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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Affordable Inns Wheat Ridge, CO ) ) ) ) ) ) File No.:
EB-FIELDWR-13-00008421 Citation No. C201332800001
CITATION AND ORDER
Exceeding Signal Leakage Limits in Aeronautical Bands
Adopted: August 14, 2013 Released: August 15, 2013
By the District Director, Denver District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. This is an official CITATION AND ORDER (Citation) issued pursuant to
Section 503(b)(5) of the Communications Act of 1934, as amended
(Communications Act or Act),^ to Affordable Inns. Specifically,
Affordable Inns is being cited for failing to notify the Commission
before operating a multichannel video programming distributor (MVPD)
system with a carrier in the aeronautical radio frequency band, in
violation of Section 76.1804 of the Commission's rules (Rules),^ for
exceeding cable signal leakage limits in aeronautical frequency bands
in violation of Section 76.605(a)(12) of the Rules,^ and for operating
two channels outside the allowable frequency tolerance in violation of
Section 76.612(a)(1) of the Rules.^
2. Notice of Duty to Comply With Laws: Affordable Inns should take
immediate steps to come into compliance and reduce excessive signal
leakage, and to avoid any recurrence of the misconduct described
herein. Affordable Inns also must immediately register as an MVPD and
file FCC Form 321.^ Affordable Inns is hereby on notice that if it
subsequently engages in any conduct of the type described in this
Citation, including any violation of Sections 76.1804, 76.605(a)(12),
and 76.612(a)(1) of the Rules, it may be subject to civil penalties,
including but not limited to substantial monetary fines (forfeitures)
and seizure of equipment. Such forfeitures may be based on both the
conduct that led to this Citation and the conduct following it.^
3. Your Response Required: Pursuant to Sections 4(i), 4(j), and 403 of
the Communications Act,^ we also direct Affordable Inns to respond in
writing, within thirty (30) calendar days after the release date of
this Citation, and signed under pernalty of perjury, with descriptions
of the specific action(s) taken or planned to correct the violations
and preclude recurrence of the violations, and also a timeline for
completion of any pending corrective action(s).
II. background
4. On April 26, 2013, agents from the Enforcement Bureau's Denver
District Office (Denver Office) conducted an investigation and found
Affordable Inns, located at 10300 S. I-70 Frontage Road, Wheat Ridge,
Colorado, operated a non-cable MVPD system at its facility. The agents
also found that the Affordable Inns MVPD system was using aeronautical
frequencies, but had not filed an FCC Form 321 to notify the
Commission of its operation in the aeronautical band. The agents
further found that the Affordable Inns MVPD system was emitting a
radio carrier signal above allowed limits on frequency bands utilized
by aeronautical services. On April 26, 2013, the agents from the
Denver Office conducted field strength measurements on the
aeronautical band frequency 121.2625 MHz at a distance greater than
three meters from the Affordable Inns MVPD equipment and measured an
emission of 488 microvolts per meter. Additionally, the agents found
that two of the channels were not properly offset from the
aeronautical frequencies.
III. applicable law and violations
5. The Rules provide that cable and non-cable MVPDs that transmit
carriers with certain characteristics within frequency bands of
108-137 MHz and 225-400 MHz must comply with specific technical
requirements delineated in the Rules in order to avoid interference to
other licensed operations, including aeronautical systems operating in
these frequency ranges. In particular, Section 76.610 of the Rules
provides that all MVPDs (cable and non-cable) transmitting carriers or
other signal components carried at an average power level equal to or
greater than 10^-4 watts across a 25 kHz bandwidth in any 160
microsecond period, at any point in the cable distribution system in
the frequency bands 108-137 and 225-400 MHz for any purpose, must
comply with, among other requirements, Sections 76.605(a)(12), 76.612,
and 76.1804 of the Rules.^ Affordable Inns was required to comply
with these Rules because the MVPD system at its property in Wheat
Ridge, Colorado, transmits a carrier at an average power level equal
to or greater than 10^-4 watts across a 25 kHz bandwidth in any 160
microsecond period, and carries signals in the 108-137 MHz and 225-400
MHz aeronautical bands.
6. Section 76.605(a)(12) of the Rules provides that signal leakage from a
cable television system: (1) between 54 MHz and 216 MHz shall be
limited to 20 micro-volts per meter, measured at three meters and (2)
less than or equal to 54 MHz and more than 216 MHz shall be limited to
15 micro-volts per meter, measured at 30 meters.^ At the time of the
investigation, agents from the Denver Office conducted field strength
measurements on the frequency 121.2625 MHz at a distance greater than
three meters from the MVPD system of Affordable Inns, and measured an
emission of 488 microvolts per meter which exceeds the field strength
allowed on those frequencies by the Rules.
