00-26193. Inflation Adjustment of Maximum Forfeiture Penalties

AGENCY:

Federal Communications Commission

ACTION:

Final rule.

SUMMARY:

This document increases the maximum monetary forfeiture penalties available to the Commission under its rules governing monetary forfeiture proceedings to account for inflation. The inflationary adjustment is necessary to implement the Debt Collection Improvement Act of 1996, which requires federal agencies to adjust “civil monetary penalties provided by law” at least once every four years. The increase covers the period from the last adjustment on June 1995, to June 1999. During that period, the Consumer Price Index (“CPI”) increased by 9.02%. The CPI increase was applied to each maximum penalty, and then rounded using the statutorily defined rules to adjust each maximum monetary forfeiture penalty accordingly. The base forfeiture amounts in the Commission's rules remain unchanged by this rule revision.

DATES:

Effective November 13, 2000.

FOR FURTHER INFORMATION CONTACT:

Thomas Spavins, Enforcement Bureau, Technical and Public Safety Division, 202-418-1739.

SUPPLEMENTARY INFORMATION:

This is a summary of the Order by the Commission, FCC 00-347, adopted on September 14, 2000, and released on September 19, 2000. The complete text of this Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services, Inc., at 202-857-3800, CY-B400, 445 12th Street, SW., Washington, DC.

This Order amends § 1.80(b) of the Commission's rules by increasing the maximum monetary forfeiture penalties available to the Commission. The Order adjusts the maximum forfeiture penalties to account for the increase in the Consumer Price Index between June 1995 and June 1999, as required by the Debt Collection Improvement Act of 1996, 28 U.S.C. 2461, and as defined in § 1.80(b)(5) of the Commission's rules. In addition to amending § 1.80(b) of the Commission's rules, the Order also deletes some obsolete or duplicative material. The Order does not affect the forfeiture base amounts specified in § 1.80(b)(4) of the Commission's rules.

As the Order simply implements the requirements of § 1.80(b)(5) and updates associated text, the Commission finds good cause to conclude that notice and comment procedures of the Administrative Procedure Act are unnecessary. 5 U.S.C. 553(b)(3)(B). Since a general notice of proposed rulemaking is not required, the Regulatory Flexibility Act does not apply. 5 U.S.C. 601 et seq.

The actions taken in the Order have been analyzed with respect to the Paperwork Reduction Act of 1995, and found to impose no new or modified reporting and record keeping requirements or burdens on the public.

List of Subjects in 47 CFR Part 1

• Administrative practice and procedure
• Penalties

Federal Comunications Commission.

William F. Caton,

Deputy Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

PART 1—PRACTICE AND PROCEDURE

Subpart A—General Rules of Practice and Procedure

Miscellaneous Proceedings

1. The authority citation for part 1 continues to read as follows:

Authority: 47 U.S.C. 325(e).

2. Section 1.80 is amended by:

(a) Revising paragraphs (b)(1) through the text of paragraph (b)(4) preceding the table.

(b) Revising the first paragraph and Section III of the note to paragraph (b)(4).

(c) Revising paragraph (b)(5)(iii) including the table.

The revisions read as follows:

§ 1.80

Forfeiture proceedings.

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(b) Limits on the amount of forfeiture assessed. (1) If the violator is a broadcast station licensee or permittee, a cable television operator, or an applicant for any broadcast or cable television operator license, permit, certificate, or other instrument of authorization issued by the Commission, except as otherwise noted in this paragraph, the forfeiture penalty under this section shall not exceed $27,500 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $300,000 for any single act or failure to act described in paragraph (a) of this section. There is no limit on forfeiture assessments for EEO violations by cable operators that occur after notification by the Commission of a potential violation. See Section 634(f)(2) of the Communications Act.

(2) If the violator is a common carrier subject to the provisions of the Communications Act or an applicant for any common carrier license, permit, certificate, or other instrument of authorization issued by the Commission, the amount of any forfeiture penalty determined under this section shall not exceed $120,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $1,200,000 for any single act or failure to act described in paragraph (a) of this section.

