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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Callais Cablevision, Inc. )
Grand Isle, Louisiana ) NAL/Acct. No.: X12000004
) EB-00-OR-023
) Physical System ID: 004760
)
)
)
NOTICE OF APPARENT LIABILITY FOR MONETARY FORFEITURE
Adopted: January 17, 2001 Released: January 19,
2001
By the Commission:
I. INTRODUCTION
In this Order we find that Callais Cablevision, Inc.,
(``Callais'') is apparently liable for a forfeiture of $133,000.
The forfeiture is assessed for four infractions: 1) repeated
violation of the signal leakage standards, 2) repeated violation
of the frequency offset requirements in the aviation bands, 3)
repeated failure to make the annual leakage tests, and 4) willful
and repeated violation of the requirement to have prescribed
equipment capable of receiving and sending EAS alerts to
subscribers. This investigation was conducted by Enforcement
Bureau field engineers in response to a complaint of interference
to aircraft approach frequencies from the Federal Aviation
Administration (``FAA'') in Houston, Texas.
II. BACKGROUND
The Commission has established cable signal leakage rules to
control emissions that could cause interference to aviation
frequencies from cable systems. Protecting the aeronautical
frequencies1 from harmful interference is of paramount
importance.2 To this end, the Commission established basic
signal leakage standards. 3 We have determined the tolerable
levels of unwanted signals on the aeronautical frequencies in two
ways. Signal leakage levels that exceed these thresholds are
considered harmful interference. First, leakage at any given
point must not exceed 20 µV/m.4 Second, we set basic signal
leakage performance criteria for the system as a prerequisite for
operation on aeronautical frequencies. This is the system's
Cumulative Leakage Index (CLI). We require annual measurement of
each system's CLI to demonstrate safe levels of signal leakage,5
the results of which must be reported to us.6 We also require
routine monitoring of the system to detect leaks.7 Whenever
harmful interference occurs, the cable system operator must
eliminate it.8 Further, should the harmful interference not be
eliminated, we will intervene and require cessation of operation
of the portion of the system involved or reduction of power9
below the levels specified in Section 76.610 of the Commission's
Rules.10 Because we cannot insure that leakage will not occur,
we have also retained the requirement that the signal carriers of
cable systems must be offset from the frequencies used by
aeronautical services.11
The Emergency Alert System (``EAS'') provides the capability for
the President to communicate emergency information to the public
in a national emergency. It also may be used by state and local
government to provide information to their residents in case of
local disasters.12 Cable systems must participate in the EAS.13
Cable systems with 10,000 or more subscribers were required to
install EAS equipment in accordance with Section 11.11 by
December 31, 1998.14 Specifically, these cable systems must
install and operate EAS encoder and EAS decoder equipment. In
addition, the equipment must be capable of transmitting audio and
video EAS messages on all channels.15
III. DISCUSSION
On January 21, 2000, the Federal Aviation Administration (FAA)
experienced interference to the operation of its Grande Isle,
Louisiana, Remote Communication Air Ground (``RCAG'') facility.
In the course of his investigation, an FAA Airway Transportation
Systems Specialist contacted the Commission's New Orleans Office
for technical assistance. The Commission engineer advised the
FAA that the characteristics of the interfering signal indicated
that the source was leakage from a cable system. The FAA
personnel contacted Callais technicians to investigate the
problem. Upon returning to the site on January 24, 2000, FAA
personnel reported that the interference was no longer present.
The FAA representative states that Callais told him that they
found and repaired some cable leaks. Leakage monitoring logs
supplied by Callais16 show that several leaks were found and
repaired in the general vicinity of the FAA RCAG on January 21
and 22, 2000. The logs furnished by Callais indicate a signal
leakage level of 80 mV/m on January 21, 2000, near the FAA
facility.
On February 8 and 10, 2000, the Commission's New Orleans Office
conducted a follow up examination of the system cable plant to
identify leaks and determine compliance with the basic signal
leakage criteria. On February 8, 2000, seven leaks were
measured, which ranged from 68 mV/m to 1,068 mV/m. On February
10, 2000, seven additional leaks were measured, which ranged from
143 mV/m to 2295 mV/m. These leaks were found in the nine miles,
or 2.7%, of the system inspected. Nevertheless, even assuming no
leaks in the rest of the system, it was found to have a CLI (10
log I¥) in excess of 64.17 In addition the Commission field
engineer found that the system had not offset carrier frequencies
from aeronautical frequencies.
