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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
)
) File Number EB-02-LA-278
Time Warner Cable NAL/Acct. No.
) 200332900002
3701 N Sillect Ave FRN # 0007935562
)
Bakersfield, CA 93308
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December
30, 2002
By the Enforcement Bureau, Los Angeles Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Time Warner Cable (``TWC''), the owner of
cable television system serving Bakersfield, California
(Community Unit # CA0173) apparently willfully and repeatedly
violated Section 76.1700(a) of the Federal Communications
Commission (``FCC'') Rules and Regulations (``Rules''), by
failing to maintain all required material in the system's public
inspection file.1 We conclude, pursuant to Section 503(b) of the
Communication Act of 1934, as amended (``Act''),2 that TWC is
apparently liable for forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On July 30, 2002, an agent from the FCC Enforcement
Bureau's Los Angeles Field Office inspected the TWC cable system
located in Bakersfield, California, FCC Physical ID Number
004343, Community Unit # CA0173. According to FCC records, TWC's
Bakersfield cable system serves more the 5000 subscribers.
During the inspection, the agent noted that the public inspection
was missing required material. The file had not been updated
with required commercial records on children programs since 2000;
did not contain required proof of performance test data from the
winter of 2001 or the spring of 2002; and did not include any of
the required signal leakage log and repair records since the 2nd
quarter of 2001. In addition, the public inspection file did not
contain a statement of the operators interest in video
programming.
III. DISCUSSION
3. Section 503(b) of the 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 any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term "willful" as
used in Section 503(b) has been interpreted to mean simply that
the acts or omissions are committed knowingly and the term
``repeatedly'' means the commission or omission of such act more
than once or for more than one day.3
4. Section 76.1700(a) of the Rules states, in part,
``[t]he operator of every cable television system having 5000 or
more subscribers shall maintain for public inspection a file
containing a copy of all records which are required to be kept by
§§ 76.1701 (political file); 76.1715 (sponsorship
identifications): 76.1702 (equal employment opportunity); 76.1703
(commercial records for children's programming); 76.1704 (proof
of performance test data); 76.1706 (signal leakage logs and
repair records).4 In addition, section 76.1710 of the Rules
provides that cable operators are required to maintain records in
their public file regarding the nature and extent of their
attributable interests in all video programming services as well
as information regarding their carriage of such vertically
integrated video programming services on cable systems in which
they have an attributable interest.5 On July 30, 2002, TWC's
public inspection file was missing much of the required material,
including commercial records for children's programming, proof of
performance test data, signal leakage logs and repair records,
and records of attributable interests in video programming.
Based on the evidence before us, we find that TWC willfully and
repeatedly violated Section 76.1700(a) of the Rules by failing to
maintain the required public inspection file.
5. Pursuant to Section 1.80 of the Rules and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"),6 the base forfeiture amount for
violation of public file rules is $10,000.7 In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) of the
Communications Act of 1934 (``Act''), as amended, which include
the nature, circumstances, extent, and gravity of the
violation(s), 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.8 Considering the
entire record and applying the statutory factors listed above,
this case warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311 and 1.80 of the Commission's Rules, TWC is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000), for willful and
repeated violation of Section 76.1700(a) of the Rules.9
7. 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, TWC SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the FCC Registration Number (``FRN'') and the NAL/Acct. No.
referenced in the caption.
9. The response, if any, must be mailed to Federal
Communication Commission, Office of the Secretary, 445 12th
Street, S. W., Washington, DC 20554, Attn. Enforcement Bureau,
Technical & Public Safety Division, and must include the
NAL/Acct. No. referenced in the caption.
10. 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.
11. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communication Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.10
12. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Federal Communications
Commission, Enforcement Bureau, Technical & Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
13. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT
LIABILITY shall be sent by regular mail and Certified Mail # 7001
2510 0001 9914 5883, Return Receipt Requested, to Time Warner
Cable, 3701 N Sillect Ave., Bakersfield, CA 93308.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director, Enforcement
Bureau
October 2002
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 C.F.R. § 76.1700(a).
2 47 U.S.C. § 503(b).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991). Section 312(f)(2) of the Act, 47 U.S.C. §
312(f)(1), 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.''
4 47 C.F.R § 76.1700(a).
5 47 C.F.R § 76.1710.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 47 C.F.R. §§ 0.11, 0.311, 1.80, 76.1700(a).
10 See 47 C.F.R. § 1.1914.