(3) In any case not covered in paragraphs (b)(1) or (b)(2) of this section, the amount of any forfeiture penalty determined under this section shall not exceed $11,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $87,500 for any single act or failure to act described in paragraph (a) of this section.

Note to paragraph (b)(3):

For information concerning notices of apparent liability and notices of opportunity for hearing, see paragraphs (e), (f), and (g) of this section.

(4) Factors considered in determining the amount of the forfeiture penalty. In determining the amount of the forfeiture penalty, the Commission or its designee will take into account the nature, circumstances, extent and gravity of the violations and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.

Note to paragraph (b)(4):

Guidelines for Assessing Forfeitures

The Commission and its staff may use these guidelines in particular cases. The Commission and its staff retain the discretion to issue a higher or lower forfeiture than provided in the guidelines, to issue no forfeiture at all, or to apply alternative or additional sanctions as permitted by the statute. The forfeiture ceiling per violation or per day for a continuing violation stated in Section 503 of the Communications Act and the Commission's Rules are described in § 1.80(b)(5)(iii). These statutory maxima are effective November 13, 2000. Forfeitures issued under other sections of the Act are dealt with separately in Section III of this note.

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Section III. Non-Section 503 Forfeitures That Are Affected by the Downward Adjustment Factors

Unlike Section 503 of the Act, which establishes maximum forfeiture amounts, other sections of the Act, with one exception, state prescribed amounts of forfeitures for violations of the relevant section. These amounts are then subject to mitigation or remission under Section 504 of the Act. The one exception is Section 223 of the Act, which provides a maximum forfeiture per day. For convenience, the Commission will treat this amount as if it were a prescribed base amount, subject to downward adjustments. The following amounts are adjusted for inflation pursuant to the Debt Collection Improvement Act of 1996 (DCIA), 28 U.S.C. 2461. These non-Section 503 forfeitures may be adjusted downward using the “Downward Adjustment Criteria” shown for Section 503 forfeitures in Section II of this note.

Violation	Statutory amount ($)
Sec. 202(c) Common Carrier Discrimination	7,600 330/day.
Sec. 203(e) Common Carrier Tariffs	7,600 330/day.
Sec. 205(b) Common Carrier Prescriptions	13,200.
Sec. 214(d) Common Carrier Line Extensions	1,200/day.
Sec. 219(b) Common Carrier Reports	1,200.
Sec. 220(d) Common Carrier Records & Accounts	7,600/day.
Sec. 223(b) Dial-a-Porn	60,000 maximum/day.
Sec. 364(a) Ship Station Inspection	5,500 (owner).
Sec. 364(b) Ship Station Inspection	1,100 (vessel master).
Sec. 386(a) Forfeitures	5,500/day (owner).
Sec. 386(b) Forfeitures	1,100 (vessel master).
Sec. 634 Cable EEO	500/day.

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(iii) The application of the inflation adjustments required by the DCIA, 28 U.S.C. 2461, results in the following adjusted statutory maximum forfeitures authorized by the Communications Act:

U.S. Code citation	Maximum penalty after DCIA adjustment
47 U.S.C. 202(c)	$7,600 330
47 U.S.C 203(e)	7,600 330
47 U.S.C. 205(b)	13,200
47 U.S.C. 214(d)	1,200
47 U.S.C. 219(b)	1,200
47 U.S.C. 220(d)	7,600
47 U.S.C. 223(b)	60,000
47 U.S.C. 362(a)	5,500
47 U.S.C. 362(b)	1,100
47 U.S.C. 386(a)	5,500
47 U.S.C. 386(b)	1,100
47 U.S.C. 503(b)(2)(A)	27,500 300,000
47 U.S.C. 503(b)(2)(B)	120,000 1,200,000
47 U.S.C. 503(b)(2)(C)	11,000 87,500
47 U.S.C. 507(a)	550
47 U.S.C. 507(b)	110
47 U.S.C. 554	500

Note to paragraph (b)(5):

Pursuant to Public Law 104-134, the first inflation adjustment cannot exceed 10 percent of the statutory maximum amount.

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