Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



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

In the Matter of                )
                                )
Adelphia Communications1        )    File No. EB-02-CF-336
                                )    
Operator of Cable Television System in  )    NAL/Acct.        No. 
200232340003
Huntington, West Virginia       )
                                )    FRN 0007-3942-16

                        FORFEITURE ORDER 

Adopted:  April 21, 2003                Released:  April 23, 2003

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary  forfeiture in  the  amount of  two  thousand  dollars 
  ($2,000)  to Adelphia  Communications (``Adelphia''),  operator 
  of a cable television system in Huntington, West Virginia,  for 
  willful  and repeated  violation  of Section  11.61(a)  of  the 
  Commission's Rules (``Rules'').2  The noted violation  involves 
  Adelphia's  failure  to conduct  required  weekly  and  monthly 
  tests of the Emergency Alert System (``EAS'').

2.        On July 19, 2002,  the Commission's Columbia,  Maryland 
  Field Office (``Columbia Office'') issued a Notice of  Apparent 
  Liability   for  Forfeiture   (``NAL'')  to   Adelphia  for   a 
  forfeiture in  the amount  of two  thousand dollars  ($2,000).3  
  Adelphia filed a response to the NAL on August 1, 2002. 

                         II.  BACKGROUND

3.        On May  15, 2002,  an agent  from the  Columbia  Office 
  inspected  Adelphia's Huntington,  West Virginia  cable  system 
  for  compliance with  the  EAS  rules.  The  agent  found  that 
  Adelphia failed to conduct Required Weekly Tests (``RWTs'')  of 
  the EAS during the  month of February 2002, and conducted  RWTs 
  only once per month  during the months of March, April and  May 
  2002.  The  agent also  found that Adelphia  failed to  conduct 
  Required Monthly Tests (``RMTs'') of the EAS during the  period 
  January  11, 2002  through May  15, 2002.   Further, the  agent 
  determined  that Adelphia  had received  no weekly  or  monthly 
  tests during the period January 11, 2002 through May 15,  2002.  
  At  the request  of the  agent, Adelphia  transmitted a  weekly 
  test  during  the  inspection,  which  revealed  that  the  EAS 
  equipment's automatic logging device was functioning properly.

4.        On May 15, 2002, the agent conducted inspections of EAS 
  equipment and  procedures at Stations  WEMM-FM and WHRD(AM)  in 
  Huntington.   The EAS  logs at  these stations  indicated  that 
  Stations  WKEE-FM and  WRVC(AM), which  are the  Local  Primary 
  stations  that Adelphia  is required  to monitor,4  transmitted 
  the RWTs and RMTs during the above periods.

5.          On July 19, 2002,  the Columbia Office issued an  NAL 
  to  Adelphia for  a $2,000  forfeiture for  failing to  conduct 
  required weekly and  monthly EAS tests in willful and  repeated 
  violation of Section  11.61(a) of the Rules.5  In its  response 
  to the  NAL, Adelphia does  not dispute that  it willfully  and 
  repeatedly  violated   Section  11.61(a).   However,   Adelphia 
  states that  it filed  for Chapter  11 bankruptcy  on July  25, 
  2002, and requests  relief from the $2,000 forfeiture  proposed 
  in the NAL in light of the financial hardship it now faces.

                      III.      DISCUSSION

6.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the  Communications Act  of 
  1934, as amended,  (``Act''),6 Section 1.80 of the Rules,7  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) (``Policy  Statement'').  In  examining  Adelphia's 
  response,  Section  503(b)   of  the  Act  requires  that   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.8

7.          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  (``EOM'') 
  code.  Section 11.61(a)(2) of the Rules requires cable  systems 
  to conduct weekly tests of the EAS header codes and EOM  codes.  
  At  the time  of the  inspection on  May 15,  2002,  Adelphia's 
  records showed that it failed to conduct RWTs  during  February 
  2002 and  that it  conducted RWTs  only once  per month  during 
  March, April  and May  2002.  In  addition, Adelphia's  records 
  showed  that  it  failed to  conduct  RMTs  during  the  period 
  January  11, 2002  through May  15,  2002.  Adelphia  does  not 
  dispute that  it failed to conduct  RWTs and RMTs during  these 
  periods.   Accordingly, we  conclude that  Adelphia  willfully9 
  and repeatedly10 violated Section 11.61(a) of the Rules.

8.        Adelphia seeks waiver of the $2,000 forfeiture proposed 
  in the  NAL because  it has  filed for  Chapter 11  bankruptcy.  
  However, as explicitly  stated in the NAL, 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; or (3) some other reliable and  objective 
  documentation   that  accurately   reflects  the   petitioner's 
  current  financial  status.   Adelphia  did  not  provide   any 
  financial documentation  in support of  its request for  waiver 
  of the forfeiture and,  therefore, we have no basis upon  which 
  to analyze  its inability  to pay  claim.11  Further,  although 
  there  is precedent  for rescinding  or reducing  a  forfeiture 
  based  on bankruptcy  in  certain circumstances,12  we  do  not 
  believe that Adelphia has justified rescission or reduction  of 
  the forfeiture  in this case  because it has  not provided  any 
  financial  documentation   for  the   Bureau's  analysis,   and 
  because,  even  though it  has  filed  bankruptcy,  it  retains 
  control over its assets.  Moreover, filing for bankruptcy  does 
  not preclude  the Commission from issuing  an order imposing  a 
  forfeiture upon Adelphia for violating its rules.13

9.        We  have  examined  Adelphia's  response  to  the   NAL 
  pursuant to  the statutory  factors above,  and in  conjunction 
  with the Policy Statement as well.  As a result of our  review, 
  we  conclude that  Adelphia willfully  and repeatedly  violated 
  Section  11.61(a)  of the  Rules,  and  we find  no  basis  for 
  rescinding  or   reducing  the  $2,000   forfeiture  for   this 
  violation.



