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


In the Matter of                  )
                                 )   File Number EB-03-DV-137
Mallard Cablevision, LLC          )
Former Operator of Cable          )   NAL/Acct. No.200432800002
Television System                 )
Community Unit No. WY0087         )   FRN 0009072752
Physical ID No. 004758            )
Pinedale, Wyoming 


                MEMORANDUM OPINION AND ORDER

Adopted:              March             9,              2005                                                                       
Released:  March 11, 2005

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order (``Order''), 
we cancel a monetary forfeiture in the amount of $8,000 
proposed against Mallard Cablevision, LLC ("Mallard"), 
former operator of the above-captioned cable television 
system in Pinedale, Wyoming, for its apparent willful and 
repeated operation of a cable system in violation of the 
cable signal leakage standards as set forth in Sections 
76.605(a)(12) and 76.611(a)(1) of the Commission's Rules 
("Rules").1  While we cancel the forfeiture for a 
demonstrated inability to pay, we admonish Mallard for its 
willful and repeated violation of Sections 76.605(a)(12) and 
76.611(a)(1) of the Commission's Rules.

II.   BACKGROUND 

     2.         On June 8, 2003, an agent from the 
Commission's 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,2 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 64.3  
Because of this leak, the agent contacted Mallard cable 
technicians on June 8, 2003, and orally ordered Mallard to 
cease operation on aeronautical band frequencies or 
alternatively, reduce the amplitude of all signals on these 
frequencies until the leaks were repaired and the system 
complied with the basic signal leakage criteria.4  The 
Denver Office followed the oral order with a written Order 
to Cease Operations, delivered by facsimile on June 9, 
2003.5  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.6  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 64.7 

     3.   On May 25, 2004, the Denver Office issued a Notice 
of Apparent Liability for Forfeiture (``NAL'') to Mallard in 
the amount of $8,000 for its apparent willful and repeated 
operation of a cable system in violation of the cable signal 
leakage standards as set forth in Sections 76.605(a)(12) and 
76.611(a)(1) of the Commission's Rules.8  Mallard filed a 
response to the NAL on June 24, 2004.9  In its Response, 
Mallard does not contest the facts in the NAL concerning the 
system's signal leakage issues.  Instead, Mallard states 
that it filed for Chapter 11 bankruptcy protection on May 9, 
2003 and obtained confirmation of its Chapter 11 plan of 
liquidation on February 13, 2004.  Mallard states that it 
has sold substantially all of its assets, including the 
above-captioned system, which it sold to LB Cable LLC on 
February 2, 2004.  Mallard further states that it ``no 
longer operates an ongoing business and is instead winding 
down its affairs . . . .''10   Mallard argues that it has no 
gross revenues from which to judge its ability to pay 
because the only remaining funds are those resulting from 
the sale of Mallard's assets, which have been or are in the 
process of being distributed in accordance with the court-
approved ``Plan of Liquidation.''  In addition, Mallard 
argues that its bankrupt status should serve as grounds for 
cancellation of the forfeiture, given the fact that Mallard 
no longer retains control over the cable system cited in the 
NAL.  Further, Mallard argues that it would not be in the 
public interest for the bankruptcy court to allow payment of 
the forfeiture out of the bankrupt estate because payment of 
the forfeiture would diminish the size of the estate and the 
amount of money available to other creditors who have no 
connection to the signal leakage violation.  Finally, 
Mallard argues the Commission is barred from making a claim 
against the estate because ``the opportunity for asserting 
certain post-administrative expenses, those arising after 
May 9, 2003, expired on March 31, 2004.''11

III.        DISCUSSION

     4.   The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Act,12 
Section 1.80 of the Commission's Rules (``Rules''),13 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'').  In 
examining Mallard'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.14

     5.   Section 76.611(a)(1) of the Rules requires a cable 
system to limit its CLI to a value at or below 64.15  
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 V/m at a distance of 
3 meters.16  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.  Mallard does 
not dispute the facts of the NAL and acknowledges that it 
operated the above-captioned cable system during the time 
period described in the NAL.  Instead, Mallard seeks 
cancellation of the NAL based on its bankrupt status and 
inability to pay.

