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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-10-TP-0065
St. George Cable, Inc. ) NAL/Acct. No.: 201132700009
St. George Island, Florida ) FRN: 0021185574
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: September 30, 2011 Released: September 30, 2011
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that St. George Cable, Inc. ("St. George"), operator of the
cable television system in St. George Island, Florida, apparently
willfully and repeatedly violated sections 11.35(a), 76.605(a)(12),
76.611(a) and 76.1801 of the Commission's rules ("Rules"), by (1)
failing to install Emergency Alert System ("EAS") equipment; (2)
operating its cable system with excessive signal leakage; and (3)
failing to register its cable system with the Commission. We conclude
that St. George is apparently liable for a forfeiture in the amount of
twenty-five thousand dollars ($25,000). We further order St. George to
submit a sworn statement certifying that it is currently in compliance
with sections 11.35 and 76.1801 of the Rules.
II. BACKGROUND
2. On July 27, 2010, in response to a complaint, agents from the Tampa
Office of the Enforcement Bureau ("Tampa Office") reviewed Commission
records and determined that St. George had failed to file a
registration statement with the Commission on FCC Form 322 for the
system. On January 11 and 13, 2011, agents from the Tampa Office
conducted an inspection of the St. George Island cable system and
observed twenty leaks. Fourteen leaks on the frequency 121.2625 MHz
measured over 100 microvolts per meter ("mV/m") at a distance of at
least 3 meters; the highest measuring 1,023 mV/m. The Cumulative
Leakage Index ("CLI") for all twenty of the measured leaks was
calculated at 64.88. The agents reviewed the results of the system
inspection with St. George's owner on January 14, 2011. The owner
admitted that St. George did not maintain any cable signal leakage
logs and did not perform routine maintenance of the cable system. He
stated that St. George only conducts maintenance and repairs after
receipt of a complaint.
3. On January 14, 2011, agents from the Tampa Office also requested to
inspect St. George's EAS equipment and logs. St George's owner
admitted that the company had never installed any EAS equipment for
the St. George Island system. He also admitted that St. George still
had not registered the system with the Commission on a FCC Form 322
and, therefore, was never assigned a community unit number or physical
system number.
4. On January 20, 2011, the Tampa Office issued an order directing St.
George to cease operations on aeronautical band frequencies. On
February 28, 2011, St. George informed the Tampa Office that it had
repaired all of the leaks found in the January inspection and brought
the system's CLI into compliance.
III. DISCUSSION
5. Section 503(b) of the Communications Act of 1934, as amended ("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. 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. The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both sections
312 and 503(b) of the Act, and the Commission has so interpreted the
term in the section 503(b) context. The Commission may also assess a
forfeiture for violations that are merely repeated, and not willful.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
6. EAS Equipment. Every analog and digital cable system is part of the
nationwide EAS network and is categorized as a participating national
EAS source, unless the cable system affirmatively requests authority
to refrain from participation and the Commission approves the request.
The EAS enables the President and state and local governments 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. As the nation's emergency
warning system, the EAS is critical to public safety, and we recognize
the vital role that regulatees play in ensuring its success. The
Commission takes seriously any violations of the Rules implementing
the EAS and expects full compliance from its regulatees.
7. Section 11.35 of the Rules requires all EAS participants to ensure
that EAS encoders, EAS decoders, and Attention Signal generating and
receiving equipment are installed so that the monitoring and
transmitting functions are available during the times the systems are
in operation. On January 14, 2011, agents from the Tampa Office
observed that St. George did not have any EAS equipment installed for
the St. George Island system when the system was in operation.
Further, St. George's owner admitted that EAS equipment had never been
installed for the system and that the company acquired a franchise for
the system in 1998. Thus, based on the evidence before us, we find
that St. George apparently willfully and repeatedly violated section
11.35 of the Rules by failing to install EAS equipment for the St.
George Island cable system.
