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200632700004Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) EB-05-TP-431
Cox Communications ) NAL/Acct. No.200632700004
Fort Walton Beach, FL ) FRN: 0004382768
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 27, 2006
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Cox Communications ("Cox") in Fort Walton Beach, FL, apparently
willfully and repeatedly violated Section 76.605(a)(12) of the
Commission's Rules ("Rules") and willfully violated Section 76.611(a)
of the Rules by failing to comply with the Commission's cable signal
leakage standards. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Cox is apparently
liable for a forfeiture in the amount of eight thousand dollars
($8,000).
II. BACKGROUND
2. On November 30, 2005, agents from the FCC's Enforcement Bureau, Tampa
Office inspected a portion of the Cox cable system serving Destin,
Florida to identify leaks and determine compliance with the basic
signal leakage criteria. The agents identified and measured four leaks
on the frequency 121.2625 MHz, ranging in signal strength from 646.5
microvolts per meter ("uV/m") to 2,275.8 uV/m. Based on these
measurements, the agents calculated the system's Cumulative Leakage
Index ("CLI") at a value of 69.5, exceeding the allowable cumulative
signal leakage performance criteria of 64. (See Attachment A.)
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 of 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
4. On November 30, 2005, agents from the FCC's Enforcement Bureau, Tampa
Office inspected the cable system operated by Cox in Destin, Florida.
On that date, the agents determined that, at 4 locations, cable signal
leakage on 121.2625 MHz exceeded 20 .V/m at a distance of at least
three meters from each leak, in violation of Section 76.605(a)(12) of
the Rules. On the same date, the agents also found that the system did
not conform to the cumulative signal leakage performance criteria, in
violation of Section 76.611(a) of the Rules.
5. Based on the evidence before us, we find that Cox apparently willfully
and repeatedly violated Section 76.605(a)(12) of the Rules by failing
to limit signal leakage from its cable television system to the
specified amount. We also find that Cox willfully violated Section
76.611(a) of the Rules by exceeding the allowed cumulative signal
leakage performance criteria on its cable television system.
6. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for violating rules relating to distress and
safety frequencies is $8,000. 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 Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that Cox is
apparently liable for a $8,000 forfeiture.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Cox Communications is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
eight thousand dollars ($8,000) for violations of Sections
76.605(a)(12) and 76.611 of the 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 for Forfeiture, Cox Communications 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 must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank and account number 911-6106.
10. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Tampa Office,
2203 N. Lois Ave., Suite 1215, Tampa, FL, 33607 and must include the
NAL/Acct. No. referenced in the caption.
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 for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Cox Communications at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director,
Tampa Office
South Central Region
Enforcement Bureau
Cox Communications, Fort Walton Beach, Florida NAL Acct. No. 200632700004
ATTACHMENT A
FIELD STRENGTH MEASUREMENTS OF COX COMMUNICATIONS
FORT WALTON BEACH, FL
MEASUREMENT DATE: NOVEMBER 30, 2005
FREQUENCY: 121.2625 MHZ
Measurement Location Leakage Field Strength,
uV/m
1 Pole in front of "Joe's Crab Shack" at 770.1
14055 US 98
2 Pole between "Club Destin Resort" and 1,645.2
"Palace Store" at 1079 US 98
3 Pole in front of 1234 Gulf Place at 2,275.8
Airport Road
4 Pole in front of "Destin Beach Club" at 646.5
1150 US 98
47 C.F.R. SS 76.605(a)(12), 76.611(a).
47 U.S.C. S 503(b).
A maximum CLI of 64 is the basic signal leakage performance criteria of
Section 76.611(a)(1) of the rules. Leakage that exceeds this level is
deemed to pose a serious threat to air safety communications
Section 312(f)(1) of the Act, 47 U.S.C. S 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. S 312(f)(2), 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."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 76.605(a)(12)
and 76.611.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
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Federal Communications Commission
3
Federal Communications Commission