**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+--------------------------------+
| In the Matter of                 | ) | File Number EB-05-NY-216       |
|                                  |   |                                |
| Time Warner Entertainment        | ) | NAL/Acct. No. 200632380009     |
| Company LP                       |   |                                |
|                                  | ) | FRN 0003 4771 48               |
| Operator of Cable Television     |   |                                |
| System                           | ) |                                |
|                                  |   |                                |
| Community Unit ID: NY1280        | ) |                                |
|                                  |   |                                |
| Physical System ID: 009040       | ) |                                |
|                                  |   |                                |
| Brooklyn, NY                     | ) |                                |
+----------------------------------+---+--------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: August 18, 2006

By the District Director, New York Office, Northeast Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"*NAL*\"), we
    find that Time Warner Entertainment Company LP ("Time Warner"),
    operator of a cable television system in Brooklyn, New York,
    apparently willfully and repeatedly violated Section 76.605(a)(12)
    of the Commission\'s Rules ("Rules")[^1] by operating its cable
    system in violation of cable signal leakage standards. We conclude,
    pursuant to Section 503(b) of the Communications Act of 1934, as
    amended ("Act")[^2], that Time Warner is apparently liable for a
    forfeiture in the amount of eight thousand dollars (\$8,000). We
    also admonish Time Warner for failing to timely file FCC Form 320
    reporting the results of its cable signal leakage testing as
    required under Section 76.1803 of the Rules.[^3]

# BACKGROUND

2.  On August 30 and 31, 2005, an agent of the FCC Enforcement Bureau's
    New York Office conducted cable television signal leakage
    measurements of Time Warner's cable television system serving a
    portion of Brooklyn, New York. On both dates, the agent identified
    and measured on aeronautical frequency 121.2625 MHz the same four
    leaks greater than 20 microvolts per meter (µV/m) measured at least
    3 meters from the leak. The leaks ranged in signal strength from 57
    µV/m to 4,032 µV/m. (See Attachment A). Section 76.605(a)(12) of the
    Rules limits basic signal leakage in the frequency band from 54 MHz
    up to and including 216 MHz to 20 µV/m at a distance of 3 meters at
    any point in the system.[^4] Because Time Warner was operating on
    aeronautical frequencies, the system also was subject to the
    requirement in Section 76.611(a)(1) of the Rules that it conduct
    measurements annually to ensure that the totality of the system's
    leaks does not exceed a Cumulative Leakage Index ("CLI") value of
    64.[^5] The CLI for the largest leak alone, which was located at the
    back of 171 92^nd^ Street in Brooklyn, NY, was 72.11. The calculated
    value of the CLI for all four leaks combined was 72.13.

3.  After making the leakage measurements on August 31, 2005, the agent
    spoke by telephone to Time Warner's Vice President of Engineering
    and Time Warner's Director of Plant Engineering, and informed them
    of the locations of the four leaks. The agent advised them that the
    leak which exceeded the CLI must be repaired immediately or they
    would need to cease operations on aeronautical frequencies. They
    stated that a repair technician would be dispatched immediately and
    that the major leak would be repaired that day. At the request of
    the agent, the Director of Plant Engineering stated that he would
    fax a leakage report to the New York Office when the leaks were
    repaired.

4.  On September 1, 2005, Time Warner's Director of Plant Engineering
    reported to the agent that the leak at the back of 171 92^nd^ Street
    had been repaired and that he would send a report to the New York
    Office when the remaining leaks were corrected.

5.  On September 20, 2005, Time Warner's Director of Plant Engineering
    faxed to the New York Office the Leakage Find and Repair Report. The
    report indicated that three of the four reported leaks were found
    and repaired by Time Warner on August 31, 2005, including the major
    leak at 171 92^nd^ Street, which the agent found to exceed the
    CLI.[^6]

6.  On October 26, 2005, the New York Office sent a Letter of Inquiry
    ("LOI") to Time Warner, requesting information regarding the signal
    leakage at 171 92^nd^ Street in particular and, more generally, Time
    Warner's signal leakage monitoring program. In a response dated
    November 16, 2005, Time Warner stated that after being notified of
    the signal leakage on August 31, 2005, it immediately dispatched a
    CLI crew to repair the leak. Time Warner stated that it believed the
    cause of the largest leak was a recent pole installation by Verizon.
    More specifically, Time Warner stated that "\[i\]t appears that,
    during the removal of the old pole and the installation of the new
    pole, the cable belonging to Time Warner broke at the tap, which, as
    a result, caused the signal leakage at issue." The response also
    detailed Time Warner's "Comprehensive Signal Leakage Monitoring
    Program." In addition, Time Warner reported that a "Structured
    Quarterly Snapshot" of the entire Brooklyn system was performed
    between May 16 and May 24, 2005 and submitted the documentation it
    planned to include with its filing of FCC Form 320 on or before
    December 31, 2005. [^7]

7.  On November 18, 2005, the agent contacted Verizon regarding pole
    replacements at 171 92^nd^ Street. According to Verizon's records,
    the pole located at 171 92^nd^ Street was replaced in September
    2004.

