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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Charter Communications VI, LLC ) NAL/Acct. No.
200112000001
Burlington, Colorado ) File Number EB-00-DV-151
) Physical System ID 006725
) FRN Number 0006-6303-69
FORFEITURE ORDER
Adopted: August 30, 2002
Released: September 4, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twenty thousand
dollars ($20,000) to Charter Communications VI, LLC
(``Charter'') for willful or repeated violations of
Sections 76.605(a)(12), 76.611(a), and 76.613(c) of the
Commission's Rules (``Rules'').1 The noted violations
involve Charter's failure to comply with the Commission's
signal leakage standards and failure to comply with a
cease operations order.
2. On April 16, 2001, the Commission's former Cable
Services Bureau issued a Notice of Apparent Liability for
Forfeiture (``NAL'') in the amount of twenty thousand
dollars ($20,000) to Charter for the noted violations.2
Charter filed a response to the NAL on May 16, 2001.
II. BACKGROUND
3. On April 17, 2000, the Commission's Denver,
Colorado Field Office (``Denver Office'') conducted a
routine examination of Charter's system cable plant to
identify leaks and determine compliance with the basic
signal leakage criteria. Fourteen leaks were measured,
which ranged from 83 mV/m to 2,219 mV/m. The system's
Cumulative Leakage Index (``CLI'') was found to have a
CLI (10 log IĄ) in excess of 64.3 Inspection of the
headend the same day also revealed violation of several
record-keeping requirements. At the inspection, by
direction of the District Director of the Denver Office,
an agent from the Denver Office orally instructed the
General Manager of the system to cease operation on
aeronautical band frequencies until the leaks were
repaired and the system complied with the basic signal
leakage criteria. On April 18, 2000, the oral order was
followed by a written order pursuant to Section 76.613(c)
of the Rules from the District Director of the Denver
Office delivered by fax at 9:30 a.m. Also on April 18,
2000, the agent returned to the system in Burlington and
determined that two of the largest leaks had not been
repaired. At approximately 3:15 p.m., the District
Director spoke to the system General Manager in response
to a telephone call received earlier from the General
Manager. During the call, the District Director
ascertained that the system had neither been shut down
nor had the power level on the aeronautical frequencies
been reduced. The agent in Burlington determined that
the system did not cease operation on frequencies in the
aeronautical band until approximately 3:20 p.m.
4. On April 24, 2000, Charter requested authority
from the District Director of the Denver Office to
operate with full power on channel 16 for testing
purposes, and on April 25, 2000, Charter advised the
District Director of the Denver Office that the system
was in compliance with the leakage restrictions and
requested permission to resume normal operations. The
Denver Office granted permission. On April 27, 200, an
agent from the Denver Office conducted a follow-up
examination of the system and identified 23 leaks. The
system did have, however, a CLI less than 64 at that
time. The Denver Office issued an Official Notice of
Violation on June 7, 2000 for violations of Sections
76.301, 76.302, 76.305, 76.605, 76.613, and 76.615 of the
Rules. Charter responded on June 22, 2000. In its
reply, Charter stated that the leakage violations had
been corrected and that system personnel acted as quickly
as practicable to reduce power in the aeronautical
frequency bands. On April 16, 2001, the former Cable
Services Bureau issued the subject NAL in the amount of
$20,000 to Charter for failure to comply with the
Commission's cable signal leakage standards and failure
to comply with a cease operations order in willful or
repeated violation of Sections 76.605(a)(12), 76.611(a),
and 76.613(c) of the Rules.
5. In its response to the NAL, Charter requests
reduction of the forfeiture amount. Charter states that
it acquired the system only five months before the
agent's inspection and that at the time of the
acquisition, the system was 30 years old and was ``badly
deteriorated'' and in need of repair. Charter also
states that when it acquired the system, only one
technician, a former employee of the system's previous
owner, had been assigned to monitor and repair signal
leaks at the system. Charter adds that, ``shortly''
after it acquired the system, it instructed this
technician concerning Charter's signal leakage compliance
program. Further, Charter argues that once the agent
identified the leaks, Charter made substantial efforts to
repair the leaks immediately and to repair additional
leaks it discovered in the repair process. Specifically,
Charter asserts that after the agent's inspection on
April 17, 2000, it arranged for assistance overnight and
by the next day it had assembled a crew of technicians to
detect and repair the leaks. In addition, Charter
contends that within one day of the inspection, it had
repaired 10 of the 14 leaks identified by the agent and
that it repaired the remaining four leaks by April 20,
2000. Charter asserts that by April 21, 2000, it had
repaired over 130 additional leaks identified by its
technicians and continued to work on other leaks
uncovered by its technicians. Charter states that there
is a discrepancy in the CLI calculated by Charter, 64.29,
and the amount stated in the NAL, 68.1.
