[Federal Register Volume 73, Number 148 (Thursday, July 31, 2008)]
[Rules and Regulations]
[Pages 44663-44665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17254]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[FCC 08-154]


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

[[Page 44664]]

monetary penalties provided by 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 2007. 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 2, 2008.

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 08-154, adopted on June 13, 2008, and released on June 
13, 2008. 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 2007. The 
increases were then rounded using the statutorily prescribed rules to 
produce the adjusted penalties.
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    \1\ Under the rounding rules set forth in Sec.  1.80(b)(5)(ii), 
the inflationary adjustment for a statutory forfeiture amount must 
reach a specific threshold before the forfeiture amount may be 
increased. That adjustment is based on the difference between the 
CPI of ``June of the preceding year'' (here June 2007) and that of 
June of the year a particular forfeiture was ``last set or 
adjusted.'' Thus, the June 1995 CPI is used to calculate the 
inflation factors for the statutory forfeiture amounts in sections 
362(b), 386(b), 503(b)(2)(D) (the amount for a single violation or 
single day of a violation), and section 507(b). The June 1999 CPI is 
used to calculate the inflation factor for the statutory forfeiture 
amount in section 223(b). The June 2003 CPI is used to calculate the 
inflation factors for the remaining statutory forfeiture amounts, 
except for section 503(b)(2)(C). The Broadcast Decency Enforcement 
Act of 2005, which was signed into law on June 15, 2006, implemented 
by the Commission on June 1, 2007, and codified at section 
503(b)(2)(C), increased the maximum forfeiture penalties for 
obscene, indecent, and profane broadcasts. The date on which the 
Commission implemented the Broadcast Decency Enforcement Act 
constitutes the date on which the maximum forfeiture amount was 
``last set or adjusted.'' Therefore, the June 2007 CPI is the 
relevant measure for purposes of calculating the inflation factor 
for the maximum statutory forfeiture amount pursuant to section 
503(b)(2)(C). This measure is the same as the CPI for ``June of the 
preceding Year.'' The forfeiture maxima under section 503(b)(2)(C) 
remains unchanged.
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    The amendment of Sec.  1.80(b) 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. 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.
Marlene H. Dortch,
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: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 225, 303(r), 309.


Sec.  1.80  [Amended]

0
2. Amend Section 1.80 as follows:
0
a. Revise the first three sentences in paragraph (b)(1).
0
b. Revise paragraphs (b)(2) through (b)(4).
0
c. Revise the introductory text to the Note to paragraph (b)(4).
0
d. Revise the table in Section III of the note to paragraph (b)(4).
0
e. Revise the table in paragraph (b)(5)(iii).


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 $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 $375,000 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 $150,000 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 
$1,500,000 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 $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 $112,500 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):

[[Page 44665]]

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 2, 2008. 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

* * * * *

------------------------------------------------------------------------
            Violation                       Statutory amount ($)
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Sec. 202(c) Common Carrier         9,600, 530/day.
 Discrimination.
Sec. 203(e) Common Carrier         9,600, 530/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         9,600/day.
 Records & Accounts.
Sec. 223(b) Dial-a-Porn..........  75,000/day.
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.
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    (5) * * *
    (iii) * * *

------------------------------------------------------------------------
                                                         Maximum penalty
                  U.S. code citation                       after DCIA
                                                         adjustment ($)
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47 U.S.C. 202(c)......................................             9,600
                                                                     530
47 U.S.C. 203(e)......................................             9,600
                                                                     530
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)......................................             9,600
47 U.S.C. 223(b)......................................            75,000
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
                                                                 375,000
47 U.S.C. 503(b)(2)(B)................................           150,000
                                                               1,500,000
47 U.S.C. 503(b)(2)(C)................................           325,000
                                                               3,000,000
47 U.S.C. 503(b)(2)(D)................................            16,000
                                                                 112,500
47 U.S.C. 507(a)......................................               750
47 U.S.C. 507(b)......................................               110
47 U.S.C. 554.........................................               650
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[FR Doc. E8-17254 Filed 7-30-08; 8:45 am]
BILLING CODE 6712-01-P