On December 6, 2013, the FCC issued a rare Notice of Apparent Liability for Forfeiture, against Start Wireless Group, Inc. d/b/a Page Plus Cellular (“Page Plus”), for failing to file annual section 43.61 international traffic and revenue reports for the past eight years. Fines for this particular violation are very rare. In fact, we believe this is only the second time the FCC has proposed a forfeiture for failing to file the annual international traffic report.
Page Plus also is noteworthy in two additional respects relevant to this blog. First, the FCC applies the base forfeiture of $3,000 for “failure to file a required report” to this violation. This contrasts with other types of forms, such as the Form 499-A and the annual CPNI certification, where the FCC has set an individual (and much higher) forfeiture for failing to file the required form. Here, the FCC applied the $3,000 base forfeiture to eight violations, adding an upward adjustment of $19,200 to the fine due to duration of the violations.
Second, FCC proposed a fine for eight failures to file the annual certification – dating back to 2003. The Commission apparently relied upon its controversial “continuing violation” theory for missed deadlines, in which the Commission considers a violation to continue until it is cured. In this instance, six of the eight alleged violations relate to forms that Page Plus has never filed. Two relate to late-filed forms, which were filed exactly one year prior to the release of the NAL. (A ninth year’s report was filed slightly more than one year prior to the NAL, and is not part of the FCC’s proposed forfeiture). We say that the FCC “apparently” relied upon the continuing violations theory because the NAL does not cite to or discuss the statute of limitations with respect to the eight violations found. In our opinion, the FCC action is vulnerable on statute of limitations grounds.