7. Section 76.612(a)(1) of the Rules provides that "[a]ll cable
television systems which operate in the frequency bands 108-137 and
225-400 MHz shall comply with the following frequency separation
standards: All such cable carriers or signal components shall be
offset by 12.5 kHz with a frequency tolerance of +-5 kHz."^ At the
time of the investigation, agents from the Denver Office observed
Affordable Inns operating on Channel 28 (O) with a measured frequency
of 247.2503 MHz (authorized is 247.2625 MHz) and on Channel 29 (P)
with a measured frequency of 253.2488 MHz (authorized is 253.2625
MHz). In each instance, Affordable Inns operated the channel outside
the allowable frequency tolerance.
8. Section 76.1804 of the Rules requires that an "MVPD shall notify the
Commission before transmitting any carrier or other signal component
with an average power level across a 25 kHz bandwidth in any 160
microsecond time period equal to or greater than 10^-4 watts at any
point in the cable distribution system on any frequency or frequencies
in the aeronautical radio frequency bands (108-137 and 225-400 MHz).
The notification shall be made on FCC Form 321."^ At the time of the
investigation, Affordable Inns was using frequencies in the
aeronautical band, but had not notified the Commission as required.
Based on the foregoing evidence, we find that Affordable Inns violated
Sections 76.1804, 76.605(a)(12) and 76.612(a)(1) of the Rules by
failing to notify the Commission of its operations, exceeding cable
signal leakage limits, and operating channels outside the allowable
frequency tolerance.^
IV. REQUEST FOR INFORMATION
9. Pursuant to Sections 4(i), 4(j), and 403 of the Communications Act,^
Affordable Inns is directed to describe the steps it has taken or
plans to take to come into compliance with the Commission's cable
signal leakage and notification rules, as well as a timeline for any
pending corrective actions, within thirty (30) calendar days after the
release date of this Citation. A failure to respond in writing, or an
inadequate, incomplete, or misleading response, may subject Affordable
Inns to additional sanctions.^
V. RESPONDING TO THIS CITATION
10. In addition to the required written information described in
paragraphs 3 and 9, above, Affordable Inns may, if it so chooses,
respond to this Citation--challenging the factual and legal findings
herein--within thirty (30) calendar days from the release date of this
Citation either through (1) a written statement, (2) a teleconference
interview, or (3) a personal interview at the Commission Field Office
nearest to your place of business.
11. If you would like to arrange a teleconference or personal interview,
please contact Nikki Shears at (303) 231-5212. The nearest Commission
Field Office is located in Lakewood, Colorado. Such teleconference or
interview must take place within thirty calendar (30) days of the date
of this Citation. If you would like to submit a written response,
including any supporting documentation, you must send the response
within thirty (30) calendar days of the date of this Citation to the
contact and address provided in paragraph 12, below.
12. All written communications, including the information requested in
paragraphs 3 and 9, above, should be provided to the address below.
Nikki P. Shears
Federal Communications Commission
Denver District Office
215 S. Wadsworth Blvd., Suite # 303
Lakewood, CO 80226
Re: EB-FIELDWR-13-00008421
13. Reasonable accommodations for people with disabilities are available
upon request. Include a description of the accommodation you will
need, and include as much detail as you can. Also include a way we can
contact you if we need more information. Please allow at least five
(5) business days advance notice; last minute requests will be
accepted, but may be impossible to fill. Send an e-mail to
fcc504@fcc.gov or call the FCC's Consumer & Governmental Affairs
Bureau:
For sign language interpreters, CART, and other reasonable accommodations:
202-418-0530 (voice), 202-418-0432 (tty);
For accessible format materials (braille, large print, electronic files,
and audio format): 202-418-0531 (voice), 202-418-7365 (tty).
14. Please be advised that it is a violation of Section 1.17 of the
Commission's rules (47 C.F.R. S 1.17) for any person or a staff member
of that person to make any false or misleading written or oral
statement of fact. Specifically, no person shall:
(1) In any written or oral statement of fact, intentionally provide
material factual information that is incorrect or intentionally omit
material information that is necessary to prevent any material factual
statement that is made from being incorrect or misleading; and
(2) In any written statement of fact, provide material factual information
that is incorrect or omit material information that is necessary to
prevent any material factual statement that is made from being incorrect
or misleading without a reasonable basis for believing that any such
material factual statement is correct and not misleading.^
15. Further, the knowing and willful making of any false statement, or the
concealment of any material fact, in reply to this Citation is
punishable by fine or imprisonment under 18 U.S.C. S 1001.
16. If you violate Section 1.17 of the Commission's rules or the criminal
statute referenced above, you may be subject to further legal action,
including monetary fines pursuant to Section 503 of the Communications
Act.^
17. Under the Privacy Act of 1974, 5 U.S.C. S 552a(e)(3), we are informing
you that the Commission's staff will use all relevant material
information before it, including information that you disclose in your
interview or written statement, to determine what, if any, enforcement
action is required to ensure your compliance with the Communications
Act and the Commission's rules.
