Raising the Volume on Paying Treble Damages

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NCTA-The Internet & Television Association and other communications trade groups are renewing their call for the FCC to reconsider its 2015 policy on violations of rules related to payments to federal programs, including the Universal Service Fund advanced communications program.

They say current FCC chairman Ajit Pai should agree, based on past statements.

NCTA, CTIA, USTelecom and INCOMPAS in 2015 petitioned the FCC to reconsider its decision to make some violations continuing ones and subject to treble damages. The trade groups argued that because the FCC made changes to forfeiture policy in a statement, rather than a proposal with notice and a comment period, the action was arbitrary and capricious, thus illegal.

The petitioners also did not like the idea of treating several one-time violations as continuing ones, namely:

• Failing to make (or timely make) a required regulatory filing;
• Including incorrect information in a regulatory filing;
• Failing to make (or timely make) a required USF or other regulatory payment;
• Failing to return improperly received funds to the USF or other FCC funds.

As ITTA – The Voice of MidSize Communications Companies put it, the failure to file data or make a payment by a certain date should be treated as a single, discrete, violation or one-time event.

“Contorting” the one-year statute of limitations on non-broadcast violations would effectively subject telecommunications services to “liability in perpetuity,” ITTA said.

ITTA made that argument when Tom Wheeler was still FCC chairman. Current chairman Ajit Pai said of “expansively construed” continuing violations: “This legal theory cannot be right.”

In a meeting in the chairman’s office earlier this month, representatives from the original four petitioners reminded the commission that the chairman had “expressed views on this issue consistent with our position.”