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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
SCI Cable Inc. ) File No. EB-11-KC-0008
Owner of Cable Television System ) NAL/Acct. No. 201132560008
Pottawatomie, Kansas ) FRN 0020384889
PSID # 014095 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: September 14, 2011 Released: September 14, 2011
By the District Director, Kansas City Office, South Central Region,
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that SCI Cable Inc. ("SCI"), owner of a cable television
system in Pottawatomie, Kansas ("Pottawatomie"), apparently willfully
and repeatedly violated sections 11.35 and 76.1803 of the Commission's
rules ("Rules") by failing to: (1) install Emergency Alert System
("EAS") equipment; (2) log the removal of EAS equipment; and (3) file
required Annual Basic Signal Leakage Performance Reports ("FCC Form
320s"). We conclude that SCI is apparently liable for a forfeiture in
the amount of thirteen thousand dollars ($13,000).
2. On August 11, 2010 and September 17, 2010, the Commission's Media
Bureau ("Media Bureau") notified SCI that it had failed to file the
FCC Form 320 for 2009 and 2010 for the Pottawatomie cable system.
3. On September 22, 2010, in response to a complaint, agents from the
Enforcement Bureau's Kansas City Office ("Kansas City Office")
traveled to SCI's office located in Topeka, Kansas, the SCI office
covering the Pottawatomie system, and requested to see SCI's EAS logs.
SCI's manager admitted that it did not have any EAS logs for the
Pottawatomie system and showed the agents a disconnected EAS unit,
which he stated that he had removed from service in the fall of 2009.
SCI's manager also admitted during the inspection that SCI had not
filed its FCC Form 320s with the Commission for the Pottawatomie
system for 2009 and 2010 and did not have any records of its signal
4. On October 7, 2010, the Kansas City Office sent a Letter of Inquiry
("LOI") to SCI. In response to a question about which cable systems
were affected by SCI's removal of its EAS, SCI stated that its EAS was
removed from service in September 2009 and that the cable system in
Pottawatomie has a headend, for which an EAS unit was scheduled to
become operational on November 9, 2010. SCI also stated that the
Pottawatomie system operated on aeronautical frequencies.
5. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. 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. The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both section
312 and 503(b) of the Act and the Commission has so interpreted the
term in the section 503(b) context. The Commission may also assess a
forfeiture for violations that are merely repeated, and not willful.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
6. Every analog and digital cable system is part of the nationwide EAS
network and is categorized as a participating national EAS source
unless the station affirmatively requests authority to refrain from
participation, and that request is approved by the Commission. Cable
systems must comply with EAS requirements on a per headend basis. The
EAS enables the President and state and local governments to provide
immediate emergency communications and information to the general
public. State and local area plans identify local primary sources
responsible for coordinating carriage of common emergency messages
from sources such as the National Weather Service or local emergency
management officials. Required monthly and weekly tests originate
from EAS Local or State Primary sources and must be retransmitted by
the participating station. As the nation's emergency warning system,
the EAS is critical to public safety, and we recognize the vital role
that regulatees play in ensuring its success. The Commission takes
seriously any violations of the Rules implementing the EAS and expects
full compliance from its regulatees.
7. Section 11.35 of the Rules requires all cable systems to ensure that
EAS encoders, EAS decoders, and attention signal generating and
receiving equipment are installed so that the monitoring and
transmitting functions are available during the times the systems are
in operation. Section 11.35(b) of the Rules requires cable system
operators to maintain a record of when defective EAS equipment is
removed and restored to service. On September 22, 2010, agents from
the Kansas City Office inspected SCI's office in Topeka and discovered
that no EAS logs were available for the Pottawatomie cable system for
the previous two years and that no EAS equipment was installed for the
Pottawatomie cable system. SCI admitted in response to the LOI that
its EAS equipment was removed from service in September 2009 and
stated that the new equipment would be operational on November 9,
2010. Thus, based on the evidence before us, we find that SCI
apparently willfully and repeatedly violated section 11.35 of the
Rules by failing to install EAS equipment in the Pottawatomie cable
system from at least October 1, 2009 until November 9, 2010 and
failing to log when its EAS equipment was removed from service.
