Universities, elder care residences, hospitals, hotels – all could be subject to potential penalties for signal leakage if they happen to be non-cable video program distributors using aeronautical frequencies.

Universities, hospitals, hotels, apartment complexes, office buildings, even prisons.  Don’t look now, but you might have signal leakage problems that could get you into serious trouble with the FCC.

That’s the take-home message of a recent FCC public notice aimed at non-cable multichannel video programming distributors (MVPDs), warning them of their obligations to notify the Commission prior to the use of any aeronautical frequency bands by their systems. The public notice coincided with the release of three separate citations – addressed to an inn, an elder care residential facility, and a rehabilitation hospital – seeking more information about possible violations of those obligations and warning of potential fines and other penalties should any violations persist.

Obviously, the FCC is trying to get the word out that enforcement in this area may be on the upswing. So if you’re a non-cable MVPD – whether or not you’re aware that you fit in that category – you’d be wise to pay attention.

A couple of definitions are in order.

What, exactly, is a “non-cable MVPD”? Good question. In one subpart of its rules, the Commission describes it as an entity (other than a cable TV company) that “engage[s] in the business of making available for purchase, by subscribers or customers, multiple channels of video programming.”  According to the public notice, non-cable MVPDs include “universities, hotels, apartment complexes and other multiple-unit communities, prisons, office buildings, and other facilities with in-house systems for making multiple channels of video programming available to subscribers or consumers.” 

Interestingly, while the former description clearly provides that, to be a non-cable MVPD, the entity must “engage in the business” of making programming available, the latter (from the public notice) seems considerably broader. Universities and “other multiple-unit communities” (which could include, presumably, co-op buildings) might reasonably argue that they are not “engaged in the business” of making programming available. Nevertheless, the public notice does not appear to acknowledge that possible distinction.   Precisely how the FCC determines whether any particular operation is a non-cable MVPD subject to the rules is not clear. None of the three citations, for example, includes any indication of how the Enforcement Bureau concluded that the organizations involved should be deemed to be “non-cable MVPDs”.

Note that while non-cable MVPD operations use technology similar to commercial cable systems, they are not conventional cable systems and are not necessarily operations that are otherwise subject to FCC regulation; so it would not be surprising if somebody operating a non-cable MVPD happened to be unaware that he or she was expected to jump through Commission-specified hoops. (For example, we suspect that the three organizations targeted in the recent citations linked above didn’t know about the rules until the FCC inspectors showed up at their door. We also suspect that many universities don’t realize that, by providing on-campus TV services to their students and facilities, they may have subjected themselves to the long arm of the FCC. But as we all know, ignorance is no excuse.) 

What are the aeronautical frequency bands? Those would be the frequencies from 108-137 MHz and from 225 to 400 MHz. They’re the equivalent of cable channels 14-16, 25-53, and 98-99. These frequencies are commonly used by video distribution systems because of technical considerations.

What’s the issue here? Under ideal circumstances, MVPD signals are confined within the wired system and do not cause interference to any the over-the-air operations using those same frequencies.  However, under certain circumstances, “leaks” can develop that cause precisely such interference. Leaks can arise not only from careless construction but also from loose connections and corroded cable in a distribution plant that was tightly constructed in the first instance.

While the FCC is always concerned about interference, it is particularly vigilant about possible interference to aeronautical navigation operations. Keeping air traffic on course and in the air is a high priority. Because of that, the Commission requires all MVPDs (commercial cable systems and other video distribution systems alike) to notify the FCC before they transmit on any of the aeronautical radio channels if the average power level equals or exceeds 10-4 watts across a 25 kHz bandwidth in any 160 microsecond time period. The notification must be made on FCC Form 321. (Form 321 is filed online through the FCC’s Cable Operations and Licensing System (COALS).)

In addition, all MVPDs must regularly – at least once yearly – monitor their systems for leakage in the aeronautical bands. If leakage is detected at any time (i.e., whether or not in connection with routine monitoring), the MVPD must “promptly” eliminate it or risk having its operation suspended by the Enforcement Bureau. (Additionally, non-cable MVPDs serving 1,000 or more subscribers and 1,000 or more units must file annual Basic Signal Leakage Performance Reports on FCC Form 320. That form can also be accessed through COALS.)

Failure to file Form 321 (or, if required, Form 320) or failure to monitor for signal leakage can result in fines up to $37,500 for each violation or day of a continuing violation. That’s real money. The citations issued to the three non-cable MVPDs also threatened, in addition to possible monetary forfeitures, “seizure of equipment” (through what are referred to as “in rem actions” by which the government grabs the hardware used in the misconduct) and “criminal sanctions, including imprisonment.” While we here at CommLawBlog are reasonably confident that jail time is not in the tickets for any violators, we know for sure that the FCC regularly issues fines in such cases.

The need to monitor for leakage may not be especially burdensome for cable MVPDs, who normally have technical staffs readily available to perform the necessary checks. The same is not true of many if not most non-cable MVPDs, such as the facilities targeted by the three citations. And for them, the bad news is that conducting tests for leakage is a non-trivial undertaking. (The leakage performance criteria are set out in Section 76.611 of the FCC’s rules.) The practical difficulties of monitoring tend to be greater for facilities that spread out over a considerable area – university campuses, for example. It is impossible to detect leakage from a single easily-reached monitoring point. Rather, careful inspection throughout the system is required. But since some, possibly many, of these organizations may not even know that they’re subject to any regulations along these lines, it’s likely that no monitoring at all is occurring.

With potential forfeiture liability in the five-figure range and the FCC obviously on the lookout for violations, compliance with the monitoring requirement is clearly the way to go. We may be able to assist in identifying professional consultants who could assist in the process.