Powers and Procedures of the Commission

Perhaps the most visible function of the commission is to assign frequencies and issue licenses to broadcasters. However, it also makes rules, regulations, and policies that uphold U.S. domestic laws and international agreements. To do this, the FCC receives proposals for new rules, which are evaluated by the appropriate bureau. If the proposal survives this step, it goes to the FCC commissioners, who may employ one of four actions.

First, the commission may submit a Notice of Proposed Rule Making (NPRM), in which the rule is proposed and comments are solicited. The commission will then take written statements from interested parties and, perhaps, hold a hearing to discuss relevant issues. After comments are obtained, the commission will issue a Report and Order (R&O) that either adopts the proposed rule, alters and then adopts the rule, or makes no change.

Second, the commission may issue a Notice of Inquiry (NOI), which states the issue and invites comments regarding potential solutions. Public comment is then gathered from written statements or hearings, allowing the commission to decide whether to proceed with an NPRM or to forego adoption of rules or changes with a Memorandum Opinion and Order (MO&O). If the commission does choose to issue an NPRM, then the rule-making process continues as if an NPRM was originally issued.

Third, the commission may skip an NPRM or an NOI and make unsubstantial changes in existing rules using a Report and Order Adopting Change. However, if the commission does not wish to adopt any rules or changes, the commission may exercise its fourth option and issue an MO&O, thus ending the rule-making process.

The FCC also has at its disposal a legal device that can be used to remove an uncertainty or terminate a controversy. This device is a declaratory ruling, made possible by the Administrative Procedures Act, and it can be used to clarify legal definitions, solidify regulatory concepts, or otherwise explicitly explain a controversial element or issue. However, even these declaratory rulings are subject to court decisions.

Hearings, presided over by an administrative law judge (ALJ), not only provide a forum for public comment but also test the constitutionality of FCC decisions. According to the Communications Act of 1934, hearings can be held to appeal FCC rules, and must be held in license denial or revocation actions. During these hearings, the ALJ hears comments from all interested parties, including the FCC, and issues an initial decision. The decision may then be reviewed by the five commissioners. If any parties are dissatisfied with the final decision, they may appeal the case to an appellate court and possibly to the U.S. Supreme Court. It is through this appeals process that the judicial system checks the constitutionality and legal authority of FCC rulings.

To enforce its existing rules, regulations, and policies, the FCC can choose from nine methods of enforcement. The most commonly used method is the forfeiture, or the fine. The FCC may levy up to $25,000 per day for violations of license terms, the Communications Act of 1934, the U.S. Criminal Code, or any FCC regulation or U.S. treaty. There is, however, a $250,000 maximum penalty for each individual station in violation.

The Communications Act of 1934 also authorizes the FCC to pursue court action against violators of the act. This involves obtaining a court order demanding that the violator either comply with the act, obey an FCC order, or comply with a previous court order. Similar to this is the consent order, which begins with an allegation by the FCC that some party has violated an FCC rule, regulation, or policy. A hearing is then held during which the party in question and the FCC negotiate a consent order, an agreement to comply with a specified ruling.

A related enforcement tool is the cease and desist order. This order demands that a party stop exhibiting a specific action that violates the Communications Act of 1934, the U.S. Criminal Code, an FCC regulation or U.S. treaty, or a license agreement. This method, although useful to many agencies, has been used the least by the FCC.

Another little used method is the revocation of a license before renewal. Revocation has mostly occurred in cases of misrepresentation or technical engineering violations by a station. Other, less harsh enforcement methods are the denial of license renewal, short-term license renewal, and conditional license renewal. All of these pertain to cases concerning violations of the license agreement, violations of FCC regulations, or petitions to deny renewal.

The regulatory tool that the FCC uses with frequency is the letter, or “raised eyebrow” approach. In these cases, the FCC simply sends the party in question a letter that either admonishes the party or asks the party to explain an alleged act. This method, though not a sanction, is very effective in that it cannot be appealed or challenged in court, and yet it warns the party of the FCC’s knowledge of the possible violation. Usually, this threat of sanction is persuasive enough to gain compliance.