8.  The agent also conducted a review of FCC Forms 320 filed by Time
    Warner for the years 2003, 2004, and 2005. Section 76.611 of the
    Rules requires that cable operators take measurements to ensure
    compliance with the CLI at least once each calendar year, with no
    more than twelve months between tests. Section 76.1803 of the Rules
    requires that cable operators submit the results of the measurements
    taken pursuant to Section 76.611(a) each calendar year. In 2003,
    Time Warner conducted tests pursuant to Section 76.611 from May 1,
    2003 to June 21, 2003 and filed Form 320 on January 7, 2004. In
    2004, Time Warner conducted tests from June 1, 2004 to August
    13, 2004. The measurements for 2005 were completed on August
    12, 2005. The FCC Form 320 for the measurements taken in 2004 and
    2005 were not submitted until April 14, 2006.

# DISCUSSION

9.  Section 503(b) of the 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. The term \"willful\" as used in
    Section 503(b) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^8] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^9]

10. The Commission established cable signal leakage rules to ensure that
    emissions from cable systems do not cause harmful interference.[^10]
    In this regard, the Commission established basic signal leakage
    standards in Section 76.605(a)(12) of the Rules, which limit the
    amount of signal leakage that is permitted at any given point in the
    cable system. Specifically, leakage at any given point must not
    exceed 20 microvolts per meter (µV/m) at a distance of 3
    meters.[^11] The Commission also recognized that it was particularly
    important to protect aeronautical frequencies[^12] from harmful
    interference.[^13] The Commission therefore adopted Section
    76.611(a)(1) of the Rules, which sets a CLI that must be met before
    a cable system may operate on aeronautical frequencies. In order to
    operate on aeronautical frequencies, the system's CLI must not
    exceed 64.[^14] Cable operators are required to perform annual
    measurements to ensure that the totality of the system's leaks does
    not exceed a CLI value of 64.

11. On August 30 and 31, 2005, based on measurements taken at the same
    four locations on each day, Time Warner exceeded the signal leakage
    limits in Section 76.605(a)(12) of the Rules. Combined, those leaks,
    which occurred on aeronautical frequencies, resulted in the system
    exceeding the CLI limit set forth in Section 76.611(a)(1) of the
    Rules.[^15] Indeed, the leak at 171 92^nd^ Street was so severe
    that, even if no other leaks had been found, the system still would
    have exceeded the CLI limit. Although Time Warner claimed that the
    most severe leak likely was caused by a cable damaged during a
    recent pole installation by Verizon, the agent's subsequent query to
    Verizon revealed that the pole located at 171 92^nd^ Street was
    replaced in September 2004, almost one year prior to the apparent
    violations at issue here. Further, as evidenced by its signal
    leakage monitoring program, Time Warner was aware of the signal
    leakage requirements associated with the operation of its system.
    Because Time Warner operated its system with the knowledge that it
    must comply with the Commission's signal leakage requirements, we
    find that Time Warner's violation was willful. We also find that the
    violation was repeated because the system exceeded the signal
    leakage limits on more than one day. Accordingly, based on the
    evidence before us, we find that on August 30, and 31, 2005, Time
    Warner apparently willfully and repeatedly violated Sections
    76.605(a)(12) of the Rules by operating its cable system in
    violation of signal leakage standards.

12. We believe that the finding of willfulness in this case is
    additionally supported by Time Warner's apparent lack of diligence
    with regard to the reporting requirements set forth in Section
    76.1803 of the Rules. Time Warner failed to timely file its 2004 and
    2005 FCC Forms 320. Indeed, we find it particularly egregious that
    Time Warner did not file its 2004 FCC Form 320 until April 14, 2006.
    We therefore admonish Time Warner for violating Section 76.1803 of
    the Rules.

13. Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* (\"*Forfeiture Policy Statement*\"), and Section 1.80
    of the Rules, the base forfeiture amount for violation of rules
    relating to distress and safety frequencies is \$8,000.[^16] In
    assessing the monetary forfeiture amount, we must also take into
    account the statutory factors set forth in Section 503(b)(2)(D) 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.[^17] Applying
    the *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors to the instant case, we conclude that Time Warner is
    apparently liable for an eight thousand dollar (\$8,000) forfeiture.

