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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
)
KFW Communications LLC
)
dba Almega Cable, Inc.
) File No. EB-09-HU-0077
Former Owner of Cable Television
System ) NAL/Acct. No. 201032540003
Yorktown, Texas ) FRN 0018266676
Physical System ID # 007761 )
Former Owner of Antenna Structure # )
1045666
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 4, 2010
By the Resident Agent, Houston Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that KFW Communications LLC dba Almega Cable, Inc. ("KFW"), former
owner of cable television system and owner of antenna structure number
1045666, in Yorktown, Texas apparently willfully and repeatedly
violated Sections 11.35(a), 17.4(g), 17.48, and 17.51(a) of the
Commission's Rules ("Rules") by failing to install operational
Emergency Alert System ("EAS") equipment, failing to display the
Antenna Structure Registration ("ASR") number in a conspicuous place
so that it is readily visible near the base of the antenna structure,
failing to notify the Federal Aviation Administration ("FAA")
immediately of a lighting outage, and failing to exhibit all red
obstruction lighting from sunset to sunrise. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that KFW is apparently liable for a forfeiture in the amount of twenty
thousand dollars ($20,000).
II. BACKGROUND
2. On October 2, 2009, an agent with the Commission's Houston Office of
the Enforcement Bureau ("Houston Office") inspected antenna structure
number 1045666 in Yorktown, Texas. The agent observed that the ASR
number was not displayed in a conspicuous place visible near the base
of the antenna structure. According to the registration for antenna
structure number 1045666, the antenna structure is to display red
obstruction lighting from sunset to sunrise. The agent observed at
8:30 PM-CDT that the top-level red obstruction lighting for antenna
structure number 1045666 was not operational after sunset. The
inspecting agent called the FAA and determined a Notice to Airmen
("NOTAM") had not been issued for the obstruction light outage on
antenna structure number 1045666.
3. On October 5, 2009, an agent with the Houston Office inspected antenna
structure number 1045666. The agent observed that the ASR number was
not displayed in a conspicuous place visible near the base of the
antenna structure. The agent also observed at 8:45 PM-CDT that the
top-level red obstruction lighting for antenna structure number
1045666 was not operational after sunset. On the same day, the agent
also inspected the headend for the KFW cable system in Yorktown, Texas
and observed that no EAS equipment was installed.
4. On October 6, 2009, an agent with the Houston Office spoke with the
dispatching manager for KFW, who is responsible for overseeing the
technical department for KFW. The dispatching manager stated he was
unaware of antenna structure number 1045666 having any recent
obstruction light outages. He also stated that, to his knowledge, KFW
was not monitoring antenna structure number 1045666 visually once
every 24 hours or by an automated monitoring system.
5. On October 7, 2009, an agent with the Houston Office met with two KFW
technicians in Bloomington, Texas. The technicians stated that they
were the only two technicians for the KFW cable systems in Texas. The
technicians were unaware of any recent obstruction light outages on
antenna structure number 1045666. The technicians were then informed
of the obstruction light outage and of the need to maintain a NOTAM
for the outage. The technicians stated that, to their knowledge, the
obstruction lighting for antenna structure number 1045666 was not
being monitored visually once every 24 hours. The technicians also
stated that, to their knowledge, there was not an automated monitoring
system being used to monitor the obstruction lights for antenna
structure number 1045666. The technicians were not able to provide any
logs for the obstruction lighting. The technicians stated EAS
equipment was not installed at the headend for the KFW cable system in
Yorktown, Texas. They were unaware of operational EAS equipment being
installed at the Yorktown cable system at any time since KFW purchased
the system in 2008. The technicians were not able to provide any EAS
logs for the KFW cable system in Yorktown, Texas. KFW was not able to
provide any evidence that EAS tests were conducted between the time
KFW purchased the Yorktown, Texas cable system in 2008 and October 7,
2009.
6. On November 11, 2009, the dispatching manager for KFW stated in an
email that KFW still had no EAS equipment in Yorktown, Texas.
III. DISCUSSION
7. 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) of the Act 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.
8. The Rules provide that analog and digital cable systems are part of
the nationwide EAS network and are categorized as a participating
national EAS source unless the system affirmatively requests authority
to not participate. The EAS provides the President and state and local
governments with the capability to provide immediate and emergency
communications and information to the general public. State and local
area plans identify local primary sources responsible for coordinating
carriage of common emergency messages from sources such as the
National Weather Service or local emergency management officials.
Required monthly and weekly tests originate from EAS Local or State
Primary sources and must be retransmitted by the participating
station.
