By James Baxter, NMA President
The Federal Communications Commission, in the dying days of the Republican administration, has added yet another reason to clear the decks in Washington, D.C. and start all over with a new cast of characters.
In a duplicitous, yet obvious, regulatory maneuver the FCC Enforcement Division has concocted a “Consent Decree” to protect the financial interests of the Redflex Corporation, a major supplier of ticket camera systems, and the governments that have exploited these systems to extort millions of dollars from the driving public. What follows is taken directly from the FCC Consent Decree, along with a little background and explanation.
Redflex has been using radar devices that have never been certified/approved by the Federal Communications Commission, as is required by federal law. A competitor of Redflex blew the whistle on this “oversight” (not exactly a collegial industry) and the FCC was, apparently reluctantly, forced to give the impression of enforcing its own regulations. The result of this enforcement action is a Consent Decree that FCC operatives and Redflex executives concocted, and surely assumed no one would ever read. However, it should be read by a large audience, just to understand how far astray an ethically challenged government agency can go.
There was no question that Redflex was using radar speed measuring devices that had not been certified by the FCC. There was also no question that Redflex was clearly in violation of FCC regulations. That’s where the clarity fades away.
Instead of declaring Redflex in violation of federal regulations, assessing a penalty for the violation, and obtaining assurances from Redflex that it would forthwith comply with these regulations, the FCC dismissed the complaint! In exchange Redflex was required to make a “voluntary contribution” of $22,000.00 to the US Treasury and to come into compliance with FCC regulations. Why all this double speak? Why dismiss the complaint when the violation was obvious? And why call a monetary fine a “voluntary contribution?” The answer is contained in the Consent Decree “Final Settlement.”
The Final Settlement states—-“The parties (Redflex and the FCC) further agree that this Consent Decree does not constitute either an adjudication on the merits or a factual or legal finding or determination regarding any compliance or noncompliance with the requirements of the Act or the Commission’s Rules and Orders.” This is Redflex’s salvation. (In other words there was no declaration of guilt or innocence.)
If the FCC would have carried out its legitimate responsibilities, charged Redflex with violating federal regulations, regarding certification of radar speed measuring devices, and penalized Redflex accordingly, Redflex would have been competitively disadvantaged in seeking future state and local contracts.
Less obvious, but potentially more devastating, Redflex, and the governments contracting with Redflex, would quite likely be on the hook for hundreds of millions of dollars, certainly years worth of litigation. Why? It’s against the law to break the law to enforce the law. Redflex has been using illegal radar guns to enforce traffic laws and to support the issuance of traffic tickets. A very plausible legal argument could be made that any ticket issued that was generated by an illegal radar gun should be dismissed and the fine refunded to the victim.
However, as loopy and disingenuous as it seems, the FCC deliberately avoided prosecution and thereby avoided an official declaration that the Redflex radar guns were illegal and should not have been used for enforcement purposes.
A moderately astute judge, one without a vested interest in past ticket camera revenues, would see through this rouse in a heartbeat. Redflex was in violation of the FCC regulation and the FCC knew it. The voluntary contribution was really just a fine. And the Consent Decree is just a house of cards constructed to protect Redflex, and its client governments. This is reminiscent of the regulatory mindset so recently prevalent in the financial industry.
Perhaps the “grown ups” in the press and the government should start paying attention?
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