     6.   In the past, the Commission has given considerable 
weight to an entity's bankrupt status in determining whether 
rescission of a forfeiture is warranted.17  However, filing 
for bankruptcy alone does not preclude the Commission from 
imposing a forfeiture upon an entity.18  Of greater 
significance is whether the entity has provided financial 
documentation to substantiate its inability to pay for the 
Bureau's analysis, and whether the entity retains control 
over its assets.19  Upon review of the evidence presented, 
we find cancellation of the proposed forfeiture is warranted 
in light of Mallard's liquidation of assets and termination 
of operations.  While we cancel the proposed forfeiture, we 
admonish Mallard for its willful and repeated violation of 
the cable signal leakage standards as set forth in Sections 
76.605(a)(12) and 76.611(a)(1) of the Commission's Rules.20

IV.   ORDERING CLAUSES

     7.   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(f)(4) of the 
Commission's Rules,21 that the proposed forfeiture in the 
amount of eight thousand dollars ($8,000) issued to Mallard 
Cablevision in the May 25, 2004 Notice of Apparent Liability 
for willful and repeated violations of Sections 
76.605(a)(12) and 76.611(a)(1) of the Rules IS CANCELLED. 

     8.   IT IS FURTHER ORDERED that Mallard Cablevision IS 
ADMONISHED for its willful and repeated violations of 
Sections 76.605(a)(12) and 76.611(a)(1) of the Rules. 

     9.   IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class and Certified Mail Return 
Receipt Requested to Mallard Cablevision, LLC, 3821 Racquet 
Club Drive, Suite B, Traverse City, MI 83276 and Eric E. 
Breisach, Esquire, Fleischman and Walsh, L.L. P., West Point 
Center, 950 North Tenth Street, Suite 200, Kalamazoo, MI 
49009.



                              FEDERAL COMMUNICATIONS 
                              COMMISSION



                              George R. Dillon, 
                              Assistant Chief, Enforcement 
                         Bureau
               
_________________________

147 C.F.R.  76.605(a)(12), 76.611(a)(1). 

2The leak  was measured on  the frequency 121.2625  MHz, at 
4321 microvolts per meter ("V/m").

3A  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.  



4Mallard   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 oral 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.

5See 47  C.F.R. 76.613(c). Mallard complied  with the Order 
to Cease Operations.

6These leaks ranged from 30 V/m to 2900 V/m.

7According  to Mallard,  the leaks  measured 1670  V/m and 
2900 V/m respectively.   It should be noted  that one leak 
at 1584 V/m would cause the cable system to fail CLI.    

8Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200432800002 (Enf. Bur., Western Region, Denver Office, May 
25, 2004).

9Response of Mallard Cablevision,  LLC, filed June 24, 2004 
(``Response'').

10Response at 3. 

11Response at 5. 

1247 U.S.C.  503(b).

1347 C.F.R.  1.80.

1447 U.S.C.  503(b)(2)(D).

1547 C.F.R.  76.611(a)(1).

1647 C.F.R.  76.605(a)(12).

17Interstate Savings,  Inc. d/b/a/  ISI telecommunications, 
12 FCC Rcd 2934, 2936 (1997). 

18Coleman Enterprises, Inc., 15 FCC  Rcd 24385, 24389 n. 28 
(2000).  

19Adelphia Cable, 18 FCC Rcd 7652, 7654 (2003). 

20Because  we   are  canceling  the  forfeiture   based  on 
Mallard's  inability  to pay,  we  do  not reach  Mallard's 
argument alleging  that the Commission is  time-barred from 
pursuing a claim against the estate. 

2147 C.F.R.  0.111, 0.311, 1.80(f)(4).