**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  | File No. EB-02-LA-278        |
|                                  | *) |                              |
| Time Warner Entertainment --     | ** | NAL/Acct. No. 200332900002   |
| Advance/Newhouse                 |    |                              |
|                                  | *  | FRN: 0007-9355-62            |
| Subsidiary, LLC d/b/a Time       | *) |                              |
| Warner Cable                     | ** |                              |
|                                  |    |                              |
| 3701 N. Sillect Avenue           | *  |                              |
|                                  | *) |                              |
| Bakersfield, California 93308    | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: June 9, 2004 Released: June 14, 2004**

By the Chief, Enforcement Bureau:

# introduction

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of six thousand six hundred dollars
    (\$6,600) to Time Warner Entertainment -- Advance/Newhouse
    Subsidiary, LLC d/b/a Time Warner Cable ("TWEAN"), owner of a cable
    television system serving Bakersfield, California, for its apparent
    willful and repeated violation of Section 76.1700(a) of the
    Commission's Rules ("Rules").[^1] The violation involves failure to
    maintain all required material in the system's public inspection
    file.

# background

2.  On July 30, 2002, an agent from the Commission's Los Angeles,
    California Field Office ("Los Angeles Office") inspected the TWEAN
    cable system located in Bakersfield, California.[^2] TWEAN's
    Bakersfield system serves more than 5000 customers. The agent's
    inspection revealed that the public inspection file was missing
    required material. The file did not contain the required commercial
    records on children's programs after 2000; it did not contain the
    required proof of performance test data from the fall/winter of 2001
    or the spring of 2002; and did not include any of the required
    signal leakage log and repair records since the second quarter
    of 2001. In addition, the public inspection file did not contain a
    statement of the operators' interest in video programming.

3.  On December 30, 2002, the District Director of the Los Angeles
    Office issued a *Notice of Apparent Liability for Forfeiture*
    ("*NAL*") for a monetary forfeiture in the amount of ten thousand
    dollars (\$10,000) to TWEAN finding the alleged violations to be
    willful and repeated.[^3] TWEAN filed a response to the *NAL* on
    January 29, 2003. In its response, TWEAN reported that it had moved
    its offices shortly before to the agent's inspection. It argued that
    the alleged violation occurred as a result of inadvertent oversight
    due to temporary chaos resulting from the move and the "mistaken
    belief that the files had been substantially complete prior to the
    move."[^4] TWEAN stated that an inventory was done after issuance of
    the NAL to ensure the records are now complete, that only a
    "handful" of files were missing, and that no actual harm was done
    because no one requested to view the public inspection file during
    the time in question.

# discussion

4.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^5] Section 1.80 of the Rules,[^6] and *The
    Commission\'s Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*
    ("*Policy* *Statement*").[^7] In examining TWEAN's response to the
    *NAL*, Section 503(b) of the Act requires that the Commission take
    into account the nature, circumstances, extent, and gravity of the
    alleged 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.[^8]

5.  Section 76.1700(a) of the Rules requires that the operator of every
    cable television system having 5000 or more subscribers shall
    maintain for public inspection a file containing a copy of all
    records which are required to be kept by certain Rules including:
    Sections 76.1703 (commercial records for children's programming),
    76.1704 (proof of performance test data), 76.1706 (signal leakage
    logs and repair records) of the Rules.[^9] The Los Angeles Office
    agent found that TWEAN had not updated required children's program
    commercial records since 2000, that it had not provided proof of
    performance test data from the winter of 2001 or the spring of 2002,
    and that it did not include any of the required signal leakage log
    and repair records since the second quarter of 2001.[^10] TWEAN
    concedes that its records were not complete even prior to its move.
    Accordingly, we conclude that TWEAN willfully[^11] and
    repeatedly[^12] violated Section 76.1700(a) the Rules.

6.  TWEAN seeks cancellation or reduction of the forfeiture because it
    had moved its offices prior to the inspection by the agent from the
    Los Angeles Office, and states that it was still unpacking and
    reorganizing its files. TWEAN also argues, however, that its failure
    to have complete records was inadvertent due to a temporarily
    chaotic situation. We are not persuaded that the move, by itself,
    was responsible for TWEAN's failure to have a complete public
    inspection file. We find, as discussed below, that with one
    exception, TWEAN effectively concedes its files were not complete
    either prior to the move or after the move prior to the Los Angeles
    Office agent's inspection. Therefore, we conclude that the violation
    is not based on a temporary chaotic situation related to the
    move.[^13] Moreover, the fact that no member of the public requested
    access to the files is not a basis for reduction of a
    forfeiture.[^14]

7.  TWEAN argues that its situation is analogous to that in *Telemedia
    Broadcasting, Inc. and Rappahannock River Broadcasting LLC*,[^15]
    where the licensee was admonished for failure to provide a complete
    public inspection file to a visitor who requested it during station
    remodeling. We find TWEAN's situation is clearly distinguishable
    because in *Telemedia*, the individual responsible for maintaining
    the public inspection file affirmatively attested that the station
    had, at all times, a complete public inspection file, despite the
    confusion that existed at the time of the visitor's request. In the
    instant case, neither an officer of the company nor the individual
    responsible for maintaining the public inspection file has provided
    a declaration.

8.  The Verwey Declaration references an internal audit conducted at an
    unspecified time prior to TWEAN's office move.[^16] With regard to
    the result of this audit, neither an officer, nor the individual
    responsible for ensuring that the public inspection file is
    complete, nor an individual responsible for conducting the audit,
    has provided a declaration that the public inspection file was found
    to be complete. Instead, TWEAN provides a declaration by an
    Executive Assistant of the company who merely "assists in
    maintaining" the file and who is only able to say that she "had no
    reason to believe" that the public inspection file "was not
    substantially complete."[^17] This is not equivalent to an
    affirmative declaration that the public inspection file was complete
    by either an officer of the company or by the individual with
    primary responsibility for maintaining the file. Accordingly, we
    conclude that TWEAN effectively concedes that its public inspection
    file was not complete before its move, or after the move prior to
    the Los Angeles agent's inspection, with one exception discussed
    *infra*.

9.  TWEAN further argues that its situation is similar to *Tabback
    Broadcasting Company for Renewal of License of Station KAZM(FM),
    Sedonia, Arizona* ("*Tabback*").[^18] In *Tabback*, the Commission
    upheld a Mass Media Bureau ruling that accepted, *inter alia*, the
    licensee's affirmation that certain required information
    (issues/programs list) that a complainant charged was missing, was
    in fact included with the file. We agree that *Tabback* serves as
    precedent for one of the missing sets of documents in TWEAN's public
    inspection files. TWEAN has provided evidence that the records
    pertaining to children's programming were with the public inspection
    file, but filed out of place due to the recent office move
    undertaken by the company.[^19] As in *Tabback*, we conclude that
    these files were included with TWEAN's public inspection files,
    albeit out of place. We will therefore reduce the proposed
    forfeiture to reflect this conclusion.

10. With regard to the other items, however, we find that their absence
    from the public inspection file constitutes a willful and repeated
    violation of Section 76.1700(a) of the Rules. The Los Angeles Office
    agent found that TWEAN did not have signal leakage logs and repair
    records, or the fall (winter) 2001 and spring 2002
    proof-of-performance test results, in the public inspection file,
    and we infer from the language of the Verwey Declaration, as well as
    from the absence of an affirmative declaration by an officer or
    ultimately responsible party, that these records were not in the
    public inspection file, as such, until TWEAN corrected its files
    after the Los Angeles agent's inspection.

