E8-17254. 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 between June of the year the particular forfeiture amount was last set or adjusted and June 2007. The increase in the Consumer Price Index for the relevant period 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 September 2, 2008.

FOR FURTHER INFORMATION CONTACT:

Kathryn Berthot, Enforcement Bureau, Spectrum Enforcement Division, 202-418-7454.

SUPPLEMENTARY INFORMATION:

This is a summary of the Order by the Commission, FCC 08-154, adopted on June 13, 2008, and released on June 13, 2008. 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.

This Order amends § 1.80(b) of the Commission's rules, 47 CFR 1.80(b), to increase the maximum penalties established in that section to account for inflation since the last adjustment to these penalties. The adjustment procedure is set forth in detail in § 1.80(b)(5) of the Commission's rules. That section implements the Debt Collection Improvement Act of 1996, 28 U.S.C. 2461, which requires federal agencies to adjust maximum statutory civil monetary penalties at least once every four years.

This Order adjusts the maximum penalties to account for the increase in the Consumer Price Index (CPI) between June of the year the forfeiture amount was last set or adjusted,^[1] and June 2007. The increases were then rounded using the statutorily prescribed rules to produce the adjusted penalties.

The amendment of § 1.80(b) implements the requirements of the Debt Collection Improvement Act of 1986, 28 U.S.C. 2461, as incorporated in § 1.80(b)(5) of the Commission's rules. Since Congress has mandated these periodic rule changes and the Commission has no discretion but to make them, 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.

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

List of Subjects in 47 CFR Part 1

• Administrative practice and procedure
• Penalties

Federal Comunications Commission.

Marlene H. Dortch,

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

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

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 303(r), 309.

§ 1.80

[Amended]

2. Amend Section 1.80 as follows:

a. Revise the first three sentences in paragraph (b)(1).

b. Revise paragraphs (b)(2) through (b)(4).

c. Revise the introductory text to the Note to paragraph (b)(4).

d. Revise the table in Section III of the note to paragraph (b)(4).

e. Revise the table in paragraph (b)(5)(iii).

§ 1.80

Forfeiture proceedings.

* * * * *

(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 $37,500 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 $375,000 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 $150,000 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 $1,500,000 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 $16,000 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 $112,500 for any single act or failure to act described in paragraph (a) 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 became effective September 2, 2008. Forfeitures issued under other sections of the Act are dealt with separately in section III of this note.

* * * * *

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

* * * * *

Violation	Statutory amount ($)
Sec. 202(c) Common Carrier Discrimination	9,600, 530/day.
Sec. 203(e) Common Carrier Tariffs	9,600, 530/day.
Sec. 205(b) Common Carrier Prescriptions	18,200.
Sec. 214(d) Common Carrier Line Extensions	1,320/day.
Sec. 219(b) Common Carrier Reports	1,320.
Sec. 220(d) Common Carrier Records & Accounts	9,600/day.
Sec. 223(b) Dial-a-Porn	75,000/day.
Sec. 364(a) Forfeitures (Ships)	7,500 (owner).
Sec. 364(b) Forfeitures (Ships)	1,100 (vessel master).
Sec. 386(a) Forfeitures (Ships)	7,500/day (owner).
Sec. 386(b) Forfeitures (Ships)	1,100 (vessel master).
Sec. 634 Cable EEO	650/day.

(5) * * *

(iii) * * *

U.S. code citation	Maximum penalty after DCIA adjustment ($)
47 U.S.C. 202(c)	9,600
	530
47 U.S.C. 203(e)	9,600
	530
47 U.S.C. 205(b)	18,200
47 U.S.C. 214(d)	1,320
47 U.S.C. 219(b)	1,320
47 U.S.C. 220(d)	9,600
47 U.S.C. 223(b)	75,000
47 U.S.C. 362(a)	7,500
47 U.S.C. 362(b)	1,100
47 U.S.C. 386(a)	7,500
47 U.S.C. 386(b)	1,100
47 U.S.C. 503(b)(2)(A)	37,500
	375,000
47 U.S.C. 503(b)(2)(B)	150,000
	1,500,000
47 U.S.C. 503(b)(2)(C)	325,000
	3,000,000
47 U.S.C. 503(b)(2)(D)	16,000
	112,500
47 U.S.C. 507(a)	750
47 U.S.C. 507(b)	110
47 U.S.C. 554	650

Footnotes

1.  Under the rounding rules set forth in § 1.80(b)(5)(ii), the inflationary adjustment for a statutory forfeiture amount must reach a specific threshold before the forfeiture amount may be increased. That adjustment is based on the difference between the CPI of “June of the preceding year” (here June 2007) and that of June of the year a particular forfeiture was “last set or adjusted.” Thus, the June 1995 CPI is used to calculate the inflation factors for the statutory forfeiture amounts in sections 362(b), 386(b), 503(b)(2)(D) (the amount for a single violation or single day of a violation), and section 507(b). The June 1999 CPI is used to calculate the inflation factor for the statutory forfeiture amount in section 223(b). The June 2003 CPI is used to calculate the inflation factors for the remaining statutory forfeiture amounts, except for section 503(b)(2)(C). The Broadcast Decency Enforcement Act of 2005, which was signed into law on June 15, 2006, implemented by the Commission on June 1, 2007, and codified at section 503(b)(2)(C), increased the maximum forfeiture penalties for obscene, indecent, and profane broadcasts. The date on which the Commission implemented the Broadcast Decency Enforcement Act constitutes the date on which the maximum forfeiture amount was “last set or adjusted.” Therefore, the June 2007 CPI is the relevant measure for purposes of calculating the inflation factor for the maximum statutory forfeiture amount pursuant to section 503(b)(2)(C). This measure is the same as the CPI for “June of the preceding Year.” The forfeiture maxima under section 503(b)(2)(C) remains unchanged.