8. Protecting the aeronautical frequencies from harmful interference is
of paramount importance. To this end, the Commission has established
cable signal leakage rules to control emissions that could cause cable
systems to interfere with aviation frequencies. The Commission
determined the tolerable levels of unwanted signals on the
aeronautical frequencies in two ways. First, leakage at any given
point must not exceed 20 uV/m. Second, cable systems must meet basic
signal leakage performance criteria as a prerequisite for operation on
aeronautical frequencies. This is referred to as the system's
cumulative leakage index or "CLI." Signal leakage levels that exceed
these aforementioned thresholds are considered harmful interference.
The Commission requires that each system annually measure its CLI (10
log I") to demonstrate that any signal leakage is within permissible
levels (i.e., a CLI of less than 64), the results of which must be
reported to Commission. The rules also require cable operators to
provide for a program of regular monitoring of their systems to detect
leaks. The cable system operator must promptly take measures to
eliminate any harmful interference it causes, and must maintain a log
for two years showing the date and location of each leakage source and
the date on which the leakage was repaired.
9. Section 76.1803 of the Rules requires cable system operators who
provide service in the aeronautical bands to file FCC Form 320 every
calendar year, reporting the results of the system's annual signal
leakage performance tests required pursuant to section 76.611 of the
Rules. In response to the LOI, SCI stated that the Pottawatomie system
provides service in the aeronautical bands. As discussed above, SCI's
manager admitted during the inspection that SCI had not filed the FCC
Form 320s for the Pottawatomie system for calendar years 2009 and 2010
and did not have any records of its leakage testing. According to
Commission records, SCI has since filed the aforementioned FCC Form
320s. The Commission expects parties to take post-inspection
corrective action to come into compliance with the Rules, however, and
such action does not nullify or mitigate any prior forfeitures or
violations. Thus, based on the evidence before us, we find that SCI
apparently willfully and repeatedly violated section 76.1803 of the
Rules by failing to file its required FCC Form 320s for the
Pottawatomie system for calendar years 2009 and 2010.
10. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for EAS equipment not
installed or operational is $8,000 and for failing to file required
forms is $3,000. In assessing the monetary forfeiture amount, we must
also take into account the statutory factors set forth in section
503(b)(2)(E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, 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. Our
assessment of the proposed forfeiture in this case is particularly
influenced by our findings of additional apparent EAS and Form 320
filing violations in two other enforcement actions issued today and
involving cable systems owned by SCI. These proceedings indicate that
SCI may have a systemic non-compliance issue with the Commission's EAS
and Form 320 filing rules. Applying the Forfeiture Policy Statement,
section 1.80 of the Rules, and the statutory factors to the instant
case, we conclude that SCI is apparently liable for a $13,000
forfeiture for failure to install EAS equipment and file required
11. We also direct SCI to submit a statement signed under penalty of
perjury by an officer or director of SCI stating that operational EAS
equipment has been installed for the Pottawatomie system. This
statement must be provided to the Kansas City Office at the address
listed in paragraph 16 within thirty days of the release date of this
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, SCI Cable Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE AND ORDER
in the amount of thirteen thousand dollars ($13,000) for violations of
sections 11.35 and 76.1803 of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture and Order, SCI Cable Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
14. IT IS FURTHER ORDERED that SCI Cable Inc. SHALL SUBMIT a statement as
described in paragraph 11 to the Kansas City Office within thirty days
of the release date of this Notice of Apparent Liability for
Forfeiture and Order.
15. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. 20554.8 If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. SCI shall send
electronic notification on the date said payment is made to
16. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Kansas City Office, 520 NE Colbern Road, 2nd
Floor, Lee's Summit, Missouri, 64086 and must include the NAL/Acct.
