Rules by Citation

While most FCC enforcement actions take those form of a Notice of Apparent Liability, Forfeiture Order, or Permission Decree, recent events have called attention to another means: FCC details. In summary, current law prevents the FCC from pursuing a fine against a company that is not generally regulated with the Commission unless it is previously released a written citation. While this additional step is intended to provide more notice and due process for non-regulatees, the recent use of citations seems to provide fewer protections than envisioned by the law. Additionally , I am concerned that citations are being used as another tool to expand the FCC’s reach and thus its mission – a maneuver that amounts to regulation by citation. Both problems must be remedied and this can occur whilst working well within the statutory construction that Congress provided.

Process Enhancements

Section 503(b)(5) of the Communications Function provides that no forfeiture responsibility shall be determined against any person who does not hold a license, permit, certification, or other authorization issued by Commission unless, prior to issuance associated with any Notice of Apparent Legal responsibility, such person is “(A) sent a citation of the violation charged; (B) is given a reasonable opportunity for an individual interview with an official of the Percentage at the field office of the Fee which is nearest to such person’s place of residence; and (C) eventually engages in conduct of the type defined in such citation. ”

The purpose of sending a citation and providing an opportunity for the personal interview – before actually contemplating a fine – is to make sure that such businesses understand the FCC guidelines and have the opportunity to come into compliance. Non-regulatees may not pay close attention to FCC proceedings, neither would they have reason to maintain FCC counsel to keep them apprised associated with FCC developments.

However , numerous reports show companies have been blindsided and treated as guilty before they even know what the supposed violations are. In fact , businesses are not always informed associated with citations before they are made public. A lot more startling, the FCC has been known to issue a press release before the focus on even receives its citation copy, which can be days later when it is delivered by postal mail. In an age of ubiquitous and instantaneous social media reactions to any and every perceived outrage, the effect can be devastating. By the time a company discovers of the item, and has a chance to look at and understand the supposed violations, it may have already been tried in the court associated with public opinion based solely within the FCC’s view of the facts, which may or may not be correct.

The Commission need to change its procedures so that details are not publicized until after the focus on has had the opportunity to avail itself of the interview and respond to the claimed violations, which occurs within thirty days of the issuance of the citation. This would in no way detract from the Enforcement Bureau’s ability to pursue an investigation, or a fine if warranted. The company would nevertheless receive the citation and could face further enforcement action. Nor would it take away from the Commission’s ability to use a quotation as a deterrent for other companies because the citation (unless rescinded after discussions with the target) would still turn out to be public. It would merely delay distribution for a reasonable and limited time-frame. Since the goal of enforcement is certainly compliance, not immediate headlines, this would not be a problem.

Disturbing Substantive Direction

Because citations are issued towards companies that may not be as familiar with the Act and FCC guidelines, I am especially troubled that the FCC would use citations to break brand new legal ground, as it recently do when it issued citations against Lyft and First National Bank.

It is challenging enough when the FCC issues an enforcement action in the absence of any rules. I have opposed the practice on multiple occasions because it is unfair (and unlawful) to expect companies in order to guess what the Enforcement Bureau might find objectionable. In addition , because such procedures are shielded from public remark, there is no opportunity for other businesses that might be impacted in the future to object to novel legal theories.

When a new lawful argument is put forth in a citation, it is even less likely that a non-regulatee would be able to foresee that its perform would violate the Act. Furthermore, such a company, without the benefit of experience or FCC counsel, may merely assume that the citation is based on resolved law. Therefore , they may be even less inclined to challenge something that really amounts to an unlawful expansion of the FCC’s jurisdiction. But that won’t prevent the agency from treating the citation as if it were precedent in other contexts—hence, the reality of regulation by citation.

Instead, the FCC ought to refrain from issuing citations that have no basis in Commission rules. When the agency spots conduct that it thinks should be unlawful, it is always free to initiate a notice of proposed rulemaking to address it. A simple rule change can be effectuated in a reasonable amount of time while providing fair notice and an opportunity to comment. Any additional time may be worth it to ensure that the Commission is definitely on solid legal footing.

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January 5, 2016 : 1: 30 pm

Michael O' Rielly | Commissioner

While most FCC enforcement activities take the form of a Notice associated with Apparent Liability, Forfeiture…


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