Sec. 1.80 Forfeiture proceedings.
(a) Persons against whom and violations for which a forfeiture may
be assessed. A forfeiture penalty may be assessed against any person
found to have:
(1) Willfully or repeatedly failed to comply substantially with the
terms and conditions of any license, permit, certificate, or other
instrument of authorization issued by the Commission;
(2) Willfully or repeatedly failed to comply with any of the
provisions of the Communications Act of 1934, as amended; or of any
rule, regulation or order issued by the Commission under that Act or
under any treaty, convention, or other agreement to which the United
States is a party and which is binding on the United States;
(3) Violated any provision of section 317(c) or 508(a) of the
Communications Act; or
(4) Violated any provision of section 1304, 1343, or 1464 of Title
18, United States Code.
A forfeiture penalty assessed under this section is in addition to any
other penalty provided for by the Communications Act, except that the
penalties provided for in paragraphs (b)(1), (b)(2) and (b)(3) of this
section shall not apply to conduct which is subject to a forfeiture
penalty under sections 202(c), 203(e), 205(b), 214(d), 219(b), 220(d),
223(b), 362(a), 362(b), 386(a), 386(b), 503(b), 506, and 634 of the
Communications Act. The remaining provisions of this section are
applicable to such conduct.
(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
$275,000 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 $110,000 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 $1,100,000 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 $82,500 for any single act or
failure to act described in paragraph (a) of this section.
Note: 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
[[Page 112]]
in Section 503 of the Communications Act and the Commission's Rules are
$25,000 for broadcasters and cable operators or applicants, $100,000 for
common carriers or applicants, and $10,000 for all others. These base
amounts listed are for a single violation or single day of a continuing
violation. 47 U.S.C. 503(b)(2); 47 CFR 1.80. For continuing violations
involving a single act or failure to act, the statute limits the
forfeiture to $250,000 for broadcasters and cable operators or
applicants, $1,000,000 for common carriers or applicants, and $75,000
for all others. Id. Pursuant to the Debt Collection Improvement Act of
1996 (DCIA), Public Law 104-134, section 31001, 110 Stat. 1321 (1996),
civil monetary penalties assessed by the federal government, whether set
by statutory maxima or specific dollar amounts as provided by federal
law, must be adjusted for inflation at least every four years based on
the formula outlined in the DCIA. Thus, the statutory maxima increased
to $27,500 for broadcasters and cable operators or applicants; $110,000
for common carriers or applicants, and $11,000 for others. For
continuing violations, the statutory maxima increased to $27,500 for
broadcasters, cable operators, or applicants; $1,100,000 for common
carriers or applicants; and $82,500 for others. The increased statutory
maxima became effective March 5, 1997. There is an upward adjustment
factor for repeated or continuous violations, see Section II, infra.
That upward adjustment is not necessarily applied on a per violation or
per day basis. Id. Unless Commission authorization is required for the
behavior involved, a Section 503 forfeiture proceeding against a non-
licensee or non-applicant who is not a cable operator or common carrier
can only be initiated for a second violation, after issuance of a
citation in connection with a first violation. 47 U.S.C. 503(b)(5). A
prior citation is not required, however, for non-licensee tower owners
who have previously received notice of the obligations imposed by
Section 303(q) and part 17 of the Commission's rules from the
Commission. Forfeitures issued under other sections of the Act are dealt
with separately in Section III of this note.
Section I.--Base Amounts for Section 503 Forfeitures
------------------------------------------------------------------------
Violation
Forfeitures Amount
------------------------------------------------------------------------
Misrepresentation/lack of candor............................. (\1\)
Construction and/or operation without an instrument of
authorization for the service............................... $10,000
Failure to comply with prescribed lighting and/or marking.... 10,000
Violation of public file rules............................... 10,000
Violation of political rules: reasonable access, lowest unit
charge, equal opportunity, and discrimination............... 9,000
Unauthorized substantial transfer of control................. 8,000
Violation of children's television commercialization or
programming requirements.................................... 8,000
Violations of rules relating to distress and safety
frequencies................................................. 8,000
False distress communications................................ 8,000
EAS equipment not installed or operational................... 8,000
Alien ownership violation.................................... 8,000
Failure to permit inspection................................. 7,000
Transmission of indecent/obscene materials................... 7,000
Interference................................................. 7,000
Importation or marketing of unauthorized equipment........... 7,000
Exceeding of authorized antenna height....................... 5,000
Fraud by wire, radio or television........................... 5,000
Unauthorized discontinuance of service....................... 5,000
Use of unauthorized equipment................................ 5,000
Exceeding power limits....................................... 4,000
Failure to respond to Commission communications.............. 4,000
Violation of sponsorship ID requirements..................... 4,000
Unauthorized emissions....................................... 4,000
Using unauthorized frequency................................. 4,000
Failure to engage in required frequency coordination......... 4,000
Construction or operation at unauthorized location........... 4,000
Violation of requirements pertaining to broadcasting of
lotteries or contests....................................... 4,000
Violation of transmitter control and metering requirements... 3,000
Failure to file required forms or information................ 3,000
Failure to make required measurements or conduct required
monitoring.................................................. 2,000
Failure to provide station ID................................ 1,000
Unauthorized pro forma transfer of control................... 1,000
Failure to maintain required records......................... 1,000
------------------------------------------------------------------------
\1\ Statutory Maximum for each Service.
