”) proposing a total penalty of $590,380 against a company for marketing noncompliant radio frequency (“RF”) devices in apparent violation of the agency’s equipment marketing rules. The allegations in the NAL provide a textbook example of how a company that becomes aware of a violation relating to products subject to the Commission equipment authorization procedures should not respond. The NAL was issued against Bear Down Brands, LLC, dba Pure Enrichment (“Pure Enrichment”), a Delaware company, in connection with fourteen models of the company’s consumer-oriented electronic personal hygiene and wellness devices it markets and imports, all of which were Part 15 or Part 18 unintentional radiators. The NAL alleges that the devices were noncompliant because they lacked proper equipment authorization, failed to make required user manual disclosures, and/or did not have compliant FCC labels.
On May 14, 2018, the FCC issued a Public Notice seeking comment on a number of issues regarding the proper interpretation of the Telephone Consumer Protection Act (TCPA) in light of the recent decision by the D.C. Circuit Court of Appeals to overturn most of the FCC’s 2015 Omnibus TCPA Declaratory Ruling. Given Chairman Pai’s strong dissent from the 2015 Declaratory Ruling and his statement praising the D.C. Circuit’s findings regarding it, this comment cycle presents a valuable opportunity for parties who have been adversely affected by the uncertainty surrounding the TCPA in certain years to provide input to the FCC on how it should interpret the statute to best serve its intended purpose.
In the largest forfeiture ever imposed by the agency, the Federal Communications Commission (FCC) issued a $120 million fine against Adrian Abramovich and the companies he controlled for placing over 96 million “spoofed” robocalls as part of a campaign to sell third-party vacation packages. The case has received significant attention as an example of the growing issue of spoofed robocalls, with lawmakers recently grilling Mr. Abramovich about his operations. The item took the lead spot at the agency’s May meeting and is emblematic of the Pai FCC’s continued focus on illegal robocalls as a top enforcement priority. While questions remain regarding the FCC’s ability to collect the unprecedented fine, there is no question that the FCC and Congress intend to take a hard look at robocalling issues this year, with significant reforms already teed up for consideration.
Almost six months after releasing its October 2017 Order streamlining, eliminating, and revising certain international reporting requirements, on April 25, 2018, the Federal Communications Commission (“Commission”) published a public notice in the Federal Register announcing that the international reporting rule changes were effective on April 25, 2018. While, in practice, a Commission rule waiver had the effect of implementing one of the reporting changes, the Commission’s recent Federal Register notice publication establishes the official effective date of the reporting rule changes. Continue Reading
Just over a month after the D.C. Circuit struck down large portions of the FCC’s 2015 Declaratory Ruling interpreting the Telephone Consumer Protection Act (TCPA), several developments on Capitol Hill last week suggest that Congress has renewed its focus on robocall issues. While these actions are preliminary, it could indicate that addressing robocalls may be priority for Congress ahead of the mid-term elections.