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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of Amendment of Section 1.80(b) of the Commission's Rules
Adjustment of Civil Monetary Penalties to Reflect Inflation ) ) ) ) ) ) )
)
ORDER
Adopted: August 1, 2013 Released: August 1, 2013
By the Acting Chief, Enforcement Bureau:
I. INTRODUCTION
1. Pursuant to the Debt Collection Improvement Act of 1996 (DCIA),^ ^
this procedural order amends Section 1.80(b) of the Commission's
rules^ to increase the forfeiture penalties set forth in that section
to account for inflation since the last adjustment of those
penalties.^ The DCIA amended the Federal Civil Penalties Inflation
Adjustment Act of 1990 (FCPIAA)^ to require federal agencies to adjust
civil monetary penalties at least once every four years.^
2. The adjustments for inflation that we adopt in this order will apply
solely to violations occurring after the effective date of the
amendments to Section 1.80(b).^ In addition to implementing the
inflation adjustments required under the FCPIAA, as amended, we also
correct certain typographical errors in the rule's existing version.
II. DISCUSSION
A. Inflation Adjustments
3. Pursuant to the FCPIAA, we update the civil monetary penalties set
forth in the Communications Act of 1934, as amended (Communications
Act or Act),^ to reflect an "inflation adjustment"^ that derives from
what the FCPIAA terms the "cost-of-living adjustment."^ The
cost-of-living adjustment reflects the total inflation that has taken
place in the years since the penalties were last set or adjusted.
Specifically, the adjustment is "the percentage (if any)" by which the
U.S. Department of Labor's Consumer Price Index (CPI) "for the month
of June of the calendar year preceding the adjustment" exceeds the CPI
for "the month of June of the calendar year in which the amount of
[the relevant] civil monetary penalty was last set or adjusted
pursuant to law."^
4. Section 1.80 prescribes four steps in adjusting a given penalty for
inflation. First, the Commission must determine when each penalty was
most recently set or adjusted and, for each one, calculate the
percentage increase that must be applied. Because all of the adjusted
penalties addressed in this order will become effective in 2013, we
use the June 2012 CPI as the CPI for "June of the calendar year
preceding the adjustment" for each penalty.^ However, because these
penalties were "last set or adjusted" at varying times,^ our
calculations employ varying CPIs for "June of the calendar year in
which the amount of [a given] civil monetary penalty was last set or
adjusted pursuant to law."^ Second, we multiply the cost-of-living
adjustment by the existing penalty.^ Third, the resulting "increase"
from the second step is rounded using the rules set forth in Section
5(a) of the FCPIAA.^ Fourth, we ultimately
add the rounded result to the existing penalty to generate the
inflation adjusted penalty.^ The rounding rules of the FCPIAA
establish tiers of penalties that are subject to different adjustment
and rounding. For example, penalties between $1,001 and $10,000 are
rounded upward or downward to the nearest multiple of $1,000. After
applying these rules to the penalties in Section 1.80, most of the
maximum forfeiture penalties will remain unchanged.^ No penalties
under $10,000 currently require adjustment, even those that have not
been adjusted since 1997.
5. To illustrate the different effects of the rounding procedure, the
discussion below steps through the required adjustment process for a
penalty that is changed by the inflation adjustment and then one that
is not. First, we examine adjustment of the maximum forfeiture penalty
for violations of Section 205 of the Act.^ As the calculation below
shows, the maximum penalty for these violations will increase from
$18,200 to $23,200 when adjusted for inflation.
Step 1 -- Cost of Living Adjustment
Because the penalty for a Section 205 violation was last adjusted for
inflation in 2004,^ the applicable CPI are for June 2012 ("June of the
calendar year preceding [this] adjustment") and June 2004 ("June of the
calendar year in which the amount of . . . [the] penalty was last set or
adjusted").^ The CPI for June 2012 was 229.478, and the CPI for June 2004
was 189.7.^
229.478/189.7*100 - 100 = 20.97%^ cost-of-living adjustment.
