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y.K8?XqK\  P@QP7PC2X DXP\  P6QXP 2S=FXRY&S\  P@Q&P P2%*XJ2\  P@QJP I-!&X,-\  P@Q,P2J=.X &J\  P6Q&P.2N=.X7&N4  pQ&P,%X)J,\  P6QJP0J=.X9&J*f9 xQ&X6QP1XC7XaXX2"5@^.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic.====IK=\\p\p\p\p\p\zzQpQpQpQpQ=3=3=3=3z\\\\\\\\\fQp\\\\fQ\p\p\p\p\zQzQzQpQpQpQ\\\\\\I\=\===\QzQf3fKz\z\\zpGpK\G\GN@.`\G\\\\\\39\7\7==ff\==\\=f=7t=eeee|oo.Ij|2Z\\yeCpj`vZefeloPpPj`e~~tro.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic=\f\\=\===ff@\=G=zf.G\\\\2\=3\|=\Ie77=j`.=79\\ppppppzpppp====z|fp\\\\\\\zQQQQQ3333\\\\\\\e\\\\\Q\2D> S- X   ( S- #&J\  P6Q &P#Federal Communications Commission`(#FCC 9886 ă  yxdddy (Պ#&J\  P6Q &P#Q3 #&a\  P6G;RY&P##&J\  P6Q &P#Before the Federal Communications Commission  S-& Washington, D.C. 20554 ă In the Matter of R) R)  S-Media General Cable R)h  S-of Fairfax CountyR)hNAL / Acct. No. 812CB0003 R)  S-Apparent Liability R)h for ForfeitureR)  S -}  NOTICE OF APPARENT LIABILITY FOR FORFEITURE TP  S -X` hp x (#%'0*,.8135@8:h yO-ԍ47 U.S.C.  503(b).> For the reasons discussed below, we find that Media General  S@- x=has apparently willfully or repeatedly violated Section 301 of the Communications Act;@X yO8-ԍ47 U.S.C.  301.; in its operation  xof two Cable Television Relay Service ("CARS") stations formerly licensed as WGJ469 and WGJ470  S- xfrom May 12, 1997  yOx- xԍMay 12, 1997, the date on which Media General is stated to have commenced its unauthorized operation,  xyreflects restraints imposed upon the Commission by the one year statute of limitations contained in Section  yO- x503(b)(6)(B) of the Communications Act. In fact, as detailed in  4, infra., Media General has operated the two CARS stations without Commission authority since October 1, 1993. to May 21, 1997, without Commission authorization. Based on our review of the  xfacts and the circumstances surrounding these violations, we find that for its conduct Media General is  S-apparently liable for forfeiture in the amount of eightythousand dollars ($80,000).  SP- II. BACKGROUND S(-TP  S- ` x2.` ` Cable operators utilize CARS stations to distribute programming to microwave hubs where  xit may be physically impossible or too expensive to run cable. In this capacity, CARS stations are either  xMpointtopoint or pointtomultipoint microwave systems. CARS stations are not used to distribute  x{programming directly to subscribers. The operation of a CARS station requires a license from the  xCommission pursuant to Section 301 of the Communications Act of 1934, as amended, and Sections 78.13  S8- xand 78.15 of the Commission's rules.\8 yO(-ԍ47 U.S.C.  301; 47 C.F.R.  78.13, 78.15.\ A CARS license is obtained through the filing of an application"8` ,**88 "  S- x("Form 327") with the Commission.=eG yOh-ԍ47 C.F.R.  78.15.= Form 327 requires the applicant to submit detailed technical  S- xNinformation on the planned construction and operation of the CARS transmission facilities.XeG yO- xԍFCC Form 327 ("Application for Cable Television Relay Service Station Authorization")(Approved by OMB 30600055). The  S- xCommission issues CARS licenses based on the representations made in these applications. The licenses  S-are issued for a period of five years and can be renewed at five year intervals thereafter.=eG yO-ԍ47 C.F.R.  78.29.=  S8- ` x3.` ` On August 12, 1996, Media General submitted new license applications for two CARS  S- xstations to serve its Fairfax County, Virginia franchise area.=@eG yO - xԍMedia General also filed for a Special Temporary Authority ("STA") on November 14, 1996 to obtain immediate  xauthorization to operate its CARS stations during the pendency of its applications. The Commission did not grant  xthe STA, because the STA, like the license applications themselves, contained numerous deficiencies. Once these  xdeficiencies were resolved the STA became moot, since the Commission ultimately granted Media General's license applications. = Public notice for these CARS applications  xwas issued on September 25, 1996. During the pendency of these applications and prior to the  xjCommission's grant of the licenses, Media General was apparently operating two CARS stations serving  S- xits Fairfax County cable system without Commission authorization.  eG yO(- xԍCommission did not issue a ceaseanddesist order upon learning of the unlicensed operation, because a  xshut down would have adversely affected over 100,000 cable subscribers. This in no way mitigates against Media  xGeneral's obligation to have filed renewal and modification applications pursuant to the CARS licensing requirements. Media General filed these CARS  xapplications in order to obtain current licenses for these two previously constructed and operating CARS stations whose licenses had expired on October 1, 1993.  