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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-212
)
Cablevision of Newark ) NAL/Acct.No. 200332380013
)
Woodbury, NY ) FRN: 0003-7361-39
)
Released: January 27,
2003
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
·
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Cablevision of Newark (``Cablevision'') has
apparently violated Sections 11.61(a)(1)(iii) and 11.61(b) of the
Commission's Rules (the ``Rules''),1 by failing to conduct
required monthly tests of the Emergency Alert System (``EAS''),
and failing to maintain station records of required monthly and
weekly EAS tests messages. We conclude that Cablevision is
apparently liable for a forfeiture in the amount of three
thousand dollars ($3,000).
II. BACKGROUND
2. On September 5, 2002, Commission agents conducted an
inspection of Cablevision's, EAS, located at 360
Central Avenue, Newark, NJ 07103. At the time of
inspection, Jai Bond, the supervisor on duty, was
unable to provide station records of EAS test messages,
as requested by Commission agents.
3. On September 18, 2002, a Commission agent revisited
Cablevision to inspect the station records. Based upon
the agent's inspection of Cablevision's station records
and interview with Jai Bond, the supervisor on duty, he
determined that Cablevision had failed to conduct
weekly and monthly tests, and was not monitoring two
EAS sources.
4. On October 7, 2002, the New York Office sent a Notice
of Violation for failure to conduct required weekly and
monthly EAS tests, and failure to monitor two EAS
sources, by First Class and Certified Mail Return
Receipt Requested, to Cablevision of Newark.
5. On October 21, 2002, the New York Office received a
reply to the Notice of Violation from Paul W. Jamieson,
counsel for Cablevision, stating that Cablevision
showed compliance with required EAS weekly testing from
January 5, 2002 to August 24, 2002, and compliance with
required EAS monthly testing from January 5, 2002 to
August 31, 2002.
6. Since Cablevision's response to the Notice of Violation
differed with the information obtained by a Commission
agent during the station inspection, the agent obtained
station records from station WFME(FM), Newark, NJ,
Cablevision's primary source. Based on a review of
those records, he determined that Cablevision:
a) Failed to conduct required monthly tests of the EAS header
codes, Attention Signal, Test Script and EOM code for the
months of June 2002 and August 2002.
b) Failed to maintain station records of required monthly EAS
tests received for the months of June 2002 and August 2002,
and log reasons why EAS tests were not received.
c) Failed to maintain station records of required weekly EAS
tests received for the weeks of May 5, 2002 to May 18, 2002,
and August 4, 2002 to August 24, 2002, and log reasons why EAS
tests were not received.
III. DISCUSSION
7. Section 11.61(a)(1)(iii) of the Commission's Rules
requires cable stations to conduct monthly tests of the
EAS header codes, Attention Signal, Test Script and EOM
code that conforms to procedures in EAS Operating
Handbook, and Section 11.61(a)(1)(v)2 of the Rules.
Cablevision's station records failed to show that
required monthly tests of the EAS header codes,
Attention Signal, Test Script and EOM code were
conducted for the months of June 2002 and August 2002.
8. Section 11.61(b) of the Commission's Rules requires
cable stations to make entries in station records of
monthly and weekly EAS tests received. Entries were
not made in the station records to show EAS tests
received for the weeks of May 5, 2002 to May 18, 2002,
and August 4, 2002 to August 24, 2002, or reasons why
required weekly EAS tests were not received.
9. Based on the evidence before us, we find that
Cablevision of Newark willful3 and repeated4 violated
Sections 11.61(a)(1)(iii) and 11.61(b) of the Rules by
failing to conduct required monthly tests of the EAS
header codes, Attention Signal, Test Script and EOM
codes for the months of June 2002 and August 2002, and
by failing to log entries of reasons why required
weekly EAS tests were not received for the weeks of May
5, 2002 to May 18, 2002, and August 4, 2002 to August
24, 2002.
10. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113
(1997), recon. denied, 15 FCC Rcd 303(1999)
(``Forfeiture Policy Statement'')5, sets the base
forfeiture amount for failure to make required
measurements or conduct required monitoring at $2,000,
and base forfeiture for failure to maintain required
records at $1000. In assessing the monetary forfeiture
amount, we must take into account the statutory factors
set forth in Section 503(b)(2)(D) of the Communications
Act of 1934, as amended,6 (the ``Act''), which include
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 other such matters as justice may require.
Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the
inflation adjustments, we believe that a three thousand
dollar ($3,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act7 and Sections 0.111, 0.311 and 1.80
of the Rules,8 Cablevision of Newark is hereby NOTIFIED
of their APPARENT LIABILITY FOR A FORFEITURE in the
amount of three thousand dollars ($3,000) for willful
and repeated violations of Sections 11.61(a)(1)(iii)
and 11.61(b) of the Commission's Rules.
12. 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,
Cablevision of Newark SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
13. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of
the Federal Communications Commission, to the
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332380013 and FRN: 0003-7361-39.
14. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau,
Technical and Public Safety Division, 445 12th Street,
S.W., Washington, D.C. 20554 and MUST INCLUDE THE
NAL/Acct. No. 200332380013.
15. 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.
16. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should
be sent to: Chief, Revenue and Receivable Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.9
17. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding
the size of entities involved in forfeitures. If you
qualify as a small entity and if you wish to be treated
as a small entity for tracking purposes, please so
certify to us within thirty (30) days of this NAL,
either in your response to the NAL or in a separate
filing to be sent to the Technical and Public Safety
Division. Your certification should indicate whether
you, including your parent entity and its subsidiaries,
meet one of the definitions set forth in the list
provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be
used for tracking purposes only. Your response or
failure to respond to this question will have no effect
on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have
questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990.
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail
Return Receipt Requested to Cablevision of Newark, One
Media Crossways, Woodbury, NY 11797, and a copy to
Piper Rudnick, 1200 Nineteenth Street, N.W. Washington,
D.C. 20036-2412.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A: Condensed List of Small Entities.
_________________________
1 47 C.F.R. §§ 11.61(a)(1)(iii), and 11.61(b).
2 47 C.F.R. § 11.61(a)(1)(v).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
4
Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
5 47 C.F.R. § 1.80.
6
47 U.S.C § 503(b)(2)(D).
7
47 U.S.C. § 503(b).
8
47 C.F.R. §§ 0.111, and 0.311.
9
See 47 C.F.R. § 1.1914.