On February 11, 2000, the Commission's New Orleans Office
conducted an inspection of the cable system headend. This
inspection revealed that the required offset of carrier
frequencies had not been performed despite the fact that
equipment installed was apparently readily capable of doing so.18
On February 11, 2000, the District Director issued an Order to
Cease Operations, pursuant to Section 76.613(c) of the
Commission's Rules.19 The system was brought into compliance and
normal operation resumed on February 17, 2000.
The inspection further revealed that Callais did not install EAS
equipment as required by Section 11.11 of the Commission's rules.
Although Callais had the capability to interrupt audio
programming to provide emergency messages, its equipment did not
comply with the EAS rules contained in Part 11. Specifically,
Callais had not installed EAS encoder and EAS decoder equipment,
or equipment to provide audio and video EAS messages on all
channels as required by Section 11.11 of the Commission's rules.
On February 29, 2000, an Official Notice of Violation (``NOV'')
was issued citing these latter two violations. On March 10,
2000, Callais replied to the NOV advising that they had offset
the frequencies and had purchased the proper EAS equipment. On
March 23, 2000, Callais notified the New Orleans Office that the
EAS equipment had been received and installed. On May 19, 2000,
Callais supplied the portion of its leakage repair log for
January 21 and 22, 2000, as requested by the New Orleans District
Office pursuant to Section 76.614 of the Commission's Rules.20
A review of Commission records shows that the most recent Basic
Signal Leakage Performance Report, FCC Form 320, was filed on
October 28, 1998, for tests performed on August 10, 1998.21 A
test should have been performed before August 10, 1999, and
should have been reported to us on or before December 31, 1999.22
IV. CONCLUSION
The Commission assesses monetary forfeitures pursuant to Section
503(b) of the Communications Act of 1934, as amended, (``Act'')23
as implemented in Section 1.80 of the Commission's Rules.24 A
forfeiture may be assessed against a person who the Commission
finds to have willfully or repeatedly failed to comply with the
provisions of the Act or the Commission's Rules.25 ``Willful''
in this context means that the person knew that he was doing the
act in question, regardless of intent to violate the provision.26
``Repeated'' means commission or omission of an act more than
once. Forfeiture amounts are decided in accordance with Section
503(b)(2) of the Communications Act and the Commission's
forfeiture guidelines in Section 1.80(b)(4) of the Commission's
Rules.27
We conclude that Callais has repeatedly violated the Commission's
cable signal leakage rules. As discussed above, on January 21,
and February 8 and 10, 2000, the cable system in Grand Isle,
Louisiana, had leaks that exceeded the maximum allowable field
strength of 20 mv/m at 3m, in repeated violation of Section
76.605(a)(12) of the Commission's Rules.28 On February 8 and 10,
2000, the system did not conform to the basic signal leakage
performance criteria as required in violation of Section
76.611(a) of the Commission's Rules.29 Since August 10, 1999,
the system has not performed the annual tests for conformance
with the basic signal leakage performance criteria in repeated
violation of Section 76.611(a) of the Commission's rules. On
February 8, 10, and 11, 2000, the system operated with visual
carrier signals that were not offset from frequencies used by
aeronautical radio services in repeated violation of Section
76.612 of the Commission's Rules.30 Finally, Callais engaged in
willful and repeated violations of Section 11.11 of the
Commission's rules by failing to have proper EAS equipment
installed .
The base forfeiture amount for violation of rules relating to
distress and safety frequencies is $8,000 per violation; the
maximum is $27,500 for each violation or each day of a continuing
violation.31 Cable signal leakage in the aeronautical bands
constitutes harmful interference to distress and safety
frequencies. Further, multiple violations of the signal leakage
standards were observed on each day, the system violated CLI, and
substantial harm occurred in the form of actual interference.
Therefore, a substantial increase in the amount for each
violation is warranted, equivalent to the maximum for two
violations. We believe the appropriate forfeiture for Callais'
repeated failure to comply with leakage limits on January 21 and
February 8 and 10, 2000, is $55,000.
