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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
) File No. EB-02-LA-278
Time Warner Entertainment - )
Advance/Newhouse ) NAL/Acct. No. 200332900002
Subsidiary, LLC d/b/a Time )
Warner Cable ) FRN: 0007-9355-62
3701 N. Sillect Avenue
Bakersfield, California 93308
Adopted: June 9, 2004 Released: June 14, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand six hundred
dollars ($6,600) to Time Warner Entertainment - Advance/Newhouse
Subsidiary, LLC d/b/a Time Warner Cable (``TWEAN''), owner of a
cable television system serving Bakersfield, California, for its
apparent willful and repeated violation of Section 76.1700(a) of
the Commission's Rules (``Rules'').1 The violation involves
failure to maintain all required material in the system's public
2. On July 30, 2002, an agent from the Commission's
Los Angeles, California Field Office (``Los Angeles Office'')
inspected the TWEAN cable system located in Bakersfield,
California.2 TWEAN's Bakersfield system serves more than 5000
customers. The agent's inspection revealed that the public
inspection file was missing required material. The file did not
contain the required commercial records on children's programs
after 2000; it did not contain the required proof of performance
test data from the fall/winter of 2001 or the spring of 2002; and
did not include any of the required signal leakage log and repair
records since the second quarter of 2001. In addition, the
public inspection file did not contain a statement of the
operators' interest in video programming.
3. On December 30, 2002, the District Director of the
Los Angeles Office issued a Notice of Apparent Liability for
Forfeiture (``NAL'') for a monetary forfeiture in the amount of
ten thousand dollars ($10,000) to TWEAN finding the alleged
violations to be willful and repeated.3 TWEAN filed a response
to the NAL on January 29, 2003. In its response, TWEAN reported
that it had moved its offices shortly before to the agent's
inspection. It argued that the alleged violation occurred as a
result of inadvertent oversight due to temporary chaos resulting
from the move and the ``mistaken belief that the files had been
substantially complete prior to the move.''4 TWEAN stated that
an inventory was done after issuance of the NAL to ensure the
records are now complete, that only a ``handful'' of files were
missing, and that no actual harm was done because no one
requested to view the public inspection file during the time in
4. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),5 Section 1.80 of the Rules,6
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Policy Statement'').7 In examining TWEAN's
response to the NAL, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent,
and gravity of the alleged violation and, with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may
5. Section 76.1700(a) of the Rules requires that the
operator of every cable television system having 5000 or more
subscribers shall maintain for public inspection a file
containing a copy of all records which are required to be kept by
certain Rules including: Sections 76.1703 (commercial records
for children's programming), 76.1704 (proof of performance test
data), 76.1706 (signal leakage logs and repair records) of the
Rules.9 The Los Angeles Office agent found that TWEAN had not
updated required children's program commercial records since
2000, that it had not provided proof of performance test data
from the winter of 2001 or the spring of 2002, and that it did
not include any of the required signal leakage log and repair
records since the second quarter of 2001.10 TWEAN concedes that
its records were not complete even prior to its move.
Accordingly, we conclude that TWEAN willfully11 and repeatedly12
violated Section 76.1700(a) the Rules.
6. TWEAN seeks cancellation or reduction of the
forfeiture because it had moved its offices prior to the
inspection by the agent from the Los Angeles Office, and states
that it was still unpacking and reorganizing its files. TWEAN
also argues, however, that its failure to have complete records
was inadvertent due to a temporarily chaotic situation. We are
not persuaded that the move, by itself, was responsible for
TWEAN's failure to have a complete public inspection file. We
find, as discussed below, that with one exception, TWEAN
effectively concedes its files were not complete either prior to
the move or after the move prior to the Los Angeles Office
agent's inspection. Therefore, we conclude that the violation is
not based on a temporary chaotic situation related to the move.13
Moreover, the fact that no member of the public requested access
to the files is not a basis for reduction of a forfeiture.14
7. TWEAN argues that its situation is analogous to that in
Telemedia Broadcasting, Inc. and Rappahannock River Broadcasting
LLC,15 where the licensee was admonished for failure to provide a
complete public inspection file to a visitor who requested it
during station remodeling. We find TWEAN's situation is clearly
distinguishable because in Telemedia, the individual responsible
for maintaining the public inspection file affirmatively attested
that the station had, at all times, a complete public inspection
file, despite the confusion that existed at the time of the
visitor's request. In the instant case, neither an officer of
the company nor the individual responsible for maintaining the
public inspection file has provided a declaration.
8. The Verwey Declaration references an internal audit
conducted at an unspecified time prior to TWEAN's office move.16
With regard to the result of this audit, neither an officer, nor
the individual responsible for ensuring that the public
inspection file is complete, nor an individual responsible for
conducting the audit, has provided a declaration that the public
inspection file was found to be complete. Instead, TWEAN provides
a declaration by an Executive Assistant of the company who merely
``assists in maintaining'' the file and who is only able to say
that she ``had no reason to believe'' that the public inspection
file ``was not substantially complete.''17 This is not
equivalent to an affirmative declaration that the public
inspection file was complete by either an officer of the company
or by the individual with primary responsibility for maintaining
the file. Accordingly, we conclude that TWEAN effectively
concedes that its public inspection file was not complete before
its move, or after the move prior to the Los Angeles agent's
inspection, with one exception discussed infra.
9. TWEAN further argues that its situation is
similar to Tabback Broadcasting Company for Renewal of License of
Station KAZM(FM), Sedonia, Arizona (``Tabback'').18 In Tabback,
the Commission upheld a Mass Media Bureau ruling that accepted,
inter alia, the licensee's affirmation that certain required
information (issues/programs list) that a complainant charged was
missing, was in fact included with the file. We agree that
Tabback serves as precedent for one of the missing sets of
documents in TWEAN's public inspection files. TWEAN has provided
evidence that the records pertaining to children's programming
were with the public inspection file, but filed out of place due
to the recent office move undertaken by the company.19 As in
Tabback, we conclude that these files were included with TWEAN's
public inspection files, albeit out of place. We will therefore
reduce the proposed forfeiture to reflect this conclusion.
10. With regard to the other items, however, we find
that their absence from the public inspection file constitutes a
willful and repeated violation of Section 76.1700(a) of the
Rules. The Los Angeles Office agent found that TWEAN did not
have signal leakage logs and repair records, or the fall (winter)
2001 and spring 2002 proof-of-performance test results, in the
public inspection file, and we infer from the language of the
Verwey Declaration, as well as from the absence of an affirmative
declaration by an officer or ultimately responsible party, that
these records were not in the public inspection file, as such,
until TWEAN corrected its files after the Los Angeles agent's
11. TWEAN states that after the inspection, it subsequently
located and correctly filed the missing commercial records
pertaining to children's programming, the signal leakage logs and
repair records, and the spring 2002 proof-of-performance test
results. TWEAN states that it has ensured the file now contains
the fall 2001 proof-of-performance test results.20 The
Commission has consistently found that while commendable,
``corrective action taken to come into compliance with Commission
rules or policy is expected, and does not nullify or mitigate any
prior forfeitures or violations.''21
12. We have examined TWEAN'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 TWEAN willfully and repeatedly violated Section 76.1700(a)
of the Rules, but we conclude that a reduction of the forfeiture
amount is warranted. We will reduce the ten thousand dollar
($10,000) monetary forfeiture to six thousand six hundred dollars
($6,600) because the children's programming records were in fact
with the public inspection files, albeit misfiled.
IV. ORDERING CLAUSES
13. 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,22 Time Warner Entertainment - Advance/Newhouse Subsidiary,
LLC d/b/a Time Warner Cable IS LIABLE FOR A MONETARY FORFEITURE
in the amount of six thousand six hundred dollars ($6,600) for
willful and repeated violation of Section 76.1700(a) of the
14. 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.23
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.
200332900002 and FRN 0007-9355-62. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
15. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to TWEAN Subsidiary LLC, 3701 N. Sillect
Avenue, Bakersfield, California 93308 and to its counsel, Arthur
H. Harding, Esq., Fleischman and Walsh, L.L.P., 1400 Sixteenth
Street, NW, Washington DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 76.1700(a).
2 FCC Physical System Identification Number (``PSID'') 004341,
Community Unit Identification Number (``CUID'') CA0143. The NAL
incorrectly stated TWEAN's CUID as CA0173 and the PSID as 004343.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332900002, (Enf. Bur., Los Angeles Office, released Dec. 30,
4 TWEAN Response at page 7.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80
7 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. §§ 76.1703, 76.1704, and 76.1706.
10 In addition, the agent found that the public inspection file
did not contain a statement of the operator's interest in video
programming, in violation of 47 C.F.R. § 76.1710. However, the
NAL was based only on the Section 76.1700 violations.
11 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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
12 As provided by 47 U.S.C. § 312(f)(2), ``[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.'' The Conference Report for Section
312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See
H.R. Rep. 97th Cong. 2d Sess. 51 (1982). Southern California
Broadcasting Co., supra.
13 TWEAN's move was six weeks prior to the inspection;
Declaration by Ann Verwey, an Executive Assistant for TWEAN,
dated January 29, 2003, ¶ 2 (``Verwey Declaration.'')
14 Policy Statement; Section 1.80 of the Rules; See also AGM-
Nevada, LLC, 18 FCC Rcd 1476 (Enf. Bur. 2003) (the Commission
does not reduce forfeitures for lack of public harm).
15 17 FCC Rcd 14604 (Enf. Bur. 2002) (``Telemedia'').
16 Verwey Declaration, ¶ 4.
17 Id., ¶¶ 1, 4.
18 15 FCC Rcd 11899 (2000).
19 Verwey Declaration, ¶ 5.
20 TWEAN also states that some of its previous proof-of-
performance test results are missing from its files, and that in
spite of its best efforts, cannot be located.
21 Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994); AT&T Wireless
Services, Inc., 17 FCC Rcd 21866, 21871 (2002).
22 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
23 47 U.S.C. § 504(a).
24 See 47 C.F.R. § 1.1914.