Simultaneously with issuing a nearly $3,000,000 fine to HobbyKing for marketing unauthorized (and in some cases not capable of being authorized) audio/video (“AV”) transmitters for use with drone mounted cameras, the Federal Communications Commission’s (“FCC’s” or “Commission’s”) Enforcement Bureau issued an Advisory Tuesday reminding retailer manufacturers, and operators of their obligations: no marketing or operation of unauthorized equipment except under very limited exceptions.
On November 25, FCC Enforcement Bureau Chief Travis LeBlanc penned a blog post outlining the Commission’s enforcement process and touting the upward trend in recent years in collecting fines issued for violations of the Communications Act and the Commission’s rules. The post was written in response to a recent Politico article suggesting that the agency may be more interested in grabbing headlines rather than actually collecting the massive fines it has announced in recent years.
Kajeet, Inc., and its wholly-owned subsidiary Kajeet/Airlink LLC, has agreed to pay $450,000 to settle a 2009 investigation by the Enforcement Bureau of the Federal Communications Commission (Bureau), initiated in 2009, into several company violations. The investigation concerned the company’s apparent failure to make timely contributions to the Universal Service Fund (USF) and various other industry funds (the Telecommunications Relay Service (TRS) Fund, the Local Number Portability (LNP) cost recovery mechanism, etc.) and Kajeet/Airlink’s failure to seek an assignment of an international Section 214 authorization in connection with the acquisition of assets of Airlink Mobile. While the Consent Decree, released on October 7, 2015, has many of the provisions that have become the “new normal” for the current Bureau – an admission of liability, civil penalty – it is remarkable for several reasons.
Today, the Federal Communications Commission released a Policy Statement announcing a “treble damages” methodology to assess forfeitures for failure to make payment to a series of federal programs, a move which the agency anticipates will allow it to begin “significantly more investigations.” The new policy appears to allow the FCC to impose significantly larger fines than in similar investigations in the past, but may implicate the FCC’s statutory maximum forfeiture authority in some cases. Continue Reading In a Shift, FCC Shelves Prior Forfeiture Methodology For Failure to Pay Into USF and Other Federal Programs
A Notice of Apparent Liability issued today by the Federal Communications Commission against AT&T for numerous alleged violations of microwave point-to-point license rules after a lengthy investigation by the Enforcement Bureau, but the two Republican Commissioners took the Commission and Bureau to task for failing to provide transparent factual bases and justifications for both the base violations and also the grounds for proposed upward adjustments. Commissioner Ajit Pai made a point of concurring and Commissioner Michael O’Reilly concurred in part and dissented in part.
Due to the 1 year statute of limitations for proposed fines against common carriers, the release of a Notice of Apparent Liability for failing to file CPNI certifications has become an annual late-February event. This year’s order, released late on Friday, proposes fines against 10 entities for failing to file the CPNI certification due on March 1, 2010. Despite what has been a roller coaster in CPNI fines and in CPNI settlements, the Order proposes a $25,000 fine for failing to file the certification (the same amount proposed last year). Moreover, each of the 10 entities was accused of failing to respond to the Enforcement Bureau’s Letter of Inquiry, resulting in an additional proposed fine of $4,000.
For those who have not yet filed their 2011 certifications, today is the last day.
At Kelley Drye, we handle a lot of FCC investigations, so we know first hand how the Commission develops proposed forfeitures for telecom violations. In previous posts, I’ve commented that the FCC should reconsider the proportionality of the base forfeiture amounts it uses in telecom enforcement cases. A case released today underscores the inherent weaknesses of the FCC’s current ad hoc approach to setting these base forfeiture amounts.
In the case described below, the FCC proposed a $100,000 fine for a telecom carrier’s non-compliance with its privacy rules — namely, the rule requiring carrier to execute annual compliance certifications. Three years later (and after a shift in administrations), the FCC settled the proposed fine for a mere $250. There is no mention of mitigating circumstances, of an inability to pay or of any of the statutory factors the FCC is obligated to consider. The outcome leaves you wondering: Just what is the base fine for failing to comply with the FCC’s privacy rules?
As of COB yesterday, 3070 unique CPNI submissions were made in the FCC’s annual CPNI certification docket. That number is almost the same as the 3,107 CPNI filers in 2009. However, it still is about 500 fewer than the number of active USF filers, according to USAC’s most recent report, and is over 3,000 entities fewer than USAC has in its filer database. It looks like the FCC’s Enforcement Bureau will still have some work to do to track down potential CPNI violators.
For those who failed to file the certificiations, be warned that last year, the FCC released an Omnibus CPNI NAL proposing to fine over 600 carriers $20,000 each for failing to file the required annual certification or for filing a non-compliant certification. This year, the fine has increased to $25,000, at least according to two NALs released late last week (available here and here). No, this is not an inflationary increase. Instead, the Bureau reasoned that carriers were on notice of the requirement and had failed to file in past years as well. Therefore, the action this year was more culpable and deserving of a higher fine.
If you didn’t file your 2010 CPNI certification, you should do so soon.