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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-11-AT-0001
Comcast of Alabama, Inc. ) NAL/Acct. No. 201132480003
Cable system in Florence, AL ) FRN 0003251717
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 6, 2011 Released: June 7, 2011
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Comcast of Alabama, Inc., ("Comcast"), operator of a cable television
system in Florence, Alabama, apparently willfully and repeatedly violated
sections 11.35(a) and 11.51(h) of the Commission's rules ("Rules") by
failing to ensure that emergency alerts system ("EAS") messages were
transmitted properly to certain customers. We conclude that Comcast is
apparently liable for a forfeiture in the amount of sixteen thousand
dollars ($16,000).
II. BACKGROUND
2. On January 3, 2011, the Enforcement Bureau's Atlanta Office ("Atlanta
Office") received a complaint that a Comcast customer in Florence, Alabama
did not receive a transmitted EAS alert during an actual emergency. On
January 4, 2011, an agent from the Atlanta Office contacted Comcast about
the complaint. On February 23, 2011, the Atlanta Office issued a Letter of
Inquiry ("LOI") to Comcast to determine why the alert was not received by
the customer.
3. In a reply to the LOI, Comcast admitted that two classes of customers
in the Florence system failed to receive EAS visual and audio message for
slightly more than 7 months and 4 months, respectively, in parts of 2010
and 2011. Comcast was, however, passing through the EAS alerts for the
Florence system, and the majority of customers would have received the
alerts. Comcast attributed the failure to employee mistakes in configuring
headend equipment during a digital upgrade for the Florence system.
Comcast stated that it did conduct weekly and monthly EAS tests during
this period, but its technicians observed the weekly and monthly EAS tests
on equipment not impacted by the error and were unaware of the problem
until January 4, 2011. The error was corrected on January 5, 2011, and all
customers in the Florence system can now receive EAS alerts.
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 section 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. Every analog and digital cable system is part of the nationwide EAS
network and is categorized as a participating national EAS source unless
the system affirmatively requests authority to refrain from participation,
and that request is approved by the Commission. 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 Emergency Alert System 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(a) 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.
Section 11.51(h) of the Rules requires analog and digital cable systems to
transmit required EAS audio and visual messages on all downstream
channels. Digital cable systems may comply with this requirement by using
a means on all programmed channels that automatically tunes the
subscriber's set-top box to a pre-designated channel which carries the
required audio and video EAS messages. Although Comcast had working EAS
encoders and decoders installed at its cable headend, Comcast admits that
two classes of customers served by the Florence, Alabama system were
unable to receive EAS visual and audio messages for several months in 2010
and 2011. Comcast admits that it failed to properly configure headend
equipment such that this subset of customers was unable to access the EAS
messaging channel. Therefore, for these customers, Comcast's EAS equipment
was effectively non-existent. Because Comcast consciously operated its
system and that system's EAS was not functioning properly for all
customers, we find the apparent violation to be willful. Because Comcast
failed to maintain fully operational EAS on more than one day, we find the
apparent violation to be repeated. Based on the evidence before us, we
find that Comcast apparently willfully and repeatedly violated sections
11.35(a) and 11.51(h) of the Rules by failing to ensure that its EAS
equipment was fully functional for all customers.
9. 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. 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, and history of prior offenses, ability to pay,
and other such matters as justice may require. We recognize that Comcast
is a multi-billion dollar enterprise. To ensure that forfeiture liability
is a deterrent and not simply a cost of doing business, the Commission has
determined that large or highly-profitable companies, such as Comcast,
should expect the assessment of higher forfeitures for violations. Based
on these factors, we find that $8,000 (to $16,000) is an appropriate
upward adjustment for Comcast's apparent violations. Applying the
Forfeiture Policy Statement, section 1.80 of the Rules, and the statutory
factors to the instant case, we conclude that Comcast is apparently
liable for a $16,000 forfeiture.
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, 0.204, 0.311,
0.314 and 1.80 of the Commission's Rules, Comcast of Alabama, Inc., is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount
of sixteen thousand dollars ($16,000) for violations of sections 11.35(a)
and 11.51(h) 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, Comcast of Alabama, Inc. 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 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. 20554.8 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. If payment is made, Comcast will send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
13. 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. Comcast shall mail the written statement
to Federal Communications Commission, Enforcement Bureau, South Central
Region, Atlanta Office, 3575 Koger Blvd, Suite 320, Duluth, GA, 30096 and
include the NAL/Acct. No. referenced in the caption. Comcast also shall
email the written response to SCR-Response@fcc.gov.
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. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Comcast of Alabama, Inc. at One Comcast
Center, Philadelphia, PA 19103.
FEDERAL COMMUNICATIONS COMMISSION
Douglas G. Miller
District Director
Atlanta Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 11.35(a), 11.51(h).
See Letter from Douglas G. Miller, District Director, Atlanta Office, to
Comcast Cable of Alabama, Inc., February 23, 2011.
See Letter from Catherine Fox, Senior Counsel, Comcast Cable
Communications, LLC, to Douglas G. Miller, District Director, Atlanta
Office, March 16, 2011, at 4 ("Comcast LOI Response"). Comcast requested
confidential treatment for the entire response to the LOI. Comcast
subsequently limited its request for confidential treatment. See Email
from Catherine Fox, Senior Counsel, Comcast Cable Communications, LLC, to
Diane Law-Hsu, Regional Counsel, South Central Region, May 25, 2011.
Id.
Id.
Id.
Id.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
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."
47 C.F.R. S:S: 11.11, 11.41.
47 C.F.R. S:S: 11.1, 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).
47 C.F.R. S: 11.51(h).
47 C.F.R. S: 11.51(h)(5).
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.
47 U.S.C. S: 503(b)(2)(E).
Currently, Comcast is ranked 59 on the Fortune 500 list of Largest
American Corporations, with reported revenues of more than $35.7 billion.
See
http://money.cnn.com/magazines/fortune/fortune500/2010/snapshots/5035.html
(last visited April 8, 2011).
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 (cautioning all
entities and individuals that, independent from the uniform base
forfeiture amounts, the Commission will take into account the subject
violator's ability to pay in determining the amount of a forfeiture to
guarantee that forfeitures issued against large or highly profitable
entities are not considered merely an affordable cost of doing business,
and noting that such large or highly profitable entities should expect
that the forfeiture amount set out in a Notice of Apparent Liability
against them may in many cases be above, or even well above, the relevant
base amount).
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), 11.51(h).
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-982
5
Federal Communications Commission DA 11-982