6. With respect to the forfeiture proposed for
failure to comply with the cease operations order,
Charter argues that there was a ``misunderstanding about
instructions'' regarding the time for reducing power
levels in the aeronautical frequencies. Specifically,
Charter states that there were four employees involved in
interacting with the agent at the conclusion of the
inspection, and that these employees understood that the
system did not need to cease operations until receipt of
a written order. Further, Charter argues that although
the order to cease operations was sent by fax at 9:30
a.m. on April 18, 2000, the order was not delivered to
Charter employees who were attending a conference at a
hotel, until approximately 1:00 p.m. that day. Charter
asserts that upon receipt of the written order it
attempted to comply with the FCC's instructions
immediately. Charter also states that it has implemented
several long-term measures to eliminate signal leakage
and compliance issues in the future. Finally, Charter
argues that although the NAL lists 23 signal leaks on the
system identified by the agent on April 27, 2000 that
exceeded the threshold limit of 20 micro-volts, Charter
was fulfilling its regulatory requirements with a
monitoring and maintenance program that yielded a
compliant CLI test result.
III. DISCUSSION
7. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act
of 1934, as amended, (``Act'')4 Section 1.80 of the
Rules,5 and The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997),
recon. denied, 15 FCC Rcd 303 (1999). In examining
Charter's response, Section 503(b) of the Act requires
that the Commission take into account the nature,
circumstances, extent and gravity of the violation and,
with respect to the violator, the degree of culpability,
any history of prior offenses, ability to pay, and other
such matters as justice may require.6
8. We disagree that the forfeiture amount in this
case should be reduced. Notwithstanding the condition of
the system at the time of Charter's acquisition, it was
responsible for ensuring compliance with our rules once
it acquired the system.7 Moreover, we reject Charter's
assertion that the forfeiture should be reduced because
the violations resulted from the lapse of an employee it
inherited from the previous owner who had been tasked
with monitoring and repairing leaks, as licensees are
responsible for the acts or omissions of their
employees.8 Further, Charter's remedial efforts to
correct the violation are not a mitigating factor.9 With
respect to Charter's assertion that there was a
discrepancy in the amount of the CLI calculated by
Charter and the amount stated in the NAL, we do not find
that this provides a basis for reduction of the
forfeiture amount. Specifically, there is no dispute
that at the time of the April 17, 2000 inspection, the
system's CLI was in excess of 64, in violation of Section
76.611(a)(1) of the Commission's Rules.
9. Charter contends that after the inspection and
issuance of the verbal order to cease operation on April
17, 2000, it was unclear as to the time frame for
reducing power, and that its employees understood that
the system did not need to cease operations until receipt
of a written order. However, Charter did not immediately
cease operations even after receipt of the written order.
Specifically, the Denver Office faxed the written order
to Charter on April 18, 2000 at 9:30 a.m., yet the system
did not cease operations until approximately 3:20 p.m.
more than two hours after Charter claims to have received
the order, and more than several hours after the order
was sent by the Denver Office. Therefore, Charter's
operation of the system after receipt of the verbal and
written cease operations order violated Section
76.613(c). Regarding Charter's assertion that it did not
receive the FCC's written order until 1:00 p.m., we
believe that in light of the circumstance that it should
have had procedures in place to ensure that it was able
to more quickly comply with the FCC's instruction.
Finally, while Charter argues that on April 27, 2000, it
was meeting its regulatory requirements with a monitoring
and maintenance program that resulted in a CLI of less
than 64, it admits that each of the 23 signal leaks
identified on April 27, 2000 exceeded the threshold limit
of 20 micro-volts. We therefore find that Charter
violated Section 76.605(a)(12) of the Rules.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,10 Charter IS LIABLE FOR A
MONETARY FORFEITURE in the amount of twenty thousand
dollars ($20,000) for failure to comply with the
Commission's signal leakage standards and failure to
comply with a cease operations order in willful or
repeated violation of Sections 76.605(a)(12), 76.611(a),
and 76.613(c) of the Rules.
11. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within
30 days of the release of this Order. If the forfeiture
is not paid within the period specified, the case may be
referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.11 Payment shall
be made by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission, to
the Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 200112000001 and FRN 0006-6303-69.
Requests for full payment under an installment plan
should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.12
12. IT IS FURTHER ORDERED that, a copy of this Order
shall be sent by Certified Mail, Return Receipt
Requested, to Charter Communications VI, LLC, Suite 100,
12444 Powerscourt Drive,
St. Louis, Missouri 63131 and to its counsel, Paul
Glist, Esq., Cole, Raywid & Braverman, L.L.P., 1919
Pennsylvania Avenue, N.W., Suite 200, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 76.605(a)(12), 76.611(a), and 76.613(c).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 200112000001 (Cable Services Bureau, released April 16,
2001).
3 The calculated CLI is 68.1. A maximum CLI of 64 is the
basic signal 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 traffic safety
communications.
4 47 U.S.C. § 503(b)(2)(D).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 Sitka Broadcasting Co., Inc.,70 FCC Rcd 2375, 2378
(1979) (indicating that licensees are expected to know and
comply with the Commission's rules).
8 MTD, Inc., 6 FCC Rcd 34 (1991); Wagenvoord Broadcasting
Co., 35 FCC 2d 361 (1972).
9 Station KGVL, Inc., 42 FCC 2d 258, 259 (1973)
(``[L]icensees will not be excused for past violations by
reason of subsequent corrective action.'').
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.