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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-06-IH-2402
Time Warner Cable
) FRN: 0007556251
Los Angeles, California
MEMORANDUM OPINION AND ORDER
Adopted: March 7, 2007 Released: March 7, 2007
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("MO&O"), we admonish Time Warner
Cable ("Time Warner" or the "Company") for failure to provide prompt
access to its public inspection files on September 13 and 16, 2005, in
violation of Section 76.1700 of the Commission's rules. We have reviewed
the record thoroughly, including Time Warner's responses, and conclude
that Time Warner willfully violated Section 76.1700 on September 13, 2005,
by requiring a member of the public to schedule an appointment to view the
Company's public file during regular business hours. Time Warner again
violated the cable public file rule on September 16, 2005, by not promptly
making its public file available for inspection. For the reasons stated
below, we conclude that Time Warner should be admonished for its repeated
violations of Section 76.1700.
2. In a letter to the Commission dated October 4, 2005, James Shelton
alleges that Time Warner denied him prompt access to the Company's public
inspection file, including its Equal Employment Opportunity ("EEO") file,
in violation of Section 76.1700. According to Mr. Shelton, he and an
associate, Donald Todd, arrived at Time Warner's Gardena, California,
office on September 13, 2005, to view the Company's EEO public file.
Gregory S. Drake, in-house counsel for Time Warner, gave the Company's EEO
files to Messrs. Shelton and Todd for review. After viewing the EEO files,
Mr. Shelton and Mr. Todd then asked to see the remainder of the file. Mr.
Drake, however, did not provide the other sections of the public file and
instead told them to contact him to schedule an appointment to see the
rest of the file.
3. On September 16, 2005, Mr. Shelton and another associate, Paul Beckett,
visited Time Warner's Torrance, California, office and asked the
receptionist to see the Company's public EEO files. According to Mr.
Shelton, the receptionist was unfamiliar with the EEO files and did not
know where they were located, but did provide him with the phone number of
an individual at the Company's main office in Garden Grove, California.
Messrs. Shelton and Beckett then traveled to the Garden Grove office and
asked to see the Company's EEO files. The employee at the Garden Grove
office informed them that the public EEO files were not in that office and
that she would have to contact the human resources manager to find out
which office had them. Mr. Shelton decided to leave rather than wait to
hear from the manager about the location of the EEO files.
4. Based on the allegations contained in the Complaint, the Media Bureau
sent a letter of inquiry to Time Warner on April 18, 2006. Time Warner
responded by letter dated May 16, 2006 (hereinafter "LOI Response"). The
Company states generally that it did not engage in any misconduct and
denies specifically that it withheld access to any of its public
inspection files at any of its offices.
5. The public inspection file is a source of information to subscribers
and other interested members of the public about their local cable system
and its compliance with Commission rules. Cable operators must ensure that
the public file contains all required records, such as the company's
relevant EEO records and sponsorship identification. Cable operators also
must provide the file upon request. Specifically, Section 76.1700 states:
The public inspection file shall be maintained at the office which the
system operator maintains for the ordinary collection of subscriber
charges, resolution of subscriber complaints, and other business or at any
accessible place in the community served by the system unit(s) . . . . The
public inspection file shall be available for public inspection at any
time during regular business hours.
6. We find that Time Warner violated Section 76.1700 by not making its
public file - whether only the EEO file or the entirety of its public
inspection file - readily available. The Commission has interpreted the
Rule's phrase "at any time during regular business hours" to mean that the
file shall be made available for inspection upon request. In December
2004, the Commission reminded cable operators of their obligation that
"[e]ach system's public inspection file must be made available promptly
upon request." Thus, a cable operator may not require a member of the
public to make an appointment to inspect its public file. On September 13,
2005, however, personnel at Time Warner's Gardena office did not make the
entire file available when requested during regular business hours, and
instead instructed the complainant and his associate to make an
appointment to view the entire public file.
