Notice of Apparent Liability

The most common way a fine is assessed against someone for violating the FCC’s rules is through the issuance of a Notice of Apparent Liability (“NAL”). A NAL serves as notice to the recipient that a fine will be imposed unless the FCC can be convinced to withdraw the fine or reduce it. The process is finalized with the issuance of a Notice of Forfeiture. In most cases, before an NAL can be issued, the FCC must first send a Citation warning the recipient of the rules violation and the Citation must be ignored. US CODE: Title 47,503 If a Citation is not issued before a NAL is issued, the NAL may be subject to attack.

It is well known that the FCC does not follow its own rules. Some employees issue NALs without ever issuing a Citation. Here are some examples: ZTE Corporation; TCT Mobile Ltd., East Kentucky Network, LLC, Doro AB, and ACS Wireless, Inc. Each of these companies was issued a NAL for failing to timely file a hearing aid compatibility status report. The NAL does not disclose that any formal Citation was issued prior to the issuance of the NAL. The FCC did it wrong in my opinion.

Let’s look at a couple cases where the FCC did it right. Firefly Mobile Communications, Inc. and 7-Eleven, Inc. Same set of facts as in the other cases, however the result is different. In two cases, Firefly and 7-Eleven failed to file the report on time. Both received an official Citation. This is the correct procedure. No fine is issued, but if they fail to file the reports timely next time a NAL can properly be issued.

The issuance of a Citation prior to issuance of a NAL is of critical importance to the enforceability of the NAL. There is no obligation to pay a fine assessed as a result of a NAL unless the NAL has been upheld by the courts. If the FCC does not follow proper procedures, the courts will not uphold the NAL. It is important to remember that the FCC imposes stiffer fines on repeat violators. However, if a NAL has not been paid or upheld by the courts, the FCC cannot use that NAL against you later. Thus, it is important, in my opinion, not to pay a NAL and to fight it in the courts if the FCC decides to try and collect the fine.