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FCC Enforcement Overview

FCC Enforcement Overview Image

The FCC’s Enforcement Bureau has authority to investigate suspected violations, adjudicate complaints, levy forfeitures and settle with suspected violators. Any contact from the Bureau should be taken seriously and given your prompt attention. Failure to respond to the Bureau’s correspondence is, in itself, a violation. The process usually starts with one of the following:

  • Citation – A Citation is essentially an allegation that a company has violated the rules. For equipment-related violations, it is generally sent to a party that is not a manufacturer or responsible party for a first-time violation. For instance, Citations are often sent to the operators of non-compliant unlicensed devices. A recipient is given an opportunity to reply, and a repeat violation can lead to imposition of a forfeiture. A Citation can be used to establish jurisdiction over a company that does not usually interact with the FCC or hold FCC authorizations.
  • Letter of Inquiry – A Letter of Inquiry (LOI) usually follows a formal or informal complaint that can be filed by anyone (spectrum user, competitor, etc.) with the FCC. The FCC will generally hold the complaint in confidence while the investigation is pending, forcing the LOI recipient to respond without knowing what the complaint was about or who filed it. For equipment-related violations, the LOI will be directed to the manufacturer (or responsible party) or dealer and will request detailed information about the device in question, the compliance testing, the marketing history and the rules that apply. Often the FCC will request copies of supporting documents in the manufacturer’s or dealer’s possession and pose questions that have to be answered by knowledgeable individuals. The questions and documents required can be quite extensive, with generally only thirty days to respond from receipt of the LOI. An LOI is like a federal subpoena, and once it is received, the recipient becomes deeply enmeshed in the enforcement process. Answers must be complete and truthful, supported by sworn statements from company officials, and there is a continuing obligation to provide information in the future.
  • Notice of Apparent Liability For Forfeiture – A Notice of Apparent Liability for Forfeiture (“NAL”) can be sent before or after an LOI. A NAL states that a manufacturer or dealer has violated a FCC rule and is liable for a monetary forfeiture of a specified amount. The recipient of a NAL has an opportunity to seek a dismissal and/or reduction in the amount of the forfeiture. However, the bar to dismiss or reduce a forfeiture, once proposed, is quite high.

The process usually ends as follows:

  • Forfeiture Order – A Forfeiture Order follows a NAL or a citation. This is a formal order from the FCC that a monetary forfeiture in a specific amount has been assessed against the manufacturer, along with an explanation of how the FCC arrived at the amount.
  • Consent Decree – A Consent Decree is the settlement of an enforcement proceeding whereby the recipient of a citation/LOI/NAL and the FCC enter into a comprehensive agreement. The recipient usually agrees to pay the FCC a negotiated amount and agrees to implement various corrective measures, including a detailed compliance program to assure the FCC that similar violations will not reoccur. Consent Decrees often last for three or more years, during which time, the suspected violator must maintain the compliance plan and file periodic compliance reports with the Commission.
  • Criminal Prosecution – In rare cases, when there is evidence of intentional and repeated rule violations or false declarations under oath, the FCC will send an enforcement matter to the Department of Justice for criminal prosecution.

As the NALs, Forfeiture Orders, and Consent Decrees indicate, many of the Enforcement Bureau’s activities are based on complaints filed by competitors and other spectrum users. Because the FCC has limited resources available to conduct its own equipment sampling and testing, it increasingly relies on data supplied by others. Competitors are increasingly using the enforcement process to ensure a level playing field.

For more information or assistance, please contact:

Terry_MahnTerry Mahn
202-626-6421
mahn@fr.com
Donna_BalaguerDonna Balaguer
202-626-7719
balaguer@fr.com