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Cablevision Systems Corp

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Released: December 31, 1969

Federal Communications Commission

DA 09-136

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
) File Number EB-09-SE-015
)
Cablevision Systems Corp.
) NAL/Acct. No. 200932100037
)
) FRN 0009725276
)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

Adopted: January 19, 2009

Released: January 19, 2009

By the Chief, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture and Order ("NAL and Order"),
we find that Cablevision Systems Corp's cable systems serving Darien, Connecticut
("Cablevision") apparently willfully violated Section 76.1603(b) of the Commission's Rules
("Rules").1 Specifically, Cablevision failed to provide the requisite thirty (30) days advance
written notice to its customers, before implementing a change in rates, programming services or
channel positions as required under the Rules. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"),2 that Cablevision is apparently liable for a
forfeiture in the amount of seven thousand five hundred dollars ($7,500). We also order
Cablevision, within ninety (90) days of this NAL and Order, to issue refunds to customers affected
by the change in rates, programming services or channel position as explained more fully below.

II.

BACKGROUND

2.
On May 29, 2008, the Commission received a complaint asserting that
Cablevision in Darien, Connecticut converted certain channels to digital "effectively dropping
my access [to] these channels [that] represent approximately one-fifth of the total programming I
purchase through a Family Basic cable tv package."3 According to the Complainant, this change
was made without prior notice.


1 47 C.F.R. 76.1603(b).
2 47 U.S.C. 503(b).
3 FCC Complaint 08-C00023963-1.

Federal Communications Commission

DA 09-136

III.

DISCUSSION

A.

Cablevision Apparently Violated Section 76.1603(b) By Failing To Provide
Proper Notice to its Customers.

3.
Based on the record before us, we find that Cablevision apparently willfully
violated Section 76.1603(b) by failing to notify its customers before implementing a change in
rates, programming services or channel positions as required under the Rules.
4.
Section 76.1603(b) of the Rules provides, in relevant part, as follows:
Customers will be notified of any changes in rates, programming services or channel
positions as soon as possible in writing. Notice must be given to subscribers a minimum
of thirty (30) days in advance of such changes if the change is within the control of the
cable operator. In addition, the cable operator shall notify subscribers 30 days in advance
of any significant changes in the other information required by 76.1602.4
5.
We find that the migration of each channel constitutes a change in rates,
programming services or channel positions under the Rules. We also find that the migration was
a change within the control of the Cablevision because we are unaware of external forces that
would have required the Cablevision to make such a change, particularly without giving 30 days
notice. In our Letter of Inquiry issued to Cablevision on October 30, 2008,5 we asked for a range
of information related to the migration of channels, including evidence that consumers were
provided with the notice required under our rules. Unfortunately, Cablevision failed to produce
any evidence on this point in response to our request, including any evidence that the requisite
notice was provided of the migration that is the subject of this NAL and Order.
6.
Therefore, for the reasons stated above, we find that Cablevision apparently
violated Section 76.1603(b) by failing to provide the its customers at least thirty (30) days notice
of a change in rates, programming services or channel positions.

B.

Forfeiture Calculation

7.
Under Section 503(b)(1)(B) of the Act, any person who is determined by the
Commission to have willfully or repeatedly failed to comply with any provision of the Act or any
rule, regulation, or order issued by the Commission shall be liable to the United States for a
forfeiture penalty.6 To impose such a forfeiture penalty, the Commission must issue a notice of
apparent liability and the person against whom such notice has been issued must have an
opportunity to show, in writing, why no such forfeiture penalty should be imposed.7 The
Commission will then issue a forfeiture if it finds by a preponderance of the evidence that the
person has violated the Act or a Commission rule.8 Based on the analysis set forth below, we


4 47 C.F.R. 76.1603(b).
5
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission to Howard Symons, Esq., Counsel for Cablevision Systems Corp. (Oct. 30, 2008)
("LOI").
6 47 U.S.C. 503(b)(1)(B); 47 C.F.R. 1.80(a)(1).
7 47 U.S.C. 503(b); 47 C.F.R. 1.80(f).
8 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7591 (2002).
2

Federal Communications Commission

DA 09-136

conclude that Cablevision is apparently liable for a forfeiture in the amount of seven thousand
five hundred dollars ($7,500) for its willful violations of Section 76.1603(b) of the Rules.
8.
Under Section 503(b)(2)(A) and Section 1.80(b)(1) of the Commission's Rules,9
we may assess a cable television operator a forfeiture of up to $32,000 for each violation or each
day of a continuing violation, up to a statutory maximum forfeiture of $325,000 for any single
continuing violation. In exercising such authority, we are required to 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 such other matters as
justice may require."10
9.
The Commission's Forfeiture Policy Statement11 and Section 1.80 of the Rules do
not establish a specific base forfeiture for violation of Section 76.1603's notice requirements.12
Based on the totality of circumstances here and the Commission's past precedent, we find that
$7,500 is an appropriate base forfeiture for the failure to notify its customers of Cablevision's
change in service.13 Accordingly, we conclude that Cablevision is apparently liable for a total
forfeiture of $7,500 for its willful violation of Section 76.1603(c) of the Rules.

C.

Cablevision Must Issue Refunds To Customers Harmed By Its Failure To
Provide Notice.

10.
Cablevision's change in rates, programming services or channel positions without
the required notice has harmed the its customerswho purchased services based on the reasonable
assumption that Cablevision would not be moving significant portions of programming from
standard service tiers to digital cable tiers without providing the notice required under our Rules.


