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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Time Warner Entertainment-Advance/Newhouse Partnership
Kansas City, MO ) ) ) ) ) ) ) File No.: EB-11-KC-0058 NAL/Acct. No.:
201232560002 FRN: 0003476298 Physical ID No.: 004677
Adopted: November 19, 2013 Released: November 19, 2013
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of twenty five thousand dollars ($25,000) to Time Warner
Entertainment - Advance/Newhouse Partnership (Time Warner), owner of a
cable system in Kansas City, Missouri, for willfully violating
Sections 76.1703 and 76.1704(a) of the Commission's rules (Rules).^
The noted violations involved Time Warner's failure to make available
required records and data.
2. Section 76.1703 of the Rules states: "Cable operators airing
children's programming must maintain records sufficient to verify
compliance with S 76.225 and make such records available to the
public. Such records must be maintained for a period sufficient to
cover the limitations period specified in 47 U.S.C. 503(b)(6)(B)."^
With respect to this rule, the Commission has clarified, since 1991,
that such records must be placed in the cable system's public file no
later than the tenth day of the quarter following the quarter in which
the covered programming aired and must be maintained for a period
sufficient to cover the limitations period specified in 47 U.S.C. S
503(b)(6)(B) (one year).^ Section 76.1704(a) of the Rules states: "The
proof of performance tests required by S 76.601 shall be maintained on
file at the operator's local business office for at least five years.
The test data shall be made available for inspection by the Commission
or the local franchiser, upon request."^
3. On July 17, 2012, the Enforcement Bureau issued a Notice of Apparent
Liability for Forfeiture and Order (NAL) ^ ^ to Time Warner for
failure to maintain and make available required proof of performance
test data and children's programming records. In response to the NAL,
Time Warner did not deny that, on July 18, 2011, it failed to make
available these required records to agents from the Enforcement
Bureau's Kansas City Office (Kansas City Office), but nonetheless
urged reduction of the proposed $25,000 forfeiture based on the
following arguments: (1) it was unable to provide all of the requested
information on July 18, 2011, because the responsible employees were
on scheduled leave the day of the inspection; (2) it located all of
the missing information and consolidated it at a single location by
July 21, 2011; and (3) it has undertaken "comprehensive voluntary
efforts to create an internal web-based public file system" - which
were initiated immediately after July 18, 2011.^ Time Warner further
contended that merely because it "is able to pay a higher forfeiture
than $10,000 and has previously been subject to isolated enforcement
action plainly should not carry more weight than the gravity of the
violation at issue, which [Time Warner] respectfully submits was
relatively minor and must be balanced against TWC's substantial, good
faith compliance efforts." ^
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act),^ Section 1.80 of the Rules,^ and the Forfeiture Policy
Statement.^ In examining Time Warner's response, the Commission is
required by Section 503(b)(2)(E) of the Act 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 other such matters as justice may
require.^ As discussed below, we have considered Time Warner's
response in light of these statutory factors, and find that no
reduction of the forfeiture is warranted.
5. We affirm the NAL's undisputed finding that on July 18, 2011, agents
from the Kansas City Office sought to inspect documents required to be
in the public file at Time Warner's office located at 6550 Winchester
Avenue, Kansas City during regular business hours and observed that
the last entry for commercial records for children's programming was
dated March 27, 2008, and that proof of performance test data for
years 2008 and 2009 were missing. Commission rules require that all of
the missing documents must be made available to the public upon
request. Accordingly, based on the record evidence, we find that Time
Warner willfully violated Sections 76.1703 and 76.1704(a) of the Rules
by failing to make available required children's programming records
for the first quarter 2010 through first quarter 2011 and proof of
performance tests for 2008 and 2009.^
6. Although it does not dispute that the base forfeiture amount for the
violation is $10,000, ^ ^ Time Warner nonetheless requests reduction
of the $25,000 forfeiture, because it argues that the Bureau's upward
adjustments were unwarranted. Pursuant to Section 503(b)(2)(E) of the
Act,^ the Bureau upwardly adjusted the proposed forfeiture because of
Time Warner's ability to pay^ and its prior violations of the rules at
issue.^ Time Warner does not deny that it is able to pay the
forfeiture and that it previously violated the rules at issue, but
argues that these factors must be weighed against the gravity of the
violation at issue, the fact that it located the missing items within
a few days, and its good faith efforts to comply with the Rules.
