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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of NAL/Acct. No. 200732080022
)
Bresnan Communications, LLC File No. EB-06-IH-0003
)
Operator of Cable Television Systems FRN No. 0007001977
)
)
Order
Adopted: March 12, 2007 Released: March 13, 2007
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Bresnan Communications,
LLC ("Bresnan"). The Consent Decree terminates an investigation by the
Bureau concerning possible violations of the requirements of the cable
public file rule.
2. The Bureau and Bresnan have negotiated the terms of the Consent Decree
that resolves this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. Based upon the record before us, and in the absence of material new
evidence relating to this matter, we conclude that there are no
substantial and material questions of fact as to whether Bresnan
possesses the basic qualifications, including those related to
character, to hold or obtain any Commission license or authorization.
4. After reviewing the terms of the Consent Decree, we find that the
public interest will be served by adopting the Consent Decree and
terminating the investigation.
5. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and the authority delegated by
Sections 0.111 and 0.311 of the Commission's rules, the attached
Consent Decree IS ADOPTED.
6. IT IS FURTHER ORDERED that the complaint received by, or in the
possession of, the Bureau on or around December 22, 2005, alleging
violations of the cable public file rule by Bresnan, IS DISMISSED.
7. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
8. IT IS FURTHER ORDERED that copies of this Order shall be sent by
regular first class mail and by certified mail, return receipt
requested, to Bresnan Communications, LLC, One Manhattanville Road,
Purchase, New York 10577-2596 and to its counsel, Steven J. Horvitz,
Esquire, Davis Wright Tremaine LLP, 1919 Pennsylvania Avenue, N.W.,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) NAL/Acct. No. 200732080022
Bresnan Communications, LLC ) File No. EB-06-IH-0003
Operator of Cable Television Systems ) FRN No. 0007001977
)
)
)
CONSENT DECREE
Adopted: March 12, 2007 Released: March 13, 2007
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. The Enforcement Bureau of the Federal Communications Commission and
Bresnan Communications, LLC, by their authorized representatives,
hereby enter into this Consent Decree.
II. DEFINITIONS
9. For purposes of this Consent Decree, the following conditions shall
apply:
a. "Bresnan" means Bresnan Communications, LLC;
b. "Non-Related Company" means a company or organization in which neither
Bresnan nor its principals, individually or collectively, are an officer,
director, partner, member, manager, or holder (directly or indirectly) of
an ownership interest;
c. "Commission" and "FCC" mean the Federal Communications Commission, and
all of its bureaus and offices;
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission;
e. "Parties" mean the Bureau and Bresnan;
f. "Complainant" means the Communications Workers of America;
g. "Complaint" means the complaint received by, or in the possession of
the Bureau on or around December 22, 2005, alleging violations of the
Cable Public File Rule by Bresnan.
h. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S 151
et seq.;
i. "Rules" mean the Commission's regulations set forth in Title 47 of the
Code of Federal Regulations;
j. "Cable Public File Rule" means the provisions of 47 C.F.R. S 76.1700 et
seq.;
k. "public file," "public inspection file" or "public inspection files"
mean the records to be maintained by cable operators pursuant to the Cable
Public File Rule;
l. "Adopting Order" means an order of the Bureau adopting this Consent
Decree;
m. "Effective Date" means the date on which the Adopting Order is
released;
n. "Investigation" means the investigation conducted by the Bureau
regarding Bresnan's compliance with the Cable Public File Rule after
receiving the Complaint from the Complainant.
III. BACKGROUND
10. On or about December 22, 2005, the Complainant filed the Complaint
with the Commission. The Complaint stated that the Complainant is a
labor organization that represents about sixty Bresnan employees in
Colorado and Wyoming and that its members are also consumers of cable
services. The Complaint alleged that, on November 15 and 16, 2005, the
Complainant's representatives visited 15 separate Bresnan offices,
requested the public files, and allegedly found numerous violations of
the Cable Public File Rule.
