Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | CSR-7295-C                   |
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| Northland Cable Television, Inc. | ) | NAL Account \#               |
|                                  | * | MB-2008-4110-0001            |
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|                                  |   | FRN \# 0001-4797-47          |
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MEMORANDUM OPINION AND ORDER

# and notice of apparent liability FOR FORFEITURE {#and-notice-of-apparent-liability-for-forfeiture .unnumbered}

**Adopted: May 14, 2008** **Released: May 14, 2008**

By the Chief, Media Bureau:

# introduction

1.  In this *Memorandum Opinion and Order and Notice of Apparent
    Liability for Forfeiture*, we find that Northland Cable Television,
    Inc. ("Northland") apparently violated Section 614(b)(9) of the
    Communications Act of 1934, as amended, (the "Act"), Section 76.1601
    of the Commission's rules, Note 1 to Section 76.1601, and Section
    76.1603(c),[^1] by willfully repositioning KMVU-TV, Medford, Oregon
    ("KMVU") to a new channel on its Yreka, California cable system
    during the national Nielsen sweeps period of April 26 -- May 23,
    2007, by willfully failing to provide thirty (30) days' advance
    notice of this repositioning to KMVU and its cable subscribers, and
    by willfully failing to provide thirty (30) days' advance notice to
    its cable subscribers and the relevant franchising authority prior
    to its eventual deletion of KMVU from its cable system. Based upon a
    review of the facts and circumstances surrounding these violations,
    we find that Northland is apparently liable for forfeiture in the
    amount of twenty thousand dollars (\$20,000.00).

    **II. BACKGROUND**

2.  Broadcasting Licenses, L.P. ("BLLP"), licensee of television station
    KMVU,[^2] filed a Complaint with the Commission against Northland on
    June 12, 2007, in which it alleges that Northland violated statutory
    requirements and the Commission's rules when it ceased carriage of
    KMVU without providing the required prior notices to both the
    station and the public.[^3] In addition, KMVU maintains that
    Northland replaced it with KCVU-TV, Paradise, California
    ("KCVU")[^4] during a national Nielsen sweeps period, again in
    violation of the Commission's rules.[^5] KMVU also asserts that
    Northland failed to provide KMVU with network non-duplication
    protection when it was replaced by KCVU on Northland's cable
    system.[^6] In view of the above allegations, KMVU asks the
    Commission to impose a monetary forfeiture against Northland.[^7]
    Northland filed an Opposition to this Complaint[^8] to which KMVU
    has filed a Reply.

3.  The facts as alleged in the pleadings show that prior to Northland's
    undisputed[^9] repositioning and deletion of KMVU, Northland and
    KMVU had been negotiating the extension of a retransmission consent
    agreement to carry KMVU, an affiliate of the Fox television network
    (the "Fox Network").[^10] During this time, Northland was carrying
    KMVU on its cable system in Yreka, California.[^11] Under the
    existing retransmission consent terms, Northland's right to
    retransmit KMVU was to lapse on May 26, 2007.[^12]

4.  On May 15, 2007, approximately two weeks prior to the lapse of its
    retransmission consent agreement with KMVU, Northland repositioned
    KMVU from cable channel 11 to cable channel 98 on its Yreka
    system.[^13] Concurrently on May 15, 2007, Northland replaced KMVU
    with KCVU and publicly advertised in the Siskyou Daily News of
    Yreka, California, that it was "proud to add FOX 30 \[KCVU\] from
    Chico to \[its\] channel line-up... now on Northland Cable Channel
    11..."[^14] On May 23, 2007, Northland returned KMVU to its original
    channel, having thereby created 'a channel positioning lapse