Notice of Violation

If someone has a license from the FCC and operates his equipment in violation of the regulations governing the operation of his equipment, the FCC can issue a Notice of Violation (NOV). A NOV is authorized under the FCC’s rules at 47 C.F.R. 1.89. This procedure is proper where the recipient holds a license or a permit from the FCC, and can be combined with a Notice of Apparent Liability (NAL). However, a NAL cannot be issued to anyone who does not have a license or who has not engaged in an activity that requires a license, without the FCC first issuing a formal Citation.

Recently the FCC issued a NOV in two cases which underscores the lack of understanding of the rules by the FCC staff. In Jerry & Becky Lipscombe the FCC issued a NOV for an alleged violation of the rules prohibiting obscene talk and the use of noise makers on the Citizen Band (CB). The NOV states that the Lipscombes are licensees of the CB service. The problem is that the CB is an unlicensed service. It hasn’t been a licensed service for about 30 years. The FCC obviously doesn’t know, but should know, that the CB is not a licensed service. A NAL cannot be issued without issuing a Citation first. So what’s the point of a NOV?

In Preston Dundorf the FCC issued a NOV for violating the FCC’s rules by offering equipment for sale over the CB frequencies. The rules prohibit using the CB to offer goods for sale. However, the NOV again erroneously states that Dundorf is a licensee of the CB. There are no licenses issued under the CB. Further, one does not need a license from the FCC to sell goods. Why not issue a Citation instead? Is it because the staff of the FCC does not know the rules? Or are they just lazily sending out the wrong FCC form notice?

Ban on Wireless Microphones

On January 15, 2010 the FCC announced the ban on the sale, manufacture and marketing of Wireless Microphones that operate in the 700 MHz frequency band. Wireless Microphone Ban The ban applies immediately to the sale of wireless microphones in this frequency band, but continued use of the microphones is allowed until June 12, 2010 if the microphones are not causing harmful interference to licensees operating in the band. There is no ban on wired microphones operating in this frequency band.

Who makes out because of the order? The telecom industry, which spent about 19 billion buying licenses for 4G networks. Also, wireless microphone manufacturers who get to sell a whole lot of new microphones to customers who have to replace their 700 MHz wireless microphones. Who gets screwed? Customers who recently bought a wireless microphone they can no longer use. The FCC gave notice of the possibility of the pending action back in late 2008, but manufacturers were aware of the probability of the action earlier when the licenses were sold to the cell service providers. Customers who bought a system in late 2008 or in 2009 are screwed because industry analysts estimate the expected life of the systems at 3 years. Considering that there are no actual cases of interference reported, it seems like the FCC could have allowed a longer transition period for customers to obtain replacement systems.

Notice of Apparent Liability

The most common way a fine is assessed against someone for violating the FCC’s rules is through the issuance of a Notice of Apparent Liability (“NAL”). A NAL serves as notice to the recipient that a fine will be imposed unless the FCC can be convinced to withdraw the fine or reduce it. The process is finalized with the issuance of a Notice of Forfeiture. In most cases, before an NAL can be issued, the FCC must first send a Citation warning the recipient of the rules violation and the Citation must be ignored. US CODE: Title 47,503 If a Citation is not issued before a NAL is issued, the NAL may be subject to attack.

It is well known that the FCC does not follow its own rules. Some employees issue NALs without ever issuing a Citation. Here are some examples: ZTE Corporation; TCT Mobile Ltd., East Kentucky Network, LLC, Doro AB, and ACS Wireless, Inc. Each of these companies was issued a NAL for failing to timely file a hearing aid compatibility status report. The NAL does not disclose that any formal Citation was issued prior to the issuance of the NAL. The FCC did it wrong in my opinion.

Let’s look at a couple cases where the FCC did it right. Firefly Mobile Communications, Inc. and 7-Eleven, Inc. Same set of facts as in the other cases, however the result is different. In two cases, Firefly and 7-Eleven failed to file the report on time. Both received an official Citation. This is the correct procedure. No fine is issued, but if they fail to file the reports timely next time a NAL can properly be issued.

The issuance of a Citation prior to issuance of a NAL is of critical importance to the enforceability of the NAL. There is no obligation to pay a fine assessed as a result of a NAL unless the NAL has been upheld by the courts. If the FCC does not follow proper procedures, the courts will not uphold the NAL. It is important to remember that the FCC imposes stiffer fines on repeat violators. However, if a NAL has not been paid or upheld by the courts, the FCC cannot use that NAL against you later. Thus, it is important, in my opinion, not to pay a NAL and to fight it in the courts if the FCC decides to try and collect the fine.

Uncle Charlie's Thorn

Why Uncle Charlie’s Thorn? “Uncle Charlie” is used by some as a code name for the Federal Communications Commission, just as “Uncle Sam” is used for the United States’ government. I am an attorney who represents people who have received a fine from the FCC. Hence, I am Uncle Charlie’s Thorn. I am a thorn in the side of the FCC. I stop the FCC from improperly fining people who might, or as is often the case, might not have violated the FCC’s rules.

The FCC’s rules are set forth in a number of Parts published in 47 Code of Federal Regulations. You can search for specific topics here. FCC regulations Even though it is pretty easy to search for topics, understanding the regulations is another matter. I have found the regulations to be extremely vague. Also, while regulations regulating a particular type of equipment are generally found in one specific Part of the Code, other Parts of the Code may also apply. For example, the Amateur or “Ham” radio regulations are generally found in Part 97. However, some regulations are also found in Parts 2 and 15. So, even if you think you understand the regulations, you may be surprised to discover that some regulation in a place you would not expect to find it, somehow changes what you believe to be true.

The FCC is divided into different bureaus, and those bureaus do not always agree on how a rule should be interpreted. Also, the FCC consistently takes the position that it is not bound by any interpretation of the rules by one of its employees. It is not uncommon for people to receive an okay from someone in the FCC only later to be fined for doing what was said to be legal.

In this blog, we will explore some of the FCC’s regulations, some of the FCC’s procedures and discuss some issued raised by the FCC’s actions.