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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
KLIP, LLC )
File Number: EB-08-DV-016
Operator of Cable Television System )
NAL/Acct. No. 200832800003
Community Unit ID: WY0087 )
FRN: 0013598081
Physical System ID: 004758 )
Pinedale, Wyoming )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 31, 2008
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that KLIP, LLC ("KLIP"), operator of the cable television system in
Pinedale, Wyoming, apparently willfully and repeatedly violated
Section 76.605(a)(12) of the Commission's Rules ("Rules") by operating
a 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 KLIP is apparently liable for a
forfeiture in the amount of eight thousand dollars ($8,000).
II. BACKGROUND
2. The above-captioned system has a history of non-compliance with the
Commission's cable leakage standards. The previous owner of the
system, Mallard Cablevision, LLC, was issued a Notice of Violation
("NOV") on July 20, 2001, for violations of the basic signal leakage
standards found in 76.605(a)(12) of the Rules. On July 18, 2002, a
second NOV was issued against the system for violations of the same
rule section. On June 8, 2003, an agent from the Denver Office
inspected this system and found the system exceeded the allowable
cumulative signal leakage. On May 25, 2004, a Notice of Apparent
Liability for Forfeiture was issued to Mallard for apparently
willfully and repeatedly violating Sections 76.605(a)(12) and
76.611(a)(1) of the Rules. On March 11, 2005, the Associate Chief,
Enforcement Bureau, issued a Memorandum Opinion and Order admonishing
Mallard for its willful and repeated violations of Sections
76.605(a)(12) and 76.611(a)(1), but cancelling the proposed forfeiture
because of Mallard's demonstrated inability to pay.
3. On September 7, 2007, KLIP was issued an NOV for violation of Section
76.605(a)(12) at its Pinedale, Wyoming, cable system, as well as an
NOV for violation of Section 76.605(a)(12) at its Big Piney, and
Marbleton, Wyoming, cable systems. Most recently, KLIP was issued two
NOV's on February 20, 2008, for violation of Section 76.605(a)(12) at
its Diamondville, Wyoming, and Kemmerer, Wyoming, cable systems.
4. On January 15, 2008, agents from the Enforcement Bureau's Denver
Office conducted a routine inspection of KLIP's cable system serving
Pinedale, Wyoming, to identify leaks and determine compliance with the
Commission's basic signal leakage criteria. The agents identified and
measured three leaks, on aeronautical frequency 121.2625 MHz, ranging
from 176 to 1,632 microvolts per meter ("uV/m") (See Attachment A).
The agents calculated the system's Cumulative Leakage Index ("CLI") to
be a value of 64.6, exceeding the allowable cumulative signal leakage
performance criteria of 64.
5. Because of the potential hazard to public safety caused by the leaks,
the agents contacted KLIP on January 15, 2008, and ordered the cable
operator to cease operation on aeronautical band frequencies or,
alternatively, reduce the amplitude of all signals on these
frequencies until the leaks were repaired and the system complied with
the basic signal leakage criteria. Later on January 15, 2008, the
Denver Office followed the oral order with a written Order to Cease
Operations ("Order"), sent via facsimile and first class mail to KLIP.
The Order required KLIP to conduct a complete inspection of the
system's cable plant, make the necessary repairs to bring the system
into compliance, and submit a report of their findings. Communications
with KLIP representatives indicated that technicians were being
dispatched to the headend and the system should be shut down at some
point that evening.
6. On January 16, 2008, the Denver agents returned to the Pinedale
system, to examine the three leakage locations identified the previous
day. On this day, the measurements taken by the Denver agents showed
that the leaks were greater, ranging in signal strength from 190 to
2,062 uV/m (See Attachment B), resulting in a higher CLI of 67.5.
Also, the leaks were measured on the frequency of 121.2625 MHz,
indicating that KLIP had neither ceased operation nor reduced the
amplitude of at least one channel operating in the "critical bands
(108-137 and 225-400 MHz)" as required by the Order issued on January
15, 2008.
7. On January 17, 2008, KLIP informed the Denver agents that they had
completed the required repairs. The Denver agents confirmed the system
was in compliance that same date.
8. On January 18, 2008, KLIP responded to the Order, by fax to the Denver
Office, with a written report of the leaks found, including their
locations, measured values, and actions taken to repair them. The
Denver District Director then approved KLIP to resume operations of
its Pinedale, Wyoming, system.
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
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. Because of
potentially hazardous interference to air navigation and other
authorized safety services cased by excessive cable signal leakage, a
cable system's CLI must not exceed 64 if the system is to operate on
aeronautical frequencies.