S - ` Px4.` ` On September 29, 1983, Media General originally obtained two CARS licenses, WGJ469  xand WGJ470, in order to provide cable television service to its Fairfax County, Virginia franchise area.  xIn accordance with the Commission's rules, Media General filed applications to renew the two licenses  S - xon October 1, 1988.? eG yO-ԍ47 C.F.R.  78.29. ? When the licenses again expired in October 1, 1993, Media General filed  xjapplications for renewal. However, these applications were defective. The Commission staff uncovered  xvarious technical inconsistencies with these applications. When Media General did not respond to the  x{Commission's requests to explain these inconsistencies, the Commission did not grant the renewal  xapplications for WGJ469 and WGJ470. Media General continued to operate the two CARS stations relating to the expired licenses from October 1, 1993 to the present.  Sh- ` `x5.` ` Media General's August 1996 applications for new CARS licenses were also defective.  xSpecifically, the technical specifications stated in these applications were inconsistent with the  xspecifications of the operating CARS stations whose licenses had expired. Beginning in August 1996, the  x=Commission made numerous requests for additional information to correct these defects and to ascertain  xthe two CARS stations' technical specifications and operations. Media General took several months to"h ,`(`(88"  xMprovide the Commission with all the relevant technical and operating data. To resolve this continued  x0provision of inconsistent information, Commission staff requested to meet with Media General's  x=representatives in January 1997. At that meeting, Media General confirmed that it engaged in numerous  xunauthorized modifications to the two CARS stations. In letters dated January 23, 1997 and February 6,  x1997, counsel for Media General submitted information detailing these unauthorized modifications and  xchanges to the CARS' transmission facilities. The two CARS stations' current call signs WLY595 and  xWLY596 replaced the old call signs WGJ469 and WGJ470, which related to the expired licenses.  xAlthough the letters referred to only one of the two CARS stations, the two CARS stations are part of an  xintegrated system. CARS licenses are identified by the transmit location and the receive sites that they  x=serve. In Media General's system, the two CARS stations shared several of the same receive sites the two transmitters served the same eleven receive sites.  S - ` x6.` ` On May 21, 1997, the Commission granted Media General's applications for new CARS  xlicenses, satisfied that Media General provided the relevant information relating to the two CARS stations' operations.  S - III. DISCUSSION ĐTPx  S0- ` 2x7.` ` Media General has apparently operated two CARS stations formerly licensed as WGJ x469 and WGJ470 in violation of Section 301 of the Communications Act. Section 301 of the Communications Act states in relevant part:  ` XxX` ` [N]o . . . license [granted by Federal authority] shall be construed to  ` create any right, beyond the terms, conditions, and periods of the license.  ` No person shall operate . . . any communication or signals by radio . . .  ` within the jurisdiction of the United States, except under and in  ` accordance with this Act and with a license in that behalf granted under  S-the provisions of this Act.; eG yO0-ԍ47 U.S.C.  301.;x`  x!In addition, Section 503(b) provides that any person who willfully or repeatedly fails to comply  xsubstantially with the terms and conditions of any license or fails to comply with any of the provisions  xof the Act or of any rule, regulation issued by the Commission thereunder, shall be liable for a forfeiture  S- xpenalty.I XeG yO-ԍ47 U.S.C.  503(b)(1)(A), (B).I The term "willful" as used in Section 503(b) has been interpreted to mean simply that the acts  S- xor omissions are committed knowingly. It is not pertinent whether or not the licensee's acts or omissions  S- xare intended to violate the law. eG yO8"- xԍMidwest RadioTelevision Inc., 45 FCC 1137 (1963); see also George E. Cameron Jr. Communications (KROQ), 93 FCC 2d 789, 792 fn.7 (1983). Based on what appears to be the undisputed facts in this case, Media  xGeneral operated two CARS stations in its Fairfax County franchise area without Commission"@ ,`(`(88"  S- xyauthorization from May 12, 1997 to May 21, 1997. eG yOh- xԍWe note that Media General actually operated the two CARS stations without Commission authority from  xKOctober 1, 1993 (original licenses expired) to May 21, 1997 (new licenses issued). The May 12, 1997 date merely  xreflects restraints imposed on the Commission by the one year statute of limitations contained in Section 503(b)(6)(B) of the Communications Act.  