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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Time Warner Cable ) File No. EB-01-PL-
10210 Crosstown Circle )
Eden Prairie, Minnesota ) NAL/Acct. No.
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 3,
By the Resident Agent, Saint Paul Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Time Warner Cable (``Time Warner'') has
apparently violated Sections 11.35(a), 11.61(a)(1)(iii), and
11.61(a)(2)(i)(B) of the Commission's Rules (the ``Rules'').1
These violations occurred as a result of the failure of the Time
Warner Cable system located in Eden Prairie, MN to have
functional equipment capable of receiving and sending Emergency
Alert System (``EAS'') alerts to subscribers, failure to transmit
required weekly and monthly EAS tests, failure to have a copy of
the EAS Handbook and failure to request authority to operate
beyond a sixty day period without a functioning EAS receiver.
The violations include failure to have operational Emergency
Alert System (``EAS'') equipment and failure to conduct and log
required EAS tests. We conclude that Time Warner is apparently
liable for a forfeiture in the amount of four thousand dollars
2. EAS provides the capability for the President to
communicate emergency information to the public in a national
emergency. It may also be used by state and local government
to provide information to their residents in case of local
disasters.2 Cable systems must participate in the EAS.3
Cable systems with 10,000 or more subscribers were required to
install EAS equipment in accordance with Section 11.11 of the
Rules by December 31, 1998. Specifically, these cable systems
must install and operate EAS encoder and EAS decoder
equipment. In addition, the equipment must be capable of
transmitting audio and video EAS messages on all channels.4
3. On March 15, 2001, an agent from the Commission's Saint
Paul Office inspected the facilities of Time Warner, Eden
Prairie, MN, to verify compliance with the Commission's EAS
requirements. . The agent's inspection revealed that Time
Warner was in violation of several of the EAS rules. Based on
examination of EAS records at Time Warner, the agent
determined that during the period of January 10, 2001 to March
14, 2001, Time Warner did not have fully operational EAS
equipment, was unable to monitor EAS transmissions from the
secondary source, failed to receive and log required EAS tests
from the secondary source, and failed to transmit and log
required weekly and monthly EAS tests. In addition, Time
Warner did not have a copy of the EAS Handbook and had failed
to request authority from the FCC District Director to operate
after March 10, 2001 with a defective EAS decoder.
4. On March 16, 2001, Resident Agent F. M. Evans of the
Saint Paul, Minnesota Office issued an Official Notice of
Violation (``NOV'') to Time Warner for the violations he found
during the March 15, 2001 inspection. Evans cited Time Warner
for non-compliance with Sections 11.15, 11.35(a), 11.35(c),
11.61(a)(1)(iii), and 11.61(a)(2)(i)(B), and 76.305(a) of the
5. On April 2, 2001, the Saint Paul Office received a
response from Time Warner dated March 28, 2001. Time Warner
acknowledged in its response that it had failed to comply with
the Commission's EAS requirements, and detailed corrective
steps that it had taken to eliminate the violations (e.g.,
repairing EAS equipment).
6. The Commission assesses monetary forfeitures pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
(the ``Act'')6 as implemented in Section 1.80 of the Rules.7
A forfeiture may be assessed against a person who the
Commission finds to have willfully or repeatedly failed to
comply with the provisions of the Act or the Rules.8
``Willful'' in this context means that the person knew that he
was doing the act in question, regardless of intent to violate
the provision.9 ``Repeated'' means commission or omission of
an act more than once.10 Forfeiture amounts are decided in
accordance with Section 503(b)(2) of the Act11 and the
Commission's forfeiture guidelines in Section 1.80(b)(4) of
7. We conclude that Time Warner willfully and repeatedly
violated Sections 11.35(a) of the Rules. Time Warner failed to
have a functional EAS receiver that would receive the
secondary source during the period January 10 to March 14,
2001. Time Warner also failed to maintain the EAS equipment
in such condition that the received EAS tests would be
automatically re-transmitted within 15 minutes during this
same period. Operation of the system without the equipment is
a willful violation and it has been repeated on all days the
system operated from January 10, 2001 to March 14, 2001. The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15
FCC Rcd 303(1999) (``Forfeiture Policy Statement''), sets the
statutory maximum forfeituremaximum forfeiture amount at
eight thousand dollars ($8000) for not having functional EAS
equipment installed. In assessing the monetary forfeiture
amount, we must take into account the statutory factors set
forth in Section 503(b)(2)(D) of the Act,13 which include 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 other such
matters as justice may require. Although the record reveals
that Time Warner has an overall history of compliance and
showed good faith surrounding the violations by the voluntary
disclosure of information, the violation was not minor, and
occurred over a two month period. Applying the Policy
Statement and the statutory factors to the instant case and
applying the downward adjustments, we believe that reducing
the NALthe NAL to four thousand dollars ($4000) is warranted.
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80 of the
Rules,14 Time Warner Cable is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of four thousand
dollars ($4,000) for failure to maintain operational EAS
equipment and for failing to conduct and log the required
monthly and weekly tests of EAS, in violation of Sections
11.35(a), 11.61(a)(1)(iii), and 11.61(a)(2)(i)(B) of the
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, Time Warner Cable SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
10. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission,
to the Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No.
11. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington,
D.C. 20402 and MUST INCLUDE THE NAL/Acct. No. 200132280001.
12. The Commission will not consider reducing or canceling a
forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices
(``GAAP''); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to
the financial documentation submitted.
13. Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.15
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Time Warner Cable, 10210 Crosstown
Circle, Eden Prairie, MN 55344.
FEDERAL COMMUNICATIONS COMMISSION
F. M. Evans, P.E.
Saint Paul Office
1 47 C.F.R. §§ 11.35(a), 11.61(a)(1)(iii), and 11.61(a)(2)(i)(B).
22 47 C.F.R. § 11.1.
33 47 C.F.R. §§ 11.11 & 11.41.
5 47 C.F.R. §§ 11.15, 11.35(a), 11.35(c), 11.61(a)(1)(iii),
6 47 U.S.C. § 503(b).
7 47 C.F.R. §1 .80.
8 47 C.F.R. § 1.80(a)(2).
9 Section 312(f)(1), which also applies to Section 503(b),
provides: [t]he term ``willful'', when used with reference to the
commission or omission of any act, means the conscious and
deliberate commission or omission of such act, irrespective of
any intent to violate any provisions of the Act or any rule or
regulation of the Commission authorized by this Act or by a
treaty ratified by the United States. See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991). Southern California
Broadcasting Company, 6 FCC Rcd 4387, para. 5 (1991).
10 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference to
the commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.
11 47 U.S.C. § 503(b)(2).
12 C.F.R. § 1.80(b)(4).
13 47 U.S.C. § 503(b)(2)(d).
14 47 C.F.R. §§ 0.111, and 0.311.
15 See 47 C.F.R. § 1.1914.