§ 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;

   (4) Violated any provision of section 227(e) of the Communications Act
   or of the rules issued by the Commission under section 227(e) of that
   Act; or

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

   (6) Violated any provision of section 6507 of the Middle Class Tax
   Relief and Job Creation Act of 2012 or any rule, regulation, or order
   issued by the Commission under that statute.

   Note to paragraph (a): 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)
   through (4) of this section shall not apply to conduct which is subject
   to a forfeiture penalty or fine under sections 202(c), 203(e), 205(b),
   214(d), 219(b), 220(d), 223(b), 364(a), 364(b), 386(a), 386(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 $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.

   (5) 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, the monetary penalty for such
   unauthorized disclosure or dissemination of a telephone number from the
   registry shall be not less than $100,000 per incident nor more than
   $1,000,000 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.

   (6) 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, the monetary penalty for contacting such a telephone number
   shall be not less than $10,000 per call nor more than $100,000 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.

   (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) 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)(8): 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 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
   § 1.80(b)(9). These statutory maxima became effective September 13,
   2013. 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 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 section III of this
   note to determine the amount of the penalty to assess in any particular
   situation. 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 $11,362, $568/day.
   Sec. 203(e) Common Carrier Tariffs 11,362, 568/day.
   Sec. 205(b) Common Carrier Prescriptions 22,723.
   Sec. 214(d) Common Carrier Line Extensions 2,272/day.
   Sec. 219(b) Common Carrier Reports 2,272/day.
   Sec. 220(d) Common Carrier Records & Accounts 11,362/day.
   Sec. 223(b) Dial-a-Porn 117,742.
   Sec. 227(e) Caller Identification 10,874/violation. 32,622/day for each
   day of continuing violation, up to 1,087,450 for any single act or
   failure to act.
   Sec. 364(a) Forfeitures (Ships) 9,468/day (owner).
   Sec. 364(b) Forfeitures (Ships) 1,894 (vessel master).
   Sec. 386(a) Forfeitures (Ships) 9,468/day (owner).
   Sec. 386(b) Forfeitures (Ships) 1,894 (vessel master).
   Sec. 634 Cable EEO 839.

   (9) Inflation adjustments to the maximum forfeiture amount.

   (i) Pursuant to the Federal Civil Penalties Inflation Adjustment Act
   Improvements Act of 2015 (2015 Inflation Adjustment Act), Public Law
   114-74 (129 Stat. 599-600), 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
   with an initial “catch-up” adjustment through an interim final
   rulemaking and interim final rules published by July 1, 2016, to take
   effect by August 1, 2016. Subsequent annual adjustments shall be
   published by January 15 each year. Catch-up adjustments will be based
   on the `cost-of-living adjustment' (CPI), which is the percentage (if
   any) by which the CPI for October in the year of the previous
   adjustment exceeds the CPI for October 2015. Annual inflation
   adjustments will be based on the percentage (if any) by which the CPI
   for October preceding the date of the adjustment exceeds the prior
   year's CPI for October. The Office of Management and Budget has
   provided “Table A: 2016 Civil Monetary Penalty Catch-Up Adjustment
   Multiplier by Calendar Year” (Table A) to determine the civil monetary
   penalty catch-up adjustment multiplier by calendar year. The Catch-up
   adjustment is determined by

   (A) Identifying from Table A, column A the latest year the penalty
   level or penalty range was established or last adjusted by statute or
   regulation (other than pursuant to the Inflation Adjustment Act), and
   from column B, identifying the corresponding multiplier to adjust the
   penalty level or range for inflation;

   (B) Multiplying the corresponding amount from column B by the amount of
   the maximum penalty level or the range of minimum and maximum penalties
   as most recently established or adjusted by statute or regulation
   (other than pursuant to the Inflation Adjustment Act before November 2,
   2015);

   (C) Rounding to the nearest dollar; and

   (D) Comparing the new amount or range of the penalty with the amount or
   range in the prior year to ensure the maximum increase is not more than
   150 percent of the most recent levels.

   (ii) The application of the inflation adjustments required by the 2015
   Inflation Adjustment Act, 28 U.S.C. 2461 note, results in the following
   adjusted statutory maximum forfeitures authorized by the Communications
   Act:
   U.S. Code citation Maximum
   penalty after
   2015 inflation
   adjustment
   act
   adjustment
   ($)
   47 U.S.C. 202(c) $11,362
   568
   47 U.S.C. 203(e) 11,362
   568
   47 U.S.C. 205(b) 22,723
   47 U.S.C. 214(d) 2,272
   47 U.S.C. 219(b) 2,272
   47 U.S.C. 220(d) 11,362
   47 U.S.C. 223(b) 117,742
   47 U.S.C. 227(e) 10,874
   32,622
   1,087,450
   47 U.S.C. 362(a) 9,468
   47 U.S.C. 362(b) 1,894
   47 U.S.C. 386(a) 9,468
   47 U.S.C. 386(b) 1,894
   47 U.S.C. 503(b)(2)(A) 47,340
   473,402
   47 U.S.C. 503(b)(2)(B) 189,361
   1,893,610
   47 U.S.C. 503(b)(2)(C) 383,038
   3,535,740
   47 U.S.C. 503(b)(2)(D) 18,936
   142,021
   108,745
   47 U.S.C. 503(b)(2)(F) 1,087,450
   1,875
   47 U.S.C. 507(a)
   47 U.S.C. 507(b) 275
   47 U.S.C. 554 839

   *                           *                           *
                *                           *                           *
                             *

   (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 the case of a forfeiture imposed under section 227(e), no
   forfeiture will be imposed if the violation occurred more than 2 years
   prior to the date on which the appropriate notice is issued.

   (4) 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. Except for a
   forfeiture imposed under subsection 227(e)(5) of the Act, no forfeiture
   penalty shall be imposed upon any person under this section of the Act
   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;  76 FR 43203 , July 20, 2011;  76 FR 82388 , Dec. 30,
   2011;  77 FR 71137 , Nov. 29, 2012;  78 FR 10100 , Feb. 13, 2013;  78 FR 49371 , Aug. 14, 2013;  81 FR 42555 , June 30, 2016]

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