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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
COMSOUTH TELESYS, INC. ) File Number: EB-06-AT-126
Operator of Cable System COMSOUTH ) NAL : 200732480003
Perry, GA ) FRN: 0009947151
Physical System ID: 012268 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 12, 2007
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that COMSOUTH TELESYS, Inc. ("COMSOUTH"), licensee of cable system
COMSOUTH, in Perry, Georgia, apparently willfully and repeatedly
violated Section 11.35 of the Commission's Rules ("Rules") by failing
to maintain an Emergency Alert System ("EAS") capable of transmitting
an EAS test. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that COMSOUTH is
apparently liable for a forfeiture in the amount of eight thousand
dollars ($8,000).
II. BACKGROUND
2. On December 6, 2006, an agent from the Commission's Atlanta Office of
the Enforcement Bureau, accompanied by a contract consulting engineer
and two technicians, inspected the EAS equipment of cable system
COMSOUTH in Perry, Georgia. The agent found that EAS equipment was
installed, but not fully operational. The cable system engineer could
not send an EAS test during the inspection, because the equipment was
not properly connected. The engineer stated the station moved the EAS
unit from another rack, but could not recall when it was moved or how
long the equipment had been connected in this manner. The stored
memory for the EAS unit was printed, and the most recent entry was a
required weekly test dated July 11, 2006. The system had no EAS logs
indicating failures in sending tests, and there was no evidence that
the EAS unit was able to send an EAS test after July 11, 2006. The
engineer and technicians agreed that they had not sent or received a
test after July 11, 2006. There was also no Cable EAS Handbook
available.
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. Section 11.35 of the Rules requires all broadcast stations to ensure
that EAS encoders, EAS decoders and Attention Signal generating and
receiving equipment are installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. Cable systems must also determine the
cause of any failure to receive required monthly and weekly EAS tests,
and must indicate in the station's log why any required tests were not
received and when defective equipment is removed and restored to
service. On December 6, 2006, COMSOUTH's EAS equipment, as installed,
was not capable of sending an EAS test when the station was in
operation. The EAS equipment was not connected properly, and the cable
system engineer and technicians did not know how long the system had
been in this state. The cable system engineer and technicians admitted
that the system had not sent or received an EAS test since July 11,
2006, and there was no evidence that the EAS equipment was able to
send an EAS test after that date. There were also no EAS logs and no
Cable EAS Handbook available. Based on the evidence before us, we find
that COMSOUTH apparently willfully and repeatedly violated Section
11.35(a) of the Rules by failing to maintain an EAS capable of
transmitting EAS tests.
5. 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 failing to maintain operational EAS
equipment 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 COMSOUTH is
apparently liable for a $8,000 forfeiture.
IV. ORDERING CLAUSES
6. 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, COMSOUTH TELESYS, Inc., is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for violation of Section
11.35 of the Rules.
7. 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, COMSOUTH TELESYS, Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
8. 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.
9. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Atlanta Office,
3575 Koger Blvd., Duluth, GA 30096 and must include the NAL/Acct. No.
referenced in the caption.
10. 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.
11. 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.^8
12. 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 COMSOUTH TELESYS, Inc., at its address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Douglas G. Miller
District Director
Atlanta Office
South Central Region
Enforcement Bureau
47 C.F.R. S 11.35.
47 U.S.C. S 503(b).
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."
47 C.F.R. S 11.35(a), (b).
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, 11.35.
^8 See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission