[Federal Register Volume 88, Number 3 (Thursday, January 5, 2023)]
[Rules and Regulations]
[Pages 783-786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28493]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[DA 22-1356; FR ID 121243]


Annual Adjustment of Civil Monetary Penalties To Reflect 
Inflation

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 (Inflation Adjustment Act) requires the 
Federal Communications Commission to amend its forfeiture penalty rules 
to reflect annual adjustments for inflation in order to improve their 
effectiveness and maintain their deterrent effect. The Inflation 
Adjustment Act provides that the new penalty levels shall apply to 
penalties assessed after the effective date of the increase, including 
when the penalties whose associated violation predate the increase.

DATES: Effective date: The rule is effective January 5, 2023. 
Applicability date: The civil monetary penalties are applicable 
beginning January 15, 2023.

ADDRESSES: Federal Communications Commission, 45 L Street NE, 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Lisa Gelb, Deputy Chief, Enforcement 
Bureau, at [email protected] or 202-418-2019.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order, 
DA 22-1356, adopted and released on December 23, 2022. The document is 
available for download at https://www.fcc.gov/document/2023-annual-adjustment-civil-monetary-penalties-reflect-inflation. The complete 
text of this document is also available for inspection and copying 
during normal business hours in the FCC Reference Information Center, 
45 L Street NE,

[[Page 784]]

Washington, DC 20554. 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).
    The Bipartisan Budget Act of 2015 included, as section 701 thereto, 
the Inflation Adjustment Act, which amended the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410), to improve the 
effectiveness of civil monetary penalties and maintain their deterrent 
effect. Under the Inflation Adjustment Act, agencies are required to 
make annual inflationary adjustments by January 15 each year, beginning 
in 2017. The adjustments are calculated pursuant to Office of 
Management and Budget (OMB) guidance. OMB issued guidance on December 
15, 2022, and this Order follows that guidance. The Commission 
therefore updates the civil monetary penalties for 2023, to reflect an 
annual inflation adjustment based on the percent change between each 
published October's CPI-U; in this case, October 2022 CPI-U (298.012)/
October 2021 CPI-U (276.589) = 1.07745. The Commission multiplies 
1.07745 by the most recent penalty amount and then rounds the result to 
the nearest dollar.
    For 2023, the adjusted penalty or penalty range for each applicable 
penalty is calculated by multiplying the most recent penalty amount by 
the 2023 annual adjustment (1.07745), then rounding the result to the 
nearest dollar. The adjustments in civil monetary penalties that we 
adopt in this Order apply only to such penalties assessed on and after 
January 15, 2023.

Paperwork Reduction Act

    This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), 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 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).

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 continues to read as follows:

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


0
2. Amend Sec.  1.80 by revising paragraphs (b)(1) through (9), Table 4 
to paragraph (b)(10), and paragraph (b)(11)(ii) to read as follows:


Sec.  1.80  Forfeiture proceedings.

* * * * *
    (b) * * *
    (1) Forfeiture penalty for a broadcast station licensee, permittee, 
cable television operator, or applicant. 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 (b)(1), the 
forfeiture penalty under this section shall not exceed $59,316 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 
$593,170 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 (47 U.S.C. 554). 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 $479,945 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 $4,430,255 for 
any single act or failure to act described in paragraph (a) of this 
section.
    (2) Forfeiture penalty for a common carrier or applicant. 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 $237,268 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 $2,372,677 for any 
single act or failure to act described in paragraph (a) of this 
section.
    (3) Forfeiture penalty for a manufacturer or service provider. If 
the violator is a manufacturer or service provider subject to the 
requirements of section 255, 716, or 718 of the Communications Act (47 
U.S.C. 255, 617, or 619), 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 $136,258 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 $1,362,567 for any single act or failure to 
act.
    (4) Forfeiture penalty for a 227(e) violation. 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 $13,625 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 $1,362,567 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.
    (5) Forfeiture penalty for a 227(b)(4)(B) violation. Any person 
determined to have violated section 227(b)(4)(B) of the Communications 
Act or the rules in 47 CFR part 64 issued by the Commission under 
section 227(b)(4)(B) of the Communications Act shall be liable to the 
United States for a forfeiture penalty determined in accordance with 
paragraphs (A)-(F) of

[[Page 785]]

section 503(b)(2) plus an additional penalty not to exceed $11,580.
    (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 $2,316,034; and
    (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 $115,802 for each day during 
which such offense occurs, in accordance with the limit described in 
this section.
    (7) Forfeiture penalty for a section 6507(b)(4) Tax Relief Act 
violation. If a violator who is granted access to the Do-Not-Call 
registry of public safety answering points discloses or disseminates 
any registered telephone number without authorization, in violation of 
section 6507(b)(4) of the Middle Class Tax Relief and Job Creation Act 
of 2012 or the Commission's implementing rules in 47 CFR part 64, the 
monetary penalty for such unauthorized disclosure or dissemination of a 
telephone number from the registry shall be not less than $127,602 per 
incident nor more than $1,276,024 per incident depending upon whether 
the conduct leading to the violation was negligent, grossly negligent, 
reckless, or willful, and depending on whether the violation was a 
first or subsequent offense.
    (8) Forfeiture penalty for a section 6507(b)(5) Tax Relief Act 
violation. If a violator uses automatic dialing equipment to contact a 
telephone number on the Do-Not-Call registry of public safety answering 
points, in violation of section 6507(b)(5) of the Middle Class Tax 
Relief and Job Creation Act of 2012 or the Commission's implementing 
rules in 47 CFR part 64, the monetary penalty for contacting such a 
telephone number shall be not less than $12,760 per call nor more than 
$127,602 per call depending on whether the violation was negligent, 
grossly negligent, reckless, or willful, and depending on whether the 
violation was a first or subsequent offense.
    (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 $23,727 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 $177,951 for any 
single act or failure to act described in paragraph (a) of this 
section.
    (10) * * *

