FCC Continues to Issue Fines Ruled Illegal by Court [Archive] - Glock Talk

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Washington,D.C.
12-24-2004, 05:31
On July 14, 1994, the Court of Appeals for the District of Columbia Circuit in a 3-0 decision ruled that the forfeiture standards used by the Federal Communications Commission are illegal.

Prior to the summer of 1991, FCC field offices were delegated the authority to impose fines of up to $2000. With little or no reported debate, Congress increased that authority to $25,000 as part of the 1991 annual appropriation of funds to the FCC. On August 1, 1991, the FCC issued a "policy statement" (FCC 91-217) which set forth new standards for assessing fines. The FCC abandoned its longstanding case-by-case approach to assessing fines against licensees determined to be in violation of FCC rules. In its place, the Commission set forth "base forfeiture amounts", which could be adjusted up or down " depending on the nature, circumstances, extent and gravity of the violation, degree of culpability, history of prior offences and ability to pay." The FCC said that its new forfeiture schedule was intended to " ... aid our enforcement efforts by making clear in advance the likely consequences of violations."

Since the new system has been imposed, there have been complaints that the amount of money in the fines far exceeds what could be considered reasonable for the seriousness of the offences cited. Broadcast stations have been especially hard hit, sometimes receiving fines of thousands of dollars for minor technical violations or failure to properly keep track of all the required paperwork, even after demonstrating good-faith effort to correct deficiencies once station personnel became aware there was a problem. Telephone companies complained the fines were unfair because they could face a fine of $80,000 while broadcasters and cable operators would be fined only $20,000 for identical violations. There are reportedly at least half a dozen hams facing major fines. In one case, a repeater operator has been fined $7,000 for continuing to operate his repeater after the ARRL-accepted frequency coordinator deleted his machine from the list without a single word of explanation. FCC Docket 85-22 apparently grants repeater coordinators broad authority to "decoordinate."

A telecommunications organization representing telephone companies challenged the fine schedule in Court on grounds that the FCC adopted the new rules without notice and without allowing interested parties to comment. On July 14 the D.C. Court of appeals overturned the FCC's revised system of issuing fines. The Court said the FCC failed to consider public comment before implementation as required under the Administrative Procedures Act. In fact, the Court went so far as to say that the FCC knowingly failed to give all interested parties the opportunity to comment on the policy change before it was adopted. The FCC has only three possible options. It can appeal to the United States Supreme Court seeking a reversal of the decision against it; it can revert to its pre-1991 monetary forfeiture schedule and issue a Notice of Proposed Rulemaking on a new schedule of fines; or it can abandon fines altogether. It is unclear how the more than 3,000 individual fines issued over the last three years, fines yet to be paid and pending cases will be affected. Already, the National Association of Broadcasters has sent a letter to the FCC asking the fine schedule be scrapped and all outstanding assessments be cancelled. Several hams who are currently the target of FCC fines based on the Base Forfeiture Schedule are saying that they, too, will demand that the actions against them be cancelled.

Since the base monetary forfeiture amounts in all services were raised simultaneously, it was expected that all outstanding fines based on the revised rates would be cancelled or placed in limbo. But that is apparently not the case. Washington insiders report that the FCC is taking a very narrow view of the appeals court decision. While it may be unsure what it will do in regard to telephone related violations, the FCC appears to have decided that the decision affects telephone services only.

This means the FCC will probably continue to issue very large monetary forfeitures based on its 1991 revised schedule in all services not directly covered in the appeals court decision, and hams and others facing major fines will have to pay, or else take on the burden and expense of making similar appeals of their own to the federal courts.

The following opinion is excerpted from a letter to Westlink Report. The complete text appears in Issue No. 680, Sept. 16 1994, page 4. It was written in regard to the $7,000 fine assessed against the "decoordinated" repeater that continued operation.

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"... the "apparent liability" of $7,000 is so far short of ordinary reason as to be ridiculous! The Menendez brothers allegedly commit murder and go free. But the simple alleged continual, even deliberate, QRM'ing of a fellow ham station is "worth" a "fine" of $7,000? Nonsense! Remember, hamming is a hobby!

... if it is okay for any local FCC EIC (Engineer In Charge) to assess a fine of $7,000, even for the deliberate QRM'ing of one ham's QSO by another ham's operation, we hams are in deep, deep trouble. Fines should not be determined or assessed by the FCC EIC at all, any more than the local cop can fine one for speeding or running a stop sign!"

The Constitution guarantees all of us, criminals and non-criminals alike, to be considered innocent until proven otherwise through the absolute right to due process. How, or by what possible reasoning can hams, considered guilty and "fined" (disguised as "apparent liability") by the FCC without any trial or hearing at a specified date and place or before any "Judge" whatsoever other than the FCC itself, equate with proper due process? Not Possible!

So isn't it high time for an appeal to the Supreme Court to put a stop to this unconstitutional practice by the FCC before any more hams are victimized?

How about it, ARRL?