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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                  )
                                                            )
Mallard Cablevision, LLC          )                  File Number 
Operator of Cable Television      )                 EB-03-DV-137
System                            )
Community Unit No. WY0087         )                    NAL/Acct. 
Physical ID No. 004758           )               No.200432800002
Pinedale, Wyoming
                                                  FRN 0009072752



           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                           Released: May 25, 2004

By the Denver Office, Western Region, Enforcement Bureau:

                        I.  INTRODUCTION

     1.In  this  Notice  of  Apparent  Liability  for  Forfeiture 
("NAL"), we  find  that Mallard  Cablevision,  LLC  ("Mallard"),1 
operator of  the cable  television system  in Pinedale,  Wyoming, 
apparently   willfully   and    repeatedly   violated    Sections 
76.605(a)(12)  and   76.611(a)(1)  of   the  Commission's   Rules 
("Rules")2 by  operating a  cable system  in violation  of  cable 
signal leakage  standards.   We  conclude,  pursuant  to  Section 
503(b) of the  Communications Act of  1934, as amended  ("Act"),3 
that Mallard is apparently liable for a forfeiture in the  amount 
of eight thousand dollars ($8,000).


                         II.  BACKGROUND

     2.The   above-captioned    system   has    a   history    of 
non-compliance with the Commission's cable leakage standards.  On 
July 20, 2001, a Notice  of Violation ("NOV") was issued  against 
the system for violations of  the basic signal leakage  standards 
found in Section 76.605(a)(12) of the Rules.4  On July 18,  2002, 
a second NOV was issued against the system for violations of  the 
same rule section.  In October, 2002, the Sheriff's Department of 
Sublette  County,  the  county  served  by  the  Mallard  system, 
contacted  the  Commission's  Denver   Office  with  a   detailed 
complaint listing nineteen places in  the cable system where  law 
enforcement   officials   encountered   interference   to   their 
communications because  of  alleged  cable  signal  leakage.   On 
October 15,  2002,  the  Denver  Office  sent  correspondence  to 
Mallard detailing 

the complaint placed by the Sheriff's Department and requested  a 
status report from  Mallard.  Mallard failed  to comply with  the 
status report  request in  a timely  manner but  did correct  the 
leakage  problem  that   was  interfering   with  the   Sheriff's 
Department's communications by November 18, 2002.  

     3.On  June  8,  2003,  an  agent  from  the  Denver   Office 
inspected a portion of  Mallard's cable system serving  Pinedale, 
Wyoming, to  identify leaks  and  determine compliance  with  the 
Commission's basic signal leakage criteria.  The agent identified 
and measured one leak and based on the measurement of this single 
leak,5 the agent calculated the system's Cumulative Leakage Index 
("CLI") at a  value of 72.7,  exceeding the allowable  cumulative 
signal leakage performance criteria of 64.6  (See Attachment B)

     4.Because of  this leak, the  agent contacted Mallard  cable 
technicians on  June 8,  2003, and  verbally ordered  Mallard  to 
cease   operation   on    aeronautical   band   frequencies    or 
alternatively,  reduce  amplitude   of  all   signals  on   these 
frequencies until the leaks were repaired and the system complied 
with the  basic  signal  leakage criteria.7   The  Denver  Office 
followed the oral order with a written Order to Cease Operations, 
delivered by facsimile on June 9, 2003.8  In accordance with  the 
Order to Cease  Operations, Mallard was  required to complete  an 
inspection of  the  system's  cable  plant,  make  the  necessary 
repairs to bring the system into compliance, and submit a  report 
of their findings.  On  June 10, 2003,  Mallard responded to  the 
Order  to  Cease   Operations  indicating   that  over   eighteen 
additional signal  leaks were  reported that  exceeded the  basic 
signal leakage criteria.9  Two of the leaks measured were of such 
magnitude that each leak, taken alone, would cause the system  to 
exceed  the  allowable  cumulative  signal  leakage   performance 
criteria of 64.10 



                        III.  DISCUSSION

     5.Section 503(b)  of the  Act provides that  any person  who 
willfully or repeatedly  fails to comply  substantially with  the 
terms and conditions of any  license, or willfully or  repeatedly 
fails to comply with any of the  provisions of the Act or of  any 
rule, regulation or  order issued by  the Commission  thereunder, 
shall be liable for a forfeiture penalty.  The term "willful"  as 
used in Section 503(b) has  been interpreted to mean simply  that 
the acts  or  omissions  are  committed  knowingly.11   The  term 
"repeated" means the commission or omission of such act more than 
once or for more than one day.12

     6.SSSection  76.611(a)(1)  of the  Rules  requires  a  cable 
system to limit  its CLI to  a value at  or below 64.13   Section 
76.605(a)(12) of  the Rules  requires  cable operators  to  limit 
basic signal leakage in the frequency band from 54 MHz up to  and 
including 216 MHz  to 20 V/m  at a distance  of 3 meters.14   On 
June 8, 2003, Mallard exceeded  the limits for both basic  signal 
leakage and  cumulative signal  leakage at  one location  on  its 
system in Pinedale,  Wyoming, by  operating with a  CLI value  of 
72.7.  In  response  to an  Order  to Cease  Operations,  Mallard 
conducted a complete inspection of its system and reported to the 
Commission's Denver Office that  over eighteen additional  signal 
leaks existed that  exceeded the basic  signal leakage  criteria.  
In addition, two  of the  leaks measured were  of such  magnitude 
that each leak, taken alone, would cause the system to exceed the 
allowable cumulative signal leakage  performance criteria of  64.  
As detailed above, the Mallard cable system in Pinedale,  Wyoming 
received NOV's  from the  Commission's Denver  Office  concerning 
cable signal leakage in 2001 and 2002 and has been the subject of 
interference complaints due to excessive signal leakage from  the 
local Sheriff's Department.  Mallard  maintains a signal  leakage 
log  which  identifies  signal  leaks  and  repairs,  and  so  is 
knowledgeable about signal  leakage requirements. Therefore,  the 
notice   received   by    Mallard   concerning   the    continued 
non-compliance of  its cable  system, along  with the  fact  that 
Mallard has knowledge of  the signal leakage requirements,  makes 
the violation willful.  Furthermore, it appears Mallard  operated 
with excessive signal  leakage and  failed CLI on  more than  one 
day; thus it is repeated.


      
     7.Based on the evidence  before us, we find that on June  8, 
2003, and June 9, 2003, Mallard willfully and repeatedly violated 
Sections 76.605(a)(12) and 76.611(a)(1) of the Rules by operating 
a cable system in violation of signal leakage standards. 

     8. Pursuant to The Commission's Forfeiture Policy  Statement 
and Amendment of  Section 1.80  of the Rules  to Incorporate  the 
Forfeiture  Guidelines,  ("Forfeiture  Policy  Statement"),   and 
Section 1.80  of  the  Rules,  the  base  forfeiture  amount  for 
violating rules relating  to distress and  safety frequencies  is 
$8,000.15  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 Act, which include the nature, circumstances, 
extent, and gravity of  the violations, and  with respect to  the 
violator,  the  degree  of  culpability,  and  history  of  prior 
offenses, ability to pay, and  other such matters as justice  may 
require.16   Applying  the Forfeiture  Policy Statement  and  the 
statutory factors, an $8,000 forfeiture is warranted.


                      IV.  ORDERING CLAUSES

     9.  Accordingly,  IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of  the  Communications  Act  of  1934,  as  amended,  and 
Sections 0.111, 0.311 and 1.80 of the Commission's Rules, Mallard 
Cablevision, LLC, is hereby  NOTIFIED of this APPARENT  LIABILITY 
FOR A FORFEITURE in the amount of eight thousand dollars ($8,000) 
for violations of Sections 76.605(a)(12) and 76.611(a)(1) of  the 
Rules.17

     10.   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 for  Forfeiture,  Mallard 
Cablevision, LLC,  shall  pay the  full  amount of  the  proposed 
forfeiture or shall file a written statement seeking reduction or 
cancellation of the proposed forfeiture.

     11.   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  must  include 
the  FCC  Registration  Number   (FRN)  and  the  NAL/Acct.   No. 
referenced in the caption.

