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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Falcon Cablevision )
D/B/A Charter Communications ) File Number EB-03-KC-020
Operator of Cable System )
in ) NAL/Acct. No.200332560017
Osage Beach, Missouri )
) FRN 0001-5308-72
St. Louis, Missouri )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the Enforcement Bureau, Kansas City Office:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Falcon Cablevision D/B/A
Charter Communications (``Charter''), operator of the cable
television system serving Osage Beach, Missouri, willfully
and repeatedly violated Section 11.61(a)(1) of the
Commission's Rules (``Rules'')1 by failing to conduct
required monthly tests of the Emergency Alert System
(``EAS''). We conclude that Charter is apparently liable
for a forfeiture in the amount of two thousand dollars
2. On January 30, 2003, an agent of the Commission's
Kansas City Field Office inspected Charter's cable system
located at 5151 Highway 54, Suite B, Osage Beach, Missouri,
to verify compliance with the Commission's EAS requirements.
Charter's EAS receiver was improperly set, rendering it
incapable of receiving monthly EAS tests. Charter's EAS
records for the period April 26, 2002, to January 30, 2003,
contained no entries showing that Charter had received
and/or retransmitted monthly EAS tests, no entries
explaining failure to receive and conduct the tests, and no
entries showing the EAS equipment had been removed from
service for repair. Charter's Head End Technician, Ken
Haertling, stated that Charter had only been receiving and
transmitting weekly EAS tests, but not monthly tests.
3. On February 4, 2003, the Commission agent spoke by
telephone to Charter's Paul Hartung who stated that
Charter's Osage Beach system EAS equipment had been
programmed with the proper settings and could now receive
the monthly tests.
4. Section 11.61(a)(1) of the Rules requires cable
systems to conduct monthly tests of the EAS header codes,
Attention Signal, Test Script and End of Message Codes.
From at least April 26, 2002 to January 30, 2003, Charter's
cable system in Osage Beach, Missouri, failed to conduct the
monthly EAS tests. Charter's logs showed no evidence of
receipt or retransmission of any of the required monthly EAS
tests, no entries explaining the failure to receive and
conduct such tests, and no entries showing EAS equipment had
been removed from service for repair.2
5. Based on the evidence before us, we find that from
at least April 26, 2002 to January 30, 2003, Charter
willfully3 and repeatedly4 violated Section 11.61(a)(1) of
the Rules by failing to conduct the required monthly EAS
6. Pursuant to Section 1.80(b)(4) of the Rules,5 the
base forfeiture amount for failure to conduct required EAS
tests (i.e., failure to make require measurements or conduct
required monitoring) is $2,000. In assessing the monetary
forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) of the
Communications Act of 1934, as amended (``Act''), 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.6
Considering the entire record and applying the factors
listed above, this case warrants a $2,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,7 and Sections 0.111, 0.311 and
1.80 of the Rules,8 Falcon Cablevision D/B/A Charter
Communications is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of two thousand dollars
($2,000) for willful and repeated violation of Section
11.61(a)(1) of the Rules by failing to conduct required
monthly EAS tests.
8. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules, within thirty days of the
release date of this NOTICE OF APPARENT LIABILITY, Falcon
Cablevision D/B/A Charter Communications SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
9. Payment of the forfeiture may be made 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. and FRN referenced
above. 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. 20554.9
10. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. and FRN referenced above.
11. 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
12. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by regular mail and
Certified Mail Return Receipt Requested to Falcon
Cablevision D/B/A Charter Communications, 12405 Powerscourt
Drive, St. Louis, Missouri 63131.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director, Kansas City
1 47 C.F.R. § 11.61(a)(1).
2 EAS tests and activations, failure to receive such tests
and activations, and EAS equipment malfunctions must be
recorded in the station log. See 47 C.F.R. §§ 11.35(a)-(b),
11.54(b)(12), 11.55(c)(7) and 11.61(b).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to Section 503(b) of the Act, provides that
``[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 provision of this Act ....''
See Southern California Broadcasting Co., 6 FCC Rcd 4387
4 The 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.'' 47
U.S.C. § 312(f)(2).
5 47 C.F.R. § 1.80(b)(4)
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.