Similarly, for the above reasons and the fundamental importance
of the requirement that cable systems offset carriers from the
aeronautical frequencies to minimize the potential to cause
harmful interference, a substantial increase in the amount for
each violation of the offset requirement is warranted. We
believe the appropriate forfeiture for Callais' repeated failure
to comply with the frequency offset requirements on February 8,
10, and 11, 2000, is $60,000.
Further, for all the reasons given above and the fact that the
repeated failure to complete the annual leakage tests from August
10, 1999, to the present likely contributed to the harmful
interference and the other violations, a substantial increase in
the amount of forfeiture for the failure to make the leakage
tests is warranted. We believe the appropriate forfeiture for
Callais' repeated failure to make the annual leakage tests is
$10,000.
We, therefore, assess the forfeiture for the signal leakage
violations at $125,000. We recognize that the forfeiture here is
the highest ever proposed for cable signal leakage violations.
Compare MediaOne of Metropolitan Detroit, Inc., Notice of
Apparent Liability, FCC 00-273, 2000 WL 1035951 (F.C.C.) (2000)
(NAL for $55,000 for cable signal leakage violations). The
amount of the forfeiture is justified, however, because the
totality of the violations here is much more serious. MediaOne
involved two days of leakage violations, including on that caused
harmful interference. Callais' violations occurred on three days
and, unlike those in MediaOne, are accompanied by almost complete
disregard for the rules designed to protect air traffic safety,
including failure to offset frequencies and failure to make
annual measurements to verify compliance with the basic leakage
performance criteria.
Finally, we also believe that a forfeiture is warranted for
Callais' EAS violation. The base forfeiture amount for failure
to have EAS equipment installed or operational is $8,000. The
system was required to install equipment by December 31, 1998.32
Operation of the system without the equipment is a willful
violation and it has been repeated on all days the system
operated from January 1, 1999, until March 23, 2000 We note,
however that Callais had the capability to interrupt audio
programming for emergency broadcasts in the event of an
emergency. We find no basis for making an adjustment to the
$8,000 amount. Accordingly, the appropriate forfeiture for
Callais' willful and repeated failure to comply with EAS
equipment requirements is $8,000.
V. ORDERING CLAUSES
Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. §503(b), and
Section 1.80 of the Commission's Rules, 47 C.F.R. §1.80, that
Callais Cablevision, Inc., is HEREBY NOTIFIED of its APPARENT
LIABILITY FOR MONETARY FORFEITURE in the amount of One Hundred
and Thirty-Three Thousand Dollars ($133,000) for willful or
repeated violation of Sections 11.11, 76.605(a)(12), 76.611(a)
and 76.612 of the Commission's Rules, 47 C.F.R. §§11.11,
76.605(a)(12), 76.611(a) and 76.612.
IT IS FURTHER ORDERED, PURSUANT TO Section 1.80(f)(3) of the
Commission's Rules, 47 C.F.R. §1.80(f)(3), that Callais
Cablevision, Inc., SHALL HAVE thirty (30) days from the release
of this Notice to SHOW, IN WRITING, why a forfeiture should not
be imposed or the amount should be reduced or to PAY THE
FORFEITURE. Any showing as to why the forfeiture should not be
imposed or should be reduced must include a detailed factual
statement and all supporting documentation and affidavits.
Payment may be made by mailing a check or similar instrument
payable to the order of the Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. The payment should
be marked "NAL Acct. No. X12000004"
The response, if any, must be mailed to Federal Communications
Commission, Cable Services Bureau, Engineering and Technical
Services Division, 445 12th Street, SW, Washington, D.C. 20554,
Ref: NAL/Acct. No.: X12000004.
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.
Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th Street, SW,
Washington, D.C. 20554.33
IT IS FURTHER ORDERED that a copy of this Notice be sent, by
Certified Mail, Signed Receipt Requested, to Callais Cablevision,
Inc., P.O. Drawer 788, Golden Meadow, Louisiana 70357 and to P.O.
