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Harron Communications, LP

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Released: December 31, 1969

Federal Communications Commission

DA 09-82

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of
)
File No. EB-08-SE-1074
)
NAL/Acct. No. 200932100012
Harron Communications, LP1
)
FRN 0016642761
)

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"), we find that Harron
Communications, L.P. ("Harron") apparently willfully violated a Commission Order and Section 76.939 of
the Commission's Rules ("Rules") in failing to respond fully to an Enforcement Bureau Letter of Inquiry.2
We conclude, pursuant to Section 503(b) of the Communications Act of 1934, as amended ("Act"),3 that
Harron is apparently liable for a forfeiture in the amount of twenty-five thousand dollars ($25,000). We
also order Harron to respond fully to the LOI within ten (10) days of release of this NAL. If Harron again
fails to submit a complete response, it will be subject to further enforcement action.

II.

BACKGROUND

2.
In response to consumer complaints against Harron, on October 30, 2008, the
Enforcement Bureau ("Bureau") issued a Letter of Inquiry ("LOI") regarding the company's migration of
analog programming to digital tiers.4 The LOI sought information concerning instances in which Harron
had migrated analog channels to a digital tier, including the channels affected, whether and how the
company notified customers of the change, whether, in light of the change in service, the company
permitted customers to change their service tier without charge, and the rates charged customers before
and after the channel migration. The LOI also asked about Harron's charges for digital set-top boxes as
well as information regarding Harron's subscriber rates and the rates it pays to video programmers.


1 The inquiry in this investigation was directed to Harron Entertainment Company ("HEC"). However, the LOI
Response notes that cable systems in this investigation operate under the names "MetroCast Communications" and
"MetroCast Cablevision" and are subsidiaries of Harron Communications, L.P. ("Harron") and not HEC. We have
modified the caption accordingly.
2 47 C.F.R. 76.939.
3 47 U.S.C. 503(b).
4 Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission to Ryan F. Pearson, Executive Vice President and General Counsel, Harron
Entertainment Company (Oct. 30, 2008) ("LOI").

Federal Communications Commission

DA 09-82

3.
In its response to the LOI,5 Harron failed to respond to Question 8.b, citing the
confidential nature of the information requested as its reason. Harron states that it is working with its
affected programming distributors regarding possible disclosure.6

III.

DISCUSSION

A.

Failure to Respond Fully to the LOI

4.
We find that Harron's failure to fully respond to the Bureau's inquiry constitutes an
apparent willful7 violation of a Commission Order and Section 76.939 of the Rules. The Bureau directed
Harron to provide certain information related to the movement of analog channels to digital tiers. This
information was necessary to enable the Commission to perform its enforcement function and evaluate
whether Harron violated Commission Rules. Harron received the LOI but failed to provide a full and
complete response.
5.
The Commission has broad investigatory authority under Sections 4(i), 4(j), and 403 of
the Act, its Rules, and relevant precedent. Section 4(i) authorizes the Commission to "issue such orders,
not inconsistent with this Act, as may be necessary in the execution of its functions."8 Section 4(j) states
that "the Commission may conduct its proceedings in such manner as will best conduce to the proper
dispatch of business and to the ends of justice."9 Section 403 grants the Commission "full authority and
power to institute an inquiry, on its own motion ... relating to the enforcement of any of the provisions of
this Act."10 Pursuant to Section 76.939 of the Rules, a cable operator must comply with FCC requests for
information, orders, and decisions.11 In carrying out this obligation, a cable operator also must provide
truthful and accurate statements to the Commission or its staff in any investigatory or adjudicatory matter
within the Commission's jurisdiction.12 Lastly, numerous FCC decisions have reaffirmed the
Commission's authority to investigate potential misconduct and punish those that disregard FCC


5 Letter from Ryan F. Pearson, Executive Vice President and General Counsel, Harron Communications, L.P. to
Marlene H. Dortch, Secretary, Federal Communications Commission (Nov. 13, 2008) ("LOI Response").
6 Id.
7 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. 47 U.S.C. 312(f)(1). The legislative history of Section 312(f)(1) of
the Act indicates that this definition of willful applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-
765, 97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the term in the Section 503(b) context.
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387-88 5
(1991) ("Southern California Broadcasting").
8 47 U.S.C. 154(i).
9 47 U.S.C. 154(j).
10 47 U.S.C. 403.
11 47 C.F.R. 76.939 ("Cable operators shall comply with ... the Commission's requests for information, orders,
and decisions.").
12 See 47 C.F.R. 1.17.
2

Federal Communications Commission

DA 09-82

inquiries. 13 The Commission delegated this authority to the Enforcement Bureau in Section 0.111(a)(16)
of the Rules.14
6.
Harron alleges that it could not have responded fully to the LOI because the amount of
time allowed for the preparation of the company's LOI response was too brief for it to arrange for the
necessary disclosure of confidential material responsive to Question 8b.15 Certain complaints received by
the Commission regarding the migration of analog programming to a digital tier, however, allege that
cable operators were falsely linking the programming changes with the digital television transition.
Because of the strong public interest in avoiding confusion about the transition and the rapidly
approaching transition date, the Bureau determined that two weeks was an appropriate deadline and we
conclude that two weeks was a reasonable deadline. Thus, Harron was obligated to provide the requested
information by our deadline. Moreover, we note that since it submitted its LOI response and while this
matter remains under investigation by the Bureau, Harron has neither contacted the Bureau about its
response nor provided any supplemental information.
7.
Further, we reject Harron's contention that the confidential nature of some of the
information responsive to the Bureau's LOI absolved Harron of its obligation to respond in a timely
fashion. In addition to requesting confidential treatment of such material pursuant to the Commission's
well-established, long-standing rules regarding the treatment of material routinely considered
confidential,16 the Commission issued a Protective Order in this investigation specifically to address any
concerns regarding the potentially confidential nature of certain information. Thus, Harron had the
option, as set forth by the Commission's General Counsel in his letter directed to Harron,17 of providing
the information under that Protective Order.18 We find therefore that Harron's failure to fully respond to
the Bureau's inquiry constitutes an apparent willful19 violation of a Commission order and Section 76.939
of the Rules.


13 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7599-7600 23-28 (2002) (ordering
$100,000 forfeiture for egregious and intentional failure to certify the response to a Bureau inquiry) ("SBC
Forfeiture Order
"); Digital Antenna, Inc., Notice of Apparent Liability for Forfeiture and Order, 23 FCC Rcd 7600,
7602 (Spectr. Enf. Div., Enf. Bur. 2008) (proposing $11,000 forfeiture for failure to provide a complete response to
an LOI); BigZoo.Com Corporation, Forfeiture Order, 20 FCC Rcd 3954 (Enf. Bur. 2005) (ordering $20,000
forfeiture for failure to respond to an LOI).
14 47 C.F.R. 0.111(a)(16) (granting the Enforcement Bureau authority to "[i]dentify and analyze complaint
information, conduct investigations, conduct external audits and collect information, including pursuant to sections
218, 220, 308(b), 403 and 409(e) through (k) of the Communications Act, in connection with complaints, on its own
initiative or upon request of another Bureau or Office."). See also 47 C.F.R. 0.111(a)(13) (Enforcement Bureau
has authority to "[r]esolve complaints regarding multichannel video and cable television service under part 76 of the
Commission's rules"); 0.311 (general delegated authority for Enforcement Bureau).
15 LOI Response at 8.
16 See LOI Attachment, Request for Confidential Treatment, referencing the Commission's Rules at 47 C.F.R.
0.459.
17 Prior to the due date for Harron's LOI Response, the Commission's General Counsel advised the company that
the LOI complied with the Paperwork Reduction Act, warned of enforcement action if the company failed to comply
with the LOI, and offered Harron the opportunity to submit any highly confidential information pursuant to a
protective order. See Letter from Matthew Berry, General Counsel, Federal Communications Commission, to Ryan
F. Pearson, Executive Vice President and General Counsel (Nov. 12, 2008) ("Berry Letter").
18 See Harron Entertainment Company, Protective Order, DA 08-2494 (Enf. Bur. rel. Nov. 13, 2008).
19 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. 47 U.S.C. 312(f)(1). The legislative history of Section 312(f)(1) of
the Act indicates that this definition of willful applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-
(continued ...)
3

Federal Communications Commission

DA 09-82

B.

Proposed Forfeiture

8.
We conclude under applicable standards set forth in the Act, that Harron is apparently
liable for forfeiture for its apparent willful violation of a Commission Order and Section 76.939 of the
Rules. 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.20 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.21 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.22
9.
Under Section 503(b)(2)(A) of the Act,23 we may assess a cable operator a forfeiture of
up to $37,500 for each violation, or for each day of a continuing violation up to a maximum of $375,000
for a single act or failure to act. 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."24
10.
Section 1.80 of the Rules and the Commission's Forfeiture Policy Statement establish a
base forfeiture amount of four thousand dollars ($4,000) for failure to respond to Commission
communications.25 We find that Harron's failure to respond fully to the LOI in the circumstances
presented here warrants a significant increase to this base amount. Misconduct of this type exhibits
contempt for the Commission's authority and threatens to compromise the Commission's ability to
adequately investigate violations of its rules. Prompt and full responses to Bureau inquiry letters are
essential to the Commission's enforcement function. In this case, Harron's apparent violations have
(Continued from previous page)