Step 2 -- Monetary Increase
The cost-of-living adjustment is multiplied by the existing maximum
penalty amount. ^ ^
.2097 * $18,200 = $3,817 increase
Step 3 -- Rounding Increase per FCPIAA and Section 1.80(b)(9)(ii)
Pursuant to the rounding rules, the "increase" from Step 2 is rounded to
the nearest multiple of $5,000.^
$3,817 rounded to nearest $5,000 = $5,000 rounded increase
Step 4 -- Inflation Adjusted Maximum Penalty
The "rounded increase" from Step 3 is then added to the existing penalty.
^ ^
$5,000 + $18,200 = $23,200 inflation adjusted maximum penalty
In contrast, an example of a maximum forfeiture penalty that does not
require adjustment at this time is the penalty of $1,320 in Section 214(d)
of the Act. Step 1 of the calculation for this penalty is identical to
Step 1 of the above illustration because both maximum forfeiture penalties
were last adjusted in 2004.^ Based on the calculations performed in Step 2
for Section 214(d), however, the monetary increase would be only $277.^ In
Step 3, this potential increase of $277 is rounded to the nearest multiple
of $1,000, so it is rounded down to zero.^ Thus, the maximum forfeiture
penalty for violations under Section 214(d) of the Act is not adjusted for
inflation at this time.
III. PROCEDURAL MATTERS
6. The Enforcement Bureau is responsible for, among other things,
rulemaking proceedings regarding general enforcement policies and
procedures.^ Further, the Commission delegated to the Chief of the
Enforcement Bureau authority to perform such rulemaking functions that do
not involve "[n]otices of proposed rulemaking and of inquiry and final
orders in such proceedings."^ Because Congress has mandated the periodic
adjustment of the Commission's civil monetary penalties to reflect
inflation and specifies the formula for calculating such adjustment,^ the
Commission has no discretion to set alternative levels of adjusted civil
monetary penalties. We thus for good cause find that prior notice and
solicitation of public comments in this rulemaking are unnecessary and
impracticable.^ Accordingly, action on delegated authority is properly
taken in this rulemaking order amending the Commission's maximum civil
monetary penalties, which are a part of the Commission's general
enforcement policies and procedures.^
7. Because a notice of proposed rulemaking is not required for these rule
changes, the Regulatory Flexibility Act does not apply.^
8. We have analyzed the actions taken here with respect to the Paperwork
Reduction Act of 1995 (PRA),^ and we find them to impose no new or
modified information collection(s) subject to the PRA. In addition,
therefore, pursuant to the Small Business Paperwork Relief Act of 2002,^
our actions do not impose any new or modified "information collection
burden for small business concerns with fewer than 25 employees." ^
IV. ORDERING CLAUSES
9. Accordingly, pursuant to Sections 4(i) and 303(r) of the Communications
Act of 1934, as amended, 47 U.S.C. SS 154(i), 303(r), and the Debt
Collection and Improvement Act of 1996, 28 U.S.C. S 2461 note, IT IS
ORDERED that Section 1.80(b) of the Commission's rules, 47 C.F.R. S
1.80(b), is AMENDED as set forth in the Appendix, EFFECTIVE thirty (30)
days after publication in the Federal Register. This action is properly
taken pursuant to the functions of the Enforcement Bureau and the
authority delegated to the Chief of the Enforcement Bureau found in
Sections 0.111(a)(22) and 0.311 of the Commission rules, respectively, 47
C.F.R. SS 0.111(a)(22) and 0.311.
10. IT IS FURTHER ORDERED THAT, pursuant to the Congressional Review Act,
Pub. L. No. 104-121, 110 Stat. 868 (codified at 5 U.S.C. SS 801-808), the
Commission SHALL SEND a copy of this order in a report to Congress and the
Government Accountability Office, see 5 U.S.C. S 801(a)(1)(A).
FEDERAL COMMUNICATIONS COMMISSION
Robert H. Ratcliffe
Acting Chief, Enforcement Bureau
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: 15 U.S.C. 79 et seq., 47 U.S.C. 151, 154(i) and (j), 155,157,
225, 227, 303(r), and 309.
2. Section 1.80 is amended by revising paragraph (b) 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 $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
$400,000 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 $350,000 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 $3,300,000 for
any single act or
failure to act described in paragraph (a) of this section.
(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 $160,000 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 $1,575,000 for any single act or
failure to act described in paragraph (a) of this section.
