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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Amendment of Section 1.80(b) )
of the Commission's Rules )
)
Adjustment of Forfeiture Maxima )
to Reflect Inflation )
)
)
ORDER
Adopted: June 14, 2004 Released: June
18, 2004
By the Commission:
1. This Order amends Section 1.80(b) of the
Commission's Rules (``Rules''), 47 C.F.R. §
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 Section 1.80(b)(5) of the
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.
2. 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 2003. The increases were
then rounded using the statutorily prescribed rules to
produce the adjusted penalties. The Order also makes
editorial amendments and corrections to Section 1.80(b).
3. The amendment of Section 1.80(b) simply implements
the requirements of the Debt Collection Improvement Act
of 1986, 28 U.S.C. § 2461, as incorporated in Section
1.80(b)(5) of our rules, as well as updates and clarifies
the rule to reflect the statute more precisely without
substantively changing it. Moreover, 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).
4. Since a notice of proposed rulemaking is not
required, the Regulatory Flexibility Act, 5 U.S.C. § 601
et. seq., does not apply.
5. 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.
6. Accordingly, pursuant to Sections 4(i) and 303(r)
of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i) and 303(r), and the Debt Collection and
Improvement Act of 1996, 28 U.S.C. § 2461, IT IS ORDERED
that 47 C.F.R. § 1.80(b) is AMENDED as set forth in the
Appendix, EFFECTIVE 30 days after publication in the
Federal Register.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Part 1 of Chapter 1 of Title 47 of the Code of Federal
Regulations is amended as follows:
Part 1---PRACTICE AND PROCEDURE
Subpart A---General Rules of Practice and Procedure
Miscellaneous Proceedings
1. The authority citation for Part 1 continues to read as
follows:
Authority: 47 U.S.C. 151, 154(i) and (j), 155, 225, 303(r),
and 309.
2. Section. 1.80 is amended by revising paragraph (b) to
read as follows:
§ 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
$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 Section
1.80(b)(5)(iii).
These statutory maxima became effective 30 days from
publication in
the Federal Register. 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
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. 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.
???????????????????????????????????????????????????????????-
?????????????--
Statutory
Violation
amount ($)
???????????????????????????????????????????????????????????-
?????-----------
Sec. 202(c) Common Carrier Discrimination ...... 8,600
430/day.
Sec. 203(e) Common Carrier Tariffs ...................
8,600 430/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
8,600/day.
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)***
(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:
???????????????????????????????????????????????????????????-
???-----------??
Max-
imum penalty after
U.S. Code citation DCIA adjustment
???????????????????????????????????????????????????????????-
??-----------???
47 USC 202(c)....................................
$8,600
430
47 USC 203(e)....................................
8,600
430
47 USC 205(b).................................... 18,200
47 USC 214(d)....................................
1,320
47 USC 219(b)....................................
1,320
47 USC 220(d)....................................
8,600
47 USC 362(a)....................................
6,500
47 USC 362(b)....................................
1,100
47 USC 386(a)....................................
6,500
47 USC 386(b)....................................
1,100
47 USC 503(b)(2)(A)........................... 32,500
325,000
47 USC 503(b)(2)(B)........................... 130,000
1,325,000
47 USC 503(b)(2)(C)........................... 11,000
97,500
47 USC 507(a)....................................
650
47 USC 507(b)....................................
110
47 USC 554.........................................
550
???????????????????????????????????????????????????????????-
?????
* * * * *
_________________________
1 Under the rounding rules set forth in Section
1.80(b)(5)(ii), the inflation adjustment for a statutory
forfeiture amount must reach a specific threshold before the
forfeiture amount may be increased. Thus, different CPIs
may be used to calculate the inflation factors for different
statutory forfeitures, depending on when a particular
forfeiture was last increased. The June 1999 CPI is used to
calculate the inflation factors for the statutory forfeiture
amounts in Sections 202(c) (the amount for each violation,
not the per day amount for continuing violations), 203(e)
(the amount for each violation, not the per day amount for
continuing violations), 220(d), 503(b)(2)(A) (the maximum
amount for continuing violations, not the amount for a
single violation or single day of a violation),
503(b)(2)(B), and 503(b)(2)(C) (the maximum amount for
continuing violations, not the amount for a single violation
or single day of a violation). The June 1995 CPI is used to
calculate the inflation factors for the statutory forfeiture
amounts in Sections 202(d) (the per day amount for
continuing violations), 203(e) (the per day amount for
continuing violations), 205(b), 364(a), 364(b), 386(a),
386(b), 503(b)(2)(A) (the amount for a single violation or
single day of a violation), 503(b)(2)(C) (the amount for a
single violation or single day of a violation), 507(a), and
507(b). The June 1992 CPI is used to calculate the
inflation factor for the Section 634 forfeiture amount, and
the June 1989 CPI is used to calculate the inflation factors
for the statutory forfeiture amounts in Sections 214(d) and
219(b). Finally, the first inflation adjustment for each
statutory forfeiture may not exceed 10 percent of the
statutory maximum amount. See 47 C.F.R. § 1.80(b)(5), Note
to Paragraph (b)(5). This is the first inflation adjustment
for the statutory forfeiture amounts in Sections 364(b),
386(b) and 634 because this is the first time that the
inflation adjustment for these forfeitures reached the
specific threshold set forth in the rounding rules.
Accordingly, the inflation adjustment for the forfeiture
amounts in Sections 364(b), 386(b) and 634 is limited to 10
percent.