[Federal Register Volume 86, Number 56 (Thursday, March 25, 2021)]
[Rules and Regulations]
[Pages 15796-15799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04904]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[DA 20-1490; FRS 17468]


Preventing Illegal Radio Abuse Through Enforcement Act (PIRATE 
Act)

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission adopts final rules pursuant 
to the Preventing Illegal Radio Abuse Through Enforcement Act (PIRATE 
Act). Section 2 of the PIRATE Act adds a new section to the 
Communications Act of 1934, as amended (the Communications Act), 
enumerated as section 511 and entitled ``Enhanced Penalties for Pirate 
Radio Broadcasting; Enforcement Sweeps; Reporting.'' This Order amends 
the Commission's rules to implement that provision.

DATES: This rule is effective April 26, 2021.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Shannon Lipp of the Office of the Bureau Chief, 
Enforcement Bureau, at [email protected] or (202) 418-8192.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order, 
DA 20-1490, adopted and released on December 17, 2020. The document is 
available for download at https://docs.fcc.gov/public/attachments/DA-20-1490A1.pdf. To request this document in accessible formats for 
people with disabilities (e.g., Braille, large print, electronic files, 
audio format, etc.) or to request reasonable accommodations (e.g., 
accessible format documents, sign language interpreters, CART, etc.), 
send an email to [email protected] or call the FCC's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Paperwork Reduction Act

    This document does not contain new or modified information 
collection(s) subject to the Paperwork Reduction Act of 1995, Public 
Law 104-13. It does not contain any new or modified information 
collection burden for small business concerns with fewer than 25 
employees, pursuant to the pursuant to the Small Business Paperwork 
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Congressional Review Act

    The Commission has determined, and the Administrator of the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
concurs, that this rule is non-major under the Congressional Review 
Act, 5 U.S.C. 804(2). The Commission will send a copy of this Order to 
Congress and the Government Accountability Office, pursuant to 5 U.S.C. 
801(a)(1)(A).

Synopsis

    1. The PIRATE Act grants the Commission additional enforcement 
authority, including higher forfeiture penalties, against pirate radio 
broadcasters and any person who permits the operation of pirate radio 
broadcasting. Section 2 of the PIRATE Act adds a new section to the 
Communications Act of 1934, as amended (the Communications Act), 
enumerated as section 511 and entitled ``Enhanced Penalties for Pirate 
Radio Broadcasting; Enforcement Sweeps; Reporting.'' This Order amends 
section 1.80 of the Commission's rules to implement that provision. We 
move directly to an order here because implementation of new section 
511 entails no exercise of our administrative discretion and, 
therefore, notice and comment procedures are unnecessary

[[Page 15797]]

