2022-28493. Annual Adjustment of Civil Monetary Penalties To Reflect Inflation

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act) requires the Federal Communications Commission to amend its forfeiture penalty rules to reflect annual adjustments for inflation in order to improve their effectiveness and maintain their deterrent effect. The Inflation Adjustment Act provides that the new penalty levels shall apply to penalties assessed after the effective date of the increase, including when the penalties whose associated violation predate the increase.

DATES:

Effective date: The rule is effective January 5, 2023. Applicability date: The civil monetary penalties are applicable beginning January 15, 2023.

ADDRESSES:

Federal Communications Commission, 45 L Street NE, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Lisa Gelb, Deputy Chief, Enforcement Bureau, at [e-mail] or 202-418-2019.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Order, DA 22-1356, adopted and released on December 23, 2022. The document is available for download at https://www.fcc.gov/​document/​2023-annual-adjustment-civil-monetary-penalties-reflect-inflation. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, 45 L Street NE, Washington, DC 20554. To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format, etc.) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART, etc.), send an email to [e-mail] or call the FCC's Consumer and Governmental Affairs Bureau at [phone] (voice).

The Bipartisan Budget Act of 2015 included, as section 701 thereto, the Inflation Adjustment Act, which amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), to improve the effectiveness of civil monetary penalties and maintain their deterrent effect. Under the Inflation Adjustment Act, agencies are required to make annual inflationary adjustments by January 15 each year, beginning in 2017. The adjustments are calculated pursuant to Office of Management and Budget (OMB) guidance. OMB issued guidance on December 15, 2022, and this Order follows that guidance. The Commission therefore updates the civil monetary penalties for 2023, to reflect an annual inflation adjustment based on the percent change between each published October's CPI-U; in this case, October 2022 CPI-U (298.012)/October 2021 CPI-U (276.589) = 1.07745. The Commission multiplies 1.07745 by the most recent penalty amount and then rounds the result to the nearest dollar.

For 2023, the adjusted penalty or penalty range for each applicable penalty is calculated by multiplying the most recent penalty amount by the 2023 annual adjustment (1.07745), then rounding the result to the nearest dollar. The adjustments in civil monetary penalties that we adopt in this Order apply only to such penalties assessed on and after January 15, 2023.

Paperwork Reduction Act

This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It does not contain 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, see44 U.S.C. 3506(c)(4).

Congressional Review Act

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs that this rule is non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 1

• Administrative practice and procedure
• Penalties

Federal Communications Commission.

Lisa Gelb,

Deputy Chief, Enforcement Bureau.

Final Rules

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. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note, unless otherwise noted.

2. Amend § 1.80 by revising paragraphs (b)(1) through (9), Table 4 to paragraph (b)(10), and paragraph (b)(11)(ii) to read as follows:

§ 1.80

Forfeiture proceedings.

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(b) * * *

(1) Forfeiture penalty for a broadcast station licensee, permittee, cable television operator, or applicant. 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 (b)(1), the forfeiture penalty under this section shall not exceed $59,316 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 $593,170 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 (47 U.S.C. 554). 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 $479,945 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 $4,430,255 for any single act or failure to act described in paragraph (a) of this section.

(2) Forfeiture penalty for a common carrier or applicant. 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 $237,268 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 $2,372,677 for any single act or failure to act described in paragraph (a) of this section.

(3) Forfeiture penalty for a manufacturer or service provider. If the violator is a manufacturer or service provider subject to the requirements of section 255, 716, or 718 of the Communications Act (47 U.S.C. 255, 617, or 619), and is determined by the Commission to have violated any such requirement, the manufacturer or service provider shall be liable to the United States for a forfeiture penalty of not more than $136,258 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 $1,362,567 for any single act or failure to act.

(4) Forfeiture penalty for a 227(e) violation. Any person determined to have violated section 227(e) of the Communications Act or the rules issued by the Commission under section 227(e) of the Communications Act shall be liable to the United States for a forfeiture penalty of not more than $13,625 for each violation or three times that amount for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $1,362,567 for any single act or failure to act. Such penalty shall be in addition to any other forfeiture penalty provided for by the Communications Act.

(5) Forfeiture penalty for a 227(b)(4)(B) violation. Any person determined to have violated section 227(b)(4)(B) of the Communications Act or the rules in 47 CFR part 64 issued by the Commission under section 227(b)(4)(B) of the Communications Act shall be liable to the United States for a forfeiture penalty determined in accordance with paragraphs (A)-(F) of section 503(b)(2) plus an additional penalty not to exceed $11,580.

(6) Forfeiture penalty for pirate radio broadcasting. (i) Any person who willfully and knowingly does or causes or suffers to be done any pirate radio broadcasting shall be subject to a fine of not more than $2,316,034; and

(ii) Any person who willfully and knowingly violates the Act or any rule, regulation, restriction, or condition made or imposed by the Commission under authority of the Act, or any rule, regulation, restriction, or condition made or imposed by any international radio or wire communications treaty or convention, or regulations annexed thereto, to which the United States is party, relating to pirate radio broadcasting shall, in addition to any other penalties provided by law, be subject to a fine of not more than $115,802 for each day during which such offense occurs, in accordance with the limit described in this section.

