Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                           )                               
                                                                           
                                           )                               
     In the Matter of                                                      
                                           )   File No. EB-10-DT-0352      
     Upper Peninsula Communications Inc.                                   
                                           )   NAL/Acct. No. 201232360001  
     Physical System ID# 002477                                            
                                           )   FRN 0003772886              
     Powers, Michigan                                                      
                                           )                               
                                                                           
                                           )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  October 14, 2011 Released: October 18, 2011

   By the District Director, Detroit Office, Northeast Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Upper Peninsula Communications Inc. ("Upper Peninsula"), former
       operator of a cable television system in Powers, Michigan, apparently
       willfully and repeatedly violated section 11.35(a)  of the
       Commission's rules ("Rules") by failing to install emergency alert
       system ("EAS") equipment. We conclude that Upper Peninsula is
       apparently liable for a forfeiture in the amount of eight  thousand
       dollars ($8,000).

   II. BACKGROUND

    2. On November 3, 2010, an agent from the Enforcement Bureau's Detroit
       Office inspected Upper Peninsula's cable system serving Powers,
       Michigan with the cable system's manager. The agent observed that
       Upper Peninsula did not have any EAS equipment installed, which the
       manager conceded. The agent, subsequent to the inspection, determined
       that, although some of Upper Peninsula's cable systems had received
       temporary waivers of the Commission's deadline for certain cable
       systems to come into compliance with the EAS rules, the system serving
       Powers, Michigan never had such a waiver.

   III. DISCUSSION

    3. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
       provides that any person who willfully or repeatedly fails to comply
       substantially with the terms and conditions of any license, or
       willfully or repeatedly fails to comply with any of the provisions of
       the Act or of any rule, regulation or order issued by the Commission
       thereunder, shall be liable for a forfeiture penalty. Section
       312(f)(1) of the Act defines willful as the "conscious and deliberate
       commission or omission of [any] act, irrespective of any intent to
       violate" the law. The legislative history to section 312(f)(1) of the
       Act clarifies that this definition of willful applies to both sections
       312 and 503(b) of the Act and the Commission has so interpreted the
       term in the section 503(b) context. The Commission may also assess a
       forfeiture for violations that are merely repeated, and not willful.
       The term "repeated" means the commission or omission of such act more
       than once or for more than one day.

    4. Every analog and digital cable system is part of the nationwide EAS
       network and is categorized as a participating national EAS source
       unless the station affirmatively requests authority to refrain from
       participation, and that request is approved by the Commission. Cable
       systems must comply with EAS requirements on a headend basis. The EAS
       enables the President and state and local governments to provide
       immediate and emergency communications and information to the general
       public.  State and local area plans identify local primary sources
       responsible for coordinating carriage of common emergency messages
       from sources such as the National Weather Service or local emergency
       management officials.  Required monthly and weekly tests originate
       from EAS Local or State Primary

   sources and must be retransmitted by the participating cable system. As
   the nation's emergency warning system, the EAS is critical to public
   safety, and we recognize the vital role that cable systems play in
   ensuring its success. The Commission takes seriously any violations of the
   Rules implementing the EAS and expects full compliance from its
   regulatees.

    5. Section 11.35(a) of the Rules states that "EAS Participants are
       responsible for ensuring that the EAS Encoders, EAS Decoders, and
       Attention Signal generating and receiving equipment used as part of
       the EAS are installed so that the monitoring and transmitting
       functions are available during the times the stations and systems are
       in operation...." On November 3, 2010, an agent from the Detroit
       Office observed that Upper Peninsula's cable system serving Powers,
       Michigan did not have any operational EAS equipment installed, which
       was confirmed by the manager of the cable system. Because Upper
       Peninsula consciously operated its cable system in Powers, Michigan
       without EAS equipment for more than one day, we find the apparent
       violations to be willful and repeated. Based on the evidence before
       us, we find that Upper Peninsula  apparently willfully and repeatedly
       violated section 11.35(a) of the Rules by failing to install EAS
       equipment at its cable system in Powers, Michigan.

    6. Pursuant to the Commission's Forfeiture Policy Statement and section
       1.80 of the Rules, the base forfeiture amount for EAS equipment not
       installed or operational is $8,000. In assessing the monetary
       forfeiture amount, we must also take into account the statutory
       factors set forth in section 503(b) (2) (E) of the Act, which include
       the nature, circumstances, extent, and gravity of the violations, 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.  Applying the Forfeiture Policy Statement, section 1.80
       of the Rules, and the statutory factors to the instant case, we
       conclude that Upper Peninsula  is apparently liable for a total
       forfeiture in the amount of $8,000.

   IV. ORDERING CLAUSES

    7. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
       Communications Act of 1934, as amended, and sections 0.111, 0.204(b),
       0.311, 0.314 and 1.80 of the Commission's rules, Upper Peninsula
       Communications Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR
       A FORFEITURE in the amount of eight  thousand dollars ($8,000) for
       violation of section 11.35(a) of the Rules.

    8. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
       Commission's rules within thirty days of the release date of this
       Notice of Apparent Liability for Forfeiture, Upper Peninsula
       Communications Inc. SHALL PAY the full amount of the proposed
       forfeiture or SHALL FILE a written statement seeking reduction or
       cancellation of the proposed forfeiture.

    9. Payment of the forfeiture must be made by credit card, check or
       similar instrument, payable to the order of the Federal Communications
       Commission. The payment must include the Account Number and FRN Number
       referenced above. 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
       021030004, 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 NAL/Account
       number in block number 23A (call sign/other ID), and enter the letters
       "FORF" in block number 24A (payment type code). Requests for full
       payment under an installment plan should be sent to:  Chief Financial
       Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
       Washington, D.C.  20554.   If you have questions about payment
       procedures, please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Upper Peninsula  shall
       also send electronic notification on the date said payment is made to
       NER-Response@fcc.gov.

