As we enter the dog days of summer, the FCC continues to turn up the heat on equipment marketing enforcement. But while million dollar fines for marketing noncompliant devices capture the spotlight, the FCC also quietly issued a number of equipment marketing actions focused on a single type of device: LED signs. In just the last three months, the FCC has settled over ten investigations involving the marketing of LED signs used in digital billboards for commercial and industrial applications without the required authorizations, labeling, or user manual disclosures. Each action involved an entity that either manufactured or sold (or both) LED signs. The agency’s recent actions should be a shot across the bow to any retailer of LED signs to ensure that their devices are properly tested and authorized prior to sale. Otherwise, these companies may face significant fines and warehouses of unmarketable devices.

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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.

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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.

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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.

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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.

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Continuing its assault on unlicensed broadcast operations, the Federal Communications Commission (“FCC”) issued a unanimous Notice of Apparent Liability for Forfeiture (“NAL”) at its September meeting proposing the statutory maximum fine of $144,344 against a pirate radio operator as well as the owners of the property housing the unlicensed station.  The action represents the first time the FCC has found landowners apparently liable for pirate radio operations on their property and the first Commission-level NAL issued against a pirate radio operation.  Imposing penalties on property owners that support pirate operations has been a longstanding goal for Commissioner O’Rielly, and Chairman Pai signaled that cracking down on pirate stations remains a key enforcement priority for the FCC.

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The FCC’s Enforcement Bureau will no longer have the power to settle monetary enforcement actions originally issued by the Commission under a process reform announced by Chairman Pai on Wednesday.  Settlements of forfeitures proposed or imposed by the Commission will now be subject to a full Commission vote, as was the NAL that initiated the action.  The announcement clarified previously unsettled issues regarding the Enforcement Bureau’s delegated authority, which Chairman Pai said resulted in major settlements with little to no Commissioner input.

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Today the Federal Communications Commission’s (FCC’s) Enforcement Bureau (Bureau) issued a pair of closely-related enforcement actions against two radio station licensees for failing to comply with the FCC’s radiofrequency (RF) exposure limits.  T-Mobile received a $60,000 Notice of Apparent Liability and Wirelessco received a $25,000 Notice of Apparent Liability (NALs) for apparent inadequate protections to prevent public access to antennas co-located on the same office building rooftop in Phoenix, Arizona.  These actions underscore the importance of radio station operators ensuring that appropriate barriers and signage designed to limit access are in place and regularly maintained.

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US Capitol BuildingMembers of the House Subcommittee on Communications and Technology (Committee) issued a letter late last week requesting that the Government Accountability Office (GAO) conduct an audit of the FCC’s Enforcement Bureau (Bureau).  The audit would focus exclusively on the Bureau and address its backlog of consumer complaints, its output and performance metrics and recent management decisions.   Among the primary concerns for the Committee is the Bureau’s continued use of the number and monetary value of enforcement actions as the metrics to determine the success of its enforcement efforts.

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On October 3rd, the FCC announced a settlement with Marriott International, Inc. and Marriott Hotel Services, Inc. to resolve an investigation into the hotel operator’s use of a Wi-Fi monitoring and blocking system.  In the investigation, the Commission concluded that an operator cannot use such a system to prevent users from connecting to the Internet via their own personal Wi-Fi networks, rather than being limited to the hotel’s own Wi-Fi network, when these users did not pose a threat to the security of the hotel operator or its guests.  This consent decree reminds hotel operators and property owners, as well as other property owners that, while they may control the deployment of fixed radio stations on their property, they may not interfere with communications, including Internet wireless access, that occur on their property using mobile devices.  As part of the consent decree, the hotel operator agreed to pay $600,000 in “civil penalties” and to implement an extensive three-year compliance plan, with quarterly reporting, focusing on the hotel operator’s access point containment features at all of its U.S. properties, including properties owned and/or operated by the company.
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