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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Adelphia Communications1 ) File No. EB-02-CF-336
)
Operator of Cable Television System in ) NAL/Acct. No.
200232340003
Huntington, West Virginia )
) FRN 0007-3942-16
FORFEITURE ORDER
Adopted: April 21, 2003 Released: April 23, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand dollars
($2,000) to Adelphia Communications (``Adelphia''), operator
of a cable television system in Huntington, West Virginia, for
willful and repeated violation of Section 11.61(a) of the
Commission's Rules (``Rules'').2 The noted violation involves
Adelphia's failure to conduct required weekly and monthly
tests of the Emergency Alert System (``EAS'').
2. On July 19, 2002, the Commission's Columbia, Maryland
Field Office (``Columbia Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Adelphia for a
forfeiture in the amount of two thousand dollars ($2,000).3
Adelphia filed a response to the NAL on August 1, 2002.
II. BACKGROUND
3. On May 15, 2002, an agent from the Columbia Office
inspected Adelphia's Huntington, West Virginia cable system
for compliance with the EAS rules. The agent found that
Adelphia failed to conduct Required Weekly Tests (``RWTs'') of
the EAS during the month of February 2002, and conducted RWTs
only once per month during the months of March, April and May
2002. The agent also found that Adelphia failed to conduct
Required Monthly Tests (``RMTs'') of the EAS during the period
January 11, 2002 through May 15, 2002. Further, the agent
determined that Adelphia had received no weekly or monthly
tests during the period January 11, 2002 through May 15, 2002.
At the request of the agent, Adelphia transmitted a weekly
test during the inspection, which revealed that the EAS
equipment's automatic logging device was functioning properly.
4. On May 15, 2002, the agent conducted inspections of EAS
equipment and procedures at Stations WEMM-FM and WHRD(AM) in
Huntington. The EAS logs at these stations indicated that
Stations WKEE-FM and WRVC(AM), which are the Local Primary
stations that Adelphia is required to monitor,4 transmitted
the RWTs and RMTs during the above periods.
5. On July 19, 2002, the Columbia Office issued an NAL
to Adelphia for a $2,000 forfeiture for failing to conduct
required weekly and monthly EAS tests in willful and repeated
violation of Section 11.61(a) of the Rules.5 In its response
to the NAL, Adelphia does not dispute that it willfully and
repeatedly violated Section 11.61(a). However, Adelphia
states that it filed for Chapter 11 bankruptcy on July 25,
2002, and requests relief from the $2,000 forfeiture proposed
in the NAL in light of the financial hardship it now faces.
III. DISCUSSION
6. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),6 Section 1.80 of the Rules,7 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) (``Policy Statement''). In examining Adelphia'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.8
7. Section 11.61(a)(1) of the Rules requires cable
systems to conduct monthly tests of the EAS header codes,
attention signal, test script and End of Message (``EOM'')
code. Section 11.61(a)(2) of the Rules requires cable systems
to conduct weekly tests of the EAS header codes and EOM codes.
At the time of the inspection on May 15, 2002, Adelphia's
records showed that it failed to conduct RWTs during February
2002 and that it conducted RWTs only once per month during
March, April and May 2002. In addition, Adelphia's records
showed that it failed to conduct RMTs during the period
January 11, 2002 through May 15, 2002. Adelphia does not
dispute that it failed to conduct RWTs and RMTs during these
periods. Accordingly, we conclude that Adelphia willfully9
and repeatedly10 violated Section 11.61(a) of the Rules.
8. Adelphia seeks waiver of the $2,000 forfeiture proposed
in the NAL because it has filed for Chapter 11 bankruptcy.
