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Federal Communications Commission
Washington, D.C. 20554
File Number EB-09-SE-003
In the Matter of )
NAL/Acct. No. 200932100025
Comcast Corporation )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: January 19, 2009 Released: January 19, 2009
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL
and Order"), we find that Comcast Corporation's cable system serving
Delray Beach, Florida ("Comcast") apparently willfully violated
Section 76.1603(b) of the Commission's Rules ("Rules"). Specifically,
Comcast failed to provide the requisite thirty (30) days advance
written notice to its customers, before implementing a change in
rates, programming services or channel positions as required under the
Rules. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Comcast is apparently liable for
a forfeiture in the amount of fifteen thousand dollars ($15,000). We
also order Comcast, within ninety (90) days of this NAL and Order, to
issue refunds to the customers affected by the change in rates,
programming services or channel position as explained more fully
2. On June 30, 2008, the Commission received a complaint from a customer
in Delray Beach, Florida asserting that Comcast had removed two
channels, CSPAN2 and Oxygen, from Complainant's service. According to
the Complainant, this change was made without any notice.
A. Comcast Apparently Violated Section 76.1603(b) By Failing To Provide
Proper Notice to its Customers.
3. Based on the record before us, we find that Comcast apparently
willfully violated Section 76.1603(b) by failing to notify its
customers before implementing a change in rates, programming services
or channel positions as required under the Rules.
4. Section 76.1603(b) of the Rules provides, in relevant part, as
Customers will be notified of any changes in rates, programming services
or channel positions as soon as possible in writing. Notice must be given
to subscribers a minimum of thirty (30) days in advance of such changes if
the change is within the control of the cable operator. In addition, the
cable operator shall notify subscribers 30 days in advance of any
significant changes in the other information required by S: 76.1602.
5. We find that the migration of each channel referenced in the complaint
constitutes a change in rates, programming services or channel
positions under the Rules. We also find that the migration was a
change within the control of the Comcast because we are unaware of
external forces that would have required the Comcast to make such a
change, particularly without giving 30 days notice. In our Letter of
Inquiry issued to Comcast on October 30, 2008, we asked for a range of
information related to the migration of channels, including evidence
that consumers were provided with the notice required under our rules.
Unfortunately, Comcast failed to produce any evidence on this point in
response to our request, including any evidence that the requisite
notice was provided of the migration that is the subject of this NAL
6. Therefore, for the reasons stated above, we find that Comcast
apparently violated Section 76.1603(b) two times by failing to provide
the complainant at least thirty (30) days notice of two changes in
rates, programming services or channel positions.
B. Forfeiture Calculation
7. Under Section 503(b)(1)(B) of 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 forfeiture
penalty. To impose such a forfeiture penalty, the Commission must
issue a notice of apparent liability and the person against whom such
notice has been issued must have an opportunity to show, in writing,
why no such forfeiture penalty should be imposed. The Commission will
then issue a forfeiture if it finds by a preponderance of the evidence
that the person has violated the Act or a Commission rule. Based on
the analysis set forth below, we conclude that Comcast is apparently
liable for a forfeiture in the amount of Fifteen Thousand dollars
($15,000) for its willful violation of Section 76.1603(b) of the
8. Under Section 503(b)(2)(A) and Section 1.80(b)(1) of the Commission's
Rules, we may assess a cable television operator a forfeiture of up to
$32,000 for each violation or each day of a continuing violation, up
to a statutory maximum forfeiture of $325,000 for any single
continuing violation. In exercising such authority, we are required to
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 such
other matters as justice may require."
9. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not establish a specific base forfeiture for violation of
Section 76.1603's notice requirements. Based on the totality of
circumstances here and the Commission's past precedent, we find that
$7,500 is an appropriate base forfeiture for each failure to notify
Complainant of Comcast's change in service. We apply this base
forfeiture to two apparent violations represented by Comcast's failure
to notify Complainant of two changes in Complainant's cable service.
Accordingly, we conclude that Comcast is apparently liable for a total
forfeiture of $15,000 for its willful violation of Section 76.1603(b)
of the Rules.
C. Comcast Must Issue Refunds To Customers Harmed By Its Failure To
10. Comcast's change in rates, programming services or channel positions
without the required notice has harmed its customers who purchased
services based on the reasonable assumption that Comcast would not be
moving portions of programming from standard service tiers to digital
cable tiers without providing the notice required under our Rules. In
effect, Comcast's movement of programming to a digital tier without
any reduction in subscriber fees has diminished the value of the
programming complainant receives. The Complainant must now pay the
same monthly rate for cable service even though complainant can view
11. Thus, we order Comcast, within ninety (90) days of this NAL and Order,
to issue refunds to all affected customers who did not receive the
required notice as of the date of the programming change.
