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                 )
                                )    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


                        FORFEITURE ORDER

Adopted:  June 9, 2004                  Released:  June 14, 2004

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

     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 
inspection file.

                         II.  BACKGROUND

     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 
question.

                      III.      DISCUSSION

     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 
require.8  

     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 
inspection.   

     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 
Rules.

     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, 
D.C. 20554.24


     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, 
2002).
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 
(1999). 
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.