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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 Number EB-09-HU-0078
Owner of Cable Television System ) NAL/Acct. No. 201032540004
Bloomington, Texas ) FRN 0018266676
Physical System ID # 007763 )
Owner of Antenna Structure # 1041490 )
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"), owner of
the cable television system and antenna structure number 1041490 in
Bloomington, Texas apparently willfully and repeatedly violated
Sections 11.35(a), 17.48, and 17.51(a) of the Commission's Rules
("Rules") by failing to install operational Emergency Alert System
("EAS") equipment, 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 eighteen thousand dollars ($18,000).
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 1041490 in Bloomington, Texas. According to the registration
for antenna structure number 1041490, the antenna structure is to
display red obstruction lighting from sunset to sunrise. The agent
observed at 7:25 PM-CDT that none of the red obstruction lighting for
antenna structure number 1041490 was 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 1041490.
3. On October 5, 2009, an agent with the Houston Office inspected antenna
structure number 1041490. The agent observed at 7:30 PM-CDT that none
of the red obstruction lighting for antenna structure number 1041490
was operational after sunset. On the same day, the agent also
inspected the headend for the KFW cable system in Bloomington, 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 1041490 having any recent
obstruction light outages. He also stated that, to his knowledge, KFW
was not monitoring antenna structure number 1041490 visually once
every 24 hours or by an automated monitoring system.
5. On October 7, 2009, an agent with the Houston Office inspected the KFW
cable television system headend in Bloomington, Texas. The inspection
was conducted with two KFW technicians. 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 1041490. 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 1041490 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 1041490. The technicians were not able to provide any
logs for the obstruction lighting. The inspection revealed EAS
equipment was not installed at the headend for the KFW cable system in
Bloomington, Texas. The technicians were unaware of operational EAS
equipment being installed at the Bloomington 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 Bloomington,
Texas. KFW was not able to provide any evidence that EAS tests were
conducted between the time KFW purchased the Bloomington, 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 Bloomington, 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 and 7, 2009, an agent from the Houston
Office inspected the headend of the cable system in Bloomington, Texas
and observed that there was no EAS equipment installed at the head end
on either day. On October 7, 2009, KFW technicians admitted that no
EAS equipment was installed at the headend for the KFW system in
Bloomington, Texas and that they were unaware of any operational EAS
equipment being installed at the Bloomington, 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 Bloomington, 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, KFW still had not
installed EAS equipment at the headend in Bloomington, Texas.
10. 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
none of the red obstruction lighting on antenna structure number
1041490 was 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 1041490 and reporting the outage to
the FAA.
11. Based on the evidence before us, we find that KFW apparently willfully
and repeatedly violated Sections 11.35(a), 17.48, and 17.51(a) of the
Rules by failing to ensure that EAS equipment was installed and
operational, failing to report an outage to the FAA, and failing to
exhibit all red obstruction lighting from sunset to sunrise.
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 failing to have operational EAS equipment
installed is $8,000 and the base forfeiture for failing to comply with
prescribed lighting 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. 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 an $18,000 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, KFW Communications LLC dba
Almega Cable, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of eighteen thousand dollars ($18,000) for
violations of Sections 11.35(a), 17.48, and 17.51(a) 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, 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.
15. 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.
16. 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.
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 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
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.
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)
and 17.51(a).
8 See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission