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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-CF-336
)
Adelphia Communications ) NAL/Acct. No.
200232340003
)
Huntington, WV ) FRN 0007-3942-16
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 19,
2002
By the District Director, Columbia Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Adelphia Communications (``Adelphia'') has
apparently violated Section 11.61(a) of the Commission's Rules1
(``Rules'') by failing to conduct tests of the Emergency Alert
System (``EAS'') equipment and procedures as required. We
conclude that Adelphia is apparently liable for a forfeiture in
the amount of two thousand dollars ($2,000).
II. BACKGROUND
2. On May 15, 2002, an agent from the Commission's
Columbia, Maryland office conducted an inspection of Adelphia's
Huntington, WV cable system for compliance with EAS rules. The
agent found that Adelphia failed to conduct Required Weekly Tests
of the EAS equipment during the month of February 2002, and once
per month during the months of March, April, and May 2002.
Further, Adelphia did not conduct Required Monthly Tests during
the period January 11, 2002 through May 15, 2002. In addition,
Adelphia received no weekly or monthly tests during the period
January 11, 2002 through May 15, 2002. At the request of the
agent, Adelphia transmitted a weekly test during the inspection,
which revealed that the automatic logging device was functioning
properly.
3. On May 15, 2002, the agent conducted inspections of EAS
equipment and procedures at broadcast stations WEMM and WHRD in
the Huntington area. Records of EAS tests received at those
stations indicated that Local Primary stations WKEE-FM and WRVC,
which Adelphia is required to monitor, conducted the required
test transmissions during the above periods.
III. DISCUSSION
4. Section 11.61(a)(1) of the Rules2 requires that cable
systems with 10,000 or more subscribers conduct monthly tests of
the EAS header codes, attention signal, test script and EOM code.
Section 11.61(a)(2) of the Rules3 requires weekly tests of the
EAS header codes and EOM codes. Section 11.61(b) of the Rules4
requires that entries be made in the cable system records of EAS
tests received and transmitted. At the time of inspection on May
15, 2002, Adelphia's records indicated that required weekly tests
were transmitted during the month of January 2002. However, no
tests were transmitted during February 2002, and only one weekly
test was transmitted in each of the months of March, April, and
May 2002. The records also showed that no weekly or monthly
tests were received and that no monthly tests were transmitted
during the period of January 11, 2002 through May 15, 2002.
Further, evidence reveals that the Local Primary stations sending
EAS tests, which Adelphia should have received, properly
transmitted those tests.
5. Based on the evidence before us, we find that Adelphia
willfully5 and repeatedly6 violated Section 11.61(a) of the
Commission's Rules. The Rules do not establish a base forfeiture
amount for violating the Commission's rule requiring EAS tests.7
Therefore, we must determine what an appropriate forfeiture
amount should be for this violation. The requirement that cable
systems conduct EAS tests is similar in both nature and severity
to other required operational performance checks identified in
the Rules as required measurements or required monitoring. The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303(1999)
(``Forfeiture Policy Statement'')8, sets the base forfeiture
amount at $2,000 for failure to make required measurements or
conduct required monitoring. As failure to make measurements or
conduct required monitoring carries a base forfeiture amount of
$2,000, pursuant to the Forfeiture Policy Statement, the base
forfeiture for not conducting EAS tests will be assessed in the
amount of $2,000. In assessing the monetary forfeiture amount,
we must take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Communications Act of 1934, as
amended9 (the ``Act''), which include 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. Applying the Policy Statement and the statutory factors
to the instant case and applying the inflation adjustments, we
believe that a two thousand dollar ($2,000) monetary forfeiture
is warranted.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act10 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,11 Adelphia Communications is hereby NOTIFIED
of this APPARENT LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($2,000) for willfully and repeatedly violating
Section 11.61(a) of the Commission's Rules.
7. 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, Adelphia Communications 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 should note the
NAL/Acct. No. 200232340003, and FRN 0007-3942-16
9. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200232340003
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: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.12 12. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Adelphia Communications, 51 West 6th
Avenue, Huntington, WV 25701.
FEDERAL COMMUNICATIONS
COMMISSION
Charles C. Magin
District Director
Columbia Office
_________________________
1 47 C.F.R. § 11.61(a).
2 47 C.F.R. § 11.61(a)(1).
3 47 C.F.R. § 11.61(a)(2).
4 47 C.F.R. § 11.61(b).
5 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to 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 ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
6 Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
7 See The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Forfeiture Policy Statement''), 12 FCC Rcd 17087
(1997), recon. denied 15 FCC Rcd 303 (1999). The Forfeiture
Policy Statement states that ``... any omission of a specific
rule violation from the ... [forfeiture guidelines] ... should
not signal that the Commission considers any unlisted violation
as nonexistent or unimportant. Forfeiture Policy Statement, 12
FCC Rcd at 17099. The Commission retains the discretion,
moreover, to depart from the Forfeiture Policy Statement and
issue forfeitures on a case?by?case basis, under its general
forfeiture authority contained in Section 503 of the Act. Id.
847 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
10 47 U.S.C. § 503(b).
11 47 C.F.R. §§ 0.111, and 0.311.
12 See 47 C.F.R. § 1.1914.