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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Eagle West Communications, Inc.
) File Number: EB-06-SD-177
Operator of Cable Television System
) NAL/Acct. No.: 200732940001
Community Unit ID: AZ0342
) FRN: 0004979126
Physical System ID: 002292
MEMORANDUM OPINION AND ORDER
Adopted: December 7, 2007 Released: December 11, 2007
By the Associate Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended ("Act"), and Section
1.106 of the Commission's rules, we deny a Petition for
Reconsideration ("Petition") filed on March 5, 2007, by Eagle West
Communications, Inc. ("Eagle West"), of a Forfeiture Order, issued by
the Western Region, Enforcement Bureau ("Region"), imposing an eight
thousand dollar ($8,000) monetary forfeiture penalty against Eagle
West for willful and repeated violation of Section 11.35 of the
Commission's Rules ("Rules"). The noted violation involves failing to
ensure the operational readiness of the Emergency Alert System ("EAS")
equipment in the Eagle West cable system in Mesa, Arizona. For the
reasons discussed below, we deny the Petition.
2. On May 16, 2005, an agent of the Enforcement Bureau's San Diego Office
attempted to inspect the operational readiness of the EAS equipment
installed at Eagle West's cable television system serving Mesa,
Arizona. During this inspection, the San Diego agent found that the
system's EAS equipment, including both the encoder and the decoder,
had been purchased and was delivered to the cable system's head-end,
but was never installed. The agent orally warned the cable system's
Senior Technician that the EAS equipment must be installed and made
operational as soon as possible.
3. On June 5, 2006, the San Diego agent returned to the Eagle West cable
system serving Mesa, Arizona, and attempted to inspect the operational
readiness of the EAS equipment. The agent spoke with a manager from
Eagle West who acknowledged to the agent that Eagle West had still not
installed or made operational the EAS equipment at its Mesa, Arizona,
system. Upon returning to the San Diego Office, the agent reviewed the
Commission's records and determined that several smaller cable systems
in Arizona owned by Eagle West were granted temporary waivers of EAS
requirements. However, there is no record that a waiver was requested
or granted for the Eagle West cable system serving Mesa, Arizona.
4. On November 8, 2006, the San Diego Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $8,000 to Eagle
West, finding Eagle West apparently willfully and repeatedly violated
Section 11.35 of the Rules by failing to install and make operational
EAS equipment in its cable system serving Mesa, Arizona. Despite
repeated contacts by the San Diego Office, Eagle West failed to file a
response to the NAL. Consequently, on February 2, 2007, the Region
released the Forfeiture Order, and imposed an $8,000 forfeiture on
Eagle West for its willful and repeated violation of Section 11.35 of
the Rules. In its Petition, Eagle West argues that the forfeiture be
set aside because Eagle West had taken action to install the EAS
equipment at issue and ensure its operation.
5. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters. A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied.
6. As part of its Petition, Eagle West attaches a letter it sent to the
San Diego Office after it received the Forfeiture Order. In the
letter, Eagle West states that the EAS equipment the San Diego agent
saw at the headend was not EAS equipment to be used with the cable
system. Eagle West also states that the EAS equipment "has been
installed and operational for some time" although Eagle West does
acknowledge that it has had several problems with the EAS equipment's
printer and character generator. Finally, Eagle West states that the
San Diego agent should come to the Eagle West corporate office in
Mesa, Arizona, during the next inspection and he "will see that we
have in fact taken care of this problem a long time ago." Because of
the statements in this letter, Eagle West argues, in its petition,
that the forfeiture assessed by the Region is both "erroneous and
premature" and should be set aside. We disagree.
7. According to the facts detailed in the NAL, as well as the
investigative case report, the San Diego agent inspected the Eagle
West cable system office for Mesa, Arizona, and the headend on May 16,
2005, and found no EAS equipment. The senior technician accompanying
the San Diego agent had no explanation as to why the EAS equipment was
not installed. On June 5, 2006, the San Diego agent again inspected
the Eagle West cable system office for Mesa, Arizona, and during this
visit the company's CEO acknowledged to the agent that the EAS
equipment had not been installed or made operational for the Mesa,
Arizona, system. Eagle West's Petition provides no evidence to refute
these facts. As to Eagle West's vague claim that they had "taken care
of this problem a long time ago," Eagle West provides no dates or
evidence to prove that the EAS equipment for its Mesa, Arizona, system
was installed or operational at the time of the May 16, 2005, and June
5, 2006, inspections. To the extent Eagle West installed and ensured
the operation of the EAS equipment for its Mesa, Arizona, system after
the inspections by the San Diego agent, we find that these efforts do
not support a reduction in the assessed forfeiture amount. The
Commission has stated in the past that a licensee is expected to
correct errors when they are brought to the licensee's attention and
that such correction is not grounds for a downward adjustment in the
8. We have considered the arguments raised by the Eagle West in its
Petition and find they are unpersuasive. Therefore, we deny the Eagle
West's Petition, and affirm the Region's Forfeiture Order finding
Eagle West liable for a forfeiture in the amount of $8,000.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, the Petition for Reconsideration, filed March 5,
2007, by Eagle West Communications, Inc., IS DENIED.
10. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Eagle West
Communications, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the
amount of eight thousand dollars ($8,000) for violations of Section
11.35 of the Rules.
11. 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. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an installment plan
should be sent to: Associate Managing Director - Financial Operations,
445 12th Street, SW, Room 1-A625, Washington, D.C. 20554.
12. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Eagle West
Communications, Inc., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
Eagle West Communications, Inc., 22 FCC Rcd 2085 (EB 2007) ("Forfeiture
47 C.F.R. S: 11.35.
See Report and Order, Amendment of Part 11of the Commission's Rules
Regarding the Emergency Alert System, 17 FCC Rcd 4055, 4083 (2002) (the
Commission will continue to grant waivers of the EAS rules to small cable
systems on a case-by-case basis upon a showing of financial hardship);
Request for Waiver of Section 11.11(a) of the Commission's Rules,17 FCC
Rcd 20108 (EB 2002) (Several Eagle West cable systems granted 36 month EAS
waivers in Arizona and New Mexico, until October 2005; no waiver was
requested or granted for the Eagle West Mesa, Arizona, system); Public
Notice: EAS Waiver Extensions Granted To Very Small Cable Systems, DA
06-1373, 2006 WL 1826176 (rel. July 3, 2006) (no EAS waivers extensions
for any Eagle West cable systems requested or granted).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732940001
(Enf. Bur., Western Region, San Diego Office, released November 8, 2006).
See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., 15 FCC Rcd 18257, (EB
2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain
Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.
EZ Sacramento, Inc., 15 FCC Rcd at 18257.
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 C.F.R. S: 11.35.
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-4922
Federal Communications Commission DA 07-4922