[Federal Register: August 6, 2004 (Volume 69, Number 151)]
[Rules and Regulations]
[Page 47788-47790]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au04-9]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[FCC 04-139]
Inflation Adjustment of Maximum Forfeiture Penalties
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This document increases the maximum monetary forfeiture
penalties available to the Commission under its rules governing
monetary forfeiture proceedings to account for inflation. The
inflationary adjustment is necessary to implement the Debt Collection
Improvement Act of 1996, which requires Federal agencies to adjust
``civil monetary penalties provided by
[[Page 47789]]
law'' at least once every four years. The increase covers the period
between June of the year the particular forfeiture amount was last set
or adjusted and June 2003. The increase in the Consumer Price Index for
the relevant period was applied to each maximum penalty, and then
rounded using the statutorily defined rules to adjust each maximum
monetary forfeiture penalty accordingly. The base forfeiture amounts in
the Commission's rules remain unchanged by this rule revision.
DATES: Effective September 7, 2004.
FOR FURTHER INFORMATION CONTACT: Kathryn Berthot, Enforcement Bureau,
Spectrum Enforcement Division, (202) 418-7454.
SUPPLEMENTARY INFORMATION: This is a summary of the Order by the
Commission, FCC 04-139, adopted on June 14, 2004, and released on June
18, 2004. The complete text of this Order is available for inspection
and copying during normal business hours in the FCC Reference
Information Center, Courtyard Level, 445 12th Street, SW., Washington,
DC 20554 and also may be purchased from the Commission's copy
contractor, Best Copy and Printing, Inc., at 1-800-378-3160, CY-B402,
445 12th Street, SW., Washington, DC 20554.
This Order amends Sec. 1.80(b) of the Commission's rules, 47 CFR
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 Sec. 1.80(b)(5) of
the Commission's 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.
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 Sec. 1.80(b) of the Commission's rules.
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\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 CFR 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.
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The amendment of Sec. 1.80(b) simply implements the requirements
of the Debt Collection Improvement Act of 1986, 28 U.S.C. 2461, as
incorporated in Sec. 1.80(b)(5) of the Commission's 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).
Since a notice of proposed rulemaking is not required, the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., does not apply.
The actions taken in this Order have been analyzed with respect to
the Paperwork Reduction Act of 1995 and found to impose no new or
modified reporting and recordkeeping requirements or burdens on the
public.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Penalties.
Federal Comunications Commission.
William F. Caton,
Deputy Secretary.
Rule Changes
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 1 as follows:
PART 1--PRACTICE AND PROCEDURE
0
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.
0
2. Section 1.80 is amended by:
0
a. Revising paragraphs (b)(1) through (b)(4);
0
b. Revising the introductory text of the note to paragraph (b)(4);
0
c. Revising section III of the note to paragraph (b)(4);
0
d. Revising paragraphs (b)(5) introductory text and (b)(5)(iii).
The revisions read as follows:
Sec. 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
[[Page 47790]]
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 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.
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Violation Statutory amount ($)
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Sec. 202(c) Common Carrier $8,600 430/day.
Discrimination.
Sec. 203(e) Common Carrier 8,600 430/day.
Tariffs.
Sec. 205(b) Common Carrier 18,200.
Prescriptions.
Sec. 214(d) Common Carrier Line 1,320/day.
Extensions.
Sec. 219(b) Common Carrier 1,320.
Reports.
Sec. 220(d) Common Carrier 8,600/day.
Records & Accounts.
Sec. 364(a) Forfeitures (Ships).. 6,500 (owner).
Sec. 364(b) Forfeitures (Ships).. 1,100 (vessel master).
Sec. 386(a) Forfeitures (Ships).. 6,500/day (owner).
Sec. 386(b) Forfeitures (Ships).. 1,100 (vessel master).
Sec. 634 Cable EEO............... 550/day.
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(5) Inflation adjustments to the maximum forfeiture amount. (i)
Pursuant to the Debt Collection Improvement Act of 1996, Public Law
104-134 (110 Stat. 1321-358), which amends the Federal Civil Monetary
Penalty Inflation Adjustment Act of 1990, Public Law 101-410 (104 Stat.
890; 28 U.S.C. 2461 note), the statutory maximum amount of a forfeiture
penalty assessed under this section shall be adjusted for inflation at
least once every four years using the method specified in the statute.
This is to be done by determining the `cost-of-living adjustment',
which is the percentage (if any) by which the CPI for June of the
preceding year exceeds the CPI for June of the year the forfeiture
amount was last set or adjusted. The inflation adjustment is determined
by multiplying the cost-of-living adjustment by the statutory maximum
amount. Round off this result using the rules in paragraph (b)(5)(ii)
of this section. Add the rounded result to the statutory maximum
forfeiture penalty amount. The sum is the statutory maximum amount,
adjusted for inflation.
* * * * *
(iii) The application of the inflation adjustments required by the
DCIA, 28 U.S.C. 2461, results in the following adjusted statutory
maximum forfeitures authorized by the Communications Act:
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Maximum
penalty
U.S. Code citation after DCIA
adjustment
($)
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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
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[FR Doc. 04-16973 Filed 8-5-04; 8:45 am]
BILLING CODE 6712-01-P