FCC Responds to Executive Order Directing Issuance of Guidance for Addressing Criminally Liable Offenses

On June 26, the FCC issued a public notice responding to President Trump’s Executive Order requiring agencies to provide guidance describing the FCC’s plans to address criminally liable offenses.  In the notice, the FCC advises that by May 9, 2026, the Agency, in consultation with the Attorney General, will provide to the Director of the Office of Management and Budget a report containing: (1) a list of all criminal regulatory offenses enforceable by the FCC or the Department of Justice (“DOJ”); and (2) for each such criminal regulatory offense, the range of potential criminal penalties for a violation.

In addition, the FCC announced a general policy, subject to appropriate exceptions and to the extent consistent with law, that when the FCC is deciding whether to refer alleged violations of criminal regulatory offenses to DOJ, officers and employees of the FCC should consider, among other factors, the harm or risk of harm, pecuniary or otherwise, caused by the alleged offense, the potential gain to the putative defendant that could result from the offense, whether the putative defendant held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue, and evidence, if any is available, of the putative defendant’s general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue.

Numerous broadcast station regulations carry criminal penalties, including those related to payola, obscenity/indecency, and any unauthorized use of the radio waves.