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
)
Chula Vista Cable, Ltd.
) File Number: EB-06-SD-190
Operator of Cable Television System
) NAL/Acct. No.: 200732940005
Community Unit ID: CA1272
) FRN: 0016106908
Physical System ID: 012866
)
Chula Vista, California
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 21, 2007
By the District Director, San Diego District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Chula Vista Cable, Ltd. ("CVC"), owner of a cable system serving
Chula Vista, California, apparently repeatedly violated Section 11.35
of the Rules ("Rules") by failing to ensure the operational readiness
of the Emergency Alert System ("EAS") equipment in its Chula Vista,
California cable system. We conclude, pursuant to Section 503(b) of
the Communications Act, as amended ("Act"), that CVC is apparently
liable for a forfeiture in the amount of eight thousand dollars
($8,000).
II. BACKGROUND
2. On August 8, 2006, an agent of the Enforcement Bureau's San Diego
Office attempted to inspect the operational readiness of the EAS
equipment installed at CVC's cable television system serving Chula
Vista, California. During this inspection, the San Diego agent found
that the system's EAS equipment, including both the encoder and the
decoder, had been purchased and delivered to the cable system's
head-end, but was never installed. Upon returning to the San Diego
Office, the agent reviewed the Commission's records and other public
records and determined that CVC had over 3000 subscribers and had not
been granted waivers of EAS requirements.
3. On December 8, 2006, a Letter of Inquiry ("LOI") was issued by the San
Diego Office to CVC asking questions concerning the cable system's FCC
registration filings and cable leakage program, as well as the status
of the EAS equipment at CVC. No response was received to that LOI. A
second LOI was sent February 8, 2007, warning that sanction action
against CVC was possible if no reply was received. A timely reply to
the second LOI from CVC was received by the San Diego Office on
February 20, 2007, indicating that the EAS equipment has been
installed, but none had been operational prior to the August 8, 2006,
inspection. The reply also indicated that the owner had not installed
EAS equipment for at least two years.
III. DISCUSSION
4. Section 503(b) of the 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. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
5. The Rules provide that every cable television system is part of the
nationwide EAS network and is categorized as a participating national
EAS source unless the station affirmatively requests authority to not
participate. The EAS provides the President and state and local
governments with the capability 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
station.
6. Section 11.35 of the Rules requires all cable television systems to
ensure that EAS encoders, EAS decoders and attention signal generating
and receiving equipment is installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. Cable systems must also determine the
cause of any failure to receive required monthly and weekly EAS tests,
and must indicate in the station's log why any required tests were not
received and when defective equipment is removed and restored to
service.
7. Section 11.61(a)(1) and (2) of the Rules requires cable television
systems to (a) receive monthly EAS tests from designated local primary
EAS sources and retransmit the monthly test within 60 minutes of its
receipt and (b) conduct tests of the EAS header and EOM codes at least
once a week at random days and times. The requirement that stations
monitor, receive and retransmit the required EAS tests ensures the
operational integrity of the EAS system in the event of an actual
disaster. Appropriate entries must be made in the broadcast station
log as specified.
8. The August 8, 2006, inspection by a San Diego agent revealed that the
CVC EAS equipment was not operational, however, EAS equipment was
present at the system at the time of the inspection. In its response
to the second LOI issued by the San Diego Office, CVC acknowledged
that it had not installed EAS equipment for over two years, believing
no EAS equipment was required for a system of its size. However, no
waivers of the EAS requirements have been granted to CVC. The
violation occurred for more than one day, therefore it is repeated.
Based on the evidence before us, we find CVC apparently repeatedly
violated Section 11.35 of the Rules by failing to install and make
operational EAS equipment in its cable system serving Chula Vista,
California.
9. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for operating without an instrument of
authorization 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)(D) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors, we find that CVC is apparently liable for a
forfeiture of $8,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314, and 1.80 of the Commission's Rules, Chula Vista Cable, Ltd., 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 of the Rules.
11. 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, Chula Vista Cable, Ltd.,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego District
Office, 4542 Ruffner St., Suite 370, San Diego, CA 92111, and must
include the NAL/Acct. No. referenced in the caption.
14. 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.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Chula Vista Cable, Ltd., at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego District Office
Western Region
Enforcement Bureau
47 C.F.R. S 11.35.
47 U.S.C. S 503(b).
See Report and Order, Amendment of Part 11of the Commission's Rules
Regarding the Emergency Alert System, 17 FCC Rcd 4055, 4083 (2002) (the
Commission will continue to grant waivers of the EAS rules to small cable
systems on a case-by-case basis upon a showing of financial hardship);
Request for Waiver of Section 11.11(a) of the Commission's Rules,17 FCC
Rcd 20108 (EB 2002) (Several CVC cable systems granted 36 month EAS
waivers in Arizona and New Mexico, until October 2005); Public Notice: EAS
Waiver Extensions Granted To Very Small Cable Systems, DA 06-1373, 2006 WL
1826176 (rel. July 3, 2006) (no EAS waivers extensions for any CVC cable
systems requested or granted).
Section 312(f)(1) of the Act, 47 U.S.C. S 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
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. SS 11.11 and 11.41.
47 C.F.R. SS 11.1 and 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 11.35(a), (b).
The required monthly and weekly tests are required to conform to the
procedures in the EAS Operational Handbook. See also, Amendment of Part 11
of the Commission's Rules Regarding the Emergency Alert System, 17 FCC Rcd
4055 (2002).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(E).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 11.35.
See 47 C.F.R. S 1.1914.
Federal Communications Commission