765, 97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the term in the Section 503(b) context.
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387-88 5
(1991) ("Southern California Broadcasting").
20 47 U.S.C. 503(b)(1)(B); 47 C.F.R. 1.80(a)(1).
21 47 U.S.C. 503(b); 47 C.F.R. 1.80(f).
22 See, e.g., SBC Forfeiture Order, 17 FCC Rcd at 7591.
23 47 U.S.C. 503(b)(2)(A). The Commission has amended Section 1.80(b)(3) of the Rules, 47 C.F.R. 1.80(b)(3),
three times 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. See Amendment of Section 1.80 of
the Commission's Rules and Adjustment of Forfeiture Maxima to Reflect Inflation
, 23 FCC Rcd 9845 (2008)
(adjusting the maximum statutory amounts for broadcasters and cable operators from $32,500/$325,000 to
$37,500/$375,000); Amendment of Section 1.80 of the Commission's Rules and Adjustment of Forfeiture Maxima to
Reflect Inflation,
Order, 19 FCC Rcd 10945 (2004) (adjusting the maximum statutory amounts for broadcasters and
cable operators from $27,500/$300,000 to $32,500/$325,000); Amendment of Section 1.80 of the Commission's
Rules and Adjustment of Forfeiture Maxima to Reflect Inflation,
Order, 15 FCC Rcd 18221 (2000) (adjusting the
maximum statutory amounts for broadcasters and cable operators from $25,000/$250,000 to $27,500/$300,000).
The most recent inflation adjustment took effect September 2, 2008 and applies to violations that occur after that
date. See 73 Fed. Reg. 44663-5. Harron's apparent violations occurred after September 2, 2008 and are therefore
subject to the higher forfeiture limits.
24 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.
25 See 47 C.F.R. 1.80(b)(4); The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guideline
s, Report and Order, 12 FCC Rcd. 17087 (1997), recon. denied, 15
FCC Rcd. 303 (1999).
4

Federal Communications Commission

DA 09-82

delayed our investigation and inhibited our ability to examine allegations raised in consumer complaints
and also potentially touching on an area of critical importance -- the DTV transition. We further note that
Harron failed to provide a full and complete LOI response even after receiving a specific warning from
the Commission's General Counsel that such actions could be subject to enforcement penalties.26
11.
Based on these facts, we therefore propose a twenty-five thousand dollar ($25,000)
forfeiture against Harron for failing to respond fully to Commission communications. This forfeiture
amount is consistent with precedent in similar cases, where companies failed to provide responses to
Bureau inquiries concerning compliance with the Commission's Rules despite evidence that the LOIs had
been received.27
12.
We also direct Harron to respond fully to the October 30, 2008 LOI within ten (10) days
of the release of this Notice of Apparent Liability for Forfeiture and Order. Failure to do so may
constitute an additional violation subjecting Harron to further penalties, including potentially higher
monetary forfeitures. 28

IV.

ORDERING CLAUSES

13.
Accordingly,

IT IS ORDERED

that, pursuant to Section 503(b) of the Act, and Section
1.80 of the Rules, and the authority delegated by Sections 0.111 and 0.311 of the Commissions Rules,
Harron Communications, L.P. is

NOTIFIED

of its

APPARENT LIABILITY FOR A FORFEITURE

in the amount of twenty-five thousand dollars ($25,000) for its willful violation of a Commission Order
and Section 76.939 of the Rules.
14.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Rules, within 30
days of the release date of this Notice of Apparent Liability for Forfeiture and Order, Harron

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), 403 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 403, Harron shall fully
respond to the October 30, 2008 Letter of Inquiry sent by the Enforcement Bureau in the manner
described by that Letter of Inquiry within ten (10) days of the release of this Notice of Apparent Liability
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 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


26 Berry Letter at 2.
27 See supra note 12.
28 We do not decide in this NAL whether the failure to respond to an LOI constitutes a continuing violation.
5

Federal Communications Commission

DA 09-82

or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Harron will also
send electronic notification on the date said payment is made to JoAnn.Lucanik@fcc.gov and
Thomas.Fitz-Gibbon@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.
The response should also be e-mailed to JoAnn Lucanik, Deputy Chief, Spectrum Enforcement Division,
Enforcement Bureau, FCC, at JoAnn.Lucanik@fcc.gov and Thomas D. Fitz-Gibbon, Esq., Spectrum
Enforcement Division, FCC, at Thomas.Fitz-Gibbon@fcc.gov.
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 Ryan F.
Pearson, Executive Vice President and General Counsel, Harron Communications, L.P., 70 East
Lancaster Avenue, Frazer, PA 19355 and to its counsel, J. Christopher Redding, Esq., Dow Lohnes
PLLC, 1200 New Hampshire Avenue, NW, Suite 800 Washington, DC 20036-6802.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
6

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