However, as explicitly stated in the NAL, 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; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's
current financial status. Adelphia did not provide any
financial documentation in support of its request for waiver
of the forfeiture and, therefore, we have no basis upon which
to analyze its inability to pay claim.11 Further, although
there is precedent for rescinding or reducing a forfeiture
based on bankruptcy in certain circumstances,12 we do not
believe that Adelphia has justified rescission or reduction of
the forfeiture in this case because it has not provided any
financial documentation for the Bureau's analysis, and
because, even though it has filed bankruptcy, it retains
control over its assets. Moreover, filing for bankruptcy does
not preclude the Commission from issuing an order imposing a
forfeiture upon Adelphia for violating its rules.13
9. We have examined Adelphia's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Policy Statement as well. As a result of our review,
we conclude that Adelphia willfully and repeatedly violated
Section 11.61(a) of the Rules, and we find no basis for
rescinding or reducing the $2,000 forfeiture for this
violation.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,14 Adelphia Communications IS LIABLE FOR A MONETARY
FORFEITURE in the amount of two thousand dollars ($2,000) for
willful and repeated violation of Section 11.61(a) of the
Rules.
11. Unless excused by operation of law, 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.15 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.16 Payment may 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
reference NAL/Acct. No. 200232340003 and FRN 0007-3942-16.
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. 20554.17
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to Adelphia Communications, 1 North Main Street,
Coudersport, Pennsylvania 16915-1141.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Although the Notice of Apparent Liability for Forfeiture
(``NAL'') was issued to Adelphia Communications, Century
Huntington Company, an affiliate of Adelphia, operates the
Huntington cable system. Adelphia acquired Century Huntington in
1999 and filed the response to the NAL on behalf of Century
Huntington. For convenience, we will continue to refer to the
operator of the Huntington cable system as Adelphia.
2 47 C.F.R. § 11.61(a).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232340003 (Enf. Bur., Columbia Office, released July 19,
2002).
4 Broadcast stations and cable television stations are
required to monitor two EAS sources, which are specified in the
state EAS plan. 47 C.F.R. § 11.52(d).
5 The NAL noted that there is no base forfeiture amount
specified in the rules for failure to conduct required EAS tests.
However, the NAL found that failure to conduct required EAS tests
is similar in both nature and severity to failure to make
required measurements or conduct required monitoring, which has a
base forfeiture amount of $2,000. See 47 C.F.R. § 1.80(b)(4),
Note to paragraph (b)(4): Section I.--Base Amounts for Section
503 Forfeitures. The NAL accordingly concluded that $2,000 is an
appropriate base forfeiture amount for failure to conduct
required EAS tests.
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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).
10 Section 312(f)(2) of the Act provides that ``[t]he term
`repeated,' ... 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 U.S.C. § 312(f)(2).
11 We also note that on July 18, 2002, the Commission's
Atlanta, Georgia Field Office (``Atlanta Office'') issued an NAL
to Adelphia for an $8,000 forfeiture for failure to maintain
operational EAS equipment at its Cullman, Alabama cable system in
willful and repeated violation of Section 11.35(a) of the Rules,
47 C.F.R. § 11.35(a). See Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200232480013 (Enf. Bur., Atlanta
Office, released July 18, 2002). On October 3, 2002, Adelphia
paid this $8,000 forfeiture in full.
12 See, e.g., Dennis Elam, Trustee for Bakcor Broadcasting,
Inc., Debtor, 11 FCC Rcd 1137 (1996) (forfeiture rescinded after
bankruptcy trustee was appointed and the violator was no longer
associated with the subject radio stations); Interstate Savings,
Inc. d/b/a ISI Communications, 12 FCC Rcd 2934 (CCB 1997)
(forfeiture rescinded where trustee was appointed in Chapter 7
liquidation, removing violator from operating as a common carrier
and from involvement in dissolution or distribution of assets).
13 See 11 U.S.C. § 362(b)(4). See Coleman Enterprises, Inc.,
15 FCC Rcd 24385, 24389 n. 28 (2000) (filing for Chapter 11
bankruptcy does not preclude the Commission from issuing a
Forfeiture Order). See also United States of America v.
Commonwealth Companies, Inc., 913 F.2d 518 (8th Cir. 1990).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 We recognize that Adelphia is currently in Chapter 11
bankruptcy proceedings, and that any collection of the amount
assessed against it may be subject to applicable statutory
constraints, including 11 U.S.C. § 362.
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.