Drawer 550, Larose, Louisiana 70373.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
APPENDIX A
Date Location Fre- Field
quency Strength
(MHz) (mV/m)
February 8, End of Walnut Street near 133.250 1,068
``Snowball Run'' concession
stand
2000
Corner of Magnolia and 401
Highway 1
Corner of Jefferson and Cedar 121
Corner of Nacarri and 539
Gulfview
On Highway 1 just north of 77
Marlana
Last House at the end of 68
Cherry
Corner of Wisteria and 166
Highway 1
February 10, 151 Strawberry 133.250 189
2000
First utility pole on 207
Iberville off Highway 1
344 Shelton 143
Corner of Jackson and Highway 180
1
Corner of Melon and Highway 1 279
Last utility pole at end of 493
Memory
Utility pole number ``LS996'' 2295
at 1687 Highway 1
ATTACHMENT
IMPORTANT - READ INSTRUCTIONS AND RETURN ATTACHED FORM
The document you have received is a Notice of Apparent Liability
(NAL). You may take any of the following actions under Section
1.80 of the Commission's Rules:
You may pay the full amount of the forfeiture within 30 days
of the date of the NAL. In this case, you should complete
the appropriate sections of the attached form and sent it along
with a check or similar instrument for the amount specified, made
payable to the Federal Communications Commission. To assure that
your payment is properly recorded, please enter on your check
the control number appearing in the upper left hand corner of the
attached form and return the extra copy of the NAL that is
enclosed, together with the check, to:
Federal Communications Commission
Post Office Box 73482
Chicago, IL. 60673-7482
Within 30 days of the date of the NAL you may file a statement,
in duplicate, as to why the proposed forfeiture should be
reduced. The statement must be signed by the licensee or
registrant; a partner, if the licensee or registrant is a
partnership; by an officer, if the licensee or registrant is a
corporation; or by a duly elected or appointed official, if an
unincorporated association, and the statement must be supported
by pertinent documents and affidavits. The statement may include
any justification or any information that you desire to have
considered. If you elect to follow this course, you should
complete the appropriate section of the attached form and send it
along with your statement. Upon such consideration, it will be
determined whether any forfeiture should be imposed, and if so,
whether any forfeiture should be imposed in full or reduced to
some lesser amount. An order stating the result will be issued.
Address your statement to:
Federal Communications Commission
Cable Services Bureau
Washington, D.C. 20554
You may take no action. In this case a Forfeiture Order
will be issued after expiration of the thirty-day period
ordering that you pay the forfeiture in full. If you decide
to take no action, you need not return the attached form.
If, in response to this NAL, you claim a financial inability to
pay the full amount of the forfeiture, you should furnish data to
support your claim. The data submitted should include, but need
not be limited to, a profit and loss statement that has been
prepared under generally accepted accounting principles. The
statement that you furnish should contain no data older than one
year from the date of your response.
Items in the statement should include income from cable
operations, expenses from cable operations (including noncash
expenses, such as amortization and depreciation) and payments to
principals (including salaries, commissions, management fees,
interest, rents, etc.) If you are an individual or company with
multiple cable holdings, you should furnish separate profit and
loss statements for each entity you own or control, or a
consolidated profit and loss statement. You are advised that all
financial data furnished with your response will be routinely
available for public inspection absent a request for
nondisclosure setting forth the reasons therefor pursuant to
Section 0.457(d)(2)(i) of the Commission's Rules.
If you have any questions concerning this forfeiture proceeding
please communicate them in writing to:
Federal Communications Commission
Cable Services Bureau
Washington, D.C. 20554
or contact Commission staff personnel by telephone at (202) 418-
2355 or by FAX at (202) 4l8-1189. FEDERAL COMMUNICATIONS COMMISSION
Washington D. C. 20554
NOTICE OF APPARENT LIABILITY
CONTROL NO: X12000004
In response to a Notice of Apparent Liability for a monetary
forfeiture under the provisions of Section 503(b) of the
Communication Act of l934, as amended:
(CHECK APPROPRIATE BOX)
o I am returning a copy of the Notice of Apparent
Liability and enclosing a check or similar instrument,
drawn to the order of the Federal Communications
commission, in full payment of the forfeiture amount as
indicated in the Notice of Apparent Liability. I have
entered the control number appearing in the upper right
hand corner of this page on my check and am submitting
it to:
Federal Communications Commission
Post Office Box 73482
Chicago, IL. 60673-7482
o I am submitting a detailed statement of facts and
reasons why I believe the forfeiture as assessed in the
Notice of apparent Liability is not warranted and
should be reduced or rescinded to:
Federal Communications Commission
Cable Services Bureau
Washington, D.C. 20554
Callais Cablevision, Inc. LA0166, Grand Isle, LA
Licensee or Registrant Call sign or CUID, City, State
Signature of authorized official Date
Amount of forfeiture as indicated by the NAL
NOTICE TO INDIVIDUAL REQUIRED BY THE PRIVACY ACT
Section 308(b) and 503(b) of the Communications Act of 1934, as
amended, authorize the Commission to request this information,
the purpose of which is to determine your liability for a
forfeiture.
