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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Time Warner Entertainment Company LP
) File Number EB-05-NY-216
Operator of Cable Television System
) NAL/Acct. No. 200632380009
Community Unit ID: NY1280
) FRN 0003 4771 48
Physical System ID: 009040
)
Brooklyn, NY
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 18, 2006
By the District Director, New York Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Time Warner Entertainment Company LP ("Time Warner"), operator of
a cable television system in Brooklyn, New York, apparently willfully
and repeatedly violated Section 76.605(a)(12) of the Commission's
Rules ("Rules") by operating its cable system in violation of cable
signal leakage standards. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended ("Act"), that Time Warner
is apparently liable for a forfeiture in the amount of eight thousand
dollars ($8,000). We also admonish Time Warner for failing to timely
file FCC Form 320 reporting the results of its cable signal leakage
testing as required under Section 76.1803 of the Rules.
II. BACKGROUND
2. On August 30 and 31, 2005, an agent of the FCC Enforcement Bureau's
New York Office conducted cable television signal leakage measurements
of Time Warner's cable television system serving a portion of
Brooklyn, New York. On both dates, the agent identified and measured
on aeronautical frequency 121.2625 MHz the same four leaks greater
than 20 microvolts per meter (uV/m) measured at least 3 meters from
the leak. The leaks ranged in signal strength from 57 uV/m to 4,032
uV/m. (See Attachment A). Section 76.605(a)(12) of the Rules limits
basic signal leakage in the frequency band from 54 MHz up to and
including 216 MHz to 20 uV/m at a distance of 3 meters at any point in
the system. Because Time Warner was operating on aeronautical
frequencies, the system also was subject to the requirement in Section
76.611(a)(1) of the Rules that it conduct measurements annually to
ensure that the totality of the system's leaks does not exceed a
Cumulative Leakage Index ("CLI") value of 64. The CLI for the largest
leak alone, which was located at the back of 171 92^nd Street in
Brooklyn, NY, was 72.11. The calculated value of the CLI for all four
leaks combined was 72.13.
3. After making the leakage measurements on August 31, 2005, the agent
spoke by telephone to Time Warner's Vice President of Engineering and
Time Warner's Director of Plant Engineering, and informed them of the
locations of the four leaks. The agent advised them that the leak
which exceeded the CLI must be repaired immediately or they would need
to cease operations on aeronautical frequencies. They stated that a
repair technician would be dispatched immediately and that the major
leak would be repaired that day. At the request of the agent, the
Director of Plant Engineering stated that he would fax a leakage
report to the New York Office when the leaks were repaired.
4. On September 1, 2005, Time Warner's Director of Plant Engineering
reported to the agent that the leak at the back of 171 92^nd Street
had been repaired and that he would send a report to the New York
Office when the remaining leaks were corrected.
5. On September 20, 2005, Time Warner's Director of Plant Engineering
faxed to the New York Office the Leakage Find and Repair Report. The
report indicated that three of the four reported leaks were found and
repaired by Time Warner on August 31, 2005, including the major leak
at 171 92^nd Street, which the agent found to exceed the CLI.
6. On October 26, 2005, the New York Office sent a Letter of Inquiry
("LOI") to Time Warner, requesting information regarding the signal
leakage at 171 92^nd Street in particular and, more generally, Time
Warner's signal leakage monitoring program. In a response dated
November 16, 2005, Time Warner stated that after being notified of the
signal leakage on August 31, 2005, it immediately dispatched a CLI
crew to repair the leak. Time Warner stated that it believed the cause
of the largest leak was a recent pole installation by Verizon. More
specifically, Time Warner stated that "[i]t appears that, during the
removal of the old pole and the installation of the new pole, the
cable belonging to Time Warner broke at the tap, which, as a result,
caused the signal leakage at issue." The response also detailed Time
Warner's "Comprehensive Signal Leakage Monitoring Program." In
addition, Time Warner reported that a "Structured Quarterly Snapshot"
of the entire Brooklyn system was performed between May 16 and May 24,
2005 and submitted the documentation it planned to include with its
filing of FCC Form 320 on or before December 31, 2005.
