§  1.80   Forfeiture proceedings.

   (a) Persons against whom and violations for which a forfeiture may be
   assessed. A forfeiture penalty may be assessed against any person found
   to have:

   (1) Willfully or repeatedly failed to comply substantially with the
   terms and conditions of any license, permit, certificate, or other
   instrument of authorization issued by the Commission;

   (2) Willfully or repeatedly failed to comply with any of the provisions
   of the Communications Act of 1934, as amended; or of any rule,
   regulation or order issued by the Commission under that Act or under
   any treaty, convention, or other agreement to which the United States
   is a party and which is binding on the United States;

   (3) Violated any provision of section 317(c) or 508(a) of the
   Communications Act; or

   (4) Violated any provision of section 1304, 1343, or 1464 of Title 18,
   United States Code.

   A forfeiture penalty assessed under this section is in addition to any
   other penalty provided for by the Communications Act, except that the
   penalties provided for in paragraphs (b)(1), (b)(2) and (b)(3) of this
   section shall not apply to conduct which is subject to a forfeiture
   penalty under sections 202(c), 203(e), 205(b), 214(d), 219(b), 220(d),
   223(b), 362(a), 362(b), 386(a), 386(b), 503(b), 506, and 634 of the
   Communications Act. The remaining provisions of this section are
   applicable to such conduct.

   (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.
   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 $325,000 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 $3,000,000 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 $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):

   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
   § 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 I. Base Amounts for Section 503 Forfeitures
   Forfeitures Violation Amount
   Misrepresentation/lack of candor (^1)
   Construction and/or operation without an instrument of authorization
   for the service $10,000
   Failure to comply with prescribed lighting and/or marking 10,000
   Violation of public file rules 10,000
   Violation of political rules: reasonable access, lowest unit charge,
   equal opportunity, and discrimination 9,000
   Unauthorized substantial transfer of control 8,000
   Violation of children's television commercialization or programming
   requirements 8,000
   Violations of rules relating to distress and safety frequencies 8,000
   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 lotteries or
   contests 4,000
   Violation of transmitter control and metering requirements 3,000
   Failure to file required forms or information 3,000
   Failure to make required measurements or conduct required monitoring
   2,000
   Failure to provide station ID 1,000
   Unauthorized pro forma transfer of control 1,000
   Failure to maintain required records 1,000

   ^1Statutory Maximum for each Service.

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

   Section II. Adjustment Criteria for Section 503 Forfeitures

   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.

   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.
                     Violation                    Statutory amount ($)
   Sec. 202(c) Common Carrier Discrimination     9,600, 530/day.
   Sec. 203(e) Common Carrier Tariffs            9,600, 530/day.
   Sec. 205(b) Common Carrier Prescriptions      18,200.
   Sec. 214(d) Common Carrier Line Extensions    1,320/day.
   Sec. 219(b) Common Carrier Reports            1,320.
   Sec. 220(d) Common Carrier Records & Accounts 9,600/day.
   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.

   (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.

   (ii) The rounding rules are as follows:

   (A) Round increase to the nearest multiple of $10 if the penalty is
   from $0 to $100;

   (B) Round increase to the nearest multiple of $100 if the penalty is
   from $101 to $1,000;

   (C) Round increase to the nearest multiple of $1,000 if the penalty is
   from $1,001 to $10,000;

   (D) Round increase to the nearest multiple of $5,000 if the penalty is
   from $10,001 to $100,000;

   (E) Round increase to the nearest multiple of $10,000 if the penalty is
   from $100,001 to $200,000; or

   (F) Round increase to the nearest multiple of $25,000 if the penalty is
   over $200,001.

   (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:
     U.S. code citation   Maximum penalty after DCIA adjustment ($)
   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

   (c) Limits on the time when a proceeding may be initiated. (1) In the
   case of a broadcast station, no forfeiture penalty shall be imposed if
   the violation occurred more than 1 year prior to the issuance of the
   appropriate notice or prior to the date of commencement of the current
   license term, whichever is earlier. For purposes of this paragraph,
   “date of commencement of the current license term” means the date of
   commencement of the last term of license for which the licensee has
   been granted a license by the Commission. A separate license term shall
   not be deemed to have commenced as a result of continuing a license in
   effect under section 307(c) pending decision on an application for
   renewal of the license.

   (2) In the case of a forfeiture imposed against a carrier under
   sections 202(c), 203(e), and 220(d), no forfeiture will be imposed if
   the violation occurred more than 5 years prior to the issuance of a
   notice of apparent liability.

   (3) In all other cases, no penalty shall be imposed if the violation
   occurred more than 1 year prior to the date on which the appropriate
   notice is issued.

   (d) Preliminary procedure in some cases; citations. No forfeiture
   penalty shall be imposed upon any person under this section, 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: (1) Is sent a citation reciting the
   violation charged; (2) is given a reasonable opportunity (usually 30
   days) to request a personal interview with a Commission official, at
   the field office which is nearest to such person's place of residence;
   and (3) subsequently engages in conduct of the type described in the
   citation. However, a forfeiture penalty may be imposed, if such person
   is engaged in (and the violation relates to) activities for which a
   license, permit, certificate, or other authorization is required or if
   such person is a cable television operator, or in the case of
   violations of section 303(q), if the person involved is a nonlicensee
   tower owner who has previously received notice of the obligations
   imposed by section 303(q) from the Commission or the permittee or
   licensee who uses that tower. Paragraph (c) of this section does not
   limit the issuance of citations. When the requirements of this
   paragraph have been satisfied with respect to a particular violation by
   a particular person, a forfeiture penalty may be imposed upon such
   person for conduct of the type described in the citation without
   issuance of an additional citation.

