E7-11808. Increase of Forfeiture Maxima for Obscene, Indecent, and Profane Broadcasts to Implement the Broadcast Decency Enforcement Act of 2005

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document amends the Commission's Rules to increase the maximum forfeiture penalties for obscene, indecent, and profane broadcasts from $32,500 to $325,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation cannot exceed $3,000,000. This action is necessary to implement The Broadcast Decency Enforcement Act of 2005, signed into law by President George W. Bush on June 15, 2006. This document is limited to revising the Commission's Rules pursuant to the Broadcast Decency Enforcement Act, which concerns only penalties for obscenity, indecency, and profanity broadcast violations. The existing penalty limits described in the Commission's Rules would remain as the applicable maxima for all other broadcast violations subject to those Rules.

DATES:

Effective July 20, 2007.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Hillary S. DeNigro, Enforcement Bureau, Investigations and Hearings Division, [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Order, FCC 07-94, adopted on May 17, 2007, and released on June 1, 2007. 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 20554 and also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., at 1-800-378-3160, CY-B402, 445 12th Street, SW., Washington, DC 20554.

On June 15, 2006, President George W. Bush signed into law The Broadcast Decency Enforcement Act of 2005 (“Broadcast Decency Enforcement Act”). (See Pub. L. 109-235, 120 Stat. 491 (2006)). The legislation amends section 503(b)(2) of the Communications Act of 1934, as amended (“Communications Act”), 47 U.S.C. 503(b)(2), to increase the maximum forfeiture penalties for obscene, indecent, and profane broadcasts. This Order amends section 1.80(b)(1) of the Commission's Rules (“Rules”), 47 CFR 1.80(b)(1), to reflect the new penalties.

Section 1.80(b)(1) of the Rules specifies the maximum possible forfeiture penalties for a range of violations, including, but not limited to: Failure to comply with the terms and conditions of any Commission license, permit, certificate or instrument of authorization; failure to comply with any provision of the Communications Act or any Commission rule, regulation or order; and violation of section 1304 (broadcast of lottery information), 1343 (fraud by wire, radio or television) and 1464 (broadcast of obscene, indecent, or profane material) of Title 18 of the United States Code. Under the rule, the Commission may propose forfeitures against broadcast licensees of up to $32,500 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed $325,000 for any single act or failure to act. The Broadcast Decency Enforcement Act increases those amounts for obscene, indecent, or profane broadcasts. Specifically, the new law raises the maximum forfeiture for the broadcast of obscenity, indecency, or profanity to $325,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed $3,000,000 for any single act or failure to act. Accordingly, section 1.80(b)(1) will be modified to reflect the new maximum penalties specified in the legislation.

This Order is limited to revising section 1.80(b)(1) pursuant to the Broadcast Decency Enforcement Act, which concerns only penalties for obscenity, indecency, and profanity broadcast violations. The existing penalty limits described in section 1.80(b)(1) would remain as the applicable maxima for all other broadcast violations subject to that rule.

The rule change adopted in this Order merely implements a specific statutory command and does not involve discretionary action on the part of the Commission. Accordingly, we find that, for good cause, compliance with the notice and comment provisions of the Administrative Procedure Act is unnecessary. (See 5 U.S.C. 553(b)(B)).

Since a notice of proposed rulemaking is not required, the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., does not apply. (See 5 U.S.C. 603-604).

The actions taken herein 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. In addition, therefore, our actions do not impose any new or modified information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

The Commission will send a copy of this Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 1

• Administrative practice and procedure
• Penalties

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

Final Rule

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

PART 1—PRACTICE AND PROCEDURE

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

Authority: 47 U.S.C. 151, 154(i) and (j), 155, 157, 225, 303(r), and 309.

Subpart A—General Rules of Practice and Procedure

2. Section 1.80 is amended by revising paragraph (b)(1) to 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 $32,500 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 $325,000 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. Notwithstanding the foregoing in this section, if the violator is a broadcast station licensee or permittee or an applicant for any broadcast license, permit, certificate, or other instrument of authorization issued by the Commission, and if the violator is determined by the Commission to have broadcast obscene, indecent, or profane material, the forfeiture penalty under this section shall not exceed $325,000 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 $3,000,000 for any single act or failure to act described in paragraph (a) of this section.

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