11. On January 15 and 16, 2008, KLIP exceeded the limits for both basic
and cumulative signal leakage at its system in Pinedale, Wyoming, by
operating with a CLI value of 64.6 and 67.5, respectively. This
operation continued through both days on aeronautical frequencies.
Prior to the instant inspection, KLIP received multiple NOV's for
exceeding cable signal leakage standards while operating several of
its cable systems in Wyoming, including its Pinedale system.
Additionally, KLIP maintains signal leakage logs which identify signal
leaks and repairs. Consequently, KLIP was aware of the requirements
concerning cable leakage, therefore, its violation was willful. The
violation occurred on more than one day, therefore, it was repeated.
Based on the evidence before us, we find that KLIP apparently
willfully and repeatedly violated Section 76.605(a)(12) of the Rules
by operating a cable system in violation of signal leakage standards.
12. 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)(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. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that KLIP is
apparently liable for an $8,000 forfeiture.
IV. ORDERING CLAUSES
13. 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, KLIP, LLC, is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
eight thousand dollars ($8,000) for violations of Section
76.605(a)(12) of the Rules.
14. 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, KLIP, LLC, SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures.
16. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado, 80226, and must
include the NAL/Acct. No. referenced in the caption.
17. 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.
18. 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 KLIP, LLC, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver District Office
Western Region
Enforcement Bureau
ATTACHMENT A
System Location: Pinedale, WY System PSID: Frequency: 121.2625
004758 MHz
Inspection Date(s): 1/15/2008
Measurement Location Signal Leakage
Field Strength
(uV/m @ 3 meters)
In alley of Pine Creek Inn near
the street intersections 1632
of Pine and Madison
On corner next to 912 Washington 176
Near PacifiCorp power pole 403
52-33-109/034806 by 117 Skyline
ATTACHMENT B
System Location: Pinedale, WY System PSID: Frequency: 121.2625
004758 MHz
Inspection Date(s): 1/16/2008
Measurement Location Signal Leakage
Field Strength
(uV/m @ 3 meters)
In alley of Pine Creek Inn near
the street intersections 2062
of Pine and Madison
On corner next to 912 Washington 190
Near PacifiCorp power pole 1173
52-33-109/034806 by 117 Skyline
47 C.F.R. S: 76.605(a)(12). The standards found in this section limit
basic signal leakage in the frequency band from 54 MHz to and including
216 MHz to 20 uV/m at a distance of 3 meters.
47 U.S.C. S: 503(b).
Notice of Violation, Case No. EB-01-DV-191 (Enf. Bur., Western Region,
Denver Office, July 20, 2001).
Notice of Violation, Case No. EB-02-DV-178 (Enf. Bur., Western Region,
Denver Office, July 18, 2002).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200432800002
(Enf. Bur., Western Region, Denver Office, May 25, 2004).
47 C.F.R. S:S: 76.605(a)(12) and 76.611(a)(1).
Mallard Cablevision, LLC, 20 FCC Rcd 5143 (EB 2005). Mallard sold this
system to LB Cable, LLC, in 2004. LB Cable, LLC, sold this system to KLIP
in 2005.
Notice of Violation, No. V20073280027 (Enf. Bur., Western Region, Denver
Office, September 7, 2007).
Notice of Violation, No. V20073280026 (Enf. Bur., Western Region, Denver
Office, September 7, 2007).
Notice of Violation, No. V20083280007 (Enf. Bur., Western Region, Denver
Office, February 20, 2008).
Notice of Violation, No. V20083280006 (Enf. Bur., Western Region, Denver
Office, February 20, 2008).
The leaks were measured on the frequency 121.2625 MHz. A maximum CLI of 64
is the basic single 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. The calculated CLI included only
leaks greater than 50 uV/m.
KLIP was ordered to cease operations on the aeronautical band frequencies
or reduce amplitude of all signals on these frequencies so that the power
level did not exceed 10-4 watts (38.75 dBmV) across a 25 kHz bandwidth in
any 160 microsecond period.
The Order required KLIP to suspend operation of the entire cable plant in
the "critical bands" (108 - 137 MHz and 225 - 400 MHz) in order to
eliminate potentially hazardous interference to air navigation and other
authorized safety services. The Order also required KLIP to submit a
complete report to the Denver Office outlining its efforts to eliminate
all leaks in excess of 20 uV/m. The report was to include the location of
all leaks, along with their measured value in uV/m at three meters, both
before and after the repair.
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. S: 76.605(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. S: 76.616. 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. S:S: 87.193-87.199.
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. S:S: 2.1 & 76.613(a).
47 C.F.R. S: 76.611(a)(1).
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,
76.605(a)(12).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission