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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-10-DT-0352
Upper Peninsula Communications Inc.
) NAL/Acct. No. 201232360001
Physical System ID# 002477
) FRN 0003772886
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 14, 2011 Released: October 18, 2011
By the District Director, Detroit Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Upper Peninsula Communications Inc. ("Upper Peninsula"), former
operator of a cable television system in Powers, Michigan, apparently
willfully and repeatedly violated section 11.35(a) of the
Commission's rules ("Rules") by failing to install emergency alert
system ("EAS") equipment. We conclude that Upper Peninsula is
apparently liable for a forfeiture in the amount of eight thousand
2. On November 3, 2010, an agent from the Enforcement Bureau's Detroit
Office inspected Upper Peninsula's cable system serving Powers,
Michigan with the cable system's manager. The agent observed that
Upper Peninsula did not have any EAS equipment installed, which the
manager conceded. The agent, subsequent to the inspection, determined
that, although some of Upper Peninsula's cable systems had received
temporary waivers of the Commission's deadline for certain cable
systems to come into compliance with the EAS rules, the system serving
Powers, Michigan never had such a waiver.
3. 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 sections
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.
4. 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 headend basis. The EAS
enables the President and state and local governments to provide
immediate and 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 cable system. As
the nation's emergency warning system, the EAS is critical to public
safety, and we recognize the vital role that cable systems play in
ensuring its success. The Commission takes seriously any violations of the
Rules implementing the EAS and expects full compliance from its
5. Section 11.35(a) of the Rules states that "EAS Participants are
responsible for ensuring that the EAS Encoders, EAS Decoders, and
Attention Signal generating and receiving equipment used as part of
the EAS are installed so that the monitoring and transmitting
functions are available during the times the stations and systems are
in operation...." On November 3, 2010, an agent from the Detroit
Office observed that Upper Peninsula's cable system serving Powers,
Michigan did not have any operational EAS equipment installed, which
was confirmed by the manager of the cable system. Because Upper
Peninsula consciously operated its cable system in Powers, Michigan
without EAS equipment for more than one day, we find the apparent
violations to be willful and repeated. Based on the evidence before
us, we find that Upper Peninsula apparently willfully and repeatedly
violated section 11.35(a) of the Rules by failing to install EAS
equipment at its cable system in Powers, Michigan.
6. 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. 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. Applying the Forfeiture Policy Statement, section 1.80
of the Rules, and the statutory factors to the instant case, we
conclude that Upper Peninsula is apparently liable for a total
forfeiture in the amount of $8,000.
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, 0.204(b),
0.311, 0.314 and 1.80 of the Commission's rules, Upper Peninsula
Communications Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of eight thousand dollars ($8,000) for
violation of section 11.35(a) of the Rules.
8. 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, Upper Peninsula
Communications Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
9. 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. If you have questions about payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Upper Peninsula shall
also send electronic notification on the date said payment is made to
10. 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. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Detroit Office, 24897 Hathaway Street, Farmington Hills,
Michigan, 48335 and include the NAL/Acct. No. referenced in the
caption. Upper Peninsula also shall email the written response to
11. 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.
12. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Upper Peninsula Communications Inc.,
397 US 41, Carney, Michigan 49812.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
Upper Peninsula reported to an FCC agent that the sale of the system
serving Powers, Michigan to Packerland Broadband was consummated on
February 1, 2011. Upper Peninsula, however, still owns other cable systems
47 C.F.R. S: 11.35.
The manager told the agent that he believed Upper Peninsula did not need
EAS equipment because of the small size of the cable system, i.e., the
system at the time was serving only fifty-five subscribers.
See Upper Peninsula Communications Inc., Order, 17 FCC Rcd 20112 (EB 2002)
(granting Upper Peninsula temporary waivers of the EAS rules for several
systems in order to give Upper Peninsula additional time to come into
compliance with the EAS rules based on a demonstrated financial hardship).
In 2006, the Commission denied Upper Peninsula's request for an extension
of the waiver for its systems serving Alpha, Michigan; Amasa, Michigan;
Champion, Michigan; Detour, Michigan; Garden, Michigan; Germfask,
Michigan; Marenisco, Michigan; Michigamme, Michigan; Nahma, Michigan;
Phelps, Wisconsin and Wolverine, Michigan. See EAS Waiver Extensions
Granted to Very Small Cable Systems, Public Notice, 21 FCC Rcd 7129 (2006)
(granting extensions of waivers to some cable systems and denying waiver
extensions to cable operators who were unable to demonstrate continuing
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).
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."
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: 11.61.
47 C.F.R. S: 11.35.
With regard to the manager's claim that he (and perhaps Upper Peninsula's
owners as well) believed that the system did not need EAS equipment in
light of the system's size, we note that it is longstanding Commission
policy that lack of specific intent to violate Commission rules (even
based on a lack of knowledge) is not a mitigating factor. See Profit
Enterprises, Inc., 8 FCC Rcd 2846, 2846 (1993) (denying the mitigation
claim of a manufacturer/distributor who thought that the equipment
certification and marketing requirements were inapplicable, stating that
its "prior knowledge or understanding of the law is unnecessary to a
determination of whether a violation existed . . . ignorance of the law is
[not] a mitigating factor"); Bureau D'Electronique Appliquee, Inc.,
Forfeiture Order, 20 FCC Rcd 17893, 17896-7 (Enf. Bur., Spectrum Enf. Div.
2005) (denying the mitigation claim of a manufacturer/distributor who
admitted that "lack of actual knowledge" may not negate a finding of
willfulness, but that such factors[s] warranted a downward adjustment of
the proposed forfeiture amount).
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).
We note that the duration of the violation would normally be grounds for
an upward adjustment, but because of the system's small number of
subscribers, we will refrain from doing so in this case. Future violations
of our EAS rules, however, may be subject to larger penalties.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314, 1.80,
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
(...continued from previous page)
Federal Communications Commission DA 11-1721
Federal Communications Commission DA 11-1721