                      IV.  ORDERING CLAUSES

10.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503 of  the Act, and  Sections 0.111, 0.311  and 1.80(f)(4)  of 
  the Rules,14 Adelphia  Communications IS LIABLE FOR A  MONETARY 
  FORFEITURE in the  amount of two thousand dollars ($2,000)  for 
  willful  and repeated  violation  of Section  11.61(a)  of  the 
  Rules.

11.       Unless excused   by operation  of law,  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.15   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.16   Payment may  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 
  reference  NAL/Acct.  No. 200232340003  and  FRN  0007-3942-16.  
  Requests for full  payment under an installment plan should  be 
  sent to:  Chief, Revenue and Receivables Operations Group,  445 
  12th Street, S.W., Washington, D.C. 20554.17

12.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be sent by first class mail and certified mail, return  receipt 
  requested,  to Adelphia  Communications, 1  North Main  Street, 
  Coudersport, Pennsylvania 16915-1141.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1  Although the  Notice of  Apparent Liability  for  Forfeiture 
(``NAL'')  was   issued  to   Adelphia  Communications,   Century 
Huntington  Company,  an  affiliate  of  Adelphia,  operates  the 
Huntington cable system.  Adelphia acquired Century Huntington in 
1999 and  filed the  response to  the NAL  on behalf  of  Century 
Huntington.  For convenience,  we will continue  to refer to  the 
operator of the Huntington cable system as Adelphia.

  2 47 C.F.R.  11.61(a).  

  3 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232340003 (Enf.  Bur.,  Columbia  Office,  released  July  19, 
2002).    

  4  Broadcast  stations   and  cable  television  stations   are 
required to monitor two EAS  sources, which are specified in  the 
state EAS plan.  47 C.F.R.  11.52(d).

  5  The  NAL noted  that  there  is no  base  forfeiture  amount 
specified in the rules for failure to conduct required EAS tests.  
However, the NAL found that failure to conduct required EAS tests 
is similar  in  both  nature  and severity  to  failure  to  make 
required measurements or conduct required monitoring, which has a 
base forfeiture amount  of $2,000.  See  47 C.F.R.   1.80(b)(4), 
Note to paragraph (b)(4):   Section I.--Base Amounts for  Section 
503 Forfeitures.  The NAL accordingly concluded that $2,000 is an 
appropriate  base  forfeiture  amount  for  failure  to   conduct 
required EAS tests.

  6 47 U.S.C.  503(b).

  7 47 C.F.R.  1.80.

  8 47 U.S.C.  503(b)(2)(D).

  9 Section  312(f)(1) of the Act,  47 U.S.C.  312(f)(1),  which 
applies to violations  for which forfeitures  are assessed  under 
Section 503(b) of the Act, provides that ``[t]he term  `willful,' 
... means the conscious and deliberate commission or omission  of 
such act, irrespective of any intent to violate any provision  of 
this Act or any rule  or regulation of the Commission  authorized 
by this Act ....''  See  Southern California Broadcasting Co.,  6 
FCC Rcd 4387 (1991).

  10  Section 312(f)(2)  of the  Act provides  that ``[t]he  term 
`repeated,' ... 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).

  11  We  also note  that  on  July 18,  2002,  the  Commission's 
Atlanta, Georgia Field Office (``Atlanta Office'') issued an  NAL 
to Adelphia  for an  $8,000 forfeiture  for failure  to  maintain 
operational EAS equipment at its Cullman, Alabama cable system in 
willful and repeated violation of Section 11.35(a) of the  Rules, 
47 C.F.R.    11.35(a).  See  Notice  of Apparent  Liability  for 
Forfeiture,  NAL/Acct.  No.  200232480013  (Enf.  Bur.,   Atlanta 
Office, released July  18, 2002).  On  October 3, 2002,  Adelphia 
paid this $8,000 forfeiture in full.  

  12  See,  e.g., Dennis Elam,  Trustee for Bakcor  Broadcasting, 
Inc., Debtor, 11 FCC Rcd 1137 (1996) (forfeiture rescinded  after 
bankruptcy trustee was appointed and  the violator was no  longer 
associated with the subject radio stations); Interstate  Savings, 
Inc. d/b/a  ISI  Communications,  12  FCC  Rcd  2934  (CCB  1997) 
(forfeiture rescinded where  trustee was appointed  in Chapter  7 
liquidation, removing violator from operating as a common carrier 
and from involvement in dissolution or distribution of assets).

  13  See 11 U.S.C.  362(b)(4).  See Coleman Enterprises,  Inc., 
15 FCC  Rcd 24385,  24389 n.  28 (2000)  (filing for  Chapter  11 
bankruptcy does  not  preclude  the  Commission  from  issuing  a 
Forfeiture  Order).   See  also  United  States  of  America   v. 
Commonwealth Companies, Inc., 913 F.2d 518 (8th Cir. 1990).   

  14 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  15  We recognize  that  Adelphia  is currently  in  Chapter  11 
bankruptcy proceedings,  and that  any collection  of the  amount 
assessed against  it  may  be  subject  to  applicable  statutory 
constraints, including 11 U.S.C.  362.

  16 47 U.S.C.  504(a).

  17 See 47 C.F.R.  1.1914.