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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
RCN Telecom Services, Inc. ) File Number EB-07-PA-006
Operator of Cable System ) NAL/Acct. No. 200832400003
Community Unit ID: PA0557 ) FRN 0003-25-2426
Coplay, Pennsylvania )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 13, 2007
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that RCN Telecom Services, Inc. ("RCN"), owner of a cable system
serving the communities in the Northampton, Pennsylvania area,
including Coplay, Pennsylvania, apparently willfully and repeatedly
violated Section 76.1701(a) of the Commission's Rules ("Rules") by
failing to retain a Political File in the cable system's public
inspection file. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that RCN is apparently
liable for a forfeiture in the amount of four thousand dollars
($4,000). In addition, we admonish RCN for failing to maintain a
complete and updated listing of stations carried in fulfillment of the
must-carry requirements, in violation of Section 76.1709(a) of the
Rules.
II. BACKGROUND
2. On January 4, 2007, an agent of the Commission's Philadelphia Office
inspected the public inspection file for RCN's cable television system
serving the Northampton, Pennsylvania area. The public inspection file
was located at RCN's billing office at 2124 Avenue C, Bethlehem,
Pennsylvania. The agent found that the public inspection file did not
contain any records of requests for cablecast time made by or on
behalf of a candidate for public office ("Political File"). After
further investigation, the agent found that RCN contracted Target
Select to deliver advertising on the RCN cable system that serves the
Northampton, Pennsylvania area. The agent obtained copies of dozens of
agreements between Target Select and numerous political candidates
including Rick Orloski for Pennsylvania Senate, Charlie Dent for the
United States House of Representatives, and Bob Casey, Jr. for the
United States Senate. The Agreements specified that Target Select
would air political advertisements between May 1, 2006 and November
12, 2006 for these candidates on the RCN cable television system. At
the time of the inspection, the Agreements were not in the cable
television system's public inspection file.
3. On January 4, 2007, the agent also found that the public inspection
file contained a list of stations that are carried on the cable system
in fulfillment of the must carry requirements. The list, which was
dated March 31, 1995, incorrectly specified the call sign, community
of license, or cable channel for many of the must-carry television
stations. Prior to leaving the inspection, the agent warned RCN that
it should immediately update the Must Carry List and place a copy in
the public inspection file.
4. On July 25, 2007, an agent with the Commission's Philadelphia Office
re-inspected the contents of the RCN public inspection file and found
a different Must Carry List in the public inspection file than the one
found on January 4, 2007. The Must Carry List found on July 25, 2007,
was labeled "Must Carry Station List, RCN Telecom Services, Inc,
Delaware County" and included a listing of stations carried in
fulfillment of the must carry requirements for the cable system that
serves the communities in the Darby, Pennsylvania area. The Must-Carry
List did not reflect the correct stations that are carried in
fulfillment of the must carry requirements on the cable system that
serves the communities in the Northampton, Pennsylvania area.
III. DISCUSSION
5. 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.
6. Section 76.1701(a) of the Commission's Rules requires that every cable
television system keep and permit public inspection of a Political
File, which must include all requests for cablecast time made by or on
behalf of a candidate for public office, together with an appropriate
notation showing the disposition made by the system of such requests,
and the charges made, if any, if the request is granted. The
disposition includes the schedule of time purchased, when spots
actually aired, the rates charged, and the classes of time purchased.
Between May 1, 2006 and November 12, 2006, Target Select entered into
agreements on behalf of RCN and political candidates. The agreements
specified that Target Select would air political advertisements on
behalf of these political candidates on RCN's cable television system
that serves the Northampton, Pennsylvania area. During the inspection
on January 4, 2007, the agent found that RCN failed to retain in the
public inspection file any of these agreements. Based on the evidence
before us, we find that RCN apparently willfully and repeatedly
violated Section 76.1701(a) of the Rules by failing to retain a
Political File in the public inspection file for the cable television
system that serves the Northampton, Pennsylvania area.
7. 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 a violation of the public file rules is
$10,000. In assessing the monetary forfeiture amount, we must also
take into account the statutory factors set forth in Section
503(b)(2)(E) 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. Because
RCN's public inspection file was mostly complete, we conclude a
reduction in the base amount for the public inspection file violation
to $4,000 is appropriate. Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we
conclude that RCN is apparently liable for a $4,000 forfeiture.
8. Section 76.1709(a) of the Commission's Rules requires that every cable
television system shall maintain for public inspection a file
containing a list of all broadcast television stations carried by its
system in fulfillment of the must-carry requirements provided in
Sec.76.56 of the Rules. The must-carry list must include the call
sign, community of license, broadcast channel number, and cable
channel number. During an inspection on January 4, 2007, an agent
found that RCN did not maintain an updated Must-Carry List in its
public inspection file. During a re-inspection of the public
inspection file on July 25, 2007, an agent found that RCN had placed
the Must-Carry List for the cable system that serves the Darby,
Pennsylvania area in the public inspection file for the cable system
that serves the Northampton, Pennsylvania area. We admonish RCN for
failing to maintain for its system serving Northampton, Pennsylvania,
a complete and accurate Must Carry List in its public inspection file
on January 4, 2007 and July 25, 2007.
IV. ORDERING CLAUSES
9. 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, RCN Telecom Services is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violations of Section
76.1701(a) of the Rules.
10. IT IS FURTHER ORDERED that RCN is hereby ADMONISHED for its violation
of Section 76.1709(a) of the Commission's Rules.
11. 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, RCN Telecom Services
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Philadelphia Office,
One Oxford Valley Building, Suite 404, 2300 East Lincoln Highway,
Langhorne, Pennsylvania 19047 and must include the NAL/Acct. No.
referenced in the caption.
14. 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.
15. 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
16. 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 RCN Telecom Services at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 76.1701(a).
47 U.S.C. S: 503(b).
47 C.F.R. S: 76.1709(a).
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."
Section 76.1700 provides that a cable system having 5,000 or more
subscribers shall maintain for public inspection, inter alia, a file
containing a copy of all records which are required to be kept by Section
76.1701 (Political File). RCN has approximately 96,960 Basic Service
subscribers and therefore is required to maintain a Political File for
public inspection.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 76.1701(a).
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission