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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB-00-OR-023
Callais Cablevision, Inc. ) NAL/Acct. No.: X12000004
Grand Isle, Louisiana ) FRN 0004-9424-54
Adopted: November 4, 2002 Released: November 6,
By the Commission:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one hundred thirty-three
thousand dollars ($133,000) against Callais Cablevision, Inc.,
(``Callais'') for repeated violations of Sections 76.605(a)(12),
76.611(a) and 76.612 of the Commission's Rules (``Rules'')1; and
willful violation of Section 11.11 of the Rules.2 The noted
violations all involve important public safety requirements --
excessive cable signal leakage, failure to maintain the required
frequency offset in the aviation bands, failure to perform and
report the required annual signal leakage tests, and failure to
have the required Emergency Alert System (``EAS'') equipment
necessary to transmit national emergency messages.
2. On January 19, 2001, the Commission released a Notice of
Apparent Liability for Forfeiture (``NAL'') against Callais in
the amount of $133,000.3 Callais filed its response to the NAL
on March 5, 2001.
3. The Commission has established cable signal leakage
rules to control emissions that could cause interference to
aviation frequencies from cable systems. Protecting the
aeronautical frequencies4 from harmful interference is of
paramount importance.5 To this end, the Commission established
basic signal leakage standards.6 We have determined the
tolerable levels of unwanted signals on the aeronautical
frequencies in two ways. Signal leakage levels that exceed these
thresholds are considered harmful interference. First, leakage
at any given point must not exceed 20 µV/m.7 Second, we set basic
signal leakage performance criteria for the system as a
prerequisite for operation on aeronautical frequencies. This is
the system's Cumulative Leakage Index (``CLI''). We require
annual measurement of each system's CLI (10 log I¥) to
demonstrate safe levels of signal leakage (a CLI of less than
64),8 the results of which must be reported to us.9 We also
require routine monitoring of the system to detect leaks.10
Whenever harmful interference occurs, the cable system operator
must eliminate it.11 Further, should the harmful interference
not be eliminated, we will intervene and require cessation of
operation of the portion of the system involved or reduction of
power12 below the levels specified in Section 76.610 of the
Rules.13 We also require that the signal carriers of cable
systems be offset from the frequencies used by aeronautical
4. The EAS provides the capability for the President to
communicate emergency information to the public in a national
emergency. It also may be used by state and local government to
provide information to their residents in case of local
disasters.15 Cable systems must participate in the EAS.16 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, 1998.17 Specifically, these cable systems were
required to install and operate EAS encoder and EAS decoder
equipment. In addition, the equipment must be capable of
transmitting audio and video national EAS messages on all
5. On January 21, 2000, Federal Aviation Administration
(``FAA'') personnel made a telephone call to the Commission's New
Orleans, Louisiana, Field Office (``New Orleans Office'') and
reported interference to the operation of the FAA's Remote
Communication Air Ground (``RCAG'') facility in Grand Isle,
Louisiana. The FCC agent who answered the call told the FAA that
the characteristics of the interfering signal indicated that its
source was signal leakage from a cable television system. On
January 24, 2000, FAA personnel again called the New Orleans
Office. The FAA reported that, after it contacted Callais,
Callais reported fixing a major leak near the RCAG and the
interference ceased. Cable leakage monitoring logs supplied by
Callais pursuant to Section 76.614 of the Rules19 indicate that
Callais found and repaired several leaks in the general vicinity
of the FAA's RCAG on January 21 and 22, 2000. The logs furnished
by Callais indicate a signal leakage level of 80 mV/m on January
21, 2000, near the FAA facility.
6. On February 8 and 10, 2000, an agent from the New
Orleans Office inspected Callais's system cable plant to identify
leaks and determine compliance with the basic signal leakage
criteria. On February 8, 2000, the agent found seven leaks,
which ranged from 68 mV/m to 1,068 mV/m. On February 10, 2000,
the agent found seven additional leaks, which ranged from 143
mV/m to 2,295 mV/m. The agent found leaks in the nine miles
(2.7%) of the system he inspected. The agent found that, even
assuming there were no leaks in the rest of the system, the CLI
exceeded the maximum permissible amount, 64. Additionally, the
agent observed that, on February 8 and 10, 2000, the cable
system's carrier frequencies were not offset from aeronautical
7. On February 11, 2000, the agent inspected the headend of
Callais's cable system. During the inspection the agent found
that Callais had not offset the cable system's carrier
frequencies from aeronautical frequencies. The agent also found
that Callais had not installed the following EAS equipment
required by Section 11.11 of the Rules: EAS encoder and EAS
decoder equipment, and equipment to provide audio and video EAS
messages on all channels.