(7) Forfeiture penalty for a section 6507(b)(4) Tax Relief Act violation. If a violator who is granted access to the Do-Not-Call registry of public safety answering points discloses or disseminates any registered telephone number without authorization, in violation of section 6507(b)(4) of the Middle Class Tax Relief and Job Creation Act of 2012 or the Commission's implementing rules in 47 CFR part 64, the monetary penalty for such unauthorized disclosure or dissemination of a telephone number from the registry shall be not less than $127,602 per incident nor more than $1,276,024 per incident depending upon whether the conduct leading to the violation was negligent, grossly negligent, reckless, or willful, and depending on whether the violation was a first or subsequent offense.

(8) Forfeiture penalty for a section 6507(b)(5) Tax Relief Act violation. If a violator uses automatic dialing equipment to contact a telephone number on the Do-Not-Call registry of public safety answering points, in violation of section 6507(b)(5) of the Middle Class Tax Relief and Job Creation Act of 2012 or the Commission's implementing rules in 47 CFR part 64, the monetary penalty for contacting such a telephone number shall be not less than $12,760 per call nor more than $127,602 per call depending on whether the violation was negligent, grossly negligent, reckless, or willful, and depending on whether the violation was a first or subsequent offense.

(9) Maximum forfeiture penalty for any case not previously covered. In any case not covered in paragraphs (b)(1) through (8) of this section, the amount of any forfeiture penalty determined under this section shall not exceed $23,727 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 $177,951 for any single act or failure to act described in paragraph (a) of this section.

(10) * * *

Table 4 to Paragraph ( b )(10)—Non-Section 503 Forfeitures That Are Affected by the Downward Adjustment Factors ¹

Violation	Statutory amount after 2023 annual inflation adjustment
Sec. 202(c) Common Carrier Discrimination	$14,236, $712/day.
Sec. 203(e) Common Carrier Tariffs	$14,236, $712/day.
Sec. 205(b) Common Carrier Prescriptions	$28,472.
Sec. 214(d) Common Carrier Line Extensions	$2,847/day.
Sec. 219(b) Common Carrier Reports	$2,847/day.
Sec. 220(d) Common Carrier Records & Accounts	$14,236/day.
Sec. 223(b) Dial-a-Porn	$147,529/day.
Sec. 227(e) Caller Identification	$13,625/violation. $40,875/day for each day of continuing violation, up to $1,362,567 for any single act or failure to act.
Sec. 364(a) Forfeitures (Ships)	$11,864/day (owner).
Sec. 364(b) Forfeitures (Ships)	$2,374 (vessel master).
Sec. 386(a) Forfeitures (Ships)	$11,864/day (owner).
Sec. 386(b) Forfeitures (Ships)	$2,374 (vessel master).
Sec. 511 Pirate Radio Broadcasting	$2,316,034, $115,802/day.
Sec. 634 Cable EEO	$1,052/day.
1  Unlike section 503 of the Act, which establishes maximum forfeiture amounts, other sections of the Act, with two exceptions, 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. 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 other exception is section 227(e) of the Act, which provides maximum forfeitures per violation, and for continuing violations. The Commission will apply the factors set forth in section 503(b)(2)(E) of the Act and this table 4 to determine the amount of the penalty to assess in any particular situation. The amounts in this table 4 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 table 3 to this paragraph (b)(10).

(11) * * *

(ii) The application of the annual inflation adjustment required by the foregoing Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 results in the following adjusted statutory maximum forfeitures authorized by the Communications Act:

Table 5 to Paragraph (b)(11)(ii)

U.S. Code citation	Maximum penalty after 2023 annual inflation adjustment
47 U.S.C. 202(c)	$14,236, $712.
47 U.S.C. 203(e)	$14,236, $712.
47 U.S.C. 205(b)	$28,472.
47 U.S.C. 214(d)	$2,847.
47 U.S.C. 219(b)	$2,847.
47 U.S.C. 220(d)	$14,236.
47 U.S.C. 223(b)	$147,529.
47 U.S.C. 227(b)(4)(B)	$59,316, plus an additional penalty not to exceed $11,580; $593,170, plus an additional penalty not to exceed $11,580; $237,268, plus an additional penalty not to exceed $11,580; $2,372,677, plus an additional penalty not to exceed $11,580; $479,945, plus an additional penalty not to exceed $11,580; $4,430,255, plus an additional penalty not to exceed $11,580; $23,727, plus an additional penalty not to exceed $11,580; $177,951, plus an additional penalty not to exceed $11,580; $136,258, plus an additional penalty not to exceed $11,580; $1,362,567, plus an additional penalty not to exceed $11,580.
47 U.S.C. 227(e)	$13,625, $40,875, $1,362,567.
47 U.S.C. 362(a)	$11,864.
47 U.S.C. 362(b)	$2,374.
47 U.S.C. 386(a)	$11,864.
47 U.S.C. 386(b)	$2,374.
47 U.S.C. 503(b)(2)(A)	$59,316, $593,170.
47 U.S.C. 503(b)(2)(B)	$237,268, $2,372,677.
47 U.S.C. 503(b)(2)(C)	$479,945, $4,430,255.
47 U.S.C. 503(b)(2)(D)	$23,727, $177,951.
47 U.S.C. 503(b)(2)(F)	$136,258, $1,362,567.
47 U.S.C. 507(a)	$2,350.
47 U.S.C. 507(b)	$345.
47 U.S.C. 511	$2,316,034, $115,802.
47 U.S.C. 554	$1,052.
Sec. 6507(b)(4) of Tax Relief Act	$1,276,024/incident.
Sec. 6507(b)(5) of Tax Relief Act	$127,602/call.

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