11. On January 27, 2006, the Bureau directed Bresnan to address the
allegations contained in the Complaint. Bresnan filed an Opposition to
the Complaint on February 16, 2006, to which the Complainant filed a
reply on February 28, 2006. On March 10, 2006, Bresnan submitted a
Surreply to the Reply filed by the Complainant.
12. In its responses to the Complaint and the Bureau's inquiry, Bresnan
maintained that, in many situations cited in the Complaint, Bresnan's
public files contained records that the Complainant alleged to be
missing or incomplete.
13. Bresnan and the Bureau acknowledge that any proceeding that might
result from the Investigation will require the significant expenditure
of public and private resources. In order to conserve such resources
and to promote compliance by Bresnan with the Cable Public File Rule,
the Parties hereby enter into this Consent Decree in consideration of
the mutual commitments made herein.
IV. AGREEMENT
14. Bresnan agrees that the Bureau, by delegated authority of the
Commission, has jurisdiction over the matters contained in the Consent
Decree and the authority to enter into and adopt the Consent Decree.
15. Bresnan agrees to be legally bound by the terms and conditions of this
Consent Decree. Bresnan represents and warrants that its signatory is
duly authorized to enter into this Consent Decree on its behalf.
16. The Parties agree that this Consent Decree will become effective on
the Effective Date. Upon the Effective Date, the Adopting Order and
this Consent Decree will have the same force and effect as any other
order of the Bureau and any violation of the terms of this Consent
Decree will constitute a separate violation of a Bureau order,
entitling the Bureau to subject Bresnan to enforcement action for such
violation.
17. The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Bureau, through entry of the Order,
which shall immediately resolve and terminate the Investigation and
dismiss the Complaint
18. The Parties agree that this Consent Decree does not constitute either
an adjudication on the merits or a factual or legal finding or other
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and orders. The
Parties agree that this Consent Decree is for settlement purposes only
and that, by agreeing to this Consent Decree, Bresnan does not admit
or deny liability for violating any statute, regulation, or
administrative rule in connection with matters that are the subject of
this Consent Decree.
19. Bresnan agrees that it will make a voluntary contribution to the
United States Treasury in the amount of Twenty-five Thousand Dollars
($25,000) within ten (10) calendar days of the Effective Date. Such
payment must be made without further protest or recourse, by check or
similar instrument, payable to the order of the Federal Communications
Commission. Such payment must include the NAL/Acct. No. and FRN No.
referenced in the Adopting Order. Such payment by check or money order
may be mailed to the Federal Communications Commission, P.O. Box
358340, Pittsburgh, PA 15251-8340. Such payment by overnight mail may
be sent to Mellon Bank/LB 358340, 500 Ross Street, Room Number
1540670, Pittsburgh, PA 15251. Such payment by wire transfer may be
made to ABA Routing Number 043000261, receiving bank Mellon Bank, and
account number 9116229.
20. As a further condition to this agreement, Bresnan will institute and
follow the terms of a Compliance Plan within thirty (30) days of the
Effective Date and keep such Compliance Plan in effect, where
applicable, for two (2) years after the Effective Date. The Compliance
Plan will include, at a minimum, the following components:
a. Bresnan will designate, and maintain a list of, individuals ("Public
Inspection File ("PIF") Administrators") responsible for maintaining the
public inspection file at each cable system required to maintain such a
file under the Cable Public File Rule.
b. Bresnan will conduct an annual training session of all PIF
Administrators. The training will include descriptions of specific
information that must be included in the public inspection file under the
Cable Public File Rule. The information provided shall include, among
other things, the obligations set forth in the Cable Public File Rule
regarding political advertising, Equal Employment Opportunity, children's
programming, proof of performance and signal leakage. In addition, PIF
Administrators will be provided with contact information for assistance in
the event that a question arises regarding compliance obligations under
the Cable Public File Rule. For calendar year 2007, the training held in
January and February 2007 shall satisfy this obligation. New PIF
Administrators will undergo such training within thirty (30) days of their
commencement of work at the position.
c. Bresnan will require all PIF Administrators to review the local public
inspection files and report on an annual basis that such files are
maintained consistent with the Cable Public File Rule. In addition,
Bresnan will audit on an annual basis the public inspection files of at
least ten percent of its cable systems required to maintain public
inspection files under the Cable Public File Rule.