Violations Unique to the Service
------------------------------------------------------------------------
Violation Services affected Amount
------------------------------------------------------------------------
Unauthorized conversion of long Common Carrier......... $40,000
distance telephone service.
Violation of operator services Common Carrier......... 7,000
requirements.
Violation of pay-per-call Common Carrier......... 7,000
requirements.
Failure to implement rate reduction Cable.................. 7,500
or refund order.
Violation of cable program access Cable.................. 7,500
rules.
Violation of cable leased access Cable.................. 7,500
rules.
Violation of cable cross-ownership Cable.................. 7,500
rules.
Violation of cable broadcast carriage Cable.................. 7,500
rules.
Violation of pole attachment rules... Cable.................. 7,500
Failure to maintain directional Broadcast.............. 7,000
pattern within prescribed parameters.
Violation of main studio rule........ Broadcast.............. 7,000
Violation of broadcast hoax rule..... Broadcast.............. 7,000
AM tower fencing..................... Broadcast.............. 7,000
Broadcasting telephone conversations Broadcast.............. 4,000
without authorization.
[[Page 113]]
Violation of enhanced underwriting Broadcast.............. 2,000
requirements.
------------------------------------------------------------------------
Section II. Adjustment Criteria for Section 503 Forfeitures
Upward Adjustment Criteria
(1) Egregious misconduct.
(2) Ability to pay/relative disincentive.
(3) Intentional violation.
(4) Substantial harm.
(5) Prior violations of any FCC requirements.
(6) Substantial economic gain.
(7) Repeated or continuous violation.
Downward Adjustment Criteria
(1) Minor violation.
(2) Good faith or voluntary disclosure.
(3) History of overall compliance.
(4) Inability to pay.
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 of $50,000 per day. For convenience, the Commission will treat
the $50,000 set forth in Section 223 as if it were a prescribed base
amount, subject to downward adjustments. The following amounts were
adjusted for inflation pursuant to the Debt Collection Improvement Act
of 1996 (DCIA) Public Law 104-134, section 31001, 110 Stat 1321 (1996).
The new amounts became effective on March 5, 1997. These non-Section 503
forfeitures may be adjusted downward using the ``Downward Adjustment
Criteria'' shown for Section 503 forfeitures in Section II of this note.
------------------------------------------------------------------------
Statutory
Violation amount ($)
------------------------------------------------------------------------
Sec. 202(c) Common Carrier Discrimination.................. 6,600 330/
day
Sec. 203(e) Common Carrier Tariffs......................... 6,600 330/
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.............. 6,600/day
Sec. 223(b) Dial-a-Porn.................................... 55,000
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
------------------------------------------------------------------------
(5) Inflation adjustments to the maximum forfeiture amount. (i)
Pursuant to the Debt Collection Improvement Act of 1996, Public Law 104-
134 (110 Stat. 1321-358), which amends the Federal Civil Monetary
Penalty Inflation Adjustment Act of 1990, Public Law 101-410 (104 Stat.
890; 28 U.S.C. 2461 note), the statutory maximum amount of a forfeiture
penalty assessed under this section shall be adjusted for inflation at
least once every four years using the following formula. First, obtain
the inflation factor by dividing the CPI for June of the preceding year
by the CPI for June of the year the forfeiture was last set or adjusted.
Then, multiply the inflation factor by the statutory maximum amount.
Round off this result using the rules in paragraph (b)(5)(ii) of this
section. Add the rounded result to the statutory maximum forfeiture
penalty amount. The sum is the statutory maximum amount, adjusted for
inflation.