Specifically, Comcast must provide refunds as follows:
Comcast must refund the customer's subscriber fees of all affected
customers who did not receive the required notice based on the diminished
value of their service following the movement of programming without
proper notice by $0.10 per channel moved per month and reduce
complainant's rates on a going-forward basis accordingly until the notice
required under our rules has been provided.
12. In addition, we order Comcast to submit to the Bureau within 30 days
of the issuance of refunds a report in the form of a letter advising
the Bureau that such refunds have been paid and that affected
subscribers ' fees have been reduced as directed.
IV. ordering clauses
13. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b)(5), and
section 1.80 of the Commission's rules, 47 C.F.R. S: 1.80, and under
the authority delegated by sections 0.111 and 0.311 of the
Commission's rules,47 C.F.R. S: 0.111, 0.311, Comcast is NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of Fifteen
Thousand dollars ($15,000.00) for willful violation of Section
76.1603(b) of the Rules.
14. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture and Order, Comcast SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
15. IT IS FURTHER ORDERED that, pursuant to sections 1, 4(i), 4(j), 601,
and 629 of the Communications Act of 1934, as amended 47 U.S.C. S:S:
151, 154(i), 154(j), 521, 549, Comcast must take the steps set forth
in paragraphs 10, 11, and 12 of this Notice of Apparent Liability for
Forfeiture and Order.
16. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Comcast will also send electronic
notification on the date said payment is made to Kathy.Berthot@fcc.gov
and to JoAnnLucanik@fcc.gov.
17. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
18. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by first class mail and
certified mail return receipt requested to Kathryn A. Zachem, Vice
President, Regulatory and State Legislative Affairs, Comcast
Corporation, 2001 Pennsylvania Avenue, N.W., Suite 500, Washington,
D.C. 20006 and James L. Casserly, Counsel for Comcast Corporation,
Wilkie Farr & Gallagher LLP, 1875 K Street, N.W., Washington, DC
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
47 C.F.R. S: 76.1603(b).
47 U.S.C. S: 503(b).
47 C.F.R. S: 76.1603(b).
ComcastLetter from Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to Mary
McManus, Comcast Corporation (Oct. 30, 2008) ("LOI").
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
47 U.S.C. S: 503(b)(2)(A), 47 C.F.R. S: 1.80(b)(1). The Commission has
repeatedly amended Section 1.80(b)(1) of the Rules to increase the maximum
forfeiture amounts, in accordance with the inflation adjustment
requirements contained in the Debt Collection Improvement Act of 1996, 28
U.S.C. S: 2461. Most recently, the Commission raised the maximum
forfeitures applicable to cable operators, broadcast licensees, and
applicants for such authority from $32,500 to $37,500 for a single
violation, and from $325,000 to $375,000 for a continuing violation. See
Inflation Adjustment of Maximum Forfeiture Penalties, 73 Fed. Reg. 44663,
44664 (July 31, 2008). The new forfeiture limits will take effect
September 2, 2008 and do not apply to this case.
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087, 17115 (1997), recon. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement").
The Commission has substantial discretion, however, in proposing
forfeitures. See, e.g., InPhonic, Inc., Order of Forfeiture and Further
Notice of Apparent Liability, 22 FCC Rcd 8689, 8699 (2007); Globcom, Inc.
d/b/a Globcom Global Commun., Order of Forfeiture, 21 FCC Rcd 4710,
4723-24 (2006). We may apply the base forfeiture amounts described in the
Forfeiture Policy Statement and the Commission's rules, or we may depart
from them altogether as the circumstances demand See 47 C.F.R.
S:1.80(b)(4) ("The Commission and its staff may use these guidelines in
particular cases [, and] retain the discretion to issue a higher or lower
forfeiture than provided in the guidelines, to issue no forfeiture at all,
or to apply alternative or additional sanctions as permitted by the
statute.") (emphasis added).
See also Northland Cable Television, Inc., Memorandum Opinion and Order
and Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 7865 (Media
Bur. 2008) (proposing $20,000 forfeiture for apparent violations of
Section 76.1603 and other rules); Northland Cable Television, Inc.,
Memorandum Opinion and Order and Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 7872 (Media Bur. 2008) (same).
Thus, for example, if the Comcast migrated a channel and did not provide
proper notice for nine months, it must refund $0.90 to each affected
customer. $0.10 is our best estimate of the relevant license fee per
channel. We note that Comcast did not provide actual per channel license
fees as required by the LOI. The Bureau will reconsider the appropriate
license fee per channel should Comcast submit a petition for
reconsideration that includes evidence that the license fees of the
affected channels are lower than $0.10 per month.
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Federal Communications Commission DA 09-124
Federal Communications Commission DA 09-124