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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-AT-275
)
Valley Cable TV, Inc. ) NAL/Acct. No. 200232480017
POB 508 )
602 College Street ) FRN 0006-1529-20
Fort Valley, Georgia 31030 )
)
)
)
FORFEITURE ORDER
Adopted: October 27, 2003 Released:
October 29, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand
dollars ($8,000) to Valley Cable TV, Inc.,
(``Valley'') for willful and repeated violations of
Sections 76.605(a)(12) and 76.611(a)(1) of the
Commission's Rules (``Rules'')1. The noted
violations involve excessive cable signal leakage.
2. On September 3, 2002, the District Director of the
Commission's Atlanta, Georgia Field Office
(``Atlanta Office'') released a Notice of Apparent
Liability for Forfeiture (``NAL'') to Valley in the
amount of $8,000.2 Valley filed its response to
the NAL on October 2, 2002.
II. BACKGROUND
3. The Commission established cable signal leakage
rules to control emissions that could cause
interference to aviation frequencies from cable
systems. Protecting the aeronautical frequencies 3
from harmful interference is of paramount
importance.4 To this end, the Commission
established basic signal leakage standards.5 We
have determined the tolerable levels of unwanted
signals on the aeronautical frequencies in two
ways. Signal leakage levels that exceed these
thresholds are considered harmful interference.
First, leakage at any given point must not exceed
20 microvolts per meter (µV/m).6 Second, we set
basic signal leakage performance criteria for the
system as a prerequisite for operation on
aeronautical frequencies. This is the system's
Cumulative Leakage Index (``CLI''). We require
annual measurement of each system's CLI to
demonstrate safe levels of signal leakage (a CLI of
less than 64),7 the results of which must be
reported to us.8 We also require routine
monitoring of the system to detect leaks.9
Whenever harmful interference occurs, the cable
system operator must eliminate it.10 Further,
should the harmful interference not be eliminated,
we will intervene and require cessation of
operation of the portion of the system involved or
reduction of power11 below the levels specified in
Section 76.610 of the Rules.12
4. On July 23 and 25, 2002, an agent from the Atlanta
Office conducted a cable television signal leakage
inspection of Valley's cable system located in Fort
Valley, Georgia. The agent found that at 31
locations cable signal leakage on the frequency
121.2625 MHz significantly exceeded 20 µV/m at a
distance of at least three meters from each leakage
in violation of Section 76.605(a)(12) of the Rules.
The measured leaks ranged from165 µV/m to 983 µV/m.
Based on these measurements, the agent calculated
the system's CLI at a value of 68.3, exceeding the
allowed CLI performance criteria of 64, in
violation of Section 76.611(a)(1) of the Rules.
5. On July 25, 2002, the Atlanta Office issued an
Order to Cease Operations, pursuant to Section
76.613(c) of the Rules.13 The system resumed
normal operation on July 26, 2002, after being
brought into compliance. The Atlanta Office issued
a NAL on September 3, 2002, to Valley for
violation of Sections 76.605(a)(12) and
76.611(a)(1) of the Rules.
6. Valley responded to the NAL on October 2, 2002.
Valley stated that, due to extenuating
circumstances, it had been negligent in its
monitoring of its cable system for signal leakage
during the previous two years. Valley stated that
while correcting signal leaks it discovered that
more than 15 of the large leaks were the result of
theft of service, which it subsequently reported to
the local police, and requested that the Commission
consider reducing the forfeiture as a result.
Valley provided no other information in its
response regarding the signal leakage.
III. DISCUSSION
7. The Commission assessed the proposed forfeiture
amount in this case in accordance with Section
503(b) of the Communications Act of 1934, as
amended (``Act''),14 Section 1.80 of the Rules,15
and The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
(``Forfeiture Policy Statement''). Section 503(b)
of the Act requires that, in examining Valley's
response, the Commission 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 other such matters as
justice may require.16
8. Valley does not dispute the violations alleged by
the NAL, but requests that the proposed monetary
forfeiture be reduced because 15 of the large leaks
were the result of theft of service.17 Section
312(f)(1) of the Act,18 which applies equally to
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 ....''19 The term
``repeated'' means the commission or omission of an
act more than once or, if such commission or
omission is continuous, for more than one day.20
Regardless of the reason for the cable leaks,
Valley is responsible for due diligence in
maintaining its system and preventing or minimizing
leakage. Had it done so, it would have discovered
and repaired the offending leaks, regardless of
their cause, prior to our inspection of the cable
system.
