95TII CONGRESS 1ST SESSION

S. 1547

IN THE SENATE OF THE UNITED STATES

MAY 17 (legislative day, MAY 16), 1977

Mr. HOLLINGS introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

A BILL

To amend the Communications Act of 1934, as amended, with respect to penalties and forfeitures, and to authorize the Federal Communications Commission to regulate pole attachments, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the "Communications Act 4 Amendments of 1977".

5 SEC. 2. Section 503 (b) of the Communication Act of

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1934 (47 U.S.C. 503 (b)) is amended to read as follows: "(b) Any person who is determined by the Commis

8 sion, in accordance with paragraph (3) or (4) of this 9 subsection, to have

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"(A) willfully or repeatedly failed to comply substantially with the terms and conditions of any license, permit, certificate, or other instrument or authorization issued by the Commission;

"(B) willfully or repeatedly failed to comply with any of the provisions of this Act or of any rule, regulation, or order issued by the Commission under this Act or under any treaty, convention, or other agreement to which the United States is a party and which is binding upon the United States;

"(C) violated any provision of section 317 (c) or 509 (a) of this Act; or

"(D) violated any provision of section 1304, 1343,

14 or 1464 of title 18, United States Code;

15 shall be liable to the United States for a forfeiture penalty. A 16 forfeiture penalty under this subsection shall be in addition 17 to any other penalty provided for by this Act; except that 18 this subsection shall not apply to any conduct which is sub19 ject to forfeiture under title II, part II or III of title III, or 20 section 507 of this Act.

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"(2) The amount of any forfeiture penalty determined

22 under this subsection shall not exceed $2,000 for each vio

23 lation. Each day of a continuing violation shall constitute

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a separate offense, but the total forfeiture penalty which may

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1 scribed in paragraph (1) of this subsection and set forth in 2 the notice or the notice of apparent liability issued under this 3 subsection, shall not exceed

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"(A) $20,000, if the violator is (i) a common carrier subject to the provisions of this Act, (ii) a broadcast station licensee or permittee, or (iii) a cable television operator; or

"(B) $5,000, in any case not covered by subparagraph (A).

10 The amount of such forfeiture penalty shall be assessed by 11 the Commission, or its designee, by written notice. In deter12 mining the amount of such a forfeiture penalty, the Commis13 sion or its designee shall take into account the nature, 14 circumstances, extent, and gravity of the prohibited acts, 15 committed and, with respect to the violator, the degree of 16 culpability, any history of prior offenses, ability to pay, and 17 such other matters as justice may require.

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"(3) (A) At the discretion of the Commission, a for19 feiture penalty may be determined against a person under

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this subsection after notice and an opportunity for a hearing 21 before the Commission or an administrative law judge thereof 22 in accordance with section 554 of title 5, United States Code. 23 Any person against whom a forfeiture penalty is determined 24 under this paragraph may obtain review thereof pursuant to section 402 (a).

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"(B) If any person fails to pay an assessment of a for

2 feiture penalty determined under subparagraph (A) of this 3 paragraph, after it has become a final and unappealable 4 order or after the appropriate court has entered final judg5 ment in favor of the Commission, the Commission shall refer 6 the matter to the Attorney General of the United States, who shall recover the amount assessed in any appropriate district 8 court of the United States. In such action, the validity and 9 appropriateness of the final order imposing the forfeiture 10 penalty shall not be subject to review..

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11 “(4) Except as provided in paragraph (3) of this sub12 section, no forfeiture penalty shall be imposed under this 13 subsection against any person unless and until

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"(A) the Commission issues a notice of apparent 15 liability, in writing, with respect to such person; "(B) such notice has been received by such person, or until the Commission has sent such notice to the last known address of such person, by registered or certified mail; and

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"(C) such person is granted an opportunity to show, in writing, within such reasonable period of time as the Commission prescribes by rule or regulation, why no such forfeiture penalty should be imposed.a

24 Such a notice shall (i) identify each specific provision, term, 25 and condition of any Act, rule, regulation, order, treaty,

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1 convention, or other agreement, license, permit, certificate, 2 instrument, or authorization which such person apparently 3 violated or with which such person apparently failed to com4 ply; () set forth the nature of the act or mission charged 5 against such person and the facts upon which such charge 6 is based; and (iii) state the date on which such conduct oc7 curred. Any forfeiture penalty determined under this para8 graph shall be recoverable pursuant to section 504 (a) of this 9 Act.

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"(5) No forfeiture liability shall be determined under 11 this subsection against any person, if such person does not 12 hold a license, permit, certificate, or other authorization issued 13 by the Commission, unless, prior to the notice required by 14 paragraph (3) of this subsection or the notice of apparent 15 liability required by paragraph (4) of this subsection, such 16 person (A) is sent a citation of the violation charged; (B) 17 is given a reasonable opportunity for a personal interview 18 with an official of the Commission, at the field office of the 19 Commission which is nearest to such person's place of resi20 dence; and (C) subsequently engages in conduct of the type 21 described in such citation. The provisions of this paragraph 22 shall not apply, however, if the person involved is engaging in 23 activities for which a license, permit, certificate, or other au24 thorization is required. Whenever the requirements of this 25 paragraph are satisfied with respect to a particular person,