FCC Official Vows Tougher Enforcement of DTV Tuner Mandate
Contrary to what many believe, the FCC does have “an enforcement plan in place” for compliance with the DTV tuner mandate, Alan Stillwell, assoc. chief of the Commission’s Office of Engineering & Technology, told our associated publication Consumer Electronics Daily. With Commission rejection of a CE industry petition to scrap the 50% compliance deadline on 25-36” sets, “we're going to continue that same plan -- probably a little more aggressively,” Stillwell said.
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“We will be enforcing the rules,” Stillwell said. The Commission has many ways to enforce the mandate that haven’t been publicized, he said. “We've talked to a lot of parties; we've discussed ways for people to come into compliance who were having difficulties. We look to become pretty aggressive toward enforcing the rules in the coming year.”
Stillwell said the FCC has monitored the compliance process “through product availability, things like that.” He said such measures have served to “give us some idea where people might be having a compliance issue.” He said the Commission hasn’t punished any violator but may do so in the next year. He said sanction options range from fines to restrictions on sale or import. “Whether we get that far -- we certainly hope not,” Stillwell said. “We really look to get people under compliance rather than to levy sanctions.”
The FCC decided not to require filing production or import reports as a way to show compliance, Stillwell said. “There are a lot of burdens with doing that,” for both the FCC and CE makers, he said. Besides, a requirement to file statements of account, as under the Audio Home Recording Act, would require “a whole separate comment-reply cycle that has to go out to set that in place, and we just didn’t want to go through that,” Stillwell said. “We didn’t think it was worth it for a one-year thing.” No additional paperwork requirements are expected of CE makers, he said. “We can certainly request records as we need them, so it’s not necessary for us to require that everybody submit them. If we need them from a particular party who might be having compliance issues, then we can get them at that time.”
Suspected violations of the 50% rule on sets 35” and larger “were things we discovered ourselves,” Stillwell said. “We certainly have people in the field, and we have our own staff. We look at what’s available at retail; we look at what’s available on the Internet site; we look at what’s available from product offerings, and things like that.”
As for how sanctions might be imposed, Stillwell conceded “we don’t have a formal process where somebody has to come and tell us how they've been performing. We do have the same standard of enforcement options that are available to us under any of our rules. That’s the approach we're taking here. If we find an apparent violation and investigate, then [we can] take whatever steps are necessary.”
In its further notice of proposed rulemaking, the FCC is seeking comments on whether to advance the tuner mandate deadline on all remaining sets to Dec. 31, 2006, or earlier, from July 1, 2007. Asked why the Commission chose a proposed new date different from July 1, 2006 -- contained in the draft DTV bill released by House Commerce Committee Chmn. Barton (R-Tex.) -- Stillwell said it’s “because drafts change.”
Critics of the mandate have voiced concern about the difficulty under Commission rules of monitoring and enforcing compliance, particularly during the 50% phase-in periods. They note, for example, that retail inspections aren’t the right way to monitor compliance, because the mandate covers factory shipments, not retail assortments. Defining 50% compliance is as unclear now as it was when the tuner mandate took effect, critics told us. That will make enforcement in the FCC -- and then perhaps the courts -- virtually impossible under evidence rules, they said.
The Communications Act of 1934 authorizes the FCC to use civil monetary penalties to enforce Commission rules and regulations. The FCC can assess penalties against those who violate Commission rules and regulations through either (1) an informal administrative process or (2) a formal evidentiary hearing. In the more common administrative process, the FCC issues a Notice of Apparent Liability (NAL), giving the charged party an opportunity to contest the alleged violation and the proposed monetary penalty in a paper proceeding.
Based on pleadings submitted and extenuating or aggravating circumstances presented, the Commission may issue a Notice of Forfeiture (NOF), which sets the amount due. If the charged party refuses to pay, the Commission refers the matter to the Justice Dept. for collection in federal district court, where the charged party is entitled to a “trial de novo” on liability and the fine amount. The Commission may also assess a penalty after issuing a notice and conducting a full evidentiary hearing before an administrative law judge.
After exhausting its administrative remedies, the charged party is entitled to seek judicial review in the U.S. Court of Appeals. If the target refuses to pay the forfeiture after the Commission’s decision has become final, the Commission must ask the Justice Dept. to pursue collection in district court. But unlike the informal NAL/NOF paper process, the collection action is on a debt due and payable to the govt.