11. TWEAN states that after the inspection, it subsequently located and
    correctly filed the missing commercial records pertaining to
    children's programming, the signal leakage logs and repair records,
    and the spring 2002 proof-of-performance test results. TWEAN states
    that it has ensured the file now contains the fall 2001
    proof-of-performance test results.[^20] The Commission has
    consistently found that while commendable, "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."[^21]

12. We have examined TWEAN'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
    TWEAN willfully and repeatedly violated Section 76.1700(a) of the
    Rules, but we conclude that a reduction of the forfeiture amount is
    warranted. We will reduce the ten thousand dollar (\$10,000)
    monetary forfeiture to six thousand six hundred dollars (\$6,600)
    because the children's programming records were in fact with the
    public inspection files, albeit misfiled.

# ordering clauses

13. Accordingly, **IT IS ORDERED** that, pursuant to Section 503 of the
    Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^22]
    Time Warner Entertainment -- Advance/Newhouse Subsidiary, LLC d/b/a
    Time Warner Cable **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of six thousand six hundred dollars (\$6,600) for willful and
    repeated violation of Section 76.1700(a) of the Rules.

14. 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.[^23] Payment may 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 reference NAL/Acct. No. 200332900002 and FRN
    0007-9355-62. 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.[^24]

15. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by first class mail and certified mail, return receipt requested, to
    TWEAN Subsidiary LLC, 3701 N. Sillect Avenue, Bakersfield,
    California 93308 and to its counsel, Arthur H. Harding, Esq.,
    Fleischman and Walsh, L.L.P., 1400 Sixteenth Street, NW, Washington
    DC 20036.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. § 76.1700(a).

[^2]: FCC Physical System Identification Number ("PSID") 004341,
    Community Unit Identification Number ("CUID") CA0143. The *NAL*
    incorrectly stated TWEAN's CUID as CA0173 and the PSID as 004343.

[^3]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332900002, (Enf. Bur., Los Angeles Office, released Dec. 30,
    2002).

[^4]: TWEAN Response at page 7.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80

[^7]: 12 FCC Rcd. 17087 (1997), *recon. denied*, 15 FCC Rcd. 303 (1999).

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 U.S.C. §§ 76.1703, 76.1704, and 76.1706.

[^10]: In addition, the agent found that the public inspection file did
    not contain a statement of the operator's interest in video
    programming, in violation of 47 C.F.R. § 76.1710. However, the *NAL*
    was based only on the Section 76.1700 violations.

[^11]: 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 ...." *Southern California Broadcasting Co.*, 6 FCC Rcd
    4387 (1991).

[^12]: As provided by 47 U.S.C. § 312(f)(2), "\[t\]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."
    The *Conference Report* for Section 312(f)(2) indicates that
    Congress intended to apply this definition to Section 503 of the Act
    as well as Section 312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51
    (1982). *Southern California Broadcasting Co., supra.*

[^13]: TWEAN's move was six weeks prior to the inspection; Declaration
    by Ann Verwey, an Executive Assistant for TWEAN, dated January 29,
    2003, ¶ 2 ("Verwey Declaration.")

[^14]: *Policy Statement*; Section 1.80 of the Rules; *See also
    AGM-Nevada, LLC*, 18 FCC Rcd 1476 (Enf. Bur. 2003) (the Commission
    does not reduce forfeitures for lack of public harm).

[^15]: 17 FCC Rcd 14604 (Enf. Bur. 2002) ("*Telemedia*").

[^16]: Verwey Declaration, ¶ 4.

[^17]: *Id*., ¶¶ 1, 4.

[^18]: 15 FCC Rcd 11899 (2000).

[^19]: Verwey Declaration, ¶ 5.

[^20]: TWEAN also states that some of its previous proof-of-performance
    test results are missing from its files, and that in spite of its
    best efforts, cannot be located.

[^21]: *Seawest Yacht Brokers*, 9 FCC Rcd 6099 (1994); AT*&T Wireless
    Services, Inc*., 17 FCC Rcd 21866, 21871 (2002).

[^22]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^23]: 47 U.S.C. § 504(a).

[^24]: *See* 47 C.F.R. § 1.1914.