[Federal Register Volume 78, Number 157 (Wednesday, August 14, 2013)]
[Rules and Regulations]
[Pages 49370-49372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19770]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[DA 13-1615]
Inflation Adjustment of Maximum Forfeiture Penalties
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This document increases the maximum civil monetary forfeiture
penalties available to the Commission under its rules governing
monetary forfeiture proceedings to account for inflation. The inflation
adjustment is necessary to implement the Debt Collection Improvement
Act of 1996 (DCIA), which requires federal agencies to adjust ``civil
monetary penalties provided by law'' at least once every four years.
DATES: Effective September 13, 2013.
FOR FURTHER INFORMATION CONTACT: Kimbarly Taylor, Enforcement Bureau,
Telecommunication Consumers Division, 202-418-1188.
SUPPLEMENTARY INFORMATION: This is a summary of the Order by the
Commission, DA 13-1615, adopted on August 1, 2013, and released on
August 1, 2013. 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 and also may be purchased from the Commission's copy
contractor, Best Copy and Printing, Inc., at (202) 488-5300, Room CY-
B402, Portals II at 445 12th Street SW., Washington, DC.
This Order amends Sec. 1.80(b) of the Commission's rules, 47 CFR
1.80(b), to increase the maximum civil 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)(9) of the Commission's rules. That section implements the Debt
Collection Improvement Act of 1996, 28 U.S.C. 2461 note, 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 cost-
of-living increase in the Consumer Price Index (CPI) between June of
the year the forfeiture amount was last set or adjusted,\1\ and June
2012. Once the cost-of-living adjustment is calculated for the relevant
period, each existing maximum penalty is multiplied by the cost-of-
living adjustment percentage. See 28 U.S.C. 2461 note 5(a). Each result
is then rounded using the statutorily defined rules, which are set
forth in the Commission's rules at 47 CFR 1.80(b)(9)(ii).\2\ Finally,
the rounded result is added to the existing penalty amount to adjust
each maximum monetary forfeiture penalty accordingly.\3\
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\1\ Under the rounding rules set forth in Sec. 1.80(b)(9)(ii),
47 CFR 1.80(b)(9)(ii), the inflationary adjustment for a statutory
forfeiture amount must reach a specific threshold before the
Commission may increase the maximum forfeiture amount. That
adjustment is based on the difference between the CPI of ``June of
the preceding year'' (here, June 2012) and that of June of the year
a particular forfeiture was ``last set or adjusted.'' 47 CFR
1.80(b)(9)(i). Thus, different CPIs may be used to calculate the
inflation factors for different statutory forfeitures, depending on
when a particular forfeiture was last increased. Specifically, we
calculate the difference between the CPI for June 2012 and: June
2011 (to adjust the penalties for 227(e) of the Communications Act
of 1934, as amended (Communications Act or Act)), June 2010 (to
adjust the penalties for Section 503(b)(2)(F)), 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)).
\2\ Based on our application of the rounding rules, there are a
number of penalties currently set forth in Sec. 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 Middle Class Tax Relief and Job
Creation Act of 2012 because the Commission only implemented the Tax
Relief Act in 2012. See Implementation of the Middle Class Tax
Relief and Job Creation Act of 2012, 72 FR 71131, 71134 (November
29, 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).
\3\ Pursuant to the DCIA, Sec. 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 CFR 1.80(b)(9) note. The
Sec. 1.80(b)(9) note was inadvertently omitted from Sec. 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 Sec. 1.80(b)(9) note in the Sec. 1.80 rules.
Relevant to the Sec. 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 227(e) of the Act (continuing violations), those set forth
in Section 503(b)(2)(C) of the Act, and those set forth in Section
503(b)(2)(F) of the Act. 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.
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Because Congress has mandated these periodic rule changes and the
Commission is required 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).
Likewise, because a notice of proposed rulemaking is not required
for these rule changes, the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., does not apply.
Further, the Commission has analyzed the actions taken here with
respect to the Paperwork Reduction Act of 1995
[[Page 49371]]
(PRA), and we find them to impose no new or modified information
collection subject to the PRA. In addition, therefore, pursuant to the
Small Business Paperwork Relief Act of 2002, the Commission's actions
do not impose any new or modified ``information collection burden for
small business concerns with fewer than 25 employees.'' See 44 U.S.C.
3506(c)(4).
The Commission will send a copy of this order to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Penalties.
Federal Communications Commission.
David Kolker,
Deputy Bureau Chief, Enforcement Bureau.
Rule Changes
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) and (j),
155, 157, 225, 227, 303(r), and 309.
Sec. 1.80 [Amended]
0
2. Amend Sec. 1.80 as follows:
0
a. Revise paragraphs (b)(1) through (b)(4).
0
b. Revise paragraph (b)(7).
0
c. Redesignate the note to paragraph (b)(5) as note to paragraph (b)(8)
and revise the third and fourth sentences of its introductory text.
0
d. Revise the table in Section III of the note to paragraph (b)(8).
0
e. Revise the fourth sentence in paragraph (b)(9)(i).
0
f. Revise the table in paragraph (b)(9)(iii).
0
g. Add note to paragraph (b)(9).
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 $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 $122,500 for any
single act or failure to act described in paragraph (a) of this
section.
(8) * * *
Note to paragraph (b)(8): * * * The forfeiture ceilings per
violation or per day for a continuing violation stated in section 503
of the Communications Act and the Commission's rules are described in
Sec. 1.80(b)(9). These statutory maxima became effective September 13,
2013. * * *
* * * * *
Section III. Non-Section 503 Forfeitures That Are Affected by the
Downward Adjustment Factors
* * * * *
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Violation Statutory amount ($)
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Sec. 202(c) Common Carrier $9,600, 530/day.
Discrimination.
Sec. 203(e) Common Carrier Tariffs..... 9,600, 530/day.
Sec. 205(b) Common Carrier 23,200.
Prescriptions.
Sec. 214(d) Common Carrier Line 1,320/day.
Extensions.
Sec. 219(b) Common Carrier Reports..... 1,320.
Sec. 220(d) Common Carrier Records & 9,600/day.
Accounts.
Sec. 223(b) Dial-a-Porn................ 80,000/day.
[[Page 49372]]
Sec. 227(e)............................ 10,000/violation. 30,000/day
for each day of continuing
violation, up to 1,025,000 for
any single act or failure to
act.
Sec. 364(a) Forfeitures (Ships)........ 7,500 (owner).
Sec. 364(b) Forfeitures (Ships)........ 1,100 (vessel master).
Sec. 386(a) Forfeitures (Ships)........ 7,500/day (owner).
Sec. 386(b) Forfeitures (Ships)........ 1,100 (vessel master).
Sec. 634 Cable EEO..................... 650/day.
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(9) * * *
(i) * * * Round off this result using the rules in paragraph
(b)(9)(ii) of this section. * * *
* * * * *
(iii) * * *
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Maximum penalty
U.S. Code citation after DCIA
adjustment ($)
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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)....................................... 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
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Note to paragraph (b)(9): Pursuant to Public Law 104-134, the first
inflation adjustment cannot exceed 10 percent of the statutory maximum
amount.
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[FR Doc. 2013-19770 Filed 8-13-13; 8:45 am]
BILLING CODE 6712-01-P