     12.   The response,  if any,  must be mailed  to the  Denver 
Office,   Western    Region,    Enforcement    Bureau,    Federal 
Communications Commission,  215 S.  Wadsworth Blvd.,  Suite  303, 
Lakewood,  CO,  80226,  and   must  include  the  NAL/Acct.   No. 
referenced in the caption.  

     13.   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.

     14.  Requests for payment of the full amount of this  Notice 
of Apparent Liability  for Forfeiture under  an installment  plan 
should be  sent to:  Chief,  Revenue and  Receivables  Operations 
Group, 445 12th Street, S.W., Washington, D.C. 20554.18

     15.    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 Spectrum Enforcement  Division, 
445 12th Street, S.W., Washington, DC 20554.  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.

     16.   IT IS FURTHER ORDERED THAT copies of this NAL shall be 
sent by regular mail and Certified Mail Return Receipt  Requested 
to Mallard Cablevision,  LLC, 3281 Racquet  Club Drive, Suite  B, 
Traverse City, MI  83276, and  to LB  Cable, LLC,  c/o J.  Feeney 
Associates, Inc., 17 South Franklin Turnpike, Ramsey, NJ, 07446.  



                         FEDERAL COMMUNICATIONS COMMISSION



                         Nikki P. Shears
                         District Director
                         Denver Office, Western Region
                         Enforcement Bureau

Attachments

_________________________

1 According to Commission records, Mallard has transferred some 
licenses through Mallard, Debtor-in-Possession, to L.B. Cable, 
LLC. See File Nos.  CAR-20030618AH-08 and CAR-20030618AI-08, 
granted July 2, 2003; File Nos. CAR-20031113AF-08 and 
CAR-20031113AH-08, granted December 31, 2003.  The Commission 
records for Community Unit No. WY0087, however, indicate that 
Mallard Cablevision, LLC, is the operator of the cable system 
serving that Community Unit.

2 47 C.F.R.  76.605(a)(12) and 76.611(a)(1).

3 47 U.S.C.  503(b).

4 47 C.F.R.  76.605(a)(12).  The standards found in this 
section limit basic signal leakage in the frequency band from 54 
MHz up to and including 216 MHz to 20 V/m at a distance of 3 
meters.

5 The leak was measured on the frequency 121.2625 MHz, at 4321 
microvolts per meter ("V/m").

6 The leak was measured on the frequency 121.2625 MHz, at 4321 
microvolts per meter ("V/m"). A maximum CLI of 64 is the basic 
signal leakage performance criteria of Section 76.611(a)(1) of 
the Rules.  Leakage that exceeds this level is deemed to pose a 
serious threat to air safety communications.  The calculated CLI 
included only leaks greater than 50 V/m.

7 Mallard was ordered to cease operations on the aeronautical 
band frequencies or reduce amplitude of all signals on these 
frequencies so that the power level did not exceed 10-4  watts 
(38.75 dBmV) across a 25 kHz bandwidth in any 160 microsecond 
period.  Once Mallard complied with the verbal shut down order 
for all aeronautical band frequencies on June 8, 2003, the agent 
identified and measured seven leaks that exceeded the basic 
signal leakage criteria on a non-aeronautical band frequency of 
157.2625 MHz. (See Attachment B.)  

8  See 47 C.F.R. 76.613(c). Mallard complied with the Order to 
Cease Operations.

9 June 10, 2003, letter from Mallard, ("Response").  These leaks 
ranged from 30 V/m to 2900 V/m.

10 According to Mallard's Response, the leaks measured 1670 V/m 
and 2900 V/m respectively.  It should be noted that one leak at 
1584 V/m would cause the cable system to fail CLI.  

  

11 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 (1991).

12 Section 312(f)(2) of the Act, 47 U.S.C.  312(f)(2), which 
also applies to violations for which forfeitures are assessed 
under Section 503(b) of the Act, provides that "[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."

13 47 C.F.R.  76.611(a)(1).

14 47 C.F.R.  76.605(a)(12).

15  12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 
(1999); 47 C.F.R. 1.80.

16  47 U.S.C.  503(b)(2)(D).

17 47 U.S.C.  503(b); 47 C.F.R.  0.111, 0.311, 1.80, 
76.605(a)(12) and 76.611(a)(1).

18 See 47 C.F.R.  1.1914.