On March 10, Atrium Hospitality LP entered into a consent decree with the Federal Communications Commission. The agreement included a burdensome compliance plan and a $35,000 penalty for the hotel and asset management company. Atrium is just the most recent organization whose primary area of work extends beyond telecommunications to be investigated and ultimately penalized by the FCC.

In many industries, cell phones still have not replaced hand-held radios, which are often used for internal communications by security services, cleaning staff, and maintenance teams. These radios are used at manufacturing and industrial facilities, hotels, golf courses, athletic stadiums, and many other facilities that rely on private radios for staff communication.

Continue Reading Use of Private Radios by Industry Increases Risk of FCC Non-Compliance

As the world moves toward the rollout of fifth-generation, or 5G, wireless technology, the numbers of devices operating in many locations have grown exponentially. The Federal Communications Commission manages the commercial use of the radiofrequency spectrum – those invisible airways on which consumer and commercial wireless devices and networks operate. More wireless devices demand more use of the radio spectrum, leading the FCC to consider how to manage the spectrum more efficiently.

To that end, for the first time in two decades the agency may consider whether and how it may regulate receivers, which is the part of a wireless system that takes in transmissions of communications (e.g., voice, data). Poorly performing receivers make for inefficient spectrum use, limiting the FCC’s ability to cram more users into existing spectrum bands (a finite resource).

Late last year, the design of receivers made national news as the airline industry publicized concerns with possible interference to aircraft altimeters. An FCC decision to auction spectrum on an adjacent band to cellular carriers created concern that some altimeters could suffer performance degradation because these devices “listened” in to the adjacent band. The issue prompted the involvement of various parts of the Biden administration to step in and work out a short-term solution (for now) to modify the rollout of 5G services near airports.

Continue Reading Managing Wireless Technologies from Both Ends: FCC Considers Receiver Regulation

The proliferation of wireless and other electronic devices brings not only great opportunities but also compliance risk. This is demonstrated by a recent Federal Communications Commission (FCC) consent decree with Rexing, Inc., a retailer of aftermarket vehicle dash cameras.

Most devices that radiate radiofrequency, or RF, energy, either intentionally or unintentionally, must be tested for compliance prior to marketing in the United States. Some also must receive grants of equipment authorization from the FCC. Many are subject to labeling requirements. These requirements apply not just to manufacturers, but also to parties that import and market electronic and wireless devices in the U.S.

Examples of products that are subject to these FCC requirements, and which can unintentionally create regulatory problems for manufacturers, distributors, and retailers, include lightbulbs, ultrasonic humidifiers, and anything with a chip in it, such as computers, video games, and similar consumer products.

Continue Reading FCC Fine Is a Warning to Retailers of Electronic Devices

Yesterday, the FCC modified its building inside wiring rules governing service provider access to apartment, condominium, and office buildings, otherwise known as multi-tenant environments or multiple dwelling unit buildings (MTEs). Note that in particular circumstances these rules can also apply to private real estate developments, trailer parks, and planned community developments located on private land.

Some background: Starting in 1993 FCC wiring rules have prohibited certain exclusive agreements between telecommunications providers and mul­tichannel video programming distributors and MTE building owners that grant the provider exclusive access to and rights to provide service to an MTE. Underpinning those rules is an FCC policy that exclusive access and service contracts harm competition and consumers by limiting service choice in MTE buildings.

Nonetheless, the rules had always made compromises that opened loopholes creating avenues to de facto exclusivity, and those loopholes were widely and creatively exploited. Over time, those loopholes have gradually been closed, and here the FCC takes its latest step to advance that closure.

Continue Reading FCC Acts to Prohibit Exclusive Service and Wiring Arrangements in Office, Condominium, and Apartment Buildings

On May 16, 2019, FCC Commissioner Michael O’Rielly gave a speech at the ACA International Washington Insights Conference in Washington, DC, which gave a preview of how the Commission may shape the TCPA landscape in the near future. Commissioner O’Rielly’s full speech is available here. He gave his thoughts on a number of subjects and some of the highlights are below.

As to the TCPA’s definition of “automatic telephone dialing system” (ATDS or more commonly known as “autodialer”) litigation post-ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the Commissioner correctly noted that the “‘fog of uncertainty’ . . . remains thicker than ever,” with numerous courts struggling to interpret the TCPA and issuing conflicting decisions. He characterized some decisions as “illogically [finding] the FCC’s 2003 and 2008 orders defining an ATDS to be controlling post-ACA.” And, he went on to remark that:

[T]hat just pales in comparison to the medley of courts that have chosen to ignore the DC Circuit [in ACA Int’l] and instead follow the 9th Circuit’s extremely misguided and breathtakingly expansive definition of ATDS [in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018)] as a device that stores numbers to be called, irrespective of whether they have been generated by a random or sequential number generator.


