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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Mallard Cablevision, LLC ) File Number
Operator of Cable Television ) EB-03-DV-137
Community Unit No. WY0087 ) NAL/Acct.
Physical ID No. 004758 ) No.200432800002
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 25, 2004
By the Denver Office, Western Region, Enforcement Bureau:
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).
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
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
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 µV/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
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
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
Denver Office, Western Region
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 µV/m at a distance of 3
5 The leak was measured on the frequency 121.2625 MHz, at 4321
microvolts per meter ("µV/m").
6 The leak was measured on the frequency 121.2625 MHz, at 4321
microvolts per meter ("µV/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 µV/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
9 June 10, 2003, letter from Mallard, ("Response"). These leaks
ranged from 30 µV/m to 2900 µV/m.
10 According to Mallard's Response, the leaks measured 1670 µV/m
and 2900 µV/m respectively. It should be noted that one leak at
1584 µV/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.