7. We disagree that the Bureau's upward adjustments were inappropriate
and impose a $25,000 forfeiture. Time Warner twice has violated the
rules at issue in the NAL. On this third occasion, the Bureau sought
to ensure that the forfeiture amount served as an effective deterrent
and not simply a cost of doing business. For these reasons, the upward
adjustment was appropriate. Moreover, even though Time Warner states
that it quickly corrected the violation by consolidating the missing
materials after the inspection, such corrective actions are expected
and do not warrant mitigation of the forfeiture.^ Similarly, Time
Warner's efforts to create a "web-based public file system" are
laudable but were also taken after the inspection and do not warrant
mitigation of the forfeiture. Accordingly, we find no reason to reduce
the proposed forfeiture.
IV. ORDERING CLAUSES
8. 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(f)(4) of the Commission's rules, Time Warner
Entertainment - Advance/Newhouse Partnership IS LIABLE FOR A MONETARY
FORFEITURE in the amount of twenty five thousand dollars ($25,000) for
violations of Sections 76.1703 and 76.1704(a) of the Rules.^
9. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Time Warner Entertainment -
Advance/Newhouse Partnership shall send electronic notification of
payment to SCR-Response@fcc.gov on the date said payment is made.
The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account Number and
FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
8. Any request for making full payment over time under an installment plan
should be sent to: Chief Financial Officer--Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554.^ If you have questions regarding payment procedures, please
contact the Financial Operations Group Help Desk by phone, 1-877-480-3201,
or by e-mail, ARINQUIRIES@fcc.gov.
9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Time Warner
Entertainment - Advance/Newhouse Partnership at 13820 Sunrise Valley
Drive, Herndon, VA 20171-3000 and to its attorney, Matthew A. Brill,
Latham & Watkins, LLP, 555 Eleventh Street NW, Suite 1000, Washington, DC
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
^ 47 C.F.R. SS 76.1703, 76.1704(a).
^ 47 C.F.R. S 76.1703.
^ See Policies and Rules Concerning Children's Television Programming,
Memorandum Opinion and Order, 6 FCC Rcd 5093, 5097, para. 23 (1991).
^ 47 C.F.R. S 76.1704(a).
^ Time Warner Entertainment - Advance/Newhouse Partnership, Notice of
Apparent Liability for Forfeiture and Order, 27 FCC Rcd 8047 (Enf. Bur.
2012). A comprehensive recitation of the facts and history of this case
can be found in the NAL and is incorporated herein by reference.
^ Letter from Matthew A. Brill, Attorney for Time Warner Cable Inc., to P.
Michele Ellison, Chief, Enforcement Bureau at 5-6 (Aug. 16, 2012) (on file
in EB-11-KC-0058) (NAL Response).
^ Id. at 7.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ Time Warner states that the missing items were located and consolidated
in a file at the Kansas City Office by July 21, 2011. NAL Response at
Exhibit A. Accordingly, Time Warner disputes that the missing items were
not maintained. Because we find that Time Warner failed to make available
the missing documents, we need not address whether Time Warner also failed
to maintain those items.
^ NAL Response at 6. See also Allen's TV Cable Service, Inc., Notice of
Apparent Liability for Forfeiture and Order, 27 FCC Rcd 1438 (Enf. Bur.
2012) (proposing $10,000 forfeiture for willful failure to make available
public inspection file).
^ 47 U.S.C. S 503(b)(2)(E).
^ Time Warner noted that the NAL incorrectly referenced the revenues of
Time Warner, Inc. Currently, Time Warner is ranked 105, not 103, on the
Fortune 500 ranking of American corporations, with reported revenues of
more than $28.7 billion. See
(last visited November 18, 2013). We conclude, however, that this error
does not impact the Bureau's findings. Moreover, Time Warner does not
dispute that its revenues are more than sufficient to afford the $25,000
^ See Time Warner Entertainment - Advance/Newhouse Subsidiary, LLC d/b/a
Time Warner Cable, Forfeiture Order, 19 FCC Rcd 10412 (Enf. Bur. 2004)
(missing required commercial records on children's programming, proof of
performance test data, and signal leakage log and repair records)
(forfeiture paid); Time Warner Cable, Notice of Violation, EB-09-LA-0088
(Enf. Bur. Jan. 4, 2010).
^ See International Broadcasting Corporation, Order on Review, 25 FCC Rcd
1538 (2010) (reiterating the Commission's longstanding policy that
"corrective action taken to come into compliance with the Rules is
expected and does not nullify or mitigate any prior forfeitures or
violations" and explaining that the forfeiture provisions are intended to
encourage appropriate action to prevent violations rather than remedial
action); Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 13-2206
Federal Communications Commission DA 13-2206