21. In consideration of the terms and conditions set forth herein, the
Bureau agrees to terminate its Investigation and dismiss the
Complaint. The Bureau agrees that it will not use the facts developed
in this Investigation through the Effective Date of the Consent
Decree, or the existence of this Consent Decree to institute, on its
own motion, any new proceeding, formal or informal, or take any action
on its own motion against Bresnan concerning the matters that were the
subject of the Investigation. The Commission also agrees that it will
not use the facts developed in this Investigation through the
Effective Date of this Consent Decree, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal
or informal, or take any action on its own motion against Bresnan with
respect to basic qualifications, including its character
qualifications, to be a Commission licensee.
22. Bresnan agrees that any violation of this Consent Decree, including
but not limited to a failure to make any of the payments required by
Paragraph 12 hereof, will constitute a separate violation of a
Commission order and subject each to appropriate administrative
sanctions.
23. This Consent Decree will be binding on Bresnan's transferees,
successors and assigns, provided that in the event of an assignment or
transfer to a Non-Related Company, only the obligations of Paragraph
12 will be binding on the assignee or transferee.
24. Bresnan waives any and all rights it may have to seek administrative
or judicial reconsideration, review, appeal or stay, or to otherwise
challenge or contest the validity of this Consent Decree and the Order
adopting this Consent Decree, provided that the Commission issues an
Order adopting the Consent Decree without change, addition,
modification or deletion. Bresnan shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein.
25. Bresnan's decision to enter into this Consent Decree is expressly
contingent upon the Commission's issuance of an Order that is
consistent with the Consent Decree, and which adopts the Consent
Decree without change, addition, modification, or deletion.
26. In the event that this Consent Decree is rendered invalid by any court
of competent jurisdiction, it shall become null and void and may not
be used in any manner in any legal proceeding.
27. Bresnan and the Bureau each agrees that if Bresnan, the Commission, or
the United States on behalf of the Commission, brings a judicial
action to enforce the terms of the Adopting Order, neither Bresnan nor
the Commission shall contest the validity of the Consent Decree or
Order, and Bresnan shall waive any statutory right to a trial de novo.
28. The Parties also agree that if any provision of the Consent Decree
conflicts with any subsequent rule or order adopted by the Commission
(except an order specifically intended to revise the terms of this
Consent Decree to which Bresnan does not expressly consent) that
provision will be superseded by such Commission rule or order.
29. Bresnan hereby agrees to waive any claims that it may otherwise have
under the Equal Access to Justice Act, 5 U.S.C. S 504 and 47 C.F.R. S
1.1501 et seq., relating to the matters addressed in this Consent
Decree.
30. This Consent Decree may be signed in counterparts and/or by telecopy
and, when so executed, the counterparts, taken together, will
constitute a legally binding and enforceable instrument whether
executed by telecopy or by original signatures.
FEDERAL COMMUNICATIONS COMMISSION BRESNAN COMMUNICATIONS, LLC
______________________________ _________________________________
By: Kris Anne Monteith By: Robert V. Bresnan, Senior Vice President
Chief, Enforcement Bureau and General Counsel of Its Manager
Date: _____________________ Date: _______________________
See 47 C.F.R. S 76.1700 et seq.
See 47 U.S.C. S 154(i).
See 47 C.F.R. SS 0.111, 0.311.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 07-1105
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Federal Communications Commission DA 07-1105
Federal Communications Commission DA 07-1105
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Federal Communications Commission DA 07-1105