   Table 4 to Paragraph (b)(10)--Non-Section 503 Forfeitures That Are
             Affected by the Downward Adjustment Factors \1\
------------------------------------------------------------------------
                                      Statutory amount after 2023 annual
              Violation                      inflation adjustment
------------------------------------------------------------------------
Sec. 202(c) Common Carrier            $14,236, $712/day.
 Discrimination.
Sec. 203(e) Common Carrier Tariffs..  $14,236, $712/day.
Sec. 205(b) Common Carrier            $28,472.
 Prescriptions.
Sec. 214(d) Common Carrier Line       $2,847/day.
 Extensions.
Sec. 219(b) Common Carrier Reports..  $2,847/day.
Sec. 220(d) Common Carrier Records &  $14,236/day.
 Accounts.
Sec. 223(b) Dial-a-Porn.............  $147,529/day.
Sec. 227(e) Caller Identification...  $13,625/violation. $40,875/day for
                                       each day of continuing violation,
                                       up to $1,362,567 for any single
                                       act or failure to act.
Sec. 364(a) Forfeitures (Ships).....  $11,864/day (owner).
Sec. 364(b) Forfeitures (Ships).....  $2,374 (vessel master).
Sec. 386(a) Forfeitures (Ships).....  $11,864/day (owner).
Sec. 386(b) Forfeitures (Ships).....  $2,374 (vessel master).
Sec. 511 Pirate Radio Broadcasting..  $2,316,034, $115,802/day.
Sec. 634 Cable EEO..................  $1,052/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).

    (11) * * *
    (ii) The application of the annual inflation adjustment required by 
the foregoing Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 results in the following adjusted statutory 
maximum forfeitures authorized by the Communications Act:

                    Table 5 to Paragraph (b)(11)(ii)
------------------------------------------------------------------------
                                   Maximum penalty after 2023 annual
      U.S. Code citation                  inflation adjustment
------------------------------------------------------------------------
47 U.S.C. 202(c).............  $14,236, $712.
47 U.S.C. 203(e).............  $14,236, $712.
47 U.S.C. 205(b).............  $28,472.
47 U.S.C. 214(d).............  $2,847.
47 U.S.C. 219(b).............  $2,847.
47 U.S.C. 220(d).............  $14,236.

[[Page 786]]

 
47 U.S.C. 223(b).............  $147,529.
47 U.S.C. 227(b)(4)(B).......  $59,316, plus an additional penalty not
                                to exceed $11,580; $593,170, plus an
                                additional penalty not to exceed
                                $11,580; $237,268, plus an additional
                                penalty not to exceed $11,580;
                                $2,372,677, plus an additional penalty
                                not to exceed $11,580; $479,945, plus an
                                additional penalty not to exceed
                                $11,580; $4,430,255, plus an additional
                                penalty not to exceed $11,580; $23,727,
                                plus an additional penalty not to exceed
                                $11,580; $177,951, plus an additional
                                penalty not to exceed $11,580; $136,258,
                                plus an additional penalty not to exceed
                                $11,580; $1,362,567, plus an additional
                                penalty not to exceed $11,580.
47 U.S.C. 227(e).............  $13,625, $40,875, $1,362,567.
47 U.S.C. 362(a).............  $11,864.
47 U.S.C. 362(b).............  $2,374.
47 U.S.C. 386(a).............  $11,864.
47 U.S.C. 386(b).............  $2,374.
47 U.S.C. 503(b)(2)(A).......  $59,316, $593,170.
47 U.S.C. 503(b)(2)(B).......  $237,268, $2,372,677.
47 U.S.C. 503(b)(2)(C).......  $479,945, $4,430,255.
47 U.S.C. 503(b)(2)(D).......  $23,727, $177,951.
47 U.S.C. 503(b)(2)(F).......  $136,258, $1,362,567.
47 U.S.C. 507(a).............  $2,350.
47 U.S.C. 507(b).............  $345.
47 U.S.C. 511................  $2,316,034, $115,802.
47 U.S.C. 554................  $1,052.
Sec. 6507(b)(4) of Tax Relief  $1,276,024/incident.
 Act.
Sec. 6507(b)(5) of Tax Relief  $127,602/call.
 Act.
------------------------------------------------------------------------

* * * * *
[FR Doc. 2022-28493 Filed 1-4-23; 8:45 am]
BILLING CODE 6712-01-P