9. The Commission's leakage rules are designed to
protect aircraft safety communications from harmful
interference. Based on the facts before us, we
find that Valley willfully and repeatedly violated
those rules. We are, therefore, not persuaded that
the proposed forfeiture should be reduced.
10. We have examined Valley's response to the NAL
pursuant to the statutory factors above, and in
conjunction with the Policy Statement as well. As
a result of our review, we conclude that Valley
willfully and repeatedly violated Sections
76.605(a)(12) and 76.611(a)(1) of the Rules, and
find no basis for cancellation or reduction of the
proposed $8,000 monetary forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act and Section 1.80(f)(4) of
the Rules,21 Valley Cable TV, Inc., IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eight thousand
dollars ($8,000) for willful and repeated violation
of Sections 76.605(a)(12) and 76.611(a)(1) of the
Rules.
12. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules
within 30 days of the release of this Order. If
the forfeiture is not paid within the period
specified, the case may be referred to the
Department of Justice for collection pursuant to
Section 504(a) of the Act.22 Payment shall be made
by mailing a check or similar instrument, payable
to the order of the ``Federal Communications
Commission,'' to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note NAL/Acct. No.
200232480017, and FRN 0006-1529-20. Requests for
full payment under an installment plan should be
sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C.
20554.23
13. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by Certified Mail, Return Receipt
Requested, and by First Class Mail to Robert
Barnes, VP Operations, Valley Cable T.V., Inc., 602
College Street, PO Box 508, Fort Valley, Georgia
31030.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
147 C.F.R. §§76.605(a)(12), 76.611(a)(1).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232480017 (Enf. Bur., Atlanta Office, released September
3, 2002).
3 The aeronautical bands are 108-137 MHz and 225-400 MHz.
These frequencies encompass both radionavigation
frequencies, 108-118 MHZ and 328.6-335.4 MHz, and
communications frequencies, 118-137 MHz, 225-328.6 MHz and
335.4-400 MHz. Deserving particular protection are the
international distress and calling frequencies 121.5 MHz,
156.8 MHz, and 243 MHz. See 47 C.F.R. §76.616. These
frequencies are critical for Search and Rescue Operations
including use by Emergency Locator Transmitters on planes
and Emergency Position Indicating Radio Beacons on boats.
See generally 47 C.F.R. Part 80, Subpart V and 47 C.F.R.
§§87.193-87.199.
4 Harmful interference includes any interference that
``endangers the functioning of a radionavigation service or
of other safety services.'' See 47 C.F.R. §§2.1 &
76.613(a).
5 Memorandum Opinion and Order, Amendment of Part 76 of the
Commission's Rules to Add Frequency Channelling Requirements
and restrictions and to require Monitoring for Signal
Leakage from Cable Television Systems, Docket No. 21006, 101
FCC 2d 117, para. 14 (1985) (hereinafter MO&O).
6 47 C.F.R. §76.605(a)(12).
7 47 C.F.R. §76.611(a).
8 47 C.F.R. §76.1804(g).
9 47 C.F.R. §76.614.
10 47 C.F.R. §76.613(b).
11 47 C.F.R. §76.613(c).
12 47 C.F.R. §76.610.
1313 47 C.F.R. §76.613(c).
14 47 U.S.C. § 503(b).
15 47 C.F.R. § 1.80.
1616 47 U.S.C. § 503(b)(2)(D).
17 Valley also states in its response that it is a ``small
company,'' but does not directly request consideration based
on, or provide supportive financial documentation
demonstrating an inability to pay. See NAL at para. 10 and
also 47 C.F.R. § 1.80(b)(4) (``Downward Adjustment
Criteria'').
18 47 U.S.C. § 312(f)(1).
19 See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991).
20 47 U.S.C. § 312(f)(2).
21 47 C.F.R. § 1.80(f)(4).
22 47 U.S.C. § 504(a).
23 47 C. F. R. § 1.1914