under the ``good cause'' exception to the Administrative Procedure Act 
(APA).
    2. New section 511 provides specific authority for the Commission 
to combat pirate radio broadcasting with enhanced penalties. Pirate 
radio broadcasting is defined as ``the transmission of communications 
on spectrum frequencies between 535 and 1705 kilohertz, inclusive, or 
87.7 and 108 megahertz, inclusive, without a license issued by the 
Commission, but does not include unlicensed operations in compliance 
with part 15 of title 47, Code of Federal Regulations.'' 47 U.S.C. 
511(h). Sections 511(a) and (b) permit forfeitures of up to $100,000 
per day, up to a maximum fine of $2 million, for any person who 
``willfully and knowingly does or causes or suffers to be done'' any 
pirate radio broadcasting. These enhanced forfeiture amounts are ``in 
addition to any other penalties provided by law.'' 47 U.S.C. 511(b) 
(emphasis added). Section 511(f) directs the Commission to ``revise its 
rules to require that, absent good cause, in any case alleging a 
violation of subsection (a) or (b), the Commission shall proceed 
directly to issue a notice of apparent liability without first issuing 
a notice of unlicensed operation.''
    3. We amend Sec.  1.80 of our rules to implement section 511. 
First, we codify penalties for violations of section 511(a) or (b). 
Under the amended rule, the Commission has the authority to impose a 
penalty of up to $100,000 per day, up to a maximum fine of $2 million, 
against any person who willfully and knowingly does or causes or 
suffers to be done any pirate radio broadcasting, in addition to any 
forfeiture penalty amount that may be proposed under any other 
provision of the Communications Act. These amounts are subject to 
annual adjustments due to inflation. Amendment of Section 1.80(b) of 
the Commission's Rules, Adjustment of Civil Monetary Penalties to 
Reflect Inflation, Order, 35 FCC Rcd 14879, 86 FR 3830 (Jan. 15, 2021) 
(EB 2020).
    4. Second, consistent with section 511(f), we amend section 1.80 to 
provide that, absent good cause, the Commission shall, in the first 
instance, propose a penalty against any person who ``willfully and 
knowingly does or causes or suffers to be done any pirate radio 
broadcasting.'' In other words, absent good cause to do otherwise, the 
Commission will not first issue a notice of unlicensed operation to a 
person who engages in such conduct. In applying the good cause standard 
in section 511(f), we may consider Commission precedent concerning 
waiver of our regulations for good cause shown. In general, this 
standard requires special circumstances warranting a deviation from the 
general rule and serving the public interest.
    5. Consistent with previous decisions, we amend our rules without 
providing for prior public notice and comment. Our action here is 
ministerial because it simply effectuates regulations established by 
legislation and requires no exercise of administrative discretion. For 
this reason, we conclude that prior notice and comment would serve no 
useful purpose and is unnecessary. We therefore find that this action 
comes within the ``good cause'' exception to the notice and comment 
requirements of the APA.
    6. The Enforcement Bureau is responsible for, among other things, 
rulemaking proceedings regarding general enforcement policies and 
procedures. In section 511(f) of the Communications Act, Congress 
mandated the Commission to prescribe implementing regulations. 
Additionally, the enhanced penalties set forth in sections 511 (a) and 
(b) require codification in the Commission's rules. Therefore, action 
on delegated authority is properly taken in this Order amending Sec.  
1.80 of our rules, which is part of the Commission's general 
enforcement policies and procedures. In addition, because a notice of 
proposed rulemaking is not required for these rule changes, no 
regulatory flexibility analysis is required.
    7. Effective Date. The rules adopted in this Order shall be 
effective 30 days after publication in the Federal Register.
    8. Accordingly, it is ordered, pursuant to sections 4(i), 4(j), and 
511 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
154(j), 511, and Sec. Sec.  0.111(a)(22), 0.231(b), and 0.311(a)(1) of 
the Commission's rules, 47 CFR 0.111(a)(22), 0.311(a)(1), that this 
Order is adopted.
    9. It is further ordered that Sec.  1.80 of the Commission's rules, 
47 CFR 1.80, is amended as set forth in the Appendix.
    10. It is further ordered that this Order and the foregoing 
amendments to the Commission's rules shall be effective thirty (30) 
days after the date of publication in the Federal Register.
    11. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Order to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Penalties.

Federal Communications Commission.
Lisa Gelb,
Deputy Chief, Enforcement Bureau.

Final Rules

    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 is revised to read as follows:

    Authority:  47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note, 
unless otherwise noted.


Sec.  1.80  [Amended]

0
2. Amend Sec.  1.80 as follows:
0
a. Revising paragraph (a)(4);
0
b. Redesignating paragraphs (a)(5) and (6) as paragraphs (a)(6) and (7) 
and adding a new paragraph (a)(5);
0
c. Revising newly redesignated paragraph (a)(6);
0
d. Redesignating the Note to paragraph (a) as Note 1 to paragraph (a);
0
e. Redesignating paragraphs (b)(6) through (10) as paragraphs (b)(7) 
through (11) and adding a new paragraph (b)(6);
0
f. Revising newly redesignated paragraphs (b)(9) and (10);
0
g. Removing the Note to paragraph (b)(8) following newly redesignated 
paragraph (b)(10);
0
h. Revising the heading of the table in newly redesignated paragraph 
(b)(11)(ii);
0
i. Revising the Note following newly redesignated paragraph (b)(11);
0
j. Revising the introductory text to paragraph (d); and
0
k. Redesignating paragraphs (e) through (j) as paragraphs (f) through 
(k) and adding a new paragraph (e).
    The revisions and additions read as follows:


Sec.  1.80  Forfeiture proceedings.