(3) If the violator is a manufacturer or service provider subject to the
requirements of section 255, 716, or 718 of the Communications Act, and
is determined by the Commission to have violated any such requirement,
the manufacturer or service provider shall be liable to the United States
for a
forfeiture penalty of not more than $105,000 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 $1,050,000 for any single act or failure to
act.
(4) Any person determined to have violated section 227(e) of the
Communications Act or the rules issued by the Commission under section
227(e) of the Communications Act shall be liable to the United States for
a forfeiture penalty of not more than $10,000 for each violation or three
times that amount for each day of a continuing violation, except that the
amount assessed for any continuing violation shall not exceed a total of
$1,025,000 for any single act or failure to act. Such penalty shall be in
addition to any other forfeiture penalty provided for by the
Communications Act.
* * * * *
(7) In any case not covered in paragraphs (b)(1) through (b)(6) 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 $122,500 for any single act or
failure to act described in paragraph (a) of this section.
(8) Factors considered in determining the amount of the forfeiture
penalty.
* * *
Note to paragraph (b)(8):
Guidelines for Assessing Forfeitures
The Commission and its staff may use these guidelines in particular
cases. The Commission and its staff retain the discretion to issue a
higher or lower forfeiture than provided in the guidelines, to issue no
forfeiture at all, or to apply alternative or additional sanctions as
permitted by the statute. The forfeiture ceilings per violation or per
day for a continuing violation stated in section 503 of the Communications
Act and the Commission's rules are described in section 1.80(b)(9)(iii).
These statutory maxima became effective thirty (30) days after publication
in
the Federal Register. Forfeitures issued under other sections of the Act
are
dealt with separately in section III of this note.
* * * * *
Section III. Non-Section 503 Forfeitures That Are Affected by the
Downward Adjustment Factors
* * *
--------------------------------------------------------------------------
Statutory
Violation amount
($)
---------------------------------------------------------------------------
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 ........ 23,200.
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 ............................... 80,000/day.
Sec. 227(e) ..............................................
10,000/violation. 30,000/day for each day of continuing violation, up to
1,025,000 for any single act or failure to act.
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.
--------------------------------------------------------------------------------------
(9) 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)(9)(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.
* * * * *
(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 after
U.S. Code citation 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)................................. 23,200
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)......................... 80,000
47 U.S.C. 227(e) ........................ 10,000 30,000
1,025,000
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
400,000
47 U.S.C. 503(b)(2)(B)........................ 160,000
1,575,000
47 U.S.C. 503(b)(2)(C)....................... 350,000
3,300,000
47 U.S.C. 503(b)(2)(D)....................... 16,000
122,500
47 U.S.C. 503(b)(2)(F)......................... 105,000
1,050,000
47 U.S.C. 507(a).................................. 750
47 U.S.C. 507(b).................................. 110
47 U.S.C. 554....................................... 650
--------------------------------------------------------------------------
Note to paragraph (b)(9): Pursuant to Public Law 104-134, the first
inflation adjustment cannot exceed 10 percent of the statutory maximum
amount.
* * * * *
THE FOLLOWING ATTACHMENT WILL NOT APPEAR IN THE CFRATTACHMENT
U.S. Code Citation Maximum Forfeiture Penalty*
47 U.S.C. 202(c) $9,600 $530/day
47 U.S.C. 203(e) $9,600 $530/day
47 U.S.C. 205(b) $23,200 (previously $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/day
47 U.S.C. 223(b) $80,000 (previously $75,000)
47 U.S.C. 227(e) $10,000/violation $30,000/day for each day of continuing
violation up to $1,025,000 for any single act or failure to act
(previously $1,000,000)
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/violation or each day of a continuing
violation up to $400,000 for any single act or failure to act (previously
$375,000)
47 U.S.C. 503(b)(2)(B) $160,000/violation or each day of a continuing
violation (previously $150,000) up to $1,575,000 for any single act or
failure to act (previously $1,500,000)
47 U.S.C. 503(b)(2)(C) $350,000/violation or each day of a continuing
violation (previously $325,000) up to $3,300,000 for any single act or
failure to act (previously $3,000,000)
47 U.S.C. 503(b)(2)(D) $16,000/violation or each day of a continuing
violation up to $122,500 for any single act or failure to act (previously
$112,500)
47 U.S.C. 503(b)(2)(F) $105,000/violation or each day of a continuing
violation (previously $100,000) up to $1,050,000 for any single act or
failure to act (previously $1,000,000)
47 U.S.C. 507(a) $750
47 U.S.C. 507(b) $110
47 U.S.C. 554 $650/day
* Maximum forfeiture penalty amounts that have been adjusted for inflation
at this time are indicated in bold.
^ Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended in scattered
sections of 5, 26, 28, 31, and 42 U.S.C., including 28 U.S.C. S 2461
note).
^ 47 C.F.R. S 1.80(b).
^ The Commission released its last forfeiture adjustment order in June
2008. See Amendment of Section 1.80(b) of the Commission's Rules,
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 23 FCC Rcd
9845 (2008) (2008 Forfeiture Adjustment Order). The adjustments adopted in
that order took effect on September 2, 2008. See Inflation Adjustment of
Maximum Forfeiture Penalties, 73 Fed. Reg. 44,663, 44,664 (July 31, 2008).
Not all of the penalties addressed in this order, however, were set or
adjusted pursuant to the Commission's last forfeiture adjustment order.
See infra note 12.
^ Pub. L. No. 101-410, 104 Stat. 890 (codified as amended at 28 U.S.C.
S 2461 note). Section numbers of the amended FCPIAA are herein cited as 28
U.S.C. S 2461 note (#).
^ See 28 U.S.C. S 2461 note (4). A "civil monetary penalty" in this
context "means any penalty, fine, or other sanction that" (1) either "is
for a specific monetary amount" or "has a maximum amount," "as provided by
Federal law"; and (2) "is assessed or enforced by an agency pursuant to
Federal law" or "pursuant to an administrative proceeding or a civil
action in the Federal courts." Id. note (3)(2).
^ See 28 U.S.C. S 2461 note (6) ("Any increase under this Act in a civil
monetary penalty shall apply only to violations which occur after the date
the increase takes effect.").
^ 47 U.S.C. S 151 et seq.
^ 28 U.S.C. S 2461 note (4)(1).
^ E.g., id. S 2461 note (5)(b).
^ Id.; see also id. S 2461 note (3) ("`Consumer Price Index' means the
Consumer Price Index for all-urban consumers published by the Department
of Labor.").
^ Id. S 2461 note 5(b)(1).
^ Id. S 2461 note 5(b)(2). Because of the combined effect of relevant
inflation rates and the rounding rules--discussed below--some of the
penalties have not been adjusted for more than five years. The penalty set
forth in Section 503(b)(2)(C) of the Act, 47 U.S.C. S 503(b)(2)(C), was
set in 2007 and has not been adjusted since, see Increase of Forfeiture
Maxima for Obscene, Indecent, and Profane Broadcasts to Implement the
Broadcast Decency Enforcement Act of 2005, 72 Fed. Reg. 33,913, 33,913
(June 20, 2007). Several other penalties--including those imposed pursuant
to Sections 205(b), 214(d), and 219(b) of the Communications Act, 47
U.S.C. SS 205(b), 214(d), 219(b)--have not been adjusted since 2004. See
Inflation Adjustment of Maximum Forfeiture Penalties, 69 Fed. Reg. 47,788,
47,789 (Aug. 6, 2004). The penalties imposed pursuant to Sections 364(b),
386(b), and 506(b) of the Act, 47 U.S.C. SS 362(b), 386(b), 507(b), have
not been adjusted since 1997, see Forfeiture Proceedings, 62 Fed. Reg.
4,917, 4,918 (Feb. 3, 1997).
Other penalties were initially set too recently to have yet been adjusted.
With respect to Section 227(e) of the Act, 47 U.S.C. S 227(e), the
penalties currently set forth in Section 1.80 were initially set in 2011,
when the Commission implemented the Truth in Caller ID Act of 2009, Pub.
L. No. 111-331, 124 Stat. 3572 (codified at 47 U.S.C. SS 609 note,
227(e)), so we now adjust them for the first time; see Implementation of
the Truth in Caller ID Act, 76 Fed. Reg. 43,196, 43,196 (July 20, 2011).