8. On February 11, 2000, the New Orleans Office issued an
Order to Cease Operations, pursuant to Section 76.613(c) of the
Rules.20 The system resumed normal operation on February 17,
2000, after being brought into compliance.
9. On February 29, 2000, the New Orleans Office issued an
Official Notice of Violation (``NOV'') citing violations of the
frequency offset and EAS equipment requirements. On March 10,
2000, Callais replied to the NOV stating that it had offset the
cable system's carrier frequencies and had purchased the required
EAS equipment. On March 23, 2000, Callais notified the New
Orleans Office that it had received and installed the proper EAS
10. A review of Commission records, done shortly before the
release of the NAL on January 19 2001, indicated that Callais
filed its most recent Basic Signal Leakage Performance Report
(FCC Form 320) on October 28, 1998, for signal leakage tests
performed on August 10, 1998. Section 76.611(a) of the Rules
required Callais to perform annual signal leakage tests and to
report the results to the Commission. Callais did not file such
reports during the years 1999 and 2000.
11. In light of the above violations discovered by the New
Orleans Office, on January 19, 2001, the Commission released the
referenced NAL against Callais in the amount of $133,000.
Callais filed its response to the NAL on March 5, 2001,
requesting cancellation of the proposed forfeiture.
12. The Commission assessed the proposed forfeiture amount
in this case in accordance with Section 503 of the Communications
Act of 1934, as amended (``Act''),21 Section 1.80 of the Rules,22
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement''). Section 503(b) of
the Act23 requires that, in examining Callais's response, the
Commission 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 other such matters as justice may require.24
13. Callais does not dispute the violations alleged by the
NAL. Callais, however, contends that the proposed monetary
forfeiture should be cancelled for the reasons discussed below.
14. First, Callais contends that consumers and salt air
corrosion are responsible for many cable signal leakages.
Assuming, arguendo, that this contention is correct, it does not
mitigate Callais's violations. Cable operators are required to
monitor for and repair signal leaks25 regardless of their origin
in order to ensure that their systems comply with our cable
leakage standards, which serve a critical public safety purpose.
15. Callais suggests that its status as a family-owned
``mom and pop'' cable operator mitigates the violations.
Callais's status as a family-owned business does not mitigate
Callais's violations even if it considers itself a small
business. In acknowledging that the Small Business Regulatory
Enforcement Fairness Act of 1996 requires federal agencies to
establish policies providing for the reduction of forfeitures
imposed on small businesses, we stated that under appropriate
circumstances, we may consider ability to pay in determining
penalty assessments on small entities. 26 Callais has not
presented any information indicating that it is unable to pay the
16. Callais sets forth various steps it has taken to
correct its violations and prevent their recurrence. These
include repairing leaks, using better cable for drops, making
leakage checks more frequently than required by the Rules,
designating a new person to be responsible for preventing
leakage, installing new leakage detection equipment in field
service vehicles, obtaining additional training materials for its
technical staff, offsetting the system's carrier frequencies and
installing the required EAS equipment. As we stated in Seawest
Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994), ``corrective action
taken to come into compliance with Commission rules or policy is
expected, and does not nullify or mitigate any prior forfeitures
17. Callais points out that, although it did not have the
EAS equipment required by Section 11.11 of our Rules, it did have
equipment capable of alerting subscribers about emergencies. In
the NAL, we noted that Callais had the capability to interrupt
audio programming for emergency broadcasts in the event of an
emergency but we found it not to be a basis for making an
adjustment to the $8,000 forfeiture amount specified for this
violation. Section 11.11 requires Callais to have equipment
which performs the following functions: producing a two-tone
signal from a storage device, encoding EAS messages, decoding EAS
messages and displaying audio and visual messages on all
channels. The equipment that Callais possessed could display an
audio message but was not capable of performing any of the other
required functions. The principal purpose of EAS is to provide
the President with the capability of providing immediate
communications and information to the general public during
periods of national emergency.28 Even if Callais's equipment
could properly display both the audio and visual messages on all
channels, its equipment could not accomplish this purpose because
it was incomplete and, therefore, incapable of receiving EAS
messages. Accordingly, we find that Callais's possession of
equipment that could display audio only messages does not warrant
any reduction from the proposed forfeiture amount.
18. Callais contends that the proposed forfeiture amounts
imposed for cable signal leakage ($55,000), failure to offset the
carrier frequency ($60,000) and failure to perform the required
annual leakage tests and report the results ($10,000) are
excessive. Callais does not specifically address the forfeiture
amount imposed for the EAS violation ($8,000).