7. On November 18, 2005, the agent contacted Verizon regarding pole
replacements at 171 92^nd Street. According to Verizon's records, the
pole located at 171 92^nd Street was replaced in September 2004.
8. The agent also conducted a review of FCC Forms 320 filed by Time
Warner for the years 2003, 2004, and 2005. Section 76.611 of the Rules
requires that cable operators take measurements to ensure compliance
with the CLI at least once each calendar year, with no more than
twelve months between tests. Section 76.1803 of the Rules requires
that cable operators submit the results of the measurements taken
pursuant to Section 76.611(a) each calendar year. In 2003, Time Warner
conducted tests pursuant to Section 76.611 from May 1, 2003 to June
21, 2003 and filed Form 320 on January 7, 2004. In 2004, Time Warner
conducted tests from June 1, 2004 to August 13, 2004. The measurements
for 2005 were completed on August 12, 2005. The FCC Form 320 for the
measurements taken in 2004 and 2005 were not submitted until April 14,
2006.
III. DISCUSSION
9. 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.
10. The Commission established cable signal leakage rules to ensure that
emissions from cable systems do not cause harmful interference. In
this regard, the Commission established basic signal leakage standards
in Section 76.605(a)(12) of the Rules, which limit the amount of
signal leakage that is permitted at any given point in the cable
system. Specifically, leakage at any given point must not exceed 20
microvolts per meter (uV/m) at a distance of 3 meters. The
Commission also recognized that it was particularly important to
protect aeronautical frequencies from harmful interference. The
Commission therefore adopted Section 76.611(a)(1) of the Rules, which
sets a CLI that must be met before a cable system may operate on
aeronautical frequencies. In order to operate on aeronautical
frequencies, the system's CLI must not exceed 64. Cable operators
are required to perform annual measurements to ensure that the
totality of the system's leaks does not exceed a CLI value of 64.
11. On August 30 and 31, 2005, based on measurements taken at the same
four locations on each day, Time Warner exceeded the signal leakage
limits in Section 76.605(a)(12) of the Rules. Combined, those leaks,
which occurred on aeronautical frequencies, resulted in the system
exceeding the CLI limit set forth in Section 76.611(a)(1) of the
Rules. Indeed, the leak at 171 92^nd Street was so severe that, even
if no other leaks had been found, the system still would have exceeded
the CLI limit. Although Time Warner claimed that the most severe leak
likely was caused by a cable damaged during a recent pole installation
by Verizon, the agent's subsequent query to Verizon revealed that the
pole located at 171 92^nd Street was replaced in September 2004,
almost one year prior to the apparent violations at issue here.
Further, as evidenced by its signal leakage monitoring program, Time
Warner was aware of the signal leakage requirements associated with
the operation of its system. Because Time Warner operated its system
with the knowledge that it must comply with the Commission's signal
leakage requirements, we find that Time Warner's violation was
willful. We also find that the violation was repeated because the
system exceeded the signal leakage limits on more than one day.
Accordingly, based on the evidence before us, we find that on August
30, and 31, 2005, Time Warner apparently willfully and repeatedly
violated Sections 76.605(a)(12) of the Rules by operating its cable
system in violation of signal leakage standards.
12. We believe that the finding of willfulness in this case is
additionally supported by Time Warner's apparent lack of diligence
with regard to the reporting requirements set forth in Section 76.1803
of the Rules. Time Warner failed to timely file its 2004 and 2005 FCC
Forms 320. Indeed, we find it particularly egregious that Time Warner
did not file its 2004 FCC Form 320 until April 14, 2006. We therefore
admonish Time Warner for violating Section 76.1803 of the Rules.
13. 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 violation of 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 Time
Warner is apparently liable for an eight thousand dollar ($8,000)
forfeiture.
