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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Small Town Communications Partners I LP ) File Number EB-02-
AT-380
Operator of Cable Television System in ) NAL/Acct. No.
200332480013
Cornersville, Tennessee ) FRN: 0000-0131-51
Nashville, Tennessee )
FORFEITURE ORDER
Adopted: June 21, 2004 Released: June 23, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of six thousand four hundred
dollars ($6,400) to Small Town Communications Partners I LP
(``STC''), the operator of Cable Television System in
Cornersville, Tennessee for willful violation of Sections
76.605(a)(12) and 76.611(a)(1) of the Commission's Rules
(``Rules'')1 related to cable television signal leakage.
2. On December 6, 2002, the Commission's Atlanta, Georgia
Field Office (``Atlanta Office'') released a Notice of Apparent
Liability for Forfeiture (``NAL'') to STC in the amount of eight
thousand dollars ($8,000) for willful and repeated violation of
Sections 76.605(a)(12) of the Rules and willful violation of
Section 76.611(a)(1) of the Rules.2 STC filed a response on
January 6, 2003.
3. In its response to the NAL, STC denies that it
willfully and repeatedly violated Section 76.605(a)(12) of the
Rules and that it willfully violated Section 76.611(a)(1) of the
Rules. STC also seeks rescission of the forfeiture based upon
``multiple mitigating factors.'' These factors are the limited
extent of the leakage and the immediate correction by STC, the
fact that the leakage was caused by wild animals, STC's
contention that it has been punished enough because of customer
loss resulting from the cable system leakage, STC's ``spotless
compliance record'' and, STC's claim that payment of the proposed
forfeiture would result in ``substantial financial hardship on
the company.''
II. BACKGROUND
4. On October 30, 2002, an FCC agent from the Atlanta
Office conducted a cable television signal leakage inspection of
STC's cable system located in Cornersville, Tennessee. The agent
found that, at seven locations, cable signal leakage on the
frequency 121.2625 MHz significantly exceeded 20 microvolts per
meter 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 from 255 µV/m to 2080 µV/m. Based upon these
measurements, the agent calculated the system's cumulative
leakage index (``CLI'') at a value of 68.7, exceeding the allowed
cumulative signal leakage performance criteria of 64, in
violation of Section 76.611(a)(1) of the Rules.
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),3 Section 1.80 of the Rules,4
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.5 In examining STC's response, Section 503(b) of the
Act requires that 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 such other matters as
justice may require.6
6. STC argues that the cable system leakage was
``extremely limited'' and immediately corrected, and, thus,
rescission of the proposed forfeiture is warranted. STC claims
that ``the case involved a single leakage incident in two small
areas of a single small cable system.'' However, the Commission
agent found cable signal leakage at seven locations, which
cumulatively exceeds the allowed cumulative signal leakage
performance criteria. Additionally, STC's immediate remedial
actions to correct the leakage problem subsequent to
notification of the violation do not warrant rescission of the
forfeiture.7 It is well established that ``corrective action
taken to come into compliance with Commission rules or policy is
expected, and does not nullify or mitigate any prior forfeitures
or violations.''8
7. STC contends that it has no culpability for cable
system leakage caused by wild animals. Assuming, arguendo, that
STC's contention that the leaks were caused by wild animals is
correct, it does not mitigate STC's violations in this case.
Cable operators are required to monitor for and repair signal
leaks9 regardless of their cause to ensure that their systems
comply with our cable leakage standards which serve a critical
public safety purpose.10 There is no evidence that STC had
monitored these sites shortly before the FCC inspection and found
no leaks present.
8. STC argues that it has been punished enough as a result
of customer loss resulting from the cable system leakage.
Additionally, to support its financial hardship claim, STC
submits Income Statements for the year 2001 and the first half
of 2002. STC contends that these statements reflect significant
losses. The Commission has determined that, in general, a
licensee's gross revenues are the best indicator of its ability
to pay a forfeiture.11 Based upon the information provided, STC
has failed to demonstrate inability to pay the forfeiture. 12
9. STC argues that it ``did not willfully13 or repeatedly
violate Commission regulations.''14 STC cites two cases, In the
Matter of Sam Bushman, Licensee, Station KNAK(AM)15(``Bushman'')
and Vernon Broadcasting, Inc.16 (``Vernon'') in support of its
position. However, these cases are inapposite. In Vernon, a
proposed forfeiture for inadequate fencing was cancelled where
the licensee submitted evidence that its fencing was monitored
regularly and had been inspected to be found secure shortly
before the FCC's inspection. Here, although STC claims it had a
monitoring program, it failed to demonstrate that it had checked
the sites found to exceed the leakage limits shortly before the
FCC inspection and determined that there were no leaks present.
As to Bushman, STC has failed to set forth any facts in that case
which illustrate how it is relevant to this proceeding. In the
instant case, the licensee has failed to exercise due diligence
in having an effective cable system leakage monitoring system,
resulting in willful violation of Sections 76.605(a)(12) and
76.61(a)(1) of the Commission's Rules.17
10. Considering the entire record and the factors listed
above, we find that reduction of the proposed forfeiture is
warranted because of the compliance record of STC with the
Commission's Rules. Accordingly, the forfeiture amount is
reduced from eight thousand dollars ($8,000) to six thousand four
hundred dollars ($6,400).
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act18, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's Rules19, Small Town Communications Partners I
LP, IS LIABLE FOR A MONETARY FORFEITURE in the amount of six
thousand four hundred dollars ($6,400) for its willful 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 Commission's Rules20 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.21 Payment may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995
or 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 the NAL/Acct. No.
200332480013, and FRN: 0000-0131-51 referenced above. Requests
for full payment under an installment plan should be sent to:
Chief, Credit and Debt Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.22
13. IT IS FURTHER ORDERED that a copy of this
Forfeiture Order shall be sent by First Class and Certified Mail,
Return Receipt Requested, to Small Town Communications Partners I
LP, 225 Highland Villa Circle, Nashville, Tennessee 37211 and a
copy to its counsel, George D. Callard, Cinnamon Mueller, 307
North Michigan Avenue, Suite 1020, Chicago, Illinois 60601.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 76.605(a)(12), 76.611(a)(1).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480013 (Enf. Bur., Atlanta Office, released December 6,
2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999).
6 47 U.S.C. § 503(b)(2)(D).
7 See Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
8 Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099
(1994); see also Radio Station KGVL, Inc., at id., and Executive
Broadcasting Corp., 3 FCC Rcd 699, 700 (1968).
9 See 47 C.F.R. §§ 76.613(b), 76.614.
10 See Callais Cablevision, Inc.,17 FCC Rcd 24808 (2002).
11 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1992).
12 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues).
13 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,' ... 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).
14 Although the NAL refers to ``repeated''
violations of Section 76.605(a)(12) of the Rules, we decline to
address it in light of our finding that the violation was
willful. However, we note that the investigative report
reflects that violations of the leakage requirements were found
on two consecutive days, October 29 and 30, 2002.
15 Memorandum Opinion & Order, 17 FCC Rcd 24808
(Enf. Bur. 2002); Forfeiture Order, 17 FCC Rcd 14560 (Enf. Bur.
2002).
16 60 RR 2d 1275 (1986).
17 See Valley Cable TV, 18 FCC Rcd 22277 (2003).
18 47 U.S.C. § 503(b).
19 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
20 47 C.F.R. § 1.80.
21 47 U.S.C. § 504(a).
22 See 47 C.F.R. § 1.1914.