19. Specifically, Callais argues that we cannot assess a
forfeiture for Callais's cable signal leakage and carrier offset
violations because there are no specific base amounts for these
violations set forth in the Forfeiture Guidelines;29 that the
proper base forfeiture amount for Callais's failure to perform
the required annual leakage tests is $2,000; that we cannot
deviate from the base amounts specified in the Forfeiture
Guidelines unless we do so through a rulemaking proceeding; and
that we cannot assess the forfeiture amounts for each day of the
cable signal leakage and carrier offset violations because there
was only one ``episode'' of each of these violations. These
arguments lack merit.
20. Even if the Forfeiture Guidelines did not establish
base forfeiture amounts for cable leakage and carrier offset
violations, we could still impose forfeitures for those
violations.30 Furthermore, the Forfeiture Guidelines do
establish base amounts for those violations. Our cable signal
leakage and carrier offset rules are designed to protect
aeronautical frequencies from interference and, therefore, are
rules ``relating to safety and distress frequencies.''31 Thus,
$8,000 is the proper base forfeiture amount for the cable signal
leakage and carrier offset violations.32 The proper base amount
for Callais's failure to perform the required annual leakage
tests and report the results is $8,000, not $2,000. This
violation led to Callais's CLI violations. Callais, therefore,
violated a rule ``relating to safety and distress frequencies''
for which the base forfeiture amount is $8,000.
21. We can deviate from the base amounts specified in the
Forfeiture Guidelines. The Forfeiture Guidelines specifically
contemplate upward (as well as downward) adjustments to the base
forfeiture amounts.33 For example, in MediaOne, we proposed a
forfeiture of $55,000 for cable signal leakage violations
occurring on two dates. The $55,000 forfeiture proposed in this
case is consistent with MediaOne. Callais's carrier offset
violations are distinct from its cable leakage violations. An
additional forfeiture amount of $60,000 for Callais's carrier
offset violations is warranted because those violations
significantly increased the likelihood of interference on
aeronautical frequencies and, thus, are even more significant
than the Callais's cable signal leakage violations. Increasing
the forfeiture amount for Callais's failure to perform the
required annual leakage tests and report the results from $8,000
to $10,000 is warranted because this violation continued over a
two year period and, thus, is a ``repeated or continuous
violation.''34 Finally, we are authorized to impose the maximum
forfeiture amount of $27,500 for each day a violation continues
regardless of the number of ``episodes.'' See Media One, supra,
and Section 503(b)(2)(A) of the Act.35
22. Callais also asserts that it is ``arbitrary and
capricious'' for us to apply our CLI standard and other cable
leakage rules to cable operators immediately but to certain non-
cable Multi-channel Video Programming Distributors (``MVPDs'')
only after a five year transition period. When we established
the five year transition period for certain non-cable MPVDs, we
We recognize ... immediate compliance with many of our
other signal leakage requirements may present hardships
to existing MVPDs not previously subject to such rules.
We will allow for a five-year transition period from
the effective date of these rules to afford non-cable
MVPDs time to comply with our signal leakage rules
other than Section 76.613. We note that such a
transition period is consistent with the time period
allotted to cable operators in 1984 to comply with the
more stringent signal leakage requirements imposed by
the Commission. We disagree with Time Warner that non-
cable MVPDs do not need five years to comply with
signal leakage rules because they do not face many of
the same obstacles cable operators confronted in the
past in complying with such rules. We believe that a
five-year transition period will provide a reasonable
time period for existing non-cable MVPDs to undertake
such functions as replacing equipment, upgrading
existing wiring, and training personnel to conduct
signal leakage measurements. The five-year transition
period will apply only to the systems of those non-
cable MVPDs that have been substantially built as of
January 1, 1998. 36
We find that application of our CLI standard and other cable
leakage rules to Callais is not arbitrary and capricious.
23. We are, therefore, not persuaded that the proposed
forfeiture should be cancelled or that its amount is excessive.
The Commission's leakage rules are designed to protect aircraft
safety communications from harmful interference. Callais
violated most of those rules. The result was harmful
interference to FAA communications. This warrants a substantial
forfeiture. We find that $133,000 is the proper forfeiture
IV. ORDERING CLAUSES
24. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Section 1.80(f)(4) of the Rules,37 Callais
Cablevision, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the
amount of one hundred and thirty-three thousand dollars
($133,000) for repeated violation of Sections 76.605(a)(12),
76.611(a) and 76.612 of the Rules and willful of Section 11.11 of
25. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.38
Payment shall be made by mailing a check or similar instrument,
payable to the order of the "Federal Communications Commission,"
to the Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should note NAL/Acct.
No. X12000004, and FRN 0004-9424-54. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
26. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Callais
Cablevision, Inc., P.O. Drawer 550, Larose, Louisiana 70373, and
to its attorney, Bradford D. Carey, Esq., Hardy, Carey & Chautin,
LLP, 110 Veterans Blvd., Suite 300, Metairie, LA 70005.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
147 C.F.R. §§76.605(a)(12), 76.611(a) and 76.612.
2 47 C.F.R. §11.11.