Finally, with respect to Sections 6507(b)(4) and 6507(b)(5) of the Middle
Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126
Stat. 156 (2012) (Tax Relief Act), the associated penalties currently set
forth in Sections 1.80(b)(5) and (b)(6) were only adopted in 2012, when
the Commission implemented the Tax Relief Act; see Implementation of the
Middle Class Tax Relief and Job Creation Act of 2012, 72 Fed. Reg. 71,131,
71,134 (November 29, 2012). They became effective on March 13, 2013, when
the Office of Management and Budget approved them. See Implementation of
the Middle Class Tax Relief and Job Creation Act of 2012, 78 Fed. Reg.
18,246, 18,247 (March 26, 2013). They are thus too recent to require any
adjustment and a year-to-year comparison is not yet possible.
^ 28 U.S.C. S 2461 note 5(b)(2). Specifically, we calculate the difference
between the CPI for June 2012 and: June 2011 (to adjust the penalties for
Section 227(e) of the Act), June 2008 (to adjust the penalties for
Sections 202(c), 203(e), 220(d), 223(b), 364(a), 386(a), 503(b)(2)(A),
503(b)(2)(B), 503(b)(2)(D), 506(a), and 634), June 2007 (to adjust the
penalties for Section 503(b)(2)(C)), June 2004 (to adjust the penalties
for Sections 205(b), 214(d), and 219(b)), and June 1997 (to adjust the
penalties for Sections 364(b), 386(b), and 506(b)). In addition, to adjust
the penalties for Section 503(b)(2)(F)--which we now amend Section 1.80 to
address for the first time--we calculate the difference between the CPI
for June 2012 and for June 2010. Congress added the penalties to Section
503 in 2010 as part of the Twenty-First Century Communications and Video
Accessibility Act of 2010. Pub. L. No. 111-260, 124 Stat. 2751 (codified
in scattered sections of 47 U.S.C.).
^ See 28 U.S.C. S 2461 note 5(a).
^ See id.
^ See id. Pursuant to the DCIA, see S 31001(s)(2), 110 Stat. at 1321-373,
Section 1.80(b)(9) includes a note that specifies one further
consideration: "[T]he first inflation adjustment [of a given penalty]
cannot exceed 10 percent of the [existing] statutory maximum amount," 47
C.F.R. S 1.80(b)(9) note. The Section 1.80(b)(9) note was inadvertently
omitted from Section 1.80(b) of the Commission's rules when the penalties
in that section were previously adjusted. This order corrects that
omission by reinserting the Section 1.80(b)(9) note in the Section 1.80
rules. Relevant to the Section 1.80(b)(9) note requirement, there are
three sets of penalties addressed in this order that the Commission has
not previously adjusted for inflation: the penalties set forth in Section
503(b)(2)(C) of the Act, see supra note 12, those set forth in Section
503(b)(2)(F) of the Act, see supra note 13, and those set forth in Section
227(e) of the Act, see supra note 12. With respect to Section 227(e),
Section 503(b)(2)(C), and Section 503(b)(2)(F) of the Act, our adjustments
do not exceed 10 percent of the existing statutory maximum forfeiture
amounts. See infra Appendix (raising the total possible penalty for a
single continuing violation pursuant to Section 227(e) from $1,000,000 to
$1,025,000; see infra id. (raising the penalty pursuant to Section
503(b)(2)(C) for each single violation or day of a continuing violation
from $325,000 to $350,000, and raising the total possible penalty for a
single continuing violation from $3,000,000 to $3,300,000); see infra id.
(raising the penalty pursuant to Section 503(b)(2)(F) for each single
violation or day of a continuing violation from $100,000 to $105,000, and
raising the total possible penalty for a single continuing violation from
$1,000,000 to $1,050,000).
^ See Attachment (listing all of the maximum forfeiture penalties in
Section 1.80 and indicating in bold which ones require adjustment for
inflation at this time).
^ Section 205(b) establishes the civil monetary penalty that common
carriers--or their officers, representatives, agents, receivers (or agents
of receivers), trustees (or agents of trustees), lessees (or agents of
lessees)--must pay for violations of orders the Commission issues under
Section 205(a) with respect to just and reasonable charges,
classifications, regulations, and practices. See 47 U.S.C. S 205.
^ See supra note 12.
^ 28 U.S.C. S 2461 note (5)(b); accord 47 C.F.R. S 1.80(b)(9)(i).
^ A CPI table for the years 1913 through the present is available online
from the U.S. Department of Labor's Bureau of Labor Statistics at
ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt.