Applying the appropriate legal standards, we find  xthat Media General apparently willfully violated Section 301 of the Act by its unauthorized operation of  xthe two CARS stations. Media General's actions in this case justify the issuance of this Notice of Apparent Liability pursuant to Section 503(b) of the Communications Act. x  S8- ` x8.` ` In determining the amount of forfeiture penalty that should be assessed for these  x\violations, we are guided by Section 503(b)(2)(D) of the Communications Act. Section 503(b)(2)(D) states in relevant part:  ` 7XxX` ` [T]he Commission . . . shall take into account the nature, circumstances,  ` extent, and gravity of the violation and, with respect to the violator, the  ` degree of culpability, any history of prior offenses, ability to pay, and  S -such other matters as justice may require. eG yOp- xhԍ47 U.S.C.  503(b)(2)(D); see In the Matter of Ameritech Corporation, FCC 95356, 10 FCC Rcd 10559 (Released August 14, 1995). x`  xThe amount of forfeiture penalty should take into consideration the severity of the instant violation, in  xaddition to the status and prior offenses of the violator. Pursuant to the law, the Commission may impose  xa forfeiture amount up to the statutory maximum, which for cable operators is $27,000 for each offense  SX- xor $275,000 for each continuing offense. xXeG yO- xYԍ47 U.S.C.  503(b)(2)(A)(C); as amended Debt Collection Improvement Act of 1996 ("DCIA"), Pub. L. No. 104 yO- x134,  31001, 110 Stat. 1321 (1996). We note that the DCIA requires that civil monetary penalties assessed by the  x<federal government, whether set by statutory maxima or specific dollar amounts as provided by federal law, be  yOX- xadjusted for inflation based on the formula outlined in the DCIA. Thus, the statutory maxima for cable operators  xpursuant to Section 503(b)(2)(A) increased from $25,000 to $27,000 and from $250,000 to $275,000. The increased statutory maxima became effective March 5, 1997.  In addition, the Commission determines amounts for forfeiture  xpenalties on a casebycase basis where the conduct in question occurred before the adoption of the  S- xCommission's Forfeiture Policy Statement.LH eG yO- xԍWith the adoption of its Forfeiture Policy Statement, the Commission no longer follows the casebycase  yO- xapproach. The Commission's Forfeiture Policy Statement and Amendment to Section 1.80, Report & Order, CI Docket  yO - xJNo. 956, FCC 97218, 12 FCC Rcd 17087  49 (Released July 28, 1997). The Forfeiture Policy Statement establishes  xa baseline amount for each violation. The forfeiture penalty can be adjusted upward or downward from the baseline  yO"- xZamount considering the criteria set forth in Section 503(b)(2)(D).  Id. at Appendix A. However, the Commission  xindicated that it would continue to follow the casebycase approach for violations arising from facts that occurred  yO#- xibefore the effective date of Forfeiture Policy Statement but where the Commission commenced forfeiture action  yOh$- xafter the effective date. Id. at  49. In this case, Media General's apparent violations all occurred prior to the  yO0%- xLeffective date of the Forfeiture Policy Statement, and thus we assess this forfeiture under the casebycase  yO%- xapproach. We note, however, that assessing Media General a $80,000 forfeiture is consistent with the Forfeiture  yO&-Policy Statement.  See Forfeiture Policy Statement, 12 FCC Rcd 17087 at  24.L For a single Section 301 violation, unauthorized operation,",`(`(88"  S- xthe Commission has issued forfeitures up to and including fifteen thousand dollars ($15,000).eG yOh-ԍRio Virgin Telephone Company, Notice of Apparent Liability (Reference No. 512CB0003) (April 24, 1996). In this  x[case, Media General engaged in two continuing Section 301 violations, as it operated two CARS stations  xwithout proper authorization. Unlike prior cases involving unauthorized operations, Media General is  S- xdistinguished for its apparent pattern of noncompliance and egregious behavior.XeG yO- xԍSee e.g. California Oregon Broadcasting, Notice of Apparent Liability (Reference No. 712CB0003) (October 30,  yOH- xx1997); Continental Cablevision of Virgina, Inc., Notice of Apparent Liability (Reference No. 512CB0008) (March 11,  yO- x1997); Douglas Cablevision IV, L.P., Notice of Apparent Liability (Reference No. 512CB0007) (March 5, 1997); Galaxy  yO- xTelecom, L.P., Notice of Apparent Liability (Reference No. 512CB0006) (August 15, 1996); Booth American Company, Notice of Apparent Liability (Reference No. 512CB0004) (August 15, 1996). Considering the history  xand severity of Media General's prior noncompliance, its unresponsiveness to Commission's requests, and  xits resources and ability to pay, we believe it is appropriate to assess Media General a substantial and  xmeaningful forfeiture penalty. Such a forfeiture amount is consistent with Section 503(b)(2)(D) and advances the public interest.  S- ` $x9.` ` Media General has repeatedly violated the Commission's licensing rules and practices.  xIn this regard, Media General admits that it engaged in unauthorized construction and unauthorized  xjmodification of its CARS stations dating back to 1983, the year it first obtain the original licenses, WGJ S - x[469 and WGJ470. eG yO-ԍLetters from Media General's counsel to Cable Services Bureau, dated January 23, 1997, and February 6, 1997. Section 78.109 of the Commission's rules states, in relevant part, that modification  S - xapplications are required for any change in the transmitting antenna system of CARS stations.X eG yO0- xJԍ47 C.F.R.  78.109. However, this requirement does not apply to CARS "pickup" stations as defined in Section  x78.5(d) of the Commission's rules. 47 C.F.R.  78.5(d). In this case, Media General's stations do not qualify as CARS pickup stations and, thus, are not exempted from Section 78.109 reporting requirements. Media  xGeneral has stated that five transmitting antennas and their respective tower heights were modified and  S - xKaltered without Commission authorization.  eG yO- x,ԍLetter dated January 23, 1997. Specifically, the transmit antenna height for path 1, McLean, was raised from  x250' to 270'. The transmit antenna height for path 5, Lorton, decreased from 270' to 260'. The transmit antenna  xheight for path 7, Clifton, increased from 290' to 295'. The transmit antenna height for path 8, Fairfax City, increased from 180' to 210'. The receive antenna height on path 9, Fairfax, was increased from 130' to 175'.  Four transmitting antennas and tower heights were never built  x@to conform to their licensed specifications, and one tower was later modified from its licensed  SX- xspecifications sometime in late 1990 or early 1991. XeG yO- xxԍIt is unclear from the record the exact date of the alteration in question. Media General, however, admits in its February 6, 1997 letter that the unauthorized alteration occurred in either late 1990 or early 1991.  Media General admits that it never submitted the  xrequisite modification applications relating to any of these changes. We also note that when Media  xGeneral's licenses expired on October 1, 1988 and on October 1, 1993, Media General filed renewal  xzapplications stating that its technical parameters for its two CARS stations' did not change from their  xoriginal licenses. Upon reviewing the record, we find Media General's CARS transmission facilities  x?contained numerous technical changes. The level of care that Media General exhibited in filing its renewal applications falls far short of the conduct we except of Commission licensees. "@,`(`(88r"Ԍ S- ` px10.` ` Moreover, in cases where the violations potentially endanger the public safety, the  S- xKCommission has substantially increased the forfeiture penalty.eG yO@- x,ԍSee Berkeley Cable Communications, 8 FCC Rcd 939 (1993); TCI Cablevision Maryland, 6 FCC Rcd 6487 (1991);  yO-Paragon Communications, 4 FCC Rcd 8739 (1989). Media General's modification of its CARS  xfacilities presents such a case, for the changes to the tower heights from a five foot to a fortyfive foot  xdifferential posed a possible increased danger to air traffic. Because Media General did not file the  xmodification applications, the Commission was unable to coordinate with the Federal Aviation  S8-Administration, which warns affected air traffic of such towers.8 eG yO- xwԍSee In the Matter of Streamlining the Commission's Antenna Structure Clearance Procedures, 10 FCC Rcd 2771 (Released January 20, 1995).  S- ` x11.` ` Media General failed to provide adequate and prompt responses to the Commission's  x=numerous inquires. As detailed above, it took approximately eight months for the Commission to obtain  xall the relevant information relating to the two CARS stations which Media General was apparently  x>operating without authority. Media General's piecemeal responses and evasive behavior delayed the  xreview of its applications for new CARS licenses. We believe that Media General's conduct is directly  xresponsible for the prolonged period of unauthorized usage of the CARS stations. Media General only  S - x0admitted to its unauthorized use and modifications] xeG yO-ԍLetters dated January 23, 1997, and February 6, 1997.] after the Commission uncovered substantial inconsistencies in its CARS applications.  