Continue Reading fore·shad·ow (verb). Be a warning or indication of (a future event): FCC Commissioner O’Rielly Speech Suggests What’s in Store for the TCPA

Last week, the Federal Communications Commission (“FCC”) issued a Public Notice seeking comment on a petition for an expedited declaratory ruling relating to how the Telephone Consumer Protection Act (“TCPA”) applies to the use of soundboard or avatar technology. Specifically, the FCC requests comment on whether “calls using recorded audio clips specifically selected and presented by a human operator in real-time, a tool generally referred to as ‘soundboard technology,’ do not deliver a ‘prerecorded message’ under the [TCPA].” Comments are due on March 15, 2019; the reply comment deadline is March 29, 2019.
Continue Reading FCC Public Notice Requests Stakeholders to Sound Off on Soundboard Technology

It has taken a while, but the FCC has finally realized that the Children’s Television Act (CTA or “Kidvid” as it is called in the industry) is more than somewhat out of date: The media world is not what it was when the CTA was passed by Congress 28 years ago. According to the FCC, among the other changes brought on by the advent of the Digital Age, children are engaging in less “appointment viewing” and in more on-demand, online and other non-broadcast content consumption. The FCC has concluded that the expansion of viewing outlets and the changes in children’s educational and entertainment options warrant a reexamination of some of its rules implementing the CTA. It has issued a Notice of Proposed Rulemaking (“NPRM”), has received comments and can be expected to act on the proposed changes in the next several months.

The NPRM advances several “tentative conclusions” related to the content that broadcasters may count toward satisfying the “Core Programming” requirement. Essentially, the FCC has defined Core Programming as programming that targets children under 13 as the intended audience. The definition will not be changed but the FCC has proposed eliminating several of the Core Programming criteria, specifically, the requirements that Core Programming be (1) at least 30 minutes in length; (2) regularly scheduled; and (3) identified as Core Programming within the content using the designation “E/I,” which stands for “Educational and Informational.” The NPRM is also seeking comments on whether to maintain or eliminate several other Core Programming and reporting requirements, including that (A) Core Programming be broadcast between 7:00 a.m. and 10:00 p.m.; (B) that broadcasters notify program guide publishers about Core Programming; and (C) that broadcasters file quarterly compliance reports with the FCC. Moving forward with the proposed reduction in paperwork associated with the CTA Rules should be a no-brainer; whether the prescriptive scheduling requirement will be changed is harder to predict.

Continue Reading Big Bird Goes Digital: The FCC Undertakes to Modernize Children’s Television

“Slamming and cramming” might sound more appropriate in professional wrestling than telecommunications, but it’s the Federal Communications Commission and not the WWE that’s making moves in this area. On June 7, the Commission approved new rules aimed at stopping both slamming and cramming by telecommunications carriers, which we’ve summarized below. On August 16, these new

Technology is present in nearly everything we do and not only in the form of a smartphone. Now, when people brush their teeth, turn on the car, or tune an instrument, there’s likely some form of digital technology at work. With all of these activities, it can be unclear when the user is manually performing the action versus when it’s become automated. Courts have struggled with this same issue while applying the Telephone Consumer Protection Act (TCPA) after the D.C. Circuit set aside the FCC’s interpretation of an automatic telephone dialing system (ATDS) in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). As we’ve outlined in previous blogs, ACA International clearly invalidated the ATDS standard from the FCC’s 2015 TCPA Order, but, since that decision, district courts have grappled with the validity of the FCC’s 2003 and 2008 predictive dialer rulings, which concluded that predictive dialers that dial from set lists of specific telephone numbers are autodialers.

While several courts have ruled on this issue, there still isn’t a consensus on the proper approach. Last week, however, the Northern District of Illinois issued a well-reasoned and detailed decision that may help guide that debate – Pinkus v. Sirius XM Radio, Inc., No. 1:16-cv-10858 (N.D. Ill. July 26, 2018). The court in Pinkus had to wrestle with the exact set of circumstances that ACA International has thrown into confusion: namely, whether predictive dialing technology qualifies as an ATDS if it does not randomly or sequentially generate the phone numbers to be called. The 2015 FCC Order that was struck down in ACA International, as well as previous FCC orders, included this type of technology under the definition of ATDS.

Continue Reading Predictive Dialer Prediction Comes True: Court Rules that ACA International Vacated Previous FCC Predictive Dialer Decisions and Holds that Predictive Dialers are Not Autodialers Under the TCPA