FCC stretching it

On February 5, 2010 the FCC issued an order ( http://www.fcc.gov/eb/Orders/2010/FCC-10-28A1.html) after reviewing a petition filed by Tidewater Communications, LLC to cancel or reduce a forfeiture order. It seems that Tidewater owns an antenna structure. FCC regulations require that an antenna be painted and lighted. If the lights are out, the FAA has to be notified and the burned out lights replaced ASAP. Recently the FCC has been fining licensees for failing to maintain lights or failing to keep the structures painted.

In any event, the FCC fined Tidewater back in 2006 (which shows how slow things work through the FCC's system). Part of the rationale for the amount of the fine was that Tidewater had been fined back in 2001 for an unlit antenna. In that case, Tidewater was able to successful challenge the fine because it was able to show that it regularly inspected the antenna, but that an alarm PC board had suddenly failed and Tidewater was not alerted to the unlit antenna. http://www.fcc.gov/eb/Orders/2003/DA-03-870A1.html

Tidewater properly argued that the 2001 conduct could not be used against it in determining the amount of the fine. 47 USC 504(c) states that a Notice of Apparent Liability (NAL) cannot be used against someone unless the fine is paid or a court upholds the NAL. The FCC attempts to limit the application of the statute by arguing it only holds that the fact a fine was issued cannot be used against the party fined. The FCC argues that the underlying facts that gave rise to the NAL can be used to increase the fine, even though the NAL was not upheld, and in fact was cancelled by the FCC itself! The FCC tries to support its argument by claiming that even though the NAL was cancelled, the Notice of Violation was not cancelled.

Let's get real here. The FCC totally blew this call and its decision has no logic.

It is a basic tenant of law that one cannot appeal if the party's position will not be changed if he is successful with his arguments. Courts generally will not grant advisory opinions and will dismiss any appeal as moot. Having succeeded in cancelling the forfeiture (but not the Notice of Violation) Tidewater had no basis to appeal the FCC's ruling on the 2001 fine. It was impossible for Tidewater to challenge the Notice of Violation.

The intent of the legislature in enacting subdivision (c) of section 504 was to prohibit someone being punished based on conduct which is not admitted (payment of the NAL) or confirmed (court's upholding the NAL). The FCC's use of prior unchallengeable charges against Tidewater is unconscionable. It is now, more so than every, that anyone who receives a Citation, a Notice of Violation, a Notice of Unlicensed Operation or any other similar type notice to immediately consult a lawyer and proceed against the FCC to obtain a court ruling cancelling the notice. Failure to do so may, in the long run, be extremely costly.