Rule2022-28493
Annual Adjustment of Civil Monetary Penalties To Reflect Inflation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 5, 2023
Effective
January 5, 2023
Issuing agencies
Federal Communications Commission
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 3 (Thursday, January 5, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28493]
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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.
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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 <a href="/cdn-cgi/l/email-protection#83cfeaf0e2adc4e6efe1c3e5e0e0ade4ecf5"><span class="__cf_email__" data-cfemail="c38faab0a2ed84a6afa183a5a0a0eda4acb5">[email protected]</span></a> 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 <a href="https://www.fcc.gov/document/2023-annual-adjustment-civil-monetary-penalties-reflect-inflation">https://www.fcc.gov/document/2023-annual-adjustment-civil-monetary-penalties-reflect-inflation</a>. 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 <a href="/cdn-cgi/l/email-protection#f89e9b9bcdc8ccb89e9b9bd69f978e"><span class="__cf_email__" data-cfemail="accacfcf999c98eccacfcf82cbc3da">[email protected]</span></a> 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\
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Statutory amount after 2023 annual
Violation inflation adjustment
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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.
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\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)
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Maximum penalty after 2023 annual
U.S. Code citation inflation adjustment
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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.
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[FR Doc. 2022-28493 Filed 1-4-23; 8:45 am]
BILLING CODE 6712-01-P
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