    (a) * * *
    (4) Violated any provision of sections 227(b) or (e) of the 
Communications Act or of Sec. Sec.  64.1200(a)(1) through (5) and 
64.1604 of this title;
    (5) Violated any provision of section 511(a) or (b) of the 
Communications Act or of paragraph (b)(6) of this section;
    (6) Violated any provision of section 1304, 1343, or 1464 of Title 
18, United States Code; or
* * * * *
    (b) * * *
    (6) Forfeiture penalty for pirate radio broadcasting. (i) Any 
person who willfully and knowingly does or causes or suffers to be done 
any pirate radio broadcasting shall be subject to a fine of not more 
than $2,023,640; and

[[Page 15798]]

    (ii) Any person who willfully and knowingly violates the Act or any 
rule, regulation, restriction, or condition made or imposed by the 
Commission under authority of the Act, or any rule, regulation, 
restriction, or condition made or imposed by any international radio or 
wire communications treaty or convention, or regulations annexed 
thereto, to which the United States is party, relating to pirate radio 
broadcasting shall, in addition to any other penalties provided by law, 
be subject to a fine of not more than $101,182 for each day during 
which such offense occurs, in accordance with the limit described in 
this section.
* * * * *
    (9) Maximum forfeiture penalty for any case not previously covered. 
In any case not covered in paragraphs (b)(1) through (8) of this 
section, the amount of any forfeiture penalty determined under this 
section shall not exceed $20,731 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 $155,485 for any 
single act or failure to act described in paragraph (a) of this 
section.
    (10) 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.

 Table 1 to Paragraph (b)(10)--Base Amounts for Section 503 Forfeitures
------------------------------------------------------------------------
                                                             Violation
                       Forfeitures                            amount
------------------------------------------------------------------------
Misrepresentation/lack of candor........................           (\1\)
Construction and/or operation without an instrument of           $10,000
 authorization for the service..........................
Failure to comply with prescribed lighting and/or                 10,000
 marking................................................
Violation of public file rules..........................          10,000
Violation of political rules: Reasonable access, lowest            9,000
 unit charge, equal opportunity, and discrimination.....
Unauthorized substantial transfer of control............           8,000
Violation of children's television commercialization or            8,000
 programming requirements...............................
Violations of rules relating to distress and safety                8,000
 frequencies............................................
False distress communications...........................           8,000
EAS equipment not installed or operational..............           8,000
Alien ownership violation...............................           8,000
Failure to permit inspection............................           7,000
Transmission of indecent/obscene materials..............           7,000
Interference............................................           7,000
Importation or marketing of unauthorized equipment......           7,000
Exceeding of authorized antenna height..................           5,000
Fraud by wire, radio or television......................           5,000
Unauthorized discontinuance of service..................           5,000
Use of unauthorized equipment...........................           5,000
Exceeding power limits..................................           4,000
Failure to respond to Commission communications.........           4,000
Violation of sponsorship ID requirements................           4,000
Unauthorized emissions..................................           4,000
Using unauthorized frequency............................           4,000
Failure to engage in required frequency coordination....           4,000
Construction or operation at unauthorized location......           4,000
Violation of requirements pertaining to broadcasting of            4,000
 lotteries or contests..................................
Violation of transmitter control and metering                      3,000
 requirements...........................................
Failure to file required forms or information...........           3,000
Failure to make required measurements or conduct                   2,000
 required monitoring....................................
Failure to provide station ID...........................           1,000
Unauthorized pro forma transfer of control..............           1,000
Failure to maintain required records....................           1,000
------------------------------------------------------------------------
\1\ Statutory Maximum for each Service.


     Table 2 to Paragraph (b)(10)--Violations Unique to the Service
------------------------------------------------------------------------
             Violation                Services affected       Amount
------------------------------------------------------------------------
Unauthorized conversion of long      Common Carrier.....         $40,000
 distance telephone service.
Violation of operator services       Common Carrier.....           7,000
 requirements.
Violation of pay-per-call            Common Carrier.....           7,000
 requirements.
Failure to implement rate reduction  Cable..............           7,500
 or refund order.
Violation of cable program access    Cable..............           7,500
 rules.
Violation of cable leased access     Cable..............           7,500
 rules.
Violation of cable cross-ownership   Cable..............           7,500
 rules.
Violation of cable broadcast         Cable..............           7,500
 carriage rules.
Violation of pole attachment rules.  Cable..............           7,500
Failure to maintain directional      Broadcast..........           7,000
 pattern within prescribed
 parameters.
Violation of broadcast hoax rule...  Broadcast..........           7,000
AM tower fencing...................  Broadcast..........           7,000
Broadcasting telephone               Broadcast..........           4,000
 conversations without
 authorization.
Violation of enhanced underwriting   Broadcast..........           2,000
 requirements.
------------------------------------------------------------------------


