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Before the
Federal Communications Commission
Washington, D.C. 20554
) File No. EB-08-SE-1061
In the Matter of )
) Acct No. 201032100021
Cablevision Systems Corporation )
) FRN No. 0003511649
order
Adopted: March 12, 2010 Released: March 12, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Cablevision Systems
Corporation ("Cablevision"). The Consent Decree terminates an
investigation by the Bureau into Cablevision's possible violations of
Section 76.1603(c) of the Commission's Rules, regarding provision of
advanced written notice to subscribers and local franchise authorities
prior to implementing any service change.
2. The Bureau and Cablevision 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. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree which terminates the investigation.
4. Based on the record before us, we conclude that our investigation
raises no substantial or material questions of fact as to whether
Cablevision possesses the basic qualifications, including those
related to character, to hold or obtain any Commission license or
authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Paul Jamieson, Managing Counsel, Legislative and
Regulatory Affairs, Cablevision Systems Corporation, 1111 Stewart
Avenue, Bethpage, New York 11714-3581 and to counsel for Cablevision
Systems Corporation: Howard J. Symons, Esq., Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., 701 Pennsylvania Avenue, N.W.,
Washington, DC 20004.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
) File No. EB-08-SE-1061
In the Matter of )
) Acct No. 201032100021
Cablevision Systems Corporation )
) FRN No. 0003511649
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Cablevision Systems Corporation
("Cablevision"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation into whether Cablevision deployed switched digital video
("SDV") technology in various cable systems in violation of Commission
Rules ("Rules") requiring advance written notice to local franchising
authorities ("LFAs").
I. Definitions
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S:151 et seq.
b. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Cablevision" means Cablevision Systems Corporation, its
predecessors-in-interest and corporate successors-in-interest.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation regarding whether Cablevision
may have violated Section 76.1603 of the Rules by failing to provide
timely written notice to LFAs where Cablevision deployed SDV
technology during the period between April, 2008 and the Effective
Date.
h. "Parties" means Cablevision and the Bureau.
i. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
j. "UDCPs" are unidirectional digital cable products.
II. Background
8. Section 76.1603(c) of the Rules requires cable systems to provide
thirty (30) days written notice to both subscribers and LFAs before
implementing any rate or service change. On October 24, 2008, the
Bureau sent Cablevision a Letter of Inquiry (LOI) investigating
Cablevision's use of SDV technology to deliver certain cable
programming, including the extent to which Cablevision provided
advance notice to subscribers and LFAs where its use of SDV technology
to deliver programming that was previously transmitted in a one-way
format rendered such programming inaccessible via unidirectional
digital cable products ("UDCPs") absent additional equipment. On
November 7, 2008, Cablevision responded to the Bureau's LOI.
Cablevision's response asserted that it had provided proper notice to
subscribers.
9. On March 31, 2009, the Parties entered into a Tolling Agreement to
provide additional time for examination of the matters covered by the
Investigation until July 15, 2009. On July 10, 2009 and again on
January 4, 2010, the Parties extended the Tolling Agreement to allow
for further discussions regarding a resolution of this proceeding.
III. Terms of Agreement
10. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
11. Jurisdiction. Cablevision agrees that the Bureau has jurisdiction over
it and the matters contained in this Consent Decree and has the
authority to enter into and adopt this Consent Decree.
12. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
13. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of the
Investigation, Cablevision agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that in the
absence of new material evidence, the Bureau will not use the facts
developed in this Investigation, 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 Cablevision
concerning the matters that were the subject of the Investigation. The
Bureau also agrees that it will not use the facts developed in the
Investigation, 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 Cablevision with respect to
Cablevision's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
licenses or authorizations.
14. Future Compliance. For purposes of settling the matters set forth
herein, Cablevision agrees to make the following commitments regarding
its compliance with Section 76.1603:
(a) Compliance Measures.
(1) Cablevision shall provide advance written notice pursuant to Section
76.1603 to each LFA where its use of SDV technology to deliver programming
that was previously transmitted in a one-way format renders such
programming inaccessible via UDCPs absent additional equipment.