(ii) The rounding rules are as follows:
(A) Round increase to the nearest multiple of $10 if the penalty is
from $0 to $100;
(B) Round increase to the nearest multiple of $100 if the penalty is
from $101 to $1,000;
(C) Round increase to the nearest multiple of $1,000 if the penalty
is from $1,001 to $10,000;
(D) Round increase to the nearest multiple of $5,000 if the penalty
is from $10,001 to $100,000;
(E) Round increase to the nearest multiple of $10,000 if the penalty
is from $100,001 to $200,000; or
(F) Round increase to the nearest multiple of $25,000 if the penalty
is over $200,001.
(iii) The first application of the inflation adjustments required by
Public Law 104-134 results in the following adjustments to the statutory
forfeitures
[[Page 114]]
currently authorized by the Communications Act:
------------------------------------------------------------------------
Maximum
Current penalty
statutory after
U.S. Code citation maximum Public Law
penalty 104-134
adjustment
------------------------------------------------------------------------
47 USC 202(c)................................. $6,000 $6,600
300 330
47 USC 203(e)................................. 6,000 6,600
300 330
47 USC 205(b)................................. 12,000 13,200
47 USC 214(d)................................. 1,200 1,200
47 USC 219(b)................................. 1,200 1,200
47 USC 220(d)................................. 6,000 6,600
47 USC 223(b)................................. 50,000 55,000
47 USC 362(a)................................. 5,000 5,500
47 USC 362(b)................................. 1,000 1,100
47 USC 386(a)................................. 5,000 5,500
47 USC 386(b)................................. 1,000 1,100
47 USC 503(b)(2)(A)........................... 25,000 27,500
250,000 275,000
47 USC 503(b)(2)(B)........................... 100,000 110,000
1,000,000 1,100,000
47 USC 503(b)(2)(C)........................... 10,000 11,000
75,000 82,500
47 USC 506(a)................................. 500 550
47 USC 506(b)................................. 100 110
47 USC 554.................................... 500 500
------------------------------------------------------------------------
Note: Pursuant to Public Law 104-134, the first inflation adjustment
cannot exceed 10 percent of the statutory maximum amount.
(c) Limits on the time when a proceeding may be initiated. (1) In
the case of a broadcast station, no forfeiture penalty shall be imposed
if the violation occurred more than 1 year prior to the issuance of the
appropriate notice or prior to the date of commencement of the current
license term, whichever is earlier. For purposes of this paragraph,
``date of commencement of the current license term'' means the date of
commencement of the last term of license for which the licensee has been
granted a license by the Commission. A separate license term shall not
be deemed to have commenced as a result of continuing a license in
effect under section 307(c) pending decision on an application for
renewal of the license.
(2) In the case of a forfeiture imposed against a carrier under
sections 202(c), 203(e), and 220(d), no forfeiture will be imposed if
the violation occurred more than 5 years prior to the issuance of a
notice of apparent liability.
(3) In all other cases, no penalty shall be imposed if the violation
occurred more than 1 year prior to the date on which the appropriate
notice is issued.
(d) Preliminary procedure in some cases; citations. No forfeiture
penalty shall be imposed upon any person under this section, if such
person does not hold a license, permit, certificate, or other
authorization issued by the Commission, and if such person is not an
applicant for a license, permit, certificate, or other authorization
issued by the Commission, unless, prior to the issuance of the
appropriate notice, such person: (1) Is sent a citation reciting the
violation charged; (2) is given a reasonable opportunity (usually 30
days) to request a personal interview with a Commission official, at the
field office which is nearest to such person's place of residence; and
(3) subsequently engages in conduct of the type described in the
citation. However, a forfeiture penalty may be imposed, if such person
is engaged in (and the violation relates to) activities for which a
license, permit, certificate, or other authorization is required or if
such person is a cable television operator, or in the case of violations
of section 303(q), if the person involved is a nonlicensee tower owner
who has previously received notice of the obligations imposed by section
303(q) from the Commission or the permittee or licensee who uses that
tower. Paragraph (c) of this section does not limit the issuance of
citations. When the requirements of this paragraph have been satisfied
with respect to a particular violation by a particular person, a
forfeiture penalty may be imposed upon such person for conduct of the
type described in the citation without issuance of an additional
citation.
(e) Alternative procedures. In the discretion of the Commission, a
forfeiture proceeding may be initiated either: (1) By issuing a notice
of apparent liability, in accordance with paragraph (f) of this section,
or (2) a notice of opportunity for hearing, in accordance with paragraph
(g).
(f) Notice of apparent liability. Before imposing a forfeiture
penalty under the provisions of this paragraph, the Commission or its
designee will issue a written notice of apparent liability.