VI. FUTURE VIOLATIONS
18. If, after receipt of this Citation, Affordable Inns again violates
Sections 76.1804, 76.605(a)(12), and 76.612(a)(1) of the Rules by
engaging in conduct of the type described herein, the Commission may
impose monetary forfeitures not to exceed $16,000 for each such
violation or each day of a continuing violation, and up to $112,500
for any single act or failure to act.^ For instance, the Commission
could impose separate forfeitures for each day on which its MVPD
system exceeds cable signal leakage limits. Further, as discussed
above, such forfeitures may be based on both the conduct that led to
the Citation and the conduct following it.^ In addition, violations of
the Communications Act or the Rules also can result in seizure of
equipment through in rem forfeiture actions,^ as well as criminal
sanctions, including imprisonment.^
VII. ORDERING CLAUSES
19. IT IS ORDERED that, pursuant to Sections 4(i), 4(j), and 403 of the
Communications Act, Affordable Inns must provide the written
information requested in paragraphs 3 and 9, above. The response to
the request for information must be provided in writing, signed under
penalty of perjury by an authorized official at Affordable Inns with
personal knowledge of the information and representations provided in
the written response, and must be received by the FCC within thirty
(30) calendar days after the release date of this Citation and Order.
20. IT IS FURTHER ORDERED that a copy of this Citation and Order shall be
sent both by First Class U.S. Mail and Certified Mail, Return Receipt
Requested, to Affordable Inns at 10300 S. I-70 Frontage Road, Wheat
Ridge, CO 80033.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver District Office
Western Region
Enforcement Bureau
^ 47 U.S.C. S 503(b)(5).
^ 47 C.F.R. S 76.1804.
^ 47 C.F.R. S 76.605(a)(12).
^ 47 C.F.R. S 76.612(a)(1).
^ Form 321 is an Aeronautical Frequency Notification Form, which must be
submitted electronically via the Cable Operations and Licensing System
Website (COALS). See http://www.fcc.gov/forms.
^ See 47 U.S.C S 503(b)(5). See also S. Rep. No. 95-580, 95th Cong.,
1st Sess. at 9 (1977) (If a person or entity that has been issued a
citation by the Commission thereafter engages in the conduct for which the
citation of violation was sent, the subsequent notice of apparent
liability "would attach not only for the conduct occurring subsequently
but also for the conduct for which the citation was originally sent.")
(emphasis added).
^ 47 U.S.C. SS 154(i), 154(j), 403.
^ 47 C.F.R. S 76.610.
^ 47 C.F.R. S 76.605(a)(12).
^ 47 C.F.R. S 76.612(a)(1).
^ 47 C.F.R. S 76.1804.
^ 47 C.F.R. SS 76.605(a)(12), 76.612(a)(1), 76.1804.
^ 47 U.S.C. SS 154(i), 154(j), 403.
^ See, e.g., SBC Communications, Inc., Apparent Liability for Forfeiture,
Forfeiture Order, 17 FCC Rcd 7589, 7599-7600, PP 23-28 (2002) (imposing
$100,000 forfeiture for egregious and intentional misconduct, i.e.,
refusing to attest to truthfulness and accuracy of responses to a Letter
Inquiry (LOI)); Connect Paging, Inc. d/b/a Get A Phone, Forfeiture Order,
22 FCC Rcd 15146 (Enf. Bur. 2007) (imposing $4,000 forfeiture for failure
to respond to an LOI); BigZoo.Com Corporation, Order of Forfeiture, 20 FCC
Rcd 3954 (Enf. Bur. 2005) (imposing $20,000 forfeiture for failure to
respond to a USF LOI); Donald W. Kaminski, Jr., Forfeiture Order, 18 FCC
Rcd 26065 (Enf. Bur. 2003) (imposing $4,000 forfeiture for failure to
respond to an LOI). See also World Communications Satellite Systems,
Inc., Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 18545 (Enf.
Bur. 2003) (proposing $10,000 forfeiture for a non-responsive reply to an
LOI); Digital Antenna, Inc., Sunrise, Florida, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 7600 (Enf. Bur. 2008) (proposing
$11,000 forfeiture for failure to provide complete responses to an LOI).
^ 47 C.F.R. S 1.17.
^ 47 U.S.C. S 503.
^ See 47 U.S.C. SS 401, 501, 503; 47 C.F.R. S 1.80(b)(7). This amount is
subject to further adjustment for inflation (see 47 C.F.R. S 1.80(b)(9)),
and the forfeiture amount applicable to any violation will be determined
based on the statutory amount designated at the time of the violation.
^ See paragraph 2, supra.
^ See 47 U.S.C. S 510.
^ See 47 U.S.C. SS 401, 501.
Federal Communications Commission DA 13-1754
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Federal Communications Commission DA 13-1754