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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Amendment of Section 1.80(b)(1) of the )
Commission's Rules
) EB-06-IH-2271
Increase of Forfeiture Maxima for Obscene,
Indecent, and Profane Broadcasts to Implement The )
Broadcast Decency Enforcement Act of 2005
)
)
)
ORDER
Adopted: May 17, 2007 Released: June 1, 2007
By the Commission:
1. On June 15, 2006, President George W. Bush signed into law The
Broadcast Decency Enforcement Act of 2005 ("Broadcast Decency
Enforcement Act"). The legislation amends Section 503(b)(2) of the
Communications Act of 1934, as amended ("Communications Act"), 47
U.S.C. S 503(b)(2), to increase the maximum forfeiture penalties for
obscene, indecent, and profane broadcasts. This Order amends Section
1.80(b)(1) of the Commission's Rules ("Rules"), 47 C.F.R. S
1.80(b)(1), to reflect the new penalties.
2. Section 1.80(b)(1) of the Rules specifies the maximum possible
forfeiture penalties for a range of violations, including, but not
limited to: failure to comply with the terms and conditions of any
Commission license, permit, certificate or instrument of
authorization; failure to comply with any provision of the
Communications Act or any Commission rule, regulation or order; and
violation of section 1304 (broadcast of lottery information), 1343
(fraud by wire, radio or television) and 1464 (broadcast of obscene,
indecent, or profane material) of Title 18, United States Code. Under
the rule, the Commission may propose forfeitures against broadcast
licensees of up to $32,500 for each violation or each day of a
continuing violation, except that the amount assessed for any
continuing violation shall not exceed $325,000 for any single act or
failure to act. The Broadcast Decency Enforcement Act increases those
amounts for obscene, indecent, or profane broadcasts. Specifically,
the new law raises the maximum forfeiture for the broadcast of
obscenity, indecency, or profanity to $325,000 for each violation or
each day of a continuing violation, except that the amount assessed
for any continuing violation shall not exceed $3,000,000 for any
single act or failure to act. Accordingly, Section 1.80(b)(1) will be
modified to reflect the new maximum penalties specified in the
legislation.
3. This Order is limited to revising Section 1.80(b)(1) pursuant to the
Broadcast Decency Enforcement Act, which concerns only penalties for
obscenity, indecency, and profanity broadcast violations. The existing
penalty limits described in Section 1.80(b)(1) would remain as the
applicable maxima for all other broadcast violations subject to that
rule.
4. The rule change adopted in this Order merely implements a specific
statutory command and does not involve discretionary action on the
part of the Commission. Accordingly, we find that, for good cause,
compliance with the notice and comment provisions of the
Administrative Procedure Act is unnecessary.
5. Since a notice of proposed rulemaking is not required, the Regulatory
Flexibility Act,
5 U.S.C. S 601 et. seq., does not apply.
6. 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. In
addition, therefore, our actions do not impose 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, Pub. L. No. 107-198, see 44 U.S.C. S 3506(c)(4).
7. Accordingly, pursuant to Sections 4(i) and 303(r) of the
Communications Act of 1934, as amended, 47 U.S.C. SS 154(i) and
303(r), and The Broadcast Decency Enforcement Act of 2005, IT IS
ORDERED that 47 C.F.R. S 1.80(b)(1) is AMENDED as set forth in the
Appendix, EFFECTIVE 30 days after publication in the Federal Register.
8. The Commission will send a copy of this Order in a report to be sent
to Congress and the Government Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
S 801(a)(1)(A).
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
FINAL RULE
Part 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, 157, 225, 303(r), and 309.
2. Section 1.80 is amended by revising paragraph (b)(1) to read as
follows:
S 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. 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
$325,000
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
$3,000,000 for
any single act or failure to act described in paragraph (a) of this
section.
* * * * *
Pub. L. No. 109-235, 120 Stat. 491 (2006).
The current maximum penalty amounts became effective September 7, 2004,
when the Commission amended its rules to increase the maximum penalties to
account for inflation since the last adjustment of the penalty rates. See
Amendment of Section 1.80(b) of the Commission's Rules, Order, 19 FCC Rcd
10945, 10946 P 6 (2004).
See 5 U.S.C. S 553(b)(B).
See 5 U.S.C. SS 603-604.
(Continued from previous page)
(continued....)
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