IV. ORDERING CLAUSES
14. 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, Time Warner Entertainment
Company LP is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violation of Section 76.605(a)(12) of the Rules.
15. IT IS FURTHER ORDERED that Time Warner Entertainment Company LP IS
ADMONISHED for its violation of Section 76.1803 of the Rules.
16. 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, Time Warner Entertainment
Company LP SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
17. 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.
18. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, New York, NY 10014 and must include the NAL/Acct. No.
referenced in the caption.
19. 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.
20. 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.
21. 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 Time Warner Entertainment Company LP
at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director,
New York Office
Northeast Region
Enforcement Bureau
ATTACHMENT A
Field strength measurements of Time Warner Entertainment Company LP,
Brooklyn, NY (PSID: 009040)
MEASUREMENT DATE: August 30, 2005 FREQUENCY: 121.2625 MHZ
Measurement Location Signal Leakage Field Strength,
(uV/m @ 3 meters)
1 Pole behind 171 92^nd Street 4032
2 Pole in front of 8814 Colonial 180
Road
3 Pole behind 365 88^th Street 180
4 Pole in front of 143 89^th 57
Street
MEASUREMENT DATE: August 31, 2005 FREQUENCY: 121.2625 MHZ
Measurement Location Signal Leakage Field Strength,
(uV/m @ 3 meters)
1 Pole behind 171 92^nd Street 2544
2 Pole in front of 8814 Colonial 202
Road
3 Pole behind 365 88^th Street 36
4 Pole in front of 143 89^th 57
Street
47 C.F.R. SS 76.605(a)(12).
47 U.S.C. S 503(b).
47 C.F.R. S76.1803.
47 C.F.R. S 76.605(a)(12).
47 C.F.R. S 76.611(a)(1).
According to the report, the Time Warner technician measured the leak at
171 92^nd Street at 632.56 uV/m before repairs, and 2.00 uV/m after
repairs. The comment section for that leak stated "repaired cracked .500
cable." In addition, Time Warner claimed that it found only three leaks,
not four.
Cable operators are required to report CLI levels to the FCC annually via
FCC Form 320 in accordance with Section 76.1803. See infra para. 8.
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."
Memorandum Opinion and Order, Amendment of Part 76 of the Commission's
Rules to Add Frequency Channelling Requirements and restrictions and to
require Monitoring for Signal Leakage from Cable Television Systems,
Docket No. 21006, 101 FCC 2d 117, para. 14 (1985).
47 C.F.R. S76.605(a)(12).
The aeronautical bands are 108-137 MHz and 225-400 MHz. These frequencies
encompass both radionavigation frequencies, 108-118 MHZ and 328.6-335.4
MHz, and communications frequencies, 118-137 MHz, 225-328.6 MHz and
335.4-400 MHz. Deserving particular protection are the international
distress and calling frequencies 121.5 MHz, 156.8 MHz, and 243 MHz. See 47
C.F.R. S76.616. These frequencies are critical for Search and Rescue
Operations including use by Emergency Locator Transmitters on planes and
Emergency Position Indicating Radio Beacons on boats. See generally 47
C.F.R. Part 80, Subpart V and 47 C.F.R. SS 87.193-87.199.
Section 76.613(a) states that "[h]armful interference is any emission,
radiation or induction which endangers the functioning of a
radionavigation service or of other safety services or seriously degrades,
obstructs or repeatedly interrupts a radiocommunication service operating
in accordance with this chapter." See 47 C.F.R. SS2.1 & 76.613(a).
47 C.F.R. S76.611(a)(1).
We note that, although the rule violation cited here is Section
76.605(a)(12) of the Rules, a Notice of Apparent Liability for Forfeiture
is being issued in this case because the leaks exceeded the CLI limit of
64 set forth in Section 76.611 of the Rules.
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).
47 U.S.C. S76.1803.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
Federal Communications Commission
4
Federal Communications Commission