   10. The written statement seeking reduction or cancellation of the
       proposed forfeiture, if any, must include a detailed factual statement
       supported by appropriate documentation and affidavits pursuant to
       sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
       to Federal Communications Commission, Enforcement Bureau, Northeast
       Region, Detroit Office, 24897 Hathaway Street, Farmington Hills,
       Michigan, 48335 and include the NAL/Acct. No. referenced in the
       caption. Upper Peninsula  also shall email the written response to
       NER-Response@fcc.gov.

   11. 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.

   12. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by both Certified Mail, Return Receipt
       Requested, and regular mail, to Upper Peninsula Communications Inc.,
       397 US 41, Carney, Michigan 49812.

   FEDERAL COMMUNICATIONS COMMISSION

   James A. Bridgewater

   District Director

   Detroit Office

   Northeast Region

   Enforcement Bureau

   Upper Peninsula reported to an FCC agent that the sale of the system
   serving Powers, Michigan to Packerland Broadband was consummated on
   February 1, 2011. Upper Peninsula, however, still owns other cable systems
   in Michigan.

   47 C.F.R. S: 11.35.

   The manager told the agent that he believed Upper Peninsula did not need
   EAS equipment because of the small size of the cable system, i.e., the
   system at the time was serving only fifty-five subscribers.

   See Upper Peninsula Communications Inc., Order, 17 FCC Rcd 20112 (EB 2002)
   (granting Upper Peninsula temporary waivers of the EAS rules for several
   systems in order to give Upper Peninsula additional time to come into
   compliance with the EAS rules based on a demonstrated financial hardship).
   In 2006, the Commission denied Upper Peninsula's request for an extension
   of the waiver for its systems serving Alpha, Michigan; Amasa, Michigan;
   Champion, Michigan; Detour, Michigan; Garden, Michigan; Germfask,
   Michigan; Marenisco, Michigan; Michigamme, Michigan; Nahma, Michigan;
   Phelps, Wisconsin and Wolverine, Michigan. See EAS Waiver Extensions
   Granted to Very Small Cable Systems, Public Notice, 21 FCC Rcd 7129 (2006)
   (granting extensions of waivers to some cable systems and denying waiver
   extensions to cable operators who were unable to demonstrate continuing
   financial hardship).

   47 U.S.C. S: 503(b).

   47 U.S.C. S: 312(f)(1).

   H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
   [inserted in section 312] defines the terms `willful' and `repeated' for
   purposes of section 312, and for any other relevant section of the act
   (e.g., section 503).... As defined ... `willful' means that the licensee
   knew that he was doing the act in question, regardless of whether there
   was an intent to violate the law. `Repeated' means more than once, or
   where the act is continuous, for more than one day. Whether an act is
   considered to be `continuous' would depend upon the circumstances in each
   case. The definitions are intended primarily to clarify the language in
   sections 312 and 503, and are consistent with the Commission's application
   of those terms ...").

   See, e.g., Application for Review of Southern California Broadcasting Co.,
   Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) recon. denied, 7
   FCC Rcd 3454 (1992).

   See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
   Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
   television operator's repeated signal leakage).

   Section 312(f) (2) of the Act, 47 U.S.C. S: 312(f) (2), which also applies
   to violations for which forfeitures are assessed under section 503(b) of
   the Act, provides that "[t]he term `repeated', when used with reference to
   the commission or omission of any act, 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 C.F.R. S:S: 11.11, 11.41.

   47 C.F.R. S: 11.11.

   47 C.F.R. S:S: 11.1, 11.21.

   47 C.F.R. S: 11.18.  State EAS plans contain guidelines that must be
   followed by broadcast and cable personnel, emergency officials and
   National Weather Service personnel to activate the EAS for state and local
   emergency alerts.  The state plans include the EAS header codes and
   messages to be transmitted by the primary state, local and relay EAS
   sources.

   47 C.F.R. S: 11.61.

   47 C.F.R. S: 11.35.

   With regard to the manager's claim that he (and perhaps Upper Peninsula's
   owners as well) believed that the system did not need EAS equipment in
   light of the system's size, we note that it is longstanding Commission
   policy that lack of specific intent to violate Commission rules (even
   based on a lack of knowledge) is not a mitigating factor. See Profit
   Enterprises, Inc., 8 FCC Rcd 2846, 2846 (1993) (denying the mitigation
   claim of a manufacturer/distributor who thought that the equipment
   certification and marketing requirements were inapplicable, stating that
   its "prior knowledge or understanding of the law is unnecessary to a
   determination of whether a violation existed . . . ignorance of the law is
   [not] a mitigating factor"); Bureau D'Electronique Appliquee, Inc.,
   Forfeiture Order, 20 FCC Rcd 17893, 17896-7 (Enf. Bur., Spectrum Enf. Div.
   2005) (denying the mitigation claim of a manufacturer/distributor who
   admitted that "lack of actual knowledge" may not negate a finding of
   willfulness, but that such factors[s] warranted a downward adjustment of
   the proposed forfeiture amount).

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
   FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.

   47 U.S.C. S: 503(b)(2)(E).

   We note that the duration of the violation would normally be grounds for
   an upward adjustment, but because of the system's small number of
   subscribers, we will refrain from doing so in this case. Future violations
   of our EAS rules, however, may be subject to larger penalties.

   47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314, 1.80,
   11.35(a).

   See 47 C.F.R. S: 1.1914.

   47 C.F.R. S:S: 1.80(f)(3), 1.16.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 11-1721

                                       2

   Federal Communications Commission DA 11-1721