One veteran FCC watcher thinks the industry could see “more
dramatic developments on the complaint front” soon.
Harry Cole of Fletcher Heald & Hildreth has been reading the FCC tea
leaves; and he takes note of a dozen recent, “super-low-key” Media Bureau
cancellations of previously assessed forfeitures.
issue are NALs or forfeiture orders that date back well beyond five years.
There is a legal argument that the FCC cannot pursue such older fines. Cole lays
out the history and regulatory reasons. He talks about how the concept of
“enforcement holds” plays into this, and discusses the FCC’s tendency to argue
that it can reach back indefinitely to penalize misconduct. (He also notes,
“The commission has tended to take a leisurely approach to forfeitures,” a
statement with which most FCC watchers probably would agree.)
Now, Cole writes, “We understand that the Bureau has been directed by
higher-ups in the agency to cancel the forfeitures” in light of that argument. He
thinks that the recent “mysterious, unexplained cancellations could portend an
important shift in the FCC’s handling of old complaints.”
Yet he also says the commission appears reluctant to state conclusively
that it is subject to a five-year shot clock on the collection process.
He speculates that doing so would open a very messy process for
the FCC — “we’re probably talking about hundreds of thousands, maybe millions,
of complaints or other potential violations” — as well as a possible public relations
“nightmare.” Further, doing so would force the commission to “veer sharply away
from its decades-long lackadaisical approach to enforcement,” and instead
commit resources to processing complaints on a real fast track.
Much of this is speculation on Cole’s part, but he has tended
to have good sources at the commission.
He concludes, “It
would be nice if the commission, in the much-vaunted spirit of transparency,
were to issue a public notice or some other statement explaining the recent
cancellations, acknowledging the impact of Section 2462 on its enforcement
activities, and committing to prompt steps consistent with those statutory
obligations. It would also be nice if the commission were simply to start
taking such steps, fanfare or no.”
It is recommended
reading for those with an interest in the FCC enforcement process.