[[Page 15799]]


    Table 3 to Paragraph (b)(10)--Adjustment Criteria for Section 503
                               Forfeitures
------------------------------------------------------------------------
 
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Upward Adjustment Criteria:
    (1) Egregious misconduct.
    (2) Ability to pay/relative disincentive.
    (3) Intentional violation.
    (4) Substantial harm.
    (5) Prior violations of any FCC requirements.
    (6) Substantial economic gain.
    (7) Repeated or continuous violation.
Downward Adjustment Criteria:
    (1) Minor violation.
    (2) Good faith or voluntary disclosure.
    (3) History of overall compliance.
    (4) Inability to pay.
------------------------------------------------------------------------


   Table 4 to Paragraph (b)(10)--Non-Section 503 Forfeitures That Are
             Affected by the Downward Adjustment Factors \1\
------------------------------------------------------------------------
                                           Statutory amount after 2021
               Violation                   annual inflation adjustment
------------------------------------------------------------------------
Sec. 202(c) Common Carrier               $12,439, $622/day.
 Discrimination.
Sec. 203(e) Common Carrier Tariffs.....  $12,439, $622/day.
Sec. 205(b) Common Carrier               $24,877.
 Prescriptions.
Sec. 214(d) Common Carrier Line          $2,487/day.
 Extensions.
Sec. 219(b) Common Carrier Reports.....  $2,487/day.
Sec. 220(d) Common Carrier Records &     $12,439/day.
 Accounts.
Sec. 223(b) Dial-a-Porn................  $128,904/day.
Sec. 227(e) Caller Identification......  $11,905/violation. *$35,715/day
                                          for each day of continuing
                                          violation, up to $1,190,546
                                          for any single act or failure
                                          to act.
Sec. 364(a) Forfeitures (Ships)........  $10,366/day (owner).
Sec. 364(b) Forfeitures (Ships)........  $2,074 (vessel master).
Sec. 386(a) Forfeitures (Ships)........  $10,366/day (owner).
Sec. 386(b) Forfeitures (Ships)........  $2,074 (vessel master).
Sec. 511 Pirate Radio Broadcasting.....  $2,023,640, $101,182/day.
Sec. 634 Cable EEO.....................  $919/day.
------------------------------------------------------------------------
\1\ Unlike section 503 of the Act, which establishes maximum forfeiture
  amounts, other sections of the Act, with two exceptions, 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. 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 other exception is
  section 227(e) of the Act, which provides maximum forfeitures per
  violation, and for continuing violations. The Commission will apply
  the factors set forth in section 503(b)(2)(E) of the Act and this
  table 4 to determine the amount of the penalty to assess in any
  particular situation. The amounts in this table 4 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 table 3 to this paragraph (b)(10).


    Note 2 to paragraph (b)(10):  Guidelines for Assessing 
Forfeitures. The Commission and its staff may use the guidelines in 
tables 1 through 4 of this paragraph (b)(10) 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 
paragraph (b)(11) of this section. These statutory maxima became 
effective September 13, 2013. Forfeitures issued under other 
sections of the Act are dealt with separately in table 4 to this 
paragraph (b)(10).

    (11) * * *
    (ii) * * *

Table 5 to Paragraph (b)(11)(ii)

* * * * *

    Note 3 to paragraph (b)(11):  Pursuant to Public Law 104-134, 
the first inflation adjustment cannot exceed 10 percent of the 
statutory maximum amount.

* * * * *
    (d) Preliminary procedure in some cases; citations. Except for a 
forfeiture imposed under sections 227(b), 227(e)(5), 511(a), and 511(b) 
of the Act, no forfeiture penalty shall be imposed upon any person 
under the preceding sections if such person does not hold a license, 
permit, certificate, or other authorization issued by the Commission, 
and if such person is not an applicant for a license, permit, 
certificate, or other authorization issued by the Commission, unless, 
prior to the issuance of the appropriate notice, such person:
* * * * *
    (e) Preliminary procedure in Preventing Illegal Radio Abuse Through 
Enforcement Act (PIRATE Act) cases. Absent good cause, in any case 
alleging a violation of subsection (a) or (b) of section 511 of the 
Act, the Commission shall proceed directly to issue a notice of 
apparent liability for forfeiture without first issuing a notice of 
unlicensed operation.
* * * * *
[FR Doc. 2021-04904 Filed 3-24-21; 8:45 am]
BILLING CODE 6712-01-P