9 47 U.S.C. 503(b)(2)(A), 47 C.F.R. 1.80(b)(1). The Commission has repeatedly amended Section 1.80(b)(1) of
the Rules to increase the maximum forfeiture amounts, in accordance with the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, 28 U.S.C. 2461. Most recently, the Commission
raised the maximum forfeitures applicable to cable operators, broadcast licensees, and applicants for such authority
from $32,500 to $37,500 for a single violation, and from $325,000 to $375,000 for a continuing violation. See
Inflation Adjustment of Maximum Forfeiture Penalties, 73 Fed. Reg. 44663, 44664 (July 31, 2008). The new
forfeiture limits will take effect September 2, 2008 and do not apply to this case.
10 47 U.S.C. 503(b)(2)(E). See also 47 C.F.R. 1.80(b)(4), Note to paragraph (b)(4): Section II. Adjustment
Criteria for Section 503 Forfeitures.
11 See 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, 17115 (1997), recon. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
12 The Commission has substantial discretion, however, in proposing forfeitures. See, e.g., InPhonic, Inc., Order of
Forfeiture and Further Notice of Apparent Liability, 22 FCC Rcd 8689, 8699 (2007); Globcom, Inc. d/b/a Globcom
Global Commun.,
Order of Forfeiture, 21 FCC Rcd 4710, 4723-24 (2006). We may apply the base forfeiture
amounts described in the Forfeiture Policy Statement and the Commission's rules, or we may depart from them
altogether as the circumstances demand See 47 C.F.R. 1.80(b)(4) ("The Commission and its staff may use these
guidelines in particular cases [, and] retain the discretion to issue a higher or lower forfeiture than provided in the
guidelines, to issue no forfeiture at all, or to apply alternative or additional sanctions as permitted by the statute.")
(emphasis added).
13 See also Northland Cable Television, Inc., Memorandum Opinion and Order and Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 7865 (Media Bur. 2008) (proposing $20,000 forfeiture for apparent violations of Section
76.1603 and other rules); Northland Cable Television, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 7872 (Media Bur. 2008) (same).
3

Federal Communications Commission

DA 09-136

In effect, Cablevision's movement of programming to a digital tier without any reduction in
subscriber fees has substantially diminished the value of the programming Complainant receives.
The Complainant must now pay the same monthly rate for cable service even though
Complainant can view fewer channels.
11.
Thus, we order Cablevision, within ninety (90) days of this NAL and Order, to
issue refunds to affected subscribers who did not receive the required notice as of the date of the
programming change. Specifically, Cablevision must provide refunds as follows:
Cablevision must refund the customer's subscriber fees of all affected customers
who did not receive the required notice based on the diminished value of their
service following the movement of programming without proper notice by $0.10
per channel moved per month and reduce complainant's rates on a going-forward
basis accordingly until the notice required under our rules has been provided.14
12.
In addition, we order Cablevision to submit to the Bureau within 30 days of the
issuance of refunds a report in the form of a letter advising the Bureau that such refunds have
been paid and that affected subscribers' fees have been reduced as directed.

IV.

ORDERING CLAUSES

13.

Accordingly, IT IS ORDERED

, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b)(5), and section 1.80 of the
Commission's rules, 47 C.F.R. S: 1.80, and under the authority delegated by sections 0.111 and
0.311 of the Commission's rules,47 C.F.R. S: 0.111, 0.311, Cablevision is NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven thousand five hundred
($7,500) for willful violation of Section 76.1603(b) of the Rules.
14.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Rules, within
thirty days of the release date of this Notice of Apparent Liability for Forfeiture and Order,
Cablevision Systems Corp.

SHALL PAY

the full amount of the proposed forfeiture or

SHALL
FILE

a written statement seeking reduction or cancellation of the proposed forfeiture.
15.

IT IS FURTHER ORDERED

that, pursuant to sections 1, 4(i), 4(j), 601, and
629 of the Communications Act of 1934, as amended 47 U.S.C. 151, 154(i), 154(j), 521, 549,
Cablevision must take the steps set forth in paragraphs 10, 11, and 12 of this NAL and Order.
16.
Payment of the forfeiture must be made by check or similar instrument, payable to
the order of the Federal Communications Commission. The payment must include the
NAL/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


14 Thus, for example, if Cablevision migrated a channel and did not provide proper notice for nine months, it must
refund $0.90 to each affected customer. $0.10 is our best estimate of the relevant license fee per channel. We note
that Cablevision did not provide actual per channel license fees as required by the LOI. The Bureau will reconsider
the appropriate license fee per channel should Cablevision submit a petition for reconsideration that includes
evidence that the license fees of the affected channels are lower than $0.10 per month.
4

Federal Communications Commission

DA 09-136

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. Please contact the Financial Operations Group Help Desk at 1-877-480-3201 or
Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Oceanic
will also send electronic notification on the date said payment is made to Kathy.Berthot@fcc.gov
and to JoAnnLucanik@fcc.gov.
17.
The response, if any, must be mailed to the Office of the Secretary, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554, ATTN:
Enforcement Bureau Spectrum Enforcement Division, and must include the NAL/Acct. No.
referenced in the caption.
18.
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. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial documentation submitted.
19.

IT IS FURTHER ORDERED

that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by first class mail and certified mail return receipt
requested to Howard Symons, Esq., Counsel for Cablevision Systems Corp., Mintz, Levin, Cohn,
Ferris, Glovsky, and Popeo, P.C., 701 Pennsylvania Ave., N.W., Suite 900, Washington, D.C.,
20004-2608.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
5

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