7. Time Warner disputes that it denied access to the Company's entire
public file on September 13. The record, however, does not support Time
Warner's position. Indeed, Mr. Drake admits that he did not provide the
entire public file upon request. According to Mr. Drake: "At the end of
the meeting in Gardena, Mr. Todd asked what he should do if he wanted to
review other documents. I suggested that he either call me or write me a
letter. We had this conversation in front of Mr. Shelton." Additionally,
although Mr. Drake initially states that Mr. Shelton did not request
access to the entire public file, his declaration later undermines that
contention, albeit indirectly, by noting that at the meeting: "[Mr.
Shelton] did not specify a date for viewing the [other files]." Time
Warner's actions in this regard are inconsistent with the cable public
8. Time Warner again violated Section 76.1700 by denying access to its
public files on September 16, 2005, because its employees were unable to
direct members of the public to the Time Warner offices at which the files
were located. As explained in the aforementioned 2004 Public Notice, if a
member of the public asks to see a cable operator's file during regular
business hours, the operator should produce the file or, if the file is
not located at the office at which the request is made, should timely
provide the location of the office where the relevant file may be viewed.
Here, various Time Warner employees at both the Torrance and Garden Grove
locations did not know where the Company's public files were maintained.
Employees at the Torrance office did not know the location of the file and
misdirected Mr. Shelton to the Garden Grove office, which also did not
maintain the EEO file. The Commission has reminded cable operators that
its personnel, especially those who deal directly with the public, "should
be able to timely inform any party as to the location of the office where
the relevant file may be inspected." The record shows in this case,
however, that Time Warner did not properly train its employees to respond
to public file requests.
9. Under Section 503(b)(1) of the Communications Act of 1934, as amended
(the "Act"), any person who is determined by the Commission to have
willfully or repeatedly failed to comply with any provision of the Act or
any rule, regulation, or order issued by the Commission shall be liable to
the United States for a monetary forfeiture penalty. Section 503(b)(6)(B)
of the Act, however, limits the time period in which the Commission can
initiate a forfeiture proceeding against non-broadcast entities to only
those violations that occur within one year of the issuance date of a
notice of apparent liability for forfeiture. The violations here occurred
more than 12 months ago; thus, the statute of limitations prohibits us
from initiating a forfeiture proceeding against Time Warner. But for the
running of the statute of limitations, however, we would have initiated a
forfeiture proceeding in this case.
10. Section 503 does not, however, prohibit us from assessing whether Time
Warner's conduct prior to the expiration of the one-year statute of
limitations violated the Act or the rules. Based on the evidence before
us, we find that Time Warner violated Section 76.1700 of the Commission's
rules on September 13 and 16, 2005, and we admonish the Company for its
failure to timely make available its public inspection files. Moreover, in
light of Time Warner's previous violation, we remind the Company that we
expect it to take the steps necessary to ensure that its personnel
understand and comply with the requirements of Section 76.1700, and we
caution Time Warner that we will not hesitate to subject it to sanctions
commensurate with further violations of the cable public file rule.
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and Sections 0.111 and 0.311 of
the Commission's rules, that Time Warner Cable is hereby ADMONISHED for
its failures to timely make available for inspection its public inspection
files on September 13 and 16, 2005, in violation of Section 76.1700 of the
11. IT IS FURTHER ORDERED that the complaint filed by James Shelton IS
GRANTED to the extent indicated herein and the complaint proceeding IS
12. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order
shall be sent, by Certified Mail/Return Receipt Requested, to the
following: James Shelton, at his home address; Roger Keating, President,
Los Angeles Division, Time Warner Cable, 959 South Coast Drive, Suite 300,
Costa Mesa, California 92626; and to Juan Munoz, Vice President, Employee
Relations, Time Warner Cable, Corporate Human Resources, 7910 Crescent
Executive Drive, Charlotte, North Carolina 28217.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Time Warner, owner of a cable television system serving the Los Angeles,
California, area, also owns cable units in Orange County, California,
where some of the offices mentioned in the Complaint are located.