No. referenced in the caption. The statement should also be emailed to
17. 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 ("GAAP"); 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 documentation submitted.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to SCI Cable Inc. at P.O. Box
67235, Topeka, KS 66667.
FEDERAL COMMUNICATIONS COMMISSION
Ronald D. Ramage
Kansas City Office
South Central Region
47 C.F.R. S:S: 11.35, 76.1803.
Letter from Wayne T. McKee, Deputy Chief, Engineering Division, Media
Bureau, to SCI Cable Inc. dated August 11, 2010); Letter from Wayne T.
McKee, Deputy Chief, Engineering Division, Media Bureau, to SCI Cable Inc.
dated September 17, 2010.
Letter from Robert C. McKinney, District Director, Kansas City Office,
South Central Region, Enforcement Bureau, to Kirk Keberlein, SCI Cable,
Inc. dated October 7, 2010.
Letter from Kirk Keberlein, SCI Cable, Inc., to Robert C. McKinney,
District Director, Kansas City Office, South Central Region, Enforcement
Bureau dated October 29, 2010 ("LOI Response").
LOI Response at 4.
LOI Response at 2.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) recon. denied, 7
FCC Rcd 3454 (1992) ("Southern California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[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." See Southern California Broadcasting Co, 6 FCC Rcd
at 4388; Callais Cablevision, Inc., 16 FCC Rcd at 1362.
47 C.F.R. S:S: 11.11, 11.41.
47 C.F.R. S: 11.11.
47 C.F.R. S:S: 11.1, 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
47 C.F.R. S: 11.35.
47 C.F.R. S: 11.35(b).
See 47 C.F.R. S: 76.1711 (requiring cable systems of 1,000 or more
subscribers to keep a record of each test and activation of the EAS).
See Callais Cablevision, Inc., Notice of Apparent Liability for
Forfeiture, 16 FCC Rcd 1359 (2001). The aeronautical bands are 108-137 MHz
and 225-400 MHz. These frequencies encompass both radionavigation
frequencies, 108-118 MHZ and 328.6-335.4 MHz, and communications
frequencies, 118-137 MHz, 225-328.6 MHz, and 335.4-400 MHz. The
international distress and calling frequencies, 121.5 MHz, 156.8 MHz, and
243 MHz, receive heightened protection. See 47 C.F.R. S:76.616. These
frequencies are critical for Search and Rescue Operations, including for
use by Emergency Locator Transmitters on planes and Emergency Position
Indicating Radio Beacons on boats. See generally 47 C.F.R. Part 80,
Subpart V and 47 C.F.R. S:S:87.193-87.199. Harmful interference includes
any interference that "endangers the functioning of a radionavigation
service or of other safety services." See 47 C.F.R. S:S: 2.1, 76.613(a).
Amendment of Part 76 of the Commission's Rules to Add Frequency
Channelling Requirements and Restrictions and to Require Monitoring for
Signal Leakage from Cable Television Systems, Memorandum Opinion and
Order, Docket No. 21006, 101 FCC 2d 117, P: 14 (1985).
47 C.F.R. S:76.605(a)(12).
47 C.F.R. S:76.611(a).
47 C.F.R. S:76.615(b)(7).
47 C.F.R. S:76.614.
47 C.F.R. S:76.613(b).
47 C.F.R. S: 76.1706.
47 C.F.R. S: 76.1803.
LOI Response at 2.
See International Broadcasting Corporation, Order on Review, 25 FCC Rcd
1538 (2010); Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099
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 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
SCI Cable, Inc., Notice of Apparent Liability for Forfeiture and Order, DA
11-1538 (Enf. Bur. rel. Sept. 14, 2011); SCI Cable, Inc., Notice of
Apparent Liability for Forfeiture and Order, DA 11-1539 (Enf. Bur. rel.
Sept. 14, 2011).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11-1540
Federal Communications Commission DA 11-1540