Liability for Enforcement Penalties & Penalties

The Commission’s enforcement procedures and actions are actually receiving attention of late, but there exists a deficiency in the process that has not been mentioned. To the extent that the Fee has rules in an area, applicable parties are required to comply. Those who don’t are subject to enforcement actions, with due process rights for claimed violators, including the option of settling the matter through a consent decree. For the enforcement process to work, however , all of its steps must be carried out efficiently plus swiftly from beginning to end. Issue with the current process – plus another area for the newly formed Process Review Task Force and/or Congress to examine – is that the Commission does not have any idea whether parties are actually satisfying the terms of its enforcement activities, particularly those that go to the forfeiture phase.

Under the current structure, the Commission does not have a process in place to know whether entities actually pay out the fines or penalties evaluated pursuant to an enforcement action. Put simply, once a Forfeiture Order is completed, it somehow seems to drop off the particular FCC’s radar. This came like a surprise to me as I prepared regarding recent Congressional hearings. I required that Enforcement Bureau provide a comprehensive spreadsheet of the 75 most recent Updates of Apparent Liability (“NAL”) plus Forfeiture Orders. Disappointingly, the bureau answered that it didn’t track series resulting from Forfeiture Orders as a matter of course.

This entire situation reminds me of an early episode of the sitcom Seinfeld. Inside it, Jerry has a dispute with a car rental agent over whether the car he or she reserved is actually available. One of television’s most classic exchanges went as follows:

Jerry : I don’t understand, I made a reservation, do you have my reservation?

Agent : Yes, we do, unfortunately we sold out of cars.

Jerry : But the reservation keeps the car here. That’s why you possess the reservation.

Broker : I know why we have reservations.

Jerry : I don’t think you do. If you did, I’d have a car. See, you know how to take the reservation, you just don’t know how to *hold* the reservation plus that’s really the most important part of the booking, the holding. Anybody can just take them.

To be fair, one particular reason for the lack of information on forfeiture series is due to the distribution of responsibilities between the Commission, the Department from the Treasury, and the Department of Justice. Under the statute and current treatments, the Forfeiture Order is the final official step in the Commission’s workload. Under section 504 of the Marketing communications Act, violators that accept their own forfeitures are required to make payments to the U. S. Treasury. To the level that an entity does not pay a forfeiture that has been upheld by a courtroom of competent jurisdiction, DOJ is responsible for pursuing restitution via a civil match on behalf of the U. S.

Needless to say, I would think that the particular Commission can build a sufficient romantic relationship with the Departments of Treasury plus Justice, without undermining our self-reliance as an agency, to receive ongoing updates on the status of our forfeitures. Monitoring such information is important for making certain the American people are compensated beneath the law. Violators should actually pay out fines and penalties as needed to rectify their past illegal procedures and prevent reoccurrences. Additionally , our Enforcement Bureau actions are a deterrent to others and prevent future incidences associated with rule violations. The communications community at large and the public must be up to date of our actions and know that every time a fine or penalty is issued, it is collected.

Similarly important, the Commission’s fines plus penalties are sometimes used as preceding or guideposts for determining the size of other enforcement fines and fees and penalties. If our past work is used as the basis for future decisions, consideration must be given to what was in fact collected. For instance, the Commission has issued a number of NALs and ultimate forfeitures against purveyors of banging and cramming. It would be extremely useful to know whether those entities in fact paid the amounts assessed, or just closed down shop to reopen under a new name.

Moreover, it would be helpful to know the amount and types of cases and the situations in which the U. S. Justice Division has sought collection over the years regarding unpaid Commission forfeiture orders. The particular FCC could use this information to analyze potential procedural improvements to its items which would invite greater DOJ involvement. In other words, are there are a high portion of cases not being pursued and is there a way can all of us increase the likelihood that DOJ may seek collection? This needs to be taken into account when determining the most effective enforcement activity, including whether to seek settlements in a lower figure or earlier along the way.

Even if the Commission’s enforcement fines and penalties are appropriate, when the collection remains unknown, overall enforcement will suffer. The potential discrepancy between providing an enforcement action and gathering any financial fine or penalty needs to be addressed. To the extent the fact that Enforcement Bureau needs assistance facilitating the necessary relationships with the Treasury plus Justice Departments, I would be happy to help in any way I can.


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