9. Section 11.35(a) of the Rules requires all cable systems to ensure
that EAS encoders, EAS decoders, and attention signal generating and
receiving equipment are installed so that the monitoring and
transmitting functions are available during the times the systems are
in operation. Additionally, cable systems must determine the cause of
any failure to receive the required tests or activations specified in
S: 11.61(a)(1) and (a)(2). Appropriate entries indicating reasons why
any tests were not received must be made in the cable system records
as specified in S:S: 76.1700, 76.1708 and 76.1711. As the nation's
emergency warning system, the Emergency Alert System is critical to
public safety, and we recognize the vital role that cable systems play
in ensuring its success. The Commission takes seriously any violations
of the Rules implementing the EAS and expects full compliance from its
regulatees. On October 5, 2009, an agent from the Houston Office
inspected the headend of the cable system in Yorktown, Texas and
observed that there was no EAS equipment installed at the head end. On
October 7, 2009, KFW technicians admitted that no EAS equipment was
installed at the headend for the KFW system in Yorktown, Texas and
that they were unaware of any operational EAS equipment being
installed at the Yorktown, Texas cable system since its purchase by
KFW in 2008. KFW was not able to provide any records showing that EAS
equipment was operational at the Yorktown, Texas headend during any
period from the time the system was purchased by KFW in 2008 and the
date of the inspection on October 5, 2009. KFW also admitted that, as
of November 11, 2009, no EAS equipment was installed at the headend in
Yorktown, Texas.
10. Section 17.4(g) of the Rules requires that the ASR number be displayed
in a conspicuous place so that it is readily visible near the base of
the antenna structure. On October 2 and 5, 2009, an agent with the
Houston Office observed that the ASR number was not displayed in a
location visible near the base of antenna structure number 1045666.
11. Section 17.51(a) of the Rules requires that all red obstruction
lighting be exhibited from sunset to sunrise. Section 17.47 of the
Rules requires owners of antenna structures to observe structure
lights visually once every 24 hours to ensure all lights are
functioning properly as required or employ an automatic alarm system
designed to detect any failure in the lights. Section 17.48 of the
Rules requires that owners of registered antenna structures that have
been assigned lighting specifications report immediately by telephone
or telegraph to the FAA any observed or otherwise known extinguishment
of any flashing obstruction light not corrected within 30 minutes. On
October 2 and 5, 2009, an agent from the Houston Office observed that
the top-level red obstruction lighting on antenna structure number
1045666 was not operational after sunset. On October 6, 2007, KFW was
unaware of the lighting outage and had not notified the FAA of the
outage. On October 6, and 7, 2009, KFW technicians stated the
obstruction lighting was neither being observed visually once every 24
hours nor monitored by an operational automatic alarm system. KFW's
failure to observe visually or monitor with an automatic alarm system
the obstruction lighting prevented it from detecting the repeated
outage on antenna structure number 1045666 and reporting the outage to
the FAA.
12. Based on the evidence before us, we find that KFW apparently willfully
and repeatedly violated Sections 11.35(a), 17.4(g), 17.48, and
17.51(a) of the Rules by failing to ensure that EAS equipment was
installed and operational, failing to display the ASR number in a
conspicuous place so that it is readily visible near the base of the
antenna structure, failing to notify the FAA of a light outage, and
failing to exhibit all red obstruction lighting from sunset to
sunrise.
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 failing to have operational EAS equipment
installed is $8,000 and the base forfeiture for failing to comply with
prescribed lighting is $10,000. Section 1.80 of the Rules does not
establish a base forfeiture amount for failure to post the ASR number.
The Commission has determined, however, that an appropriate base
forfeiture amount for failure to post the ASR number is $2,000 per
violation. 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 of the Rules,
and the statutory factors to the instant case, we conclude that KFW is
apparently liable for a $20,000 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, KFW Communications LLC dba
Almega Cable, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty thousand dollars ($20,000) for
violations of Sections 11.35(a), 17.4(g), 17.48, and 17.51(a) of the
Rules.
15. 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, KFW Communications LLC
dba Almega Cable, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
16. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, KFW will send electronic
notification on the date said payment is made to
SCR-Response@fcc.gov.
17. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Houston Office,
9597 Jones Road #362, Houston, Texas, 77065 and must include the
NAL/Acct. No. referenced in the caption.
18. 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.
19. 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 KFW Communications LLC dba Almega
Cable, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Lee R. Browning
Resident Agent
Houston Office
South Central Region
Enforcement Bureau
KFW sold the cable system in Yorktown effective January 1, 2010. KFW,
however, still owns other cable systems in Texas.
47 C.F.R. S:S: 11.35(a), 17.48, and 17.51(a).
47 U.S.C. S: 503(b).
Local sunset time was 7:00 PM-CDT.
The inspecting agent had a NOTAM issued at this time.
Local sunset time was 7:00 PM-CDT.
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:S: 11.11 and 11.41.
47 C.F.R. S:S: 11.1 and 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
sources.
47 C.F.R. S: 17.47.
47 C.F.R. S: 17.48(a).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
American Towers Corporation, Notice of Apparent Liability, 16 FCC Rcd 1282
(2001).
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, 11.35(a),
17.4(g), 17.48, and 17.51(a).
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
5
Federal Communications Commission