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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-236
Cablevision Systems of New York City Corporation )
) NAL/Acct. No.
200332380016
Bethpage, NY )
) FRN: 0004-5055-66
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 14,
2003
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Cablevision Systems of New York City
Corporation (``Cablevision'') has apparently violated
Sections 11.61(a)(1)(iii), 11.61(a)(2)(i)(B), and 11.61(b)
of the Commission's Rules (the ``Rules''),1 by failing to
conduct required monthly and weekly tests of the Emergency
Alert System (``EAS'') and failing to maintain station
records of required monthly and weekly EAS tests messages.
We conclude that Cablevision is apparently liable for a
forfeiture in the amount of three thousand dollars ($3,000).
II. BACKGROUND
2. On October 17, 2002, Commission agents conducted an EAS
inspection of Cablevision's head end location at 9502 Avenue
D, Brooklyn, NY 11236. Based upon the agents' inspection of
Cablevision's station records, they determined that
Cablevision failed to conduct required monthly tests of the
EAS header codes, Attention Signal, Test Script, and EOM
code for the months of July 2002 and August 2002, and failed
to conduct required weekly tests of the EAS header and EOM
codes from July 1, 2002 to September 7, 2002, and for the
week of September 15-21, 2002. They also found that
Cablevision had failed to maintain station records of
required monthly and weekly EAS tests received for the
months of July 2002 and August 2002, and weeks of July 1,
2002 through September 14, 2002, and state reasons why EAS
tests were not received.
3. On October 25, 2002, the New York Office sent a Notice
of Violation for failure to conduct and receive required
monthly and weekly EAS tests, and failure to have installed
an operational EAS system, by First Class and Certified Mail
Return Receipt Requested, to Cablevision.
4. On November 18, 2002, the New York Office received a reply
to the Notice of Violation from Paul W. Jamieson, counsel for
Cablevision, acknowledging that Cablevision failed to receive
monthly and weekly tests for the time periods in question.
III. DISCUSSION
5. Section 11.61(a)(1)(iii) of the Commission's Rules
requires cable systems to conduct monthly tests of the EAS
header codes, Attention Signal, Test Script and EOM code
that conforms to procedures in the EAS Operating Handbook
and Section 11.61(a)(1)(v)2. Cablevision's station records
failed to show that required EAS monthly tests were
conducted in July 2002 and August 2002
6. Section 11.61(a)(2)(i)(B) of the Rules requires cable
systems to conduct weekly tests of the EAS header and EOM
codes at least once a week at random days and times.
Cablevision's station records failed to show that required
weekly tests were conducted from July 1, 2002 to September
7, 2002, and for the week of September 15-21, 2002
7. Section 11.61(b) of the Commission's Rules requires
cable stations to make entries in station records of weekly
and monthly EAS tests received. There were no entries in
the station records indicating reasons why monthly and
weekly EAS tests were not received.
8. Based on the evidence before us, we find that
Cablevision willfully3 and repeatedly4 violated Sections
11.61(a)(1)(iii), 11.61(a)(2)(i)(B), and 11.61(b) of the
Rules by failing to conduct required monthly tests of the
EAS header codes, Attention Signal, Test Script, and EOM
code for the months of July 2002 and August 2002, by failing
to conduct required weekly tests of the EAS header and EOM
codes from July 1 to September 7, 2002, and September 15-21,
2002, and by failing to log entries indicating reasons why
required monthly EAS tests were not received for the months
of July 2002 and August, 2002, and weekly EAS tests were not
received from July 1, 2002 to September 14, 2002.
9. 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'')5, sets the base forfeiture amount for failure
to make required measurements or conduct required monitoring
at $2,000, and base forfeiture for failure to maintain
required records at $1,000. In assessing the monetary
forfeiture amount, we must take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Act,6 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 Forfeiture Policy Statement and the statutory
factors to the instant case and applying the inflation
adjustments, we believe that a three thousand dollar
($3,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,7
(``Act'') and Sections 0.111, 0.311 and 1.80 of the Rules,8
Cablevision is hereby NOTIFIED of their APPARENT LIABILITY
FOR A FORFEITURE in the amount of three thousand dollars
($3,000) for willful and repeated violations of Sections
11.61(a)(1)(iii), 11.61(a)(2)(i)(B), and 11.61(b) of the
Commission's Rules.
11. 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, Cablevision SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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. 200332380016 and FRN: 0004-5055-66.
13. Any response to this NAL 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. 200332380016.
14. 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.
15. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be
sent to: Chief Revenue and Receivable Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.9
16. 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 Technical and 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.
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return
Receipt Requested to Cablevision Systems of New York City
Corporation, 1111 Stewart Avenue, Bethpage, NY 11714-3581
and a copy to Piper Rudnick, 1200 Nineteenth Street, N.W.
Washington, D.C. 20036-2412.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A - FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. §§ 11.61(a)(1)(iii), 11.61(a)(2)(i)(B) and 11.61(b)
2 47 C.F.R. § 11.61(a)(1)(v).
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....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
4
The 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 U.S.C. §
312(f)(2).
5 47 C.F.R. § 1.80.
6 47 U.S.C § 503(b)(2)(D)
7
47 U.S.C. § 503(b)
8
47 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.