S - ` x12.` ` Section 503 specifically directs the Commission to consider the violator's ability to pay  SZ- x[in determining the appropriate forfeiture amount.JZeG yO-ԍ47 U.S.C.  503(b)(2)(D).J Consistent with that statute's legislative history, the  xNCommission is authorized to impose forfeiture sufficiently high to deter violations and constitute  S - xymeaningful sanctions when violations occur. eG yOB- xԍSen. Rep. No. 580, 95th Cong. 1st Sess 3 (1978), reprinted in 1978 U.S.C.C.A.N. 109, 111; see H.R. Conf. Rep. 386 at 434 (1989). The forfeiture amount assessed should advance the policy  xof deterrence and should not be considered merely an affordable cost of doing business. Media General  xjof Fairfax County serves over 220,000 subscribers, making it the largest cable system in the Washington,  S- xD.C. metropolitan area and among the top 20 in the nation. eG yO"-ԍTelevision & Cable Factbook, Cable Vol. 64 (1996). See Media General Cable website at <>. According to Media General's Consolidated  Sl- xFinancial Statements for year 1996, its cable television operation had identifiable assets of $149,265,000,  SF- x{revenues of $146,159,000, and operating income of $24,600,000.F eG yOf"-ԍ1997 Annual Report of Media General, <>. In advancing the stated policy  xobjectives of Section 503, the forfeiture amount we impose should reflect Media General's considerable financial resources.  S- ` x13.` ` The conduct of Media General in this case falls substantially short of the level of  xresponsibility that the Commission expects from licensees, especially considering Media General's  x[resources and the potential safety consequences of its actions. In view of the foregoing, and after careful"V,`(`(88"  x.consideration of the apparent facts and circumstances currently before us, including the factors stated in  xLSection 503(b)(2)(D) we believe Media General's violations and related conduct, justify a total forfeiture of eightythousand dollars ($80,000). Moreover, we believe $80,000 to be a reasonable forfeiture when considering Media General's extensive assets and financial resources.  S- ` x14.` ` Pursuant to Section 1.80 of the Commission's rules, Media General will have the  xopportunity to submit evidence and arguments as to why the forfeiture penalty assessed by this Notice of  xApparent Liability should not be imposed or should be reduced. Any such showing shall include a  S- xj"detailed factual statement and such documentation and affidavits as may be pertinent."A] yO -ԍ47 C.F.R. 1.80(f)(3).A Other relevant provisions of Section 1.80 are summarized in the attachment.  S -  IV. CONCLUSIONS AND ORDERING CLAUSES ĐTP  S - ` nx15.` ` Based on the foregoing, we find that Media General operated two CARS stations formerly  x.licensed as WGJ469 and WGJ470 without Commission authorization from May 12, 1997 to May 21,  x\1997, in violation of Section 301 of the Communications Act of 1934, as amended. We also find that  xMedia General's conduct relating to these violations and its history of prior offenses warrant the imposition of a substantial forfeiture.  S- ` x16.` ` Accordingly, IT IS ORDERED , pursuant to Section 503(b) of the Communications Act  xof 1934, as amended, 47 U.S.C. 503(b), and Section 1.80 of the Commission's rules, 47 C.F.R. 1.80,  xthat Media General IS HEREBY NOTIFIED of an Apparent Liability for Forfeiture in the amount of  Sh- x_ eightythousand dollars ($80,000) for its apparently willful violation of Section 301 of the Communications Act of 1934, as amended, 47 U.S.C. 301.  S- ` x17.` ` IT IS FURTHER ORDERED , pursuant to Section 1.80 of the Commission's rules, 47  S- xjC.F.R. 1.80, that within THIRTY DAYS of the release of this Notice, Media General SHALL PAY the  S- xKfull amount of the proposed forfeiture X] yO- xԍThe forfeiture amount must be paid by check or money order drawn to the order of the Federal  x,Communications Commission. Reference should be made on Media General's check or money order to "NAL/Acct.  xNo. 812CB0003." Such remittances must be mailed to Federal Communications Commission, P.O. Box 73482, Chicago, IL 606737482. OR SHALL FILE a response showing why the proposed forfeiture should not be imposed or should be reduced.  S(- ` ~x18.` ` IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for  S- xForfeiture SHALL BE SENT by certified mail to Media General Cable of Fairfax County, Inc., 14650 Old Lee Road, Chantilly, Virginia 20151. x` `  hhFEDERAL COMMUNICATIONS COMMISSION  S -x` `  hhMagalie Roman Salaspp#&a\  P6G;&P# x` `  hhSecretary