Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-090
Time Warner Cable, Albany Division )
Albany, NY ) NAL/Acct. No.
200432380004
)
) FRN: 0008 4371 13
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 29,
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, Albany Division (``Time
Warner'') has apparently violated Sections 11.61(a)(1)(iii) and
11.61(a)(2)(i)(B) of the Commission's Rules (the ``Rules''),1 by
failing to conduct required monthly and weekly tests of the
Emergency Alert System (``EAS''). We conclude that Time Warner
is apparently liable for a forfeiture in the amount of two
thousand dollars ($2,000).
II. BACKGROUND
2. On June 5, 2003, a Commission agent conducted an EAS
inspection of Time Warner's headend location at 130 Washington
Avenue Extension, Albany, NY 12203. Based upon the agent's
inspection of Time Warner's station records, he determined that
Time Warner failed to conduct weekly tests of the EAS header and
EOM codes from January 5, 2003 to February 22, 2003, from March
23 to April 5, 2003, and from April 27 to May 31, 2003. He also
determined that Time Warner failed to conduct required monthly
tests of the EAS header codes, Attention Signal, Test Script, and
EOM code for the months of January 2003, and March 2003.
III. DISCUSSION
3. Section 11.61(a)(1)(iii) of the Rules requires cable
systems to conduct required 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. Time Warner's station records failed to show
that required monthly tests of the EAS header codes, Attention
Signal, Test Script, and EOM code were conducted for the months
of January 2003 and March 2003.
4. Section 11.61(a)(2)(i)(B) of the 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 from January
5, 2003 to February 22, 2003, from March 23 to April 5, 2003, and
from April 27 to May 31, 2003.
5. Based on the evidence before us, we find that, Time
Warner willfully3 and repeatedly4 violated Sections
11.61(a)(1)(iii) and 11.61(a)(2)(i)(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 January 2003
and March 2003, and by failing to conduct required weekly tests
of the EAS header and EOM codes from January 5, 2003 to February
22, 2003, from March 23 to April 5, 2003, and from April 27 to
May 31, 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''),5
sets the base forfeiture amount for failure to make required
measurements or conduct required monitoring at $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 amended,6 (``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 two thousand dollar ($2,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Rules8, Time Warner is hereby NOTIFIED of their APPARENT
LIABILITY FOR A FORFEITURE in the amount of two thousand dollars
($2,000) for willful and repeated violations of Sections
11.61(a)(1)(iii) and 11.61(a)(2)(i)(B) of the Rules.
8. 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, 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. 200432380004 and FRN: 0008 4371 13.
10. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554, and MUST INCLUDE THE NAL/Acct. No. 200432380004.
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. 20554.9
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 Spectrum Enforcement 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, Albany Division, 130 Washington
Avenue Extension, Albany, NY 12203.
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)), and 11.61(a) (2)(i)(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 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 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.
547 C.F.R. § 1.80.
6
47 U.S.C. § 503(b)(2)(D).
7
47 U.S.C. § 503(b)
847 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.