^ Between 1984 and 2006, the U.S. Department of Labor provided CPIs with
four significant figures. Accordingly, for purposes of this order, when we
calculate a cost-of-living adjustment using the June 2004 CPI, we round
the percentage increase to four significant figures--here, 20.97 percent
or .2097. From 2007 through the present, by contrast, the U.S. Department
of Labor has provided CPIs with six significant figures. Accordingly, in
calculations for penalties last adjusted in 2007 or later, we round the
cost-of-living adjustment to six significant figures.
^ See 47 C.F.R. S 1.80(b)(8) note sec. III tbl.; (b)(9)(iii) tbl.
(specifying the $18,200 forfeiture); see also 47 U.S.C. S 205(b)
(specifying a $12,000 forfeiture for each offense, prior to the
adjustments for inflation set forth in Section 1.80(b)).
^ Since the existing penalty for violations of Section 205 of the
Act--$18,200--falls in the range between $10,000 and $100,000, we must
round the previously determined monetary increase to the nearest multiple
of $5,000. See 28 U.S.C. S 2461 note (5)(a)(4); 47 C.F.R.
S 1.80(b)(9)(ii)(D). Based on our application of the rounding rules, there
are a number of penalties currently set forth in Section 1.80(b) of the
Commission's rules that do not require adjustments for inflation at this
time, including the penalties imposed pursuant to Sections 202(c), 203(e),
214(d), 219(b), 220(d), 227(e) (the amounts for a single violation or
single day of a violation), 364(a) & (b), 386(a) & (b), 503(b)(2)(A) (the
amount for a single violation or single day of a violation), 503(b)(2)(D)
(the amount for a single violation or single day of a violation), 506(a) &
(b), and 634 of the Act. We also do not alter the penalties imposed
pursuant to Sections 6507(b)(4) and 6507(b)(5) of the Tax Relief Act
because, as already noted, see supra note 12, the Commission only
implemented the Tax Relief Act in 2012. Accordingly, the only penalties
adjusted in this order are those set forth in Sections 205(b), 223(b),
227(e) (for continuing violations), 503(b)(2)(A) (for continuing
violations), 503(b)(2)(B), 503(b)(2)(C), 503(b)(2)(D) (for continuing
violations) and 503(b)(2)(F).
^ See 28 U.S.C. S 2461 note (5)(a); 47 C.F.R. S 1.80(b)(9)(i).
^ See supra note 12.
^ In Step 2, the cost-of-living adjustment is multiplied by the existing
maximum penalty amount:
.2097 * $1,320 = $277.
^ Because the existing penalty for violations of Section 214(d) of the
Act--$1,320--falls in the range between $1,001 and $10,000, we must round
the potential monetary increase to the nearest multiple of $1,000. See 28
U.S.C. S 2461 note (5)(a)(3); 47 C.F.R. S 1.80(b)(9)(ii)(C).
^ See 47 C.F.R. S 0.111(a)(22).
^ 47 C.F.R. S 0.311. Pursuant to Section 0.311, the Chief of the
Enforcement Bureau is delegated authority to perform all functions of the
Bureau, described in Section 0.111 of the Commission's rules, 47 C.F.R. S
0.111, including performing rulemakings except for notices of proposed
rulemakings and of inquiry and final orders in such proceedings. See id.
at S 0.311(a)(1).
^ See supra note 5 and accompanying text.
^ Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in
scattered sections of 5 U.S.C.); see 5 U.S.C. S 553(b)(B) (providing that
notice and comment are not required "when the agency for good cause
finds...that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest").
^ See supra notes 29 and 30.
^ Pub. L. No. 96-354, 94 Stat. 1164 (codified at 5 U.S.C. SS 601-612); see
5 U.S.C. SS 603-604.
^ Pub. L. No. 104-13, 109 Stat. 163 (codified as amended at 13 U.S.C.
S 91, 44 U.S.C. S 101 note, and 44 U.S.C. SS 3501-3520).
^ Pub. L. No. 107-198, 116 Stat. 729 (codified at 5 U.S.C. S 601 note, 44
U.S.C. SS 101 note, 3504, 3506, 3520, 3521).
^ See 44 U.S.C. S 3506(c)(4).
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Federal Communications Commission DA 13-1615