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FCC 1.80
Revised as of September 1, 2021
Goto Year:2020 |
2022
§ 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 sections 227(b) or (e) of the
Communications Act or of § § 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
(7) 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 1 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) 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 $51,827 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 $518,283 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 $419,353 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 $3,870,946 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 $207,314 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 $2,073,133 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, 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 $119,055 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
$1,190,546 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 $11,905 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 $1,190,546 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 section 503(b)(2) plus an additional penalty not
to exceed $10,118.
(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
(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.
(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 $111,493 per
incident nor more than $1,114,929 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 $11,149 per call nor more than
$111,493 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 $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
Forfeitures Violation
amount
Misrepresentation/lack of candor (1)
Failure to file required DODC required forms, and/or filing materially
inaccurate or incomplete DODC information $15,000
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
Table 2 to Paragraph (b) (10)—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 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
Table 3 to Paragraph (b) (10)—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.
Table 4 to Paragraph (b)(10)—Non-Section 503 Forfeitures That Are
Affected by the Downward Adjustment Factors^1
Violation Statutory amount after 2021 annual inflation adjustment
Sec. 202(c) Common Carrier Discrimination $12,439, $622/day.
Sec. 203(e) Common Carrier Tariffs $12,439, $622/day.
Sec. 205(b) Common Carrier Prescriptions $24,877.
Sec. 214(d) Common Carrier Line Extensions $2,487/day.
Sec. 219(b) Common Carrier Reports $2,487/day.
Sec. 220(d) Common Carrier Records & Accounts $12,439/day.
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.
^1Unlike 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) Inflation adjustments to the maximum forfeiture amount. (i)
Pursuant to the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015, 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 annually for inflation by order published no
later than January 15 each year. Annual inflation adjustments will be
based on the percentage (if any) by which the Consumer Price Index for
all Urban Consumers (CPI-U) for October preceding the date of the
adjustment exceeds the prior year's CPI-U for October. The Office of
Management and Budget (OMB) will issue adjustment rate guidance no
later than December 15 each year to adjust for inflation in the CPI-U
as of the most recent October.
(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)
U.S. Code citation Maximum penalty after 2021 annual inflation
adjustment
47 U.S.C. 202(c) $12,439
622
47 U.S.C. 203(e) 12,439
622
47 U.S.C. 205(b) 24,877
47 U.S.C. 214(d) 2,487
47 U.S.C. 219(b) 2,487
47 U.S.C. 220(d) 12,439
47 U.S.C. 223(b) 128,904
47 U.S.C. 227(e) 11,905
35,715
1,190,546
47 U.S.C. 362(a) 10,366
47 U.S.C. 362(b) 2,074
47 U.S.C. 386(a) 10,366
47 U.S.C. 386(b) 2,074
47 U.S.C. 503(b)(2)(A) 51,827
518,283
47 U.S.C. 503(b)(2)(B) 207,314
2,073,133
47 U.S.C. 503(b)(2)(C) 419,353
3,870,946
47 U.S.C. 503(b)(2)(D)
20,731
155,485
47 U.S.C. 503(b)(2)(F) 119,055
1,190,546
47 U.S.C. 507(a) 2,053
47 U.S.C. 507(b) 301
47 U.S.C. 511 2,023,640
101,182
47 U.S.C. 554 919
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.
(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 4 years
prior to the date on which the appropriate notice was issued.
(4) In the case of a forfeiture imposed under section 227(b)(4)(B), no
forfeiture will be imposed if the violation occurred more than 4 years
prior to the date on which the appropriate notice is issued.
(5) 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 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:
(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) 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.
(f) 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).
(g) 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.
(h) Notice of opportunity for hearing. The procedures set out in this
paragraph apply only when a formal hearing under section 503(b)(3)(A)
of the Communications Act is being held to determine whether to assess
a forfeiture penalty.
(1) Before imposing a forfeiture penalty, the Commission may, in its
discretion, issue a notice of opportunity for hearing. The formal
hearing proceeding shall be conducted by an administrative law judge
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 proceeding to determine whether a pending application should be
granted, and the application is dismissed pursuant to a settlement
agreement or otherwise, and the presiding judge has not made a
determination on the forfeiture issue, the presiding judge shall
forward the order of dismissal 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 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.
(i) Payment. The forfeiture should be paid electronically using the
Commission's electronic payment system in accordance with the
procedures set forth on the Commission's website,
www.fcc.gov/licensing-databases/fees.
(j) 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.
(k) 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; 82 FR 8171 , Jan. 24,
2017; 82 FR 57882 , Dec. 8, 2017; 83 FR 4600 , Feb. 1. 2018; 84 FR 2462 ,
Feb. 7, 2019; 85 FR 2318 , Jan. 15, 2020; 85 FR 22029 , Apr. 21, 2020; 85 FR 38333 , June 26, 2020; 85 FR 63172 , Oct. 6, 2020; 86 FR 3830 , Jan.
15, 2021; 86 FR 15797 , Mar. 25, 2021; 86 FR 18159 , Apr. 7, 2021]
Goto Section: 1.77 | 1.83
Goto Year: 2020 |
2022
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