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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-019
Time Warner Cable )
Ferndale, NY ) NAL/Acct. No.
200332380019
)
) FRN: 0008-4371-13
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 31,
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 Time Warner Cable (``Time Warner'') has
apparently violated Sections 11.61(a)(2)(i)(B) and 11.61(b) of
the Commission's Rules (the ``Rules''),1 by failing to conduct
required weekly tests of the Emergency Alert System (``EAS'') and
failing to maintain station records of required weekly EAS test
messages. We conclude that Time Warner is apparently liable for
a forfeiture in the amount of three thousand dollars ($3,000).
II. BACKGROUND
2. On February 5, 2003, Commission agents conducted an EAS
inspection of Time Warner's headend location at 131 Firetower
Road, Wurtsboro, NY 12790. Based upon the agents' inspection of
Time Warner's station records, they determined that Time Warner
failed to conduct required weekly tests of the EAS header and EOM
codes for the weeks of November 10-23, 2002, December 15, 2002-
January 4, 2003, and January 12-25, 2003, and failed to maintain
EAS equipment so that it is capable of receiving EAS test
messages for the weeks of November 10-23, 2002, December 15,
2002-January 4, 2003, and January 12-25, 2003. They also found
that Time Warner had failed to maintain station records of
required weekly EAS tests received for the weeks of November 10-
23, 2002, December 15, 2002-January 4, 2003, and January 12-25,
2003, and state reasons why EAS tests were not received.
III. DISCUSSION
3. Section 11.61(a)(2)(i)(B) of the Commission's Rules
requires cable systems to conduct required weekly tests of the
EAS header and EOM codes at least once a week at random days and
times. Time Warner's station records failed to show that
required weekly tests of the EAS header and EOM codes were
conducted for the weeks of November 10-23, 2002, December 15,
2002-January 4, 2003, and January 12-25, 2003.
4. Section 11.61(b) of the Commission's Rules requires
cable systems to make entries in station records of weekly EAS
tests received. Entries were not made in the station records of
EAS tests received for the weeks of November 10-23, 2002,
December 15, 2002-January 4, 2003, and January 12-25, 2003, or
reasons why required weekly EAS tests were not received.
5. Based on the evidence before us, we find that, Time
Warner willfully2 and repeatedly3 violated Sections
11.61(a)(2)(i)(B) and 11.61(b) of the Rules by failing to conduct
required weekly tests of the EAS header and EOM codes for the
weeks of November 10-23, 2002, December 15, 2002-January 4, 2003,
and January 12-25, 2003, and failing to log entries of reasons
why required weekly EAS tests were not received for the weeks of
November 10-23, 2002, December 15, 2002-January 4, 2003, and
January 12-25, 2003.
6. 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''),4
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 Communications Act of 1934, as amended,5 (``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
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
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Communications Act of 1934, as amended,6 (``Act'')
and Sections 0.111, 0.311 and 1.80 of the Commission's Rules7,
Time Warner 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)(2)(i)(B) and
11.61(b) of the Commission's 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, Time Warner 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 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. 200332380019 and FRN: 0008-4371-13.
10. 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. 200332380019.
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. 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. 20554.8
13. 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.
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Time Warner Cable, One Cablevision Center, Second
Floor - Suite 2, Ferndale, NY 12734.
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)(2)(i)(B) and 11.61(b).
2 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).
3 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.
447 C.F.R. § 1.80.
5
47 U.S.C. § 503(b)(2)(D).
6
47 U.S.C. § 503(b)
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.