# ORDERING CLAUSES

14. Accordingly**, IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, 0.314 and 1.80 of the Commission\'s Rules, Time Warner
    Entertainment Company LP is hereby **NOTIFIED** of this **APPARENT
    LIABILITY FOR A FORFEITURE** in the amount of eight thousand dollars
    (\$8,000) for violation of Section 76.605(a)(12) of the Rules.[^18]

15. **IT IS FURTHER ORDERED** that Time Warner Entertainment Company LP
    **IS ADMONISHED** for its violation of Section 76.1803 of the
    Rules.[^19]

16. **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, Time Warner
    Entertainment Company LP **SHALL PAY** the full amount of the
    proposed forfeiture or **SHALL FILE** a written statement seeking
    reduction or cancellation of the proposed forfeiture.

17. Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Acct. No. and FRN No.
    referenced above. Payment by check or money order may be mailed to
    Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340. Payment by overnight mail may be sent to Mellon Bank /LB
    358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment
    by wire transfer may be made to ABA Number 043000261, receiving bank
    Mellon Bank, and account number 911-6106.

18. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Northeast Region, New York Office,
    201 Varick Street, New York, NY 10014 and must include the NAL/Acct.
    No. referenced in the caption.

19. 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.

20. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Associate Managing Director, Financial Operations, 445 12th
    Street, S.W., Room 1A625, Washington, D.C. 20554.[^20]

21. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Time Warner Entertainment
    Company LP at its address of record.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director,

New York Office

Northeast Region

Enforcement Bureau

**ATTACHMENT A**

Field strength measurements of Time Warner Entertainment Company LP,
Brooklyn, NY (PSID: 009040)

MEASUREMENT DATE: August 30, 2005 FREQUENCY: 121.2625 MHZ

  ---- ----------------------------------------- ------------------------
       **Measurement Location**                  **Signal Leakage Field
                                                 Strength, (µV/m @ 3
                                                 meters)**

  1    Pole behind 171 92^nd^ Street             4032

  2    Pole in front of 8814 Colonial Road       180

  3    Pole behind 365 88^th^ Street             180

  4    Pole in front of 143 89^th^ Street        57
  ---- ----------------------------------------- ------------------------

MEASUREMENT DATE: August 31, 2005 FREQUENCY: 121.2625 MHZ

  ---- ----------------------------------------- ------------------------
       **Measurement Location**                  **Signal Leakage Field
                                                 Strength, (µV/m @ 3
                                                 meters)**

  1    Pole behind 171 92^nd^ Street             2544

  2    Pole in front of 8814 Colonial Road       202

  3    Pole behind 365 88^th^ Street             36

  4    Pole in front of 143 89^th^ Street        57
  ---- ----------------------------------------- ------------------------

[^1]: 47 C.F.R. §§ 76.605(a)(12).

[^2]: 47 U.S.C. § 503(b).

[^3]: 47 C.F.R. §76.1803.

[^4]: 47 C.F.R. § 76.605(a)(12).

[^5]: 47 C.F.R. § 76.611(a)(1).

[^6]: According to the report, the Time Warner technician measured the
    leak at 171 92^nd^ Street at 632.56 µV/m before repairs, and 2.00
    µV/m after repairs. The comment section for that leak stated
    "repaired cracked .500 cable." In addition, Time Warner claimed that
    it found only three leaks, not four.

[^7]: Cable operators are required to report CLI levels to the FCC
    annually via FCC Form 320 in accordance with Section 76.1803. *See
    infra* para. 8.

[^8]: 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\', 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 or
    any rule or regulation of the Commission authorized by this
    Act....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^9]: Section 312(f)(2) of the Act, 47 U.S.C. § 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."

[^10]: *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).

[^11]: 47 C.F.R. §76.605(a)(12).

[^12]: 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.

[^13]: Section 76.613(a) states that "\[h\]armful interference is any
    emission, radiation or induction which endangers the functioning of
    a radionavigation service or of other safety services or seriously
    degrades, obstructs or repeatedly interrupts a radiocommunication
    service operating in accordance with this chapter." *See* 47 C.F.R.
    §§2.1 & 76.613(a).

[^14]: 47 C.F.R. §76.611(a)(1).

[^15]: We note that, although the rule violation cited here is Section
    76.605(a)(12) of the Rules, a Notice of Apparent Liability for
    Forfeiture is being issued in this case because the leaks exceeded
    the CLI limit of 64 set forth in Section 76.611 of the Rules.

[^16]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^17]: 47 U.S.C. § 503(b)(2)(D).

[^18]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    76.605(a)(12).

[^19]: 47 U.S.C. §76.1803.

[^20]: *See* 47 C.F.R. § 1.1914.