See 47 C.F.R. S 76.1700 (the "cable public file rule" or "Section
76.1700"). See also Reminder of Cable Television System Public Inspection
File Obligations, Public Notice, 19 FCC Rcd 23632 (Media Bur. 2004) ("2004
See Complaint of James Shelton to EEO Staff, Policy Division, Media
Bureau, FCC, dated October 4, 2005 ("Complaint"). In his Complaint, Mr.
Shelton also contends that Time Warner violated Section 76.1702 of the
Commission's Rules, 47 C.F.R. S 76.1702, which requires cable operators to
maintain an EEO file and describes the information that should be included
in the file. In this MO&O, we do not address the question of whether Time
Warner violated Section 76.1702. The EEO staff of the Media Bureau's
Policy Division will address that issue in a separate proceeding.
See Complaint at 1; see also Letter from Donald C. Todd to Estella
Salvatierra, Esq., Policy Division, Media Bureau, FCC, dated July 25, 2006
("Todd Letter"); Letter from Gregory S. Drake, Senior Counsel, Time Warner
Cable, to James Shelton, dated September 1, 2005 (a copy of which is
attached at Exhibit 2 to Time Warner's response to a letter of inquiry)
(advising Mr. Shelton that he could view the applicable files at the
Company's Gardena office on September 13, 2005, at 11:00 a.m.) ("Drake
Letter"). We note that the business hours for Time Warner's Gardena office
are Monday through Friday, 9 a.m. to 6 p.m. See Time Warner Cable Customer
Service Payment Centers, at
(last visited 7/26/06).
See Complaint at 1. See also Drake Letter.
See Complaint at 1. See also Todd Letter at 2.
See Complaint at 1; Todd Letter at 2 ("When it was requested that we be
allowed to review the rest of the public files, Mr. Drake denied the
request and said that another appointment would need to be made with him
in order to view the other public files we requested. Mr. Drake did not
mention at any time where these files were located.").
See id. at 2. See also Letter from Paul Beckett to Estella Salvatierra,
dated July 20, 2006 (on September 16, 2005, "[we] were told at both the
Torrance and Garden Grove locations that these [EEO] files were not
See Complaint at 2.
See Letter from Lewis Pulley, Assistant Chief, Policy Division, Media
Bureau, Federal Communications Commission, to Juan Munoz, Vice President,
Employee Relations, Time Warner Cable, dated April 18, 2006 ("LOI"). The
LOI included a copy of Mr. Shelton's September 20, 2005 e-mail query to
See Letter from Roger Keating, President, Los Angeles Division, Time
Warner Cable, to Estella Salvatierra, EEO Staff - Policy Division, Media
Bureau, FCC, dated May 16, 2006 ("LOI Response"). Attached to the LOI
Response is a "Declaration of Gregory S. Drake" (hereinafter "Drake
Declaration"). Time Warner supplemented its LOI Response on various dates
in May and July, 2006. See Letters from Gregory S. Drake, Senior Counsel,
Legal Department, Time Warner Cable, to Estella Salvatierra, EEO Staff -
Policy Division, Media Bureau, dated May 31, 2006 (correcting a statement
made at paragraph 10 of the Declaration), July 6, 2006 (replying to
statements contained in Mr. Shelton's June 12, 2006, correspondence to the
Commission), July 19, 2006 (explaining that the public files for the
Torrance office are located at Time Warner's Gardena facility), and July
20, 2006 (reiterating the location of the Torrance public files and
explaining that the Garden Grove public files are located at Time Warner's
See LOI Response at 1-2.
See 47 C.F.R. S 76.1700(a) (requiring cable television operators having
5000 or more subscribers to maintain for public inspection a file
containing a copy of all specified records, such as the political file;
sponsorship identification; EEO records available for public inspection;
commercial records for children's programming; proof-of-performance test
data; and signal leakage logs and repair records).