(2) Cablevision has instituted internal compliance measures in each of its
operating units in which deployment of SDV is contemplated to ensure that
adequate procedures are implemented and executed in order to satisfy the
notice requirements of Section 76.1603 of the Rules. Specifically,
Cablevision has developed procedures to ensure that it notifies all
affected subscribers and all relevant LFAs at least 30 days in advance of
using SDV technology to deliver programming that was previously
transmitted in a one-way format, including the following:
-- Before a Cablevision system initiates a deployment of SDV technology
that involves the delivery of programming services previously made
available in a one-way format, the system must prepare customized letters
to UDCP subscribers and LFAs using letter templates prepared by
Cablevision's Law Department;
-- The notice letters then must be submitted for approval by the Law
Department, and final approval for the SDV deployment plan cannot be
obtained until the updated notice letters have undergone this review;
-- Following approval of the notice letters, they must be distributed at
least 30 days before the SDV deployment plan may be executed.
(3) Cablevision will file a compliance report with the Commission on April
1, 2011. The compliance report shall include a compliance certificate
from an officer, as an agent of Cablevision, stating that the officer has
personal knowledge that Cablevision has maintained operating procedures
intended to ensure compliance with this Consent Decree, together with an
accompanying statement explaining the basis for the officer's compliance
certification. The compliance report shall be submitted to Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554.
(b) Termination Date. Unless otherwise stated, the requirements of this
Consent Decree will expire twenty-four (24) months after the Effective
Date. The termination of this Consent Decree shall not have any effect on
Cablevision's independent obligation to comply with Section 76.1603, to
the extent that it remains applicable.
15. Voluntary Contribution. Cablevision agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
twenty-five thousand dollars ($25,000). The payment shall be made
within thirty (30) calendar days after the Effective Date. The payment
must be made by check or similar instrument, payable to the order of
the Federal Communications Commission. The payment must include the
Account Number and FRN Number referenced in the caption to the
Adopting Order. 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
02130004, 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 Account number
in block number 23A (call sign/other ID), and enter the letters "FORF"
in block number 24A (payment type code). Cablevision will also send
electronic notification on the date said payment is made to JoAnn
Lucanik at JoAnn.Lucanik@fcc.gov and Linda M. Nagel at
Linda.Nagel@fcc.gov.
16. Waivers. Cablevision 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 Adopting Order, provided the Bureau issues an Adopting Order
adopting the Consent Decree without change, addition, modification or
deletion. Cablevision shall retain the right to challenge Commission
interpretation of the Consent Decree or any terms contained herein. If
either Party (or the United States on behalf of the Commission) brings
a judicial action to enforce the terms of the Adopting Order, neither
Cablevision nor the Commission shall contest the validity of the
Consent Decree or the Adopting Order, and Cablevision shall waive any
statutory right to a trial de novo. Cablevision hereby agrees to waive
any claims 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.
17. Invalidity. In the event that this Consent Decree in its entirety 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.
18. Subsequent Rule or Order. The Parties 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 Cablevision does not expressly
consent) that provision will be superseded by such Commission Rule or
Order.
19. Successors and Assigns. Cablevision agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
20. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties, and
shall discharge any and all liability arising from the Investigation.
The Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders and that
by agreeing to this Consent Decree Cablevision does not admit or deny
noncompliance, violation or liability for violating the Act or rules
in connection with the matters that are the subject of this Consent
Decree.
21. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
22. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
23. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
24. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
P. Michele Ellison
Chief
Enforcement Bureau
Date
Michael Olsen
Vice President, Law and Government Affairs
Cablevision Systems Corporation
Date
47 C.F.R. S: 76.1603(c).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 76.1603(c).
Id.
Tolling Agreement, File No. EB-08-SE-161, executed by and between Kathryn
S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, and Michael Olsen, Vice-President, Law
and Government Affairs, Cablevision Systems Corporation (March 31, 2009)
("Tolling Agreement").
Tolling Agreement Extension, File No. EB-07-SE-352, executed by and
between Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Paul Jamieson,
Managing Counsel, Legislative and Regulatory Affairs, Cablevision Systems
Corporation (July 10, 2009) ("July Tolling Agreement Extension"); Tolling
Agreement Extension, File No. EB-08-SE-1061, executed by and between
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, and Paul Jamieson, Managing
Counsel, Legislative and Regulatory Affairs, Cablevision Systems
Corporation (January 4, 2010) ("January Tolling Agreement Extension").
In this regard, Cablevision will not be obligated to report this matter,
including as an adverse finding or adverse final action, on any Commission
application or form.
Federal Communications Commission DA 10-411
2
Federal Communications Commission DA 10-411