The staff will use all relevant and material information before
it, including the information disclosed in your statement to
determine whether the forfeiture should be cancelled, reduced or
paid in full. Notices of Apparent Liability are a matter of
public record.
THE FOREGOING NOTICE IS REQUIRED BY THE PRIVACY ACT OF 1974, P.L.
93-570, DECEMBER 31, 1974, 5 U.S.C. 532a(e)(3).
_________________________
1 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 and 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. §76.616. These
frequencies are critical for Search and Rescue Operations
including use by Emergency Locator Transmitters (ELT) on planes
and Emergency Position Indicating Radio Beacons (EPIRB) on boats.
See generally 47 C.F.R. Part 80, Subpart V and 47 C.F.R.
§§87.193-87.199.
2 Harmful Interference includes any interference that ``endangers
the functioning of a radionavigation service or of other safety
services.'' See 47 C.F.R. §§2.1 & 76.613(a).
3 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 F.C.C.2d 117,
para. 14 (1985) [hereinafter MO&O].
4 47 C.F.R. §76.605(a)(12).
5 47 C.F.R. §76.611(a).
6 47 C.F.R. §76.615(b)(7).
7 47 C.F.R. §76.614.
8 47 C.F.R. §76.613(b).
9 47 C.F.R. §76.613(c).
10 47 C.F.R. §76.610.
11 47 C.F.R. §76.612. MO&O, supra note 3, at para. 14.
12 47 C.F.R. §11.1.
13 47 C.F.R. §§11.11 & 11.41.
14 47 C.F.R. §11.11.
15 Id.
16 See 47 C.F.R. §76.614.
17 The calculated CLI was 68.7 given generous tolerance for
measurement error, including only leaks greater than 50 mV/m, and
assuming no leaks in the portion of the system not inspected. A
maximum CLI of 64 is the basic signal leakage performance
criteria of Section 76.611(a)(1) of the Commission's Rules.
Leakage that exceeds this level is deemed to pose a serious
threat to air traffic safety communications.
18 The Commission has on file Basic Signal Leakage Performance
Reports, FCC Form 320, dated June 29, 1992; July 12, 1993; August
16, 1994; June 30, 1997 (for calendar year 1996); June 30, 1997
(for calendar year 1997); and October 10, 1998, each of which
contain an Exhibit A that asserts the aeronautical frequencies
have been offset.
19 See 47 C.F.R. §76.613(c).
20 47 C.F.R. §614.
21 Callais reported a CLI of 0.00 for 10 log I3000 ¾ no leaks
found in the 97 percent of the plant that was examined. The
report identified only four leaks over 50 µV/m that were repaired
on August 11, 1998. Callais also reported visual carriers
frequencies that were offset from aeronautical frequencies.
22 See 47 C.F.R. §76.615(b)(7).
23 47 U.S.C. §503(b).
24 47 C.F.R. §1.80.
25 47 C.F.R. §1.80(a)(2).
26 Southern California Broadcasting Company, 6 FCC Rcd 4387,
para. 5 (1991).
27 47 U.S.C. §503(b)(2), 47 C.F.R. §1.80(b)(4). See also The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate Forfeiture Guidelines, 12 FCC
Rcd 17087.
28 47 C.F.R. §76.605(a)(12).
29 47 C.F.R. §76.611(a).
30 47 C.F.R. §76.612.
31 47 C.F.R. §1.80(b)(4).
32 See 47 C.F.R. §11.11(a).
33 See 47 C.F.R. §1.1914.