   (e) Alternative procedures. In the discretion of the Commission, a
   forfeiture proceeding may be initiated either: (1) By issuing a notice
   of apparent liability, in accordance with paragraph (f) of this
   section, or (2) a notice of opportunity for hearing, in accordance with
   paragraph (g).

   (f) Notice of apparent liability. Before imposing a forfeiture penalty
   under the provisions of this paragraph, the Commission or its designee
   will issue a written notice of apparent liability.

   (1) Content of notice. The notice of apparent liability will:

   (i) Identify each specific provision, term, or condition of any act,
   rule, regulation, order, treaty, convention, or other agreement,
   license, permit, certificate, or instrument of authorization which the
   respondent has apparently violated or with which he has failed to
   comply,

   (ii) Set forth the nature of the act or omission charged against the
   respondent and the facts upon which such charge is based,

   (iii) State the date(s) on which such conduct occurred, and

   (iv) Specify the amount of the apparent forfeiture penalty.

   (2) Delivery. The notice of apparent liability will be sent to the
   respondent, by certified mail, at his last known address (see § 1.5).

   (3) Response. The respondent will be afforded a reasonable period of
   time (usually 30 days from the date of the notice) to show, in writing,
   why a forfeiture penalty should not be imposed or should be reduced, or
   to pay the forfeiture. Any showing as to why the forfeiture should not
   be imposed or should be reduced shall include a detailed factual
   statement and such documentation and affidavits as may be pertinent.

   (4) Forfeiture order. If the proposed forfeiture penalty is not paid in
   full in response to the notice of apparent liability, the Commission,
   upon considering all relevant information available to it, will issue
   an order canceling or reducing the proposed forfeiture or requiring
   that it be paid in full and stating the date by which the forfeiture
   must be paid.

   (5) Judicial enforcement of forfeiture order. If the forfeiture is not
   paid, the case will be referred to the Department of Justice for
   collection under section 504(a) of the Communications Act.

   (g) Notice of opportunity for hearing. The procedures set out in this
   paragraph will ordinarily be followed only when a hearing is being held
   for some reason other than the assessment of a forfeiture (such as, to
   determine whether a renewal application should be granted) and a
   forfeiture is to be considered as an alternative or in addition to any
   other Commission action. However, these procedures may be followed
   whenever the Commission, in its discretion, determines that they will
   better serve the ends of justice.

   (1) Before imposing a forfeiture penalty under the provisions of this
   paragraph, the Commission will issue a notice of opportunity for
   hearing. The hearing will be a full evidentiary hearing before an
   administrative law judge, conducted under procedures set out in subpart
   B of this part, including procedures for appeal and review of initial
   decisions. A final Commission order assessing a forfeiture under the
   provisions of this paragraph is subject to judicial review under
   section 402(a) of the Communications Act.

   (2) If, after a forfeiture penalty is imposed and not appealed or after
   a court enters final judgment in favor of the Commission, the
   forfeiture is not paid, the Commission will refer the matter to the
   Department of Justice for collection. In an action to recover the
   forfeiture, the validity and appropriateness of the order imposing the
   forfeiture are not subject to review.

   (3) Where the possible assessment of a forfeiture is an issue in a
   hearing case to determine which pending application should be granted,
   and the applicant facing a potential forfeiture is dismissed pursuant
   to a settlement agreement or otherwise, and the presiding judge has not
   made a determination on the forfeiture issue, the order of dismissal
   shall be forwarded to the attention of the full Commission. Within the
   time provided by § 1.117, the Commission may, on its own motion, proceed
   with a determination of whether a forfeiture against the dismissing
   applicant is warranted. If the Commission so proceeds, it will provide
   the applicant with a reasonable opportunity to respond to the
   forfeiture issue (see paragraph (f)(3) of this section) and make a
   determination under the procedures outlined in paragraph (f) of this
   section.

   (h) Payment. The forfeiture should be paid by check or money order
   drawn to the order of the Federal Communications Commission. The
   Commission does not accept responsibility for cash payments sent
   through the mails. The check or money order should be mailed to:
   Federal Communications Commission, P.O. Box 979088, St. Louis, MO
   63197–9000.

   (i) Remission and mitigation. In its discretion, the Commission, or its
   designee, may remit or reduce any forfeiture imposed under this
   section. After issuance of a forfeiture order, any request that it do
   so shall be submitted as a petition for reconsideration pursuant to
   § 1.106.

   (j) Effective date. Amendments to paragraph (b) of this section
   implementing Pub. L. No. 101–239 are effective December 19, 1989.

   [ 43 FR 49308 , Oct. 23, 1978, as amended at  48 FR 15631 , Apr. 12, 1983;
    50 FR 40855 , Oct. 7, 1985;  55 FR 25605 , June 22, 1990;  56 FR 25638 ,
   June 5, 1991;  57 FR 23161 , June 2, 1992;  57 FR 47006 , Oct. 14, 1992;  57 FR 48333 , Oct. 23, 1992;  58 FR 6896 , Feb. 3, 1993;  58 FR 27473 , May 10,
   1993;  62 FR 4918 , Feb. 3, 1997;  62 FR 43475 , Aug. 14, 1997;  63 FR 26992 , May 15, 1998;  65 FR 60868 , Oct. 13, 2000;  69 FR 47789 , Aug. 6,
   2004;  72 FR 33914 , June 20, 2007;  73 FR 9018 , Feb. 19, 2008;  73 FR 44664 , July 31, 2008]