Public Law 95–234

That this Act may

Communications Act Amendments of 1978.

47 USC 609 note.

be cited as the “Communications Act Amendments of 1978”.

Sec. 2.

Section 503(b) of the Communications Act of 1934 (47 U.S.C. 503(b)) is amended to read as follows:

“(b)“(b)

Any person who is determined by the Commission, in accordance with paragraph (3) or (4) of this subsection, to have—

“(A)“(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)“(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)“(C)

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

47 USC 317, 509.

#

“(D)“(D)

violated any provision of section 1304, 1343, or 1464 of title 18, United States Code;

#

shall be liable to the United States for a forfeiture penalty. A forfeiture

Forfeiture penalties.

penalty under this subsection shall be in addition to any other penalty provided for by this Act; except that this subsection shall not apply to any conduct which is subject to forfeiture under title II, part II or III of title III, or section 507 of this Act.

47 USC 201, 351, 381, 507.

Violations.

#

“(2)“(2)

The amount of any forfeiture penalty determined under this subsection shall not exceed $2,000 for each violation. Each day of a continuing violation shall constitute a separate offense, but the total forfeiture penalty which may be imposed under this subsection, for acts or omissions described in paragraph (1) of this subsection and set forth in the notice or the notice of apparent liability issued under this subsection, shall not exceed—

“(A)“(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)“(B)

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

#

The amount of such forfeiture penalty shall be assessed by the

Penalty assessment.

Commission, or its designee, by written notice. In determining the amount of such a forfeiture penalty, the Commission or its designee shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.

#

“(3)“(3)

(A)(A)

At the discretion of the Commission, a forfeiture penalty

Penalty determinations, notice and review.

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

47 USC 402.

Unpaid assessment recovery, referral to Attorney General.

to section 402(a).

#

“(B)“(B)

If any person fails to pay an assessment of a forfeiture penalty determined under subparagraph (A) of this paragraph, after it has become a final and unappealable order or after the appropriate court has entered final judgment in favor of the Commission, the Commission shall refer the matter to the Attorney General of the United States, who shall recover the amount assessed in any appropriate district court of the United States. In such action, the validity and appropriateness of the final order imposing the forfeiture penalty shall not be subject to review.

#

#

“(4)“(4)

Except as provided in paragraph (3) of this subsection, no forfeiture penalty shall be imposed under this subsection against any person unless and until—

“(A)“(A)

the Commission issues a notice of apparent liability, in writing, with respect to such person;

#

“(B)“(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

#

“(C)“(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.

#

Such a notice shall (i) identify each specific provision, term, and condition of any Act, rule, regulation, order, treaty, convention, or other agreement, license, permit, certificate, instrument, or authorization which such person apparently violated or with which such person apparently failed to comply; (ii) set forth the nature of the act or omission charged against such person and the facts upon which such charge is based; and (iii) state the date on which such conduct occurred. Any forfeiture penalty determined under this paragraph shall be recoverable pursuant to section 504(a) of this Act.

#

“(5)“(5)

No forfeiture liability shall be determined under this subsection against any person, if such person does not hold a license, permit, certificate, or other authorization issued by the Commission, unless, prior to the notice required by paragraph (3) of this subsection or the notice of apparent liability required by paragraph (4) of this subsection, such person (A) is sent a citation of the violation charged; (B) is given a reasonable opportunity for a personal interview with an official of the Commission, at the field office of the Commission which is nearest to such person’s place of residence; and (C) subsequently engages in conduct of the type described in such citation. The provisions of this paragraph shall not apply, however, if the person involved is engaging in activities for which a license, permit, certificate, or other authorization is required. Whenever the requirements of this paragraph are satisfied with respect to a particular person, such person shall not be entitled to receive any additional citation of the violation charged, with respect to any conduct of the type described in the citation sent under this paragraph.

#

“(6)“(6)

No forfeiture penalty shall be determined or imposed against any person under this subsection if—

“(A)“(A)

such person holds a broadcast station license issued under title III of this Act and if the violation charged occurred—

“(i)“(i)

more than 1 year prior to the date of issuance of the required notice or notice of apparent liability; or

#

“(ii)“(ii)

prior to the date of commencement of the current term of such license,

#

whichever is earlier so long as such violation occurred within 3 years prior to the date of issuance of such required notice; or

#

“(B)“(B)

such person does not hold a broadcast station license issued under title III of this Act and if the violation charged

47 USC 301.

occurred more than 1 year prior to the date of issuance of the required notice or notice of apparent liability.”.

#

#

Sec. 3.

Sec. 4.

Section 510 of the Communications Act of 1934 (47 U.S.C. 510) is repealed in its entirety.

Sec. 5.

Section 2(b) of the Communications Act of 1934 (47 U.S.C. 152(b)) is amended by striking the word “Subject” and inserting in lieu thereof the following “Except as provided in section 224 and

Infra.

subject”.

Sec. 6.

Title II of the Communications Act of 1934 is amended by adding at the end thereof the following new section:

“Sec. 224. “regulations of pole attachments

(a)(a)

As used in this section:

Definitions.

47 USC 224.

“(1)“(1)

The term ‘utility’ means any person whose rates or charges are regulated by the Federal Government or a State and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for wire communication. Such term does not include any railroad any person who is cooperatively organized, or any person owned by the Federal Government or any State.

#

“(2)“(2)

Tile term ‘Federal Government’ means the Government of the United States or any agency or instrumentality thereof.

#

“(3)“(3)

The term ‘State’ means any State, territory, or possession of the United States, the District of Columbia, or any political subdivision, agency, or instrumentality thereof.

#

“(4)“(4)

The term ‘pole attachment’ means any attachment by a cable television system to a pole, duct, conduit, or right-of-way owned or controlled by a utility,

#

#

#

“(b)“(b)

(1)(1)

Subject to the provisions of subsection (c) of this section,

Enforcement.

the Commission shall regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions. For purposes of enforcing any determinations resulting from complaint procedures established pursuant to this subsection, the Commission shall take such action as it deems appropriate and necessary, including issuing cease and desist orders, as authorized by section 312(b) of title III of the Communications Act of 1934, as amended.

47 USC 312.

Regulations.

#

“(2)“(2)

Within 180 days from the date of enactment of this section the Commission shall prescribe by rule regulations to carry out the provisions of this section.

#

#

“(c)“(c)

(1)(1)

Nothing in this section shall be construed to apply to, or to give the Commission jurisdiction with respect to rates, terms, and conditions for pole attachments in any case where such matters are regulated by a State.

#

“(2)“(2)

Each State which regulates the rates, terms, and conditions for pole attachments shall certify to the Commission that—

“(A)“(A)

it regulates such rates, terms, and conditions; and

#

“(B)“(B)

in so regulating such rates, terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of cable television services, as well as the interests of the consumers of the utility services.

#

#

#

“(d)“(d)

(1)(1)

For purposes of subsection (b) of this section, a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire, pole, duct, conduit, or right-of-way.

#

“(2)“(2)

As used in this subsection, the term ‘usable space’ means the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment,

#

#

“(e)“(e)

Upon the expiration of the 5-year period that begins on the date of enactment of this Act the provisions of subsection (d) of this section shall cease to have any effect.”.

#

Sec. 7.

The amendments made by this Act shall take effect on the thirtieth day after the date of enactment of this Act; except that the provisions of sections 503(b) and 510 of the Communications Act of

Ante, p. 35.

1934, as in effect on such date of enactment, shall continue to constitute the applicable law with the respect to any act or omission which occurs prior to such thirtieth day.