(1) Content of notice. The notice of apparent liability will:
(i) Identify each specific provision, term, or condition of any act,
rule, regulation, order, treaty, convention, or other agreement,
license, permit, certificate, or instrument of authorization
[[Page 115]]
which the respondent has apparently violated or with which he has failed
to comply,
(ii) Set forth the nature of the act or omission charged against the
respondent and the facts upon which such charge is based,
(iii) State the date(s) on which such conduct occurred, and
(iv) Specify the amount of the apparent forfeiture penalty.
(2) Delivery. The notice of apparent liability will be sent to the
respondent, by certified mail, at his last known address (see Sec. 1.5).
(3) Response. The respondent will be afforded a reasonable period of
time (usually 30 days from the date of the notice) to show, in writing,
why a forfeiture penalty should not be imposed or should be reduced, or
to pay the forfeiture. Any showing as to why the forfeiture should not
be imposed or should be reduced shall include a detailed factual
statement and such documentation and affidavits as may be pertinent.
(4) Forfeiture order. If the proposed forfeiture penalty is not paid
in full in response to the notice of apparent liability, the Commission,
upon considering all relevant information available to it, will issue an
order canceling or reducing the proposed forfeiture or requiring that it
be paid in full and stating the date by which the forfeiture must be
paid.
(5) Judicial enforcement of forfeiture order. If the forfeiture is
not paid, the case will be referred to the Department of Justice for
collection under section 504(a) of the Communications Act.
(g) Notice of opportunity for hearing. The procedures set out in
this paragraph will ordinarily be followed only when a hearing is being
held for some reason other than the assessment of a forfeiture (such as,
to determine whether a renewal application should be granted) and a
forfeiture is to be considered as an alternative or in addition to any
other Commission action. However, these procedures may be followed
whenever the Commission, in its discretion, determines that they will
better serve the ends of justice.
(1) Before imposing a forfeiture penalty under the provisions of
this paragraph, the Commission will issue a notice of opportunity for
hearing. The hearing will be a full evidentiary hearing before an
administrative law judge, conducted under procedures set out in subpart
B of this part, including procedures for appeal and review of initial
decisions. A final Commission order assessing a forfeiture under the
provisions of this paragraph is subject to judicial review under section
402(a) of the Communications Act.
(2) If, after a forfeiture penalty is imposed and not appealed or
after a court enters final judgment in favor of the Commission, the
forfeiture is not paid, the Commission will refer the matter to the
Department of Justice for collection. In an action to recover the
forfeiture, the validity and appropriateness of the order imposing the
forfeiture are not subject to review.
(3) Where the possible assessment of a forfeiture is an issue in a
hearing case to determine which pending application should be granted,
and the applicant facing a potential forfeiture is dismissed pursuant to
a settlement agreement or otherwise, and the presiding judge has not
made a determination on the forfeiture issue, the order of dismissal
shall be forwarded to the attention of the full Commission. Within the
time provided by Sec. 1.117, the Commission may, on its own motion,
proceed with a determination of whether a forfeiture against the
dismissing applicant is warranted. If the Commission so proceeds, it
will provide the applicant with a reasonable opportunity to respond to
the forfeiture issue (see paragraph (f)(3) of this section) and make a
determination under the procedures outlined in paragraph (f) of this
section.
(h) Payment. The forfeiture should be paid by check or money order
drawn to the order of the Federal Communications Commission. The
Commission does not accept responsibility for cash payments sent through
the mails. The check or money order should be mailed to: Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
(i) Remission and mitigation. In its discretion, the Commission, or
its designee, may remit or reduce any forfeiture imposed under this
section. After issuance of a forfeiture order, any request that it do so
shall be submitted
[[Page 116]]
as a petition for reconsideration pursuant to Sec. 1.106.
(j) Effective date. Amendments to paragraph (b) of this section
implementing Pub. L. No. 101-239 are effective December 19, .
[43 1989 FR 49308 , Oct. 23, 1978, as amended at 48 FR 15631 , Apr. 12, 1983;
50 FR 40855 , Oct. 7, 1985; 55 FR 25605 , June 22, 1990; 56 FR 25638 , June
5, 1991; 57 FR 23161 , June 2, 1992; 57 FR 47006 , Oct. 14, 1992; 57 FR 48333 , Oct. 23, 1992; 58 FR 6896 , Feb. 3, 1993; 58 FR 27473 , May 10,
1993; 62 FR 4918 , Feb. 3, 1997; 62 FR 43475 , Aug. 14, 1997]
Effective Date Note: At 62 FR 43475 , Aug. 14, 1997, the note to
paragraph (b)(4) was added, effective Oct. 14, 1997.
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