FCC commissioner Ajit Pai says the FCC should not have issued a notice of apparent liability and proposed fine against AT&T because it waited too long to take that enforcement action.
The FCC has proposed fining the telco $106,425 and make it repay $63,760 to the Universal Service Fund for allegedly overcharging two Florida schools for phone service under the FCC's E-rate program.
Pai was not taking issue with the decision, only when the FCC issued it and the legal reasoning behind it.
"We have issued this Notice of Apparent Liability (NAL) too late," he wrote in a published dissent. "The Communications Act imposes a one-year statute of limitations. Like most other statutes of limitations, it runs from when a violation is complete —in this case, when AT&T 'charge[d]' Dixie County and Orange County 'a price above the lowest corresponding price.' According to our records, AT&T last charged Dixie County for the relevant services on July 1, 2014, and Orange County for the relevant services on June 1, 2015. And the last relevant form AT&T filed in conjunction with these charges was October 27, 2014."
"So even in the best-case scenario, the statute of limitations ran out 56 days ago, on June 1, 2016," he said.
The FCC claims that because AT&T had not corrected the overpayment and still had the USF payment the FCC is asking it to return, it was an ongoing violation.
Pai said that stretches the idea of continuing violation beyond reason. "Under this theory, the statute of limitations for theft would begin to run not when an item is stolen or even when it is discovered that an item has been stolen, but rather when that item is returned to its rightful owner," he said.
Pai also said he didn't think a court would be persuaded by the FCC's reasoning, either.
Pai had one more bone to pick. The FCC said it could have conceivably extended its sanction to violations dating from 2012, and even 1996, but decided not to. Pai said he did not believe any of the claims were not time-barred, but if it is lawful to impose the forfeiture for Dixie and Orange County, he asked why those others were not included. "I cannot think of, any non-legal reason to excuse a service provider that overcharges schools," he said.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.