See 47 C.F.R. S 76.1700(b).
47 C.F.R. S 76.1700(b) (emphasis added).
See Thomas P. Brunnock, 50 RR 2d 1313 (Broadcast Bur. 1982) (noting that a
station's two-hour delay in locating its public inspection file would
violate the Commission's public inspection file rules), review denied sub.
nom. Complaint of Continuing Committee for Mayor Bergin against Station
WATR-TV Waterbury, Connecticut, 90 FCC 2d 813 (1982).
See 2004 Public Notice, supra note 2 (emphasis added).
See Availability of Locally Maintained Records for Inspection by Members
of the Public, Public Notice, 28 FCC 2d 71 (1971) (reminding licensees,
permittees, and applicants that public inspection files must be made
available during regular business hours and that any requirement that a
member of the public make an appointment in advance, or return at another
time, to view a station's public inspection file is a violation of the
Commission's public inspection file rules). See also Riverside
Broadcasting, Inc., Notice of Apparent Liability, 15 FCC Rcd 18322 (EB IHD
2000) (finding a violation of public inspection rules where, inter alia,
station employees erroneously believed that a member of the public had to
make an appointment in order to view files) (forfeiture paid).
See Complaint at 1. See also Todd Letter at 2.
See LOI Response, Drake Declaration, P 3.
Id. at P 8.
See 2004 Public Notice, supra note 2.
See Complaint at 2.
According to Mr. Drake, the EEO file for the Garden Grove office is
actually located in the Company's Orange, California facility. See LOI
Response, Drake Declaration, P 9.
2004 Public Notice, supra note 2. See also 47 C.F.R. S 76.1700(b); T.V.
Transmission, Inc., d/b/a Cablevision Lincoln, Nebraska, Petition for
Order to Show Cause, Memorandum Opinion and Order, 69 FCC 2d 1624, P 13
(1978) (reminding cable operator that its "public inspection file is to be
available at either the system's office or another accessible place in the
community at any time during regular business hours").
See 47 U.S.C. S 312(f)(1). Section 312(f)(1) of the Act defines willful as
"the conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. 47 U.S.C. S 312(f)(1).
The legislative history accompanying Section 312(f)(1) of the Act
clarifies that this definition of willful applies to both Sections 312
and 503(b) of the Act, and the Commission has so interpreted the term
in the Section 503(b) context. See H.R. Rep. No. 97-765, 97^th Cong. 2d
Sess. 51 (1982). See, e.g., Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co."). "Repeated" merely means that the act was
committed or omitted more than once, or lasts more than one day. See
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P 5; see also
Callais Cablevision, Inc., Notice of Apparent Liability for Monetary
Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a Notice of Apparent
Liability for, inter alia, a cable television operator's repeated signal
See 47 U.S.C. S 503(b)(6)(B); see also Globcom, Inc., d/b/a Globcom Global
Communications, Notice of Apparent Liability for Forfeiture, 18 FCC Rcd
19893, 19903, P 23 (2003) (citations omitted) (subsequent history
Time Warner's conduct is particularly egregious because it is not the
first time the company has violated the cable public file rule. See Time
Warner Entertainment - Advance/Newhouse Subsidiary, LLC, d/b/a Time Warner
Cable, Forfeiture Order, 19 FCC Rcd 10412 (EB 2004) (imposing $6,600
forfeiture for operator's failure to maintain all required material in its
public inspection file pursuant to Section 76.1700(a) of the Commission's
rules) (forfeiture paid).
See 47 U.S.C. S 154(i).
See 47 C.F.R. SS 0.111, 0.311.
See 47 C.F.R. S 76.1700.
(Continued from previous page)
Federal Communications Commission DA 07-1070
Federal Communications Commission DA 07-1070