Non-Specific Rule, Non-Specific Violation, Very Specific Fine

The rule says to take precautions, but not what precautions to take. The licensee says it took precautions, but they didn't work. The Enforcement Bureau says, "$25,000, please".

Suppose the rules governing operation on shared two-way channels are unspecific, mostly saying operators must take reasonable precautions to avoid interference. The rules don't actually prohibit interference; they just require the precautions. Those will depend on the equipment and the service involved, but details are left to the licensee. And now suppose a licensee is found to have caused interference.

In light of the interference, can the FCC impose sanctions for failure to take reasonable precautions - even if the licensee took precautions that plausibly came within the rule? The FCC's Enforcement Bureau thinks so.

Following a Notice of Apparent Liability last July, the Bureau has issued a Forfeiture Order imposing a fine of $25,000 against Mobile Relay Associates (MRA). The Bureau found that MRA had caused interference. However, the alleged offense was not the interference itself, but rather MRA's supposed "fail[ure] to take reasonable precautions to avoid causing harmful interference," including failure to monitor the channels so as to avoid causing interference. Confusing? Stay with us.

MRA operates a two-way business radio system under a Private Land Mobile license. Its website says MRA sells communications services to other businesses, including those that operate fleets of vehicles. Around Malibu, California, MRA operates a six-channel system for digital communications with taxis. Its license is for a "trunked" system, which means it covers multiple channels; when a user seeks to make a call, trunking equipment automatically searches its inventory to find one that is vacant. MRA has exclusive rights to four of the six channels, which are not at issue here. It is expected to share the remaining two channels with other users. According to the FCC's Enforcement Bureau, MRA has not met its sharing obligations.

The Bureau claims - and MRA does not dispute - that MRA:

1. transmitted a synchronizing signal from its base station to mobile units nearly continuously, thus blocking other users;
2. only occasionally put data on the signal;
3. paused its transmissions for only five seconds every five minutes (later changed to three seconds every minute) to allow other licensees to transmit - but MRA said it would lengthen the pause if another user did transmit;
4. did not monitor for other users, except during the five-second and three-second pauses, or otherwise take precautions to avoid causing interference; and
5. did not "trunk" its system - i.e., did not have it search automatically for vacant channels, but rather locked onto specific frequencies.

We see at least two clear violations here. First, Items (1) and (2) seem to violate Section 90.403(c), which requires a licensee both to restrict its transmissions to the minimum practical time, and also to employ procedures designed to maximize use of the spectrum. MRA argued it needed nearly continuous transmissions to keep its mobile units properly connected to the system, but there is no such exception in the rule. Second, Item (5) seems to violate Section 90.187(h), which requires a party that holds a trunking license, as MRA does, to modify its license if it does not actually trunk. MRA argued that trunking operation is optional under a trunking license; the rule says otherwise.

But the Bureau did not cite MRA for violations of either of those rules. Instead, it claimed violation of two other rules:

90.187(b): Trunked systems "must employ equipment that prevents transmission on a trunked frequency if a signal from another system is present on that frequency. The level of monitoring must be sufficient to avoid harmful interference to other systems."

90.403(e): "Licensees shall take reasonable precautions to avoid causing harmful interference. This includes monitoring the transmitting frequency for communications in progress and such other measures as may be necessary to minimize the potential for causing interference."

The Bureau calculated the fine it meted out starting with the base fine for causing interference, not for failure to take reasonable precautions. The base for interference is $7,000, which the Bureau doubled - because it had observed interference on two different days - and then raised to $25,000 on the ground that MRA continued its operations after the FCC had notified it of the alleged violation. (Had the Bureau started its calculation with the base fine for failure to "conduct required monitoring", which is only $2,000, the total after adjustments would presumably have been much less than $25,000.)

MRA argued (1) the rules quoted above do not impose specific, hard and fast requirements, and (2) the steps it did take to avoid interference satisfied the rules as written. The Bureau responded that, because MRA in fact caused harmful interference, MRA violated the cited rules.

We think the Bureau's reasoning missed an important step. Both Sections 90.187(b) and 90.403(e) require only that the licensee utilize measures designed to avoid harmful interference. By their own terms they do not prohibit actual interference. A channel might be so crowded that no measures at all can completely prevent interference. As we read the rules, compliance consists of taking appropriate measures, whether they succeed or not. The occurrence of harmful interference does not by itself either constitute or prove a violation. MRA argued that it did comply: the rules don't tell it exactly what to do, said MRA, and the brief pauses in its transmissions sufficed for compliance.

If, in crafting a rule, the FCC declines to provide specifics and instead leaves it to the licensee to determine how best to proceed, and the licensee then takes steps that, at least arguably, fall within the broad guidelines of the rule, can that licensee properly be charged with violating that rule? We think not.

We have objected before to the Enforcement Bureau's levying large fines for actions that do not clearly violate the rule cited: here, for example, and here. FCC Commissioner Ajit Pai, part of the Republican minority, seems to agree: "Instead of applying the law to the facts, the Commission's enforcement process is focused on issuing headline-grabbing fines regardless of the law." In the MRA case, the Bureau would have done better to cite MRA for unnecessarily long transmissions or for not trunking, charges to which MRA would have had no real defense. The Bureau should not have followed the course it did without first issuing a clear public statement - or, perhaps better yet, revising its rules - to make very clear what is and is not permitted.

(FHH does not represent any party in this matter.)