3 Callais Cablevision, Inc., 16 FCC Rcd 1359 (2001).
4 The aeronautical bands are 108-137 MHz and 225-400 MHz. These
frequencies encompass both radionavigation frequencies, 108-118
MHZ and 328.6-335.4 MHz, and communications frequencies, 118-137
MHz, 225-328.6 MHz and 335.4-400 MHz. Deserving particular
protection are the international distress and calling frequencies
121.5 MHz, 156.8 MHz, and 243 MHz. See 47 C.F.R. §76.616. These
frequencies are critical for Search and Rescue Operations
including use by Emergency Locator Transmitters on planes and
Emergency Position Indicating Radio Beacons on boats. See
generally 47 C.F.R. Part 80, Subpart V and 47 C.F.R.
5 Harmful interference includes any interference that ``endangers
the functioning of a radionavigation service or of other safety
services.'' See 47 C.F.R. §§2.1 & 76.613(a).
6 Memorandum Opinion and Order, Amendment of Part 76 of the
Commission's Rules to Add Frequency Channelling Requirements and
restrictions and to require Monitoring for Signal Leakage from
Cable Television Systems, Docket No. 21006, 101 FCC 2d 117, para.
14 (1985) (hereinafter MO&O).
7 47 C.F.R. §76.605(a)(12).
8 47 C.F.R. §76.611(a).
9 47 C.F.R. §76.615(b)(7).
10 47 C.F.R. §76.614.
11 47 C.F.R. §76.613(b).
12 47 C.F.R. §76.613(c).
13 47 C.F.R. §76.610.
14 47 C.F.R. §76.612. MO&O, supra note 6, at para. 14.
15 47 C.F.R. §11.1.
16 47 C.F.R. §§11.11 & 11.41.
17 47 C.F.R. §11.11.
19 47 C.F.R. §76.614.
20 See 47 C.F.R. §76.613(c).
21 47 U.S.C. § 503.
22 47 C.F.R. § 1.80.
2323 47 U.S.C. § 503(b).
2424 47 U.S.C. § 503(b)(2)(D).
25 See 47 C.F.R. §§ 76.613(b) and 76.614.
26 Forfeiture Policy Statement, 12 FCC Rcd at 17109. See also
Jerry Szoka, 14 FCC Rcd 9857, 9866 (1999), recon. denied, 14 FCC
Rcd 20147 (1999); affirmed, Grid Radio and Jerry Szoka v. FCC,
349 U.S.App.D.C. 365 (D.C. Cir. 2002), petition for cert. filed,
70 U.S.L.W. (May 8, 2002).
27 See also Radio Station KGVL, Inc., 42 FCC2d 258, 259 (1973);
and Executive Broadcasting Corp., 3 FCC2d 699, 700 (1966).
28 See paragraph 4, supra.
29 47 C.F.R. § 1.80(b)(4), Note to paragraph (b)(4).
30 The Forfeiture Policy Statement states that ``...any omission
of a specific rule violation from the ... [forfeiture guidelines]
... should not signal that the Commission considers any unlisted
violation as nonexistent or unimportant.'' Forfeiture Policy
Statement, 12 FCC Rcd at 17099. The Commission retains the the
discretion, moreover, to depart from the Forfeiture Policy
Statement and issue foreitures on a case-by-case basis under its
general forfeiture authority contained in Section 503 of the Act.
31 Forfeiture Guidelines, Section I, Basic Amounts for Section
32 See MediaOne of Metropolitan Detroit, 15 FCC Rcd 13937, 13939
(2000) [hereinafter ``MediaOne''] and Charter Communications VI,
LLC, 16 FCC Rcd 8485, 8487 (2001).
33 Forfeiture Guidelines, Section II, Adjustment Criteria for
Section 503 Forfeitures. The upward adjustment criteria are: (1)
Egregious misconduct, (2) Ability to pay/relative disincentive,
(3) Intentional violation, (4) Substantial harm, (5) Prior
violations of any FCC requirements, (6) Substantial economic
gain, and (7) Repeated or continuous violation.
34 Forfeiture Guidelines, Section II, Adjustment Criteria for
Section 503 Forfeitures.
35 47 U.S.C. § 503(b)(2)(A).
36 Report and Order and Second Further Notice of Proposed
Rulemaking, Telecommunications Services Inside Wiring, 13 FCC Rcd
3659, 3769-3770 (1997) (footnotes omitted).
37 47 C.F.R. § 1.80(f)(4).
38 47 U.S.C. § 504(a).
39 See 47 C.F.R. § 1.1914.