FCC 1.80 as of October 1, 2005

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FCC 1.80
Revised as of October 1, 2005
Goto Year:2004 | 2006

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 $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.

(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 $130,000 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 $1,325,000 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 $97,500 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 Sec. 1.80(b)(5)(iii). These statutory maxima
became effective September 7, 2004. 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 $10,000
authorization for the service...............................
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 9,000
charge, equal opportunity, and discrimination...............
Unauthorized substantial transfer of control................. 8,000
Violation of children's television commercialization or 8,000
programming requirements....................................
Violations of rules relating to distress and safety 8,000
frequencies.................................................
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 4,000
lotteries or contests.......................................
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 2,000
monitoring..................................................
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.
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 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 $8,600 430/day.
Discrimination.
Sec. 203(e) Common Carrier Tariffs..... 8,600 430/day.
Sec. 205(b) Common Carrier 18,200.
Prescriptions.
Sec. 214(d) Common Carrier Line 1,320/day.
Extensions.
Sec. 219(b) Common Carrier Reports..... 1,320.
Sec. 220(d) Common Carrier Records 8,600/day.
& Accounts.
Sec. 364(a) Forfeitures (Ships)........ 6,500 (owner).
Sec. 364(b) Forfeitures (Ships)........ 1,100 (vessel master).
Sec. 386(a) Forfeitures (Ships)........ 6,500/day (owner).
Sec. 386(b) Forfeitures (Ships)........ 1,100 (vessel master).
Sec. 634 Cable EEO..................... 550/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 method specified in the statute. This is to be done by determining
the `cost-of-living adjustment', which is the percentage (if any) by which
the CPI for June of the preceding year exceeds the CPI for June of the year
the forfeiture amount was last set or adjusted. The inflation adjustment is
determined by multiplying the cost-of-living adjustment 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;

(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 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:

------------------------------------------------------------------------
Maximum
penalty
U.S. Code citation after DCIA
adjustment
($)
------------------------------------------------------------------------
47 U.S.C. 202(c)........................................... $8,600
430
47 U.S.C. 203(e)........................................... 8,600
430
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)........................................... 8,600
47 U.S.C. 362(a)........................................... 6,500
47 U.S.C. 362(b)........................................... 1,100
47 U.S.C. 386(a)........................................... 6,500
47 U.S.C. 386(b)........................................... 1,100
47 U.S.C. 503(b)(2)(A)..................................... 32,500
325,000
47 U.S.C. 503(b)(2)(B)..................................... 130,000
1,325,000
47 U.S.C. 503(b)(2)(C)..................................... 11,000
97,500
47 U.S.C. 507(a)........................................... 650
47 U.S.C. 507(b)........................................... 10
47 U.S.C. 554.............................................. 550
------------------------------------------------------------------------

Note to paragraph (b)(5): 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 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 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, 1989.

[ 43 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; 63 FR 26992 , May 15, 1998; 65 FR 60868 ,
Oct. 13, 2000; 69 FR 47789 , Aug. 6, 2004]

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