On Tue, 28 Dec 2004 16:20:45 -0500, Bert Craig wrote:

$21,000.00 sentence can be handed down while putting the onus on the accused
to prove themselves innocent (From a 1934 Act, I might add.) before a
administrative judge borders on the obscene.

Follow the bouncing ball....

The Notice of Liability (NAL) says "apparently liable to....for....."
and gives the subject a chnance to say "hey, FCC, that isn't fair
and antyhow I can't pay because...." The Notice of Forfeiture (NOF)
is the next step and that says "you are liable.....for ......" and
the issuing officer is required to consider and evaluate the
subject's reply (or failure to respond) in finalizing the amount in
conjunction with the Regional Counsel of the Enforcement Bureau.

The penalty can be challenged in several ways. The subject can
request Reconsideration on the Bureau level (several steps above the
issuing officer) and further up, a Review by the full Commission.

Or the subject can just refuse to pay. Then, the next move is up to
the Commission to force payment in either of two ways - a full
evidentiary hearing before an Administrative Law Judge or a full
trial de novo in Federal District Court. In either case, the burden
of proceeding (going to trial) and the burden of proof (proving the
violation that the subject is accused of) are upon the FCC. IOW,
the subject is innocent until proved guilty by a preponderance of
evidence before a neutral tribunal and the subject gets his/her "day
in court". Either proceeding can be appealed to the Federal
Appellate Courts where the subject will have to prove that the FCC
didn't follow the procedural rules to the letter - rarely does the
Court of Appeals reverse the FCC on substantive matters within the
FCC's competence.

BTW, this proceure is outlined in Sections 503 and 504 of the Comm
Act, which were amended in major part in 1978 to increase the
penalties to current levels and define the procedures outlined
above.

But until someone has the
stones (...and the discretionary means.) to challenge that process...that's
the way it is. (I guess I'm just a good old "checks and balances" kind of
guy.) This likely means never.

Several have tried but none have succeeded, including broadcasters
who have taken the procedure up to the Supreme Court of the United
States. It really doesn't have to get that far, because in legal
procedural cases, the decisions of the U S Court of Appeals for the
District of Columbia are considered "the word of God" by the Federal
regulatory agencies.

I for one thank Phil for sharing the results of his vast experience and his
relationship with the FCC with us. If he didn't care, he would simply say
nothing...and we would remain ignorant.

I love to teach the subject.....

--
73 de K2ASP - Phil Kane