8. Cable Signal Leakage Standards. The Commission has established cable
signal leakage rules to control emissions that could cause cable
systems to interfere with aviation frequencies. Protecting the
aeronautical frequencies from harmful interference is of paramount
importance. To this end, the Commission has established basic signal
leakage standards. The Commission has determined the tolerable levels
of unwanted signals on the aeronautical frequencies in two ways, with
signal leakage levels that exceed these thresholds considered harmful
interference. First, leakage at any given point must not exceed 20
uV/m. Second, the Commission requires that each system annually
measure and report its CLI (10 log Iinfty) to demonstrate safe levels
of signal leakage (i.e., a CLI of less than 64). The rules also
require cable operators to provide for a program of routine monitoring
of the system to detect leaks. The cable system operator must
eliminate any harmful interference it causes. Cable system operators
also must maintain a log for two years showing the date and location
of each leakage source and the date on which the leakage was repaired.
9. As discussed above, section 76.605(a)(12) of the Rules states that
signal leakage from a cable television system shall be limited to 20
uV/m at 3 meters, and section 76.611(a) of the Rules states that no
cable television system shall provide service in the aeronautical
radio bands unless the system's CLI is less than 64. On January 11 and
13, 2011, however, agents from the Tampa Office observed fourteen
leaks on aeronautical frequencies that exceeded 100 uV/m at 3 meters
in the St. George Island system. Additionally, the CLI for the St.
George Island system on January 11 and 13, 2011 was calculated at
64.88, which exceeds the limit under the rule. Moreover, St. George
admitted that it did not conduct routine monitoring of its system to
detect leaks or maintain any signal leakage logs. Thus, based on the
evidence before us, we find that St. George apparently willfully and
repeatedly violated sections 76.605(a)(12) and 76.611(a) by operating
the St. George cable system with excessive signal leakage.
10. Cable Community Registration Statement. Section 76.1801 of the Rules
requires cable operators to submit a registration statement with the
Commission on FCC Form 322. "A system community unit shall be
authorized to commence operation only after filing with the Commission
the following information on FCC Form 322." On July 27, 2010, St.
George was instructed to file a Form 322 with the Commission for the
St. George Island system, but it did not. In fact, on January 14,
2011, St. George admitted that it had not yet filed a Form 322. As of
September 28, 2011 -- more than a year after St. George was directed
to file the required Form -- the Commission still has no record of a
Form 322 on file for the St. George Island system and, as such, St.
George still has not been assigned a community unit number or physical
system number. Thus, based on the evidence before us, we find that St.
George apparently willfully and repeatedly violated section 76.1801 of
the Rules by failing to submit a registration statement with the
Commission on FCC Form 322.
11. Proposed Action. Pursuant to the Commission's Forfeiture Policy
Statement and section 1.80 of the Rules, the base forfeiture amount
for EAS equipment not installed or operational is $8,000; for
violation of rules relating to distress and safety frequencies is
$8,000; and for failing to file required forms is $3,000. Cable signal
leakage in the aeronautical bands constitutes harmful interference to
distress and safety frequencies. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, 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. Because St. George has not submitted the Form 322 more than a
year after being instructed to do so, we conclude an upward adjustment
in the amount of $1,500 is warranted. Because St. George never
installed EAS equipment for its St. George Island system after it was
required to do so in 2002, we conclude an upward adjustment in the
amount of $4,500 is warranted. Applying the Forfeiture Policy
Statement, section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that St. George is apparently liable for a
$25,000 forfeiture consisting of the following elements: $12,500 for
failure to install EAS equipment; $8,000 for excessive cable signal
leakage; and $4,500 for failure to file required forms.
12. We direct St. George to submit a statement signed under penalty of
perjury by an officer or director of St. George stating that: (1) it
has installed operational EAS equipment for the St. George Island
system in compliance with section 11.35 of the Rules; and (2) it has
submitted a Form 322 for the St. George Island system in compliance
with section 76.1801 of the Rules. This statement must be provided to
the Tampa Office at the address listed in paragraph 17 within thirty
days after the release date of this NAL.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314 and 1.80 of the Commission's Rules, St. George Cable,
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of twenty-five thousand dollars ($25,000) for violation of
sections 11.35(a), 76.605(a)(12), 76.611(a), and 76.1801 of the
Commission's Rules.
14. 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 and Order, St. George
Cable, Inc. 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 St. George Cable, Inc. SHALL SUBMIT a sworn
statement as described in paragraph 12 to the Tampa Office within
thirty days after the release date of this Notice of Apparent
Liability for Forfeiture and Order. The statements should also be
emailed to SCR-Response@fcc.gov.
16. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. St. George shall send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
17. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Tampa Office, 4010 W. Boy Scout Blvd., Suite 425,
Tampa, Florida 33607, and must include the NAL/Acct. No. referenced in
the caption. The statements should also be emailed to
SCR-Response@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 ("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.
19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to St. George Cable, Inc. at P.O
Box 1090, St. George Island, Florida 32328.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director,
Tampa Office
Southeast Region
Enforcement Bureau
See 47 C.F.R. S:S: 11.35(a) (EAS equipment requirements), 76.605(a)(12)
(cable television technical standards), 76.611(a)(1) (cable television
basic signal leakage performance criteria), 76.1801 (cable registration
statement).
See 47 C.F.R. S:S: 11.35 and 76.1801.
The agents found no record of any waivers of EAS requirements being
granted to St. George.
See Letter from Ralph Barlow, District Director, Tampa Office, to Charles
Sumner, Owner of St. George Cable, Inc., dated January 20, 2011. This
letter was in addition to a verbal warning issued on January 14, 2011 that
St. George Island system was likely in violation of CLI requirements. On
January 14, 2011, agents from the Tampa Office had not completed their
final calculations to determine whether the system exceeded CLI.
See Letter from Charles Sumner, Owner of St. George Cable, Inc., to Ralph
Barlow, District Director, Tampa Office dated February 2, 2011. St. George
faxed the completed report to the Tampa Office on February 28, 2011.
See 47 U.S.C. S: 503(b).
See 47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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."
See 47 C.F.R. S:S: 11.11, 11.41.
See 47 C.F.R. S:S: 11.1, 11.21.
See 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.
See 47 C.F.R. S: 11.35.
See Non-Exclusive Franchise Agreement between St. George Cable, Inc. and
Board of County Commissioners, Franklin County, Florida, dated September
1, 1998.
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. The international distress and calling
frequencies, 121.5 MHz, 156.8 MHz, and 243 MHz, receive heightened
protection. See 47 C.F.R. S: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; 47 C.F.R. S:S:
87.193-87.199. Harmful interference includes any interference that
"endangers the functioning of a radionavigation service or of other safety
services." See 47 C.F.R. S:S: 2.1, 76.613(a).
See 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, Memorandum Opinion and
Order, Docket No. 21006, 101 FCC 2d 117, P: 14 (1985).
See 47 C.F.R. S:76.605(a)(12).
See 47 C.F.R. S: 76.615(b)(7).
See 47 C.F.R. S: 76.611(a).
See 47 C.F.R. S: 76.614.
See 47 C.F.R. S:76.613(b).
See 47 C.F.R. S: 76.1706.
See 47 C.F.R. S: 76.605(a)(12).
See 47 C.F.R. S: 76.611(a).
See 47 C.F.R. S: 76.1801.
Id.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
See 47 C.F.R. S:S: 2.1, 76.613(a).
47 U.S.C. S: 503(b)(2)(E).
See 47 C.F.R. S: 11.11 (requiring analog cable systems serving fewer than
5,000 subscribers from a headend to comply with EAS requirements as of
October 1, 2002).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
11.35(a), 76.605(a)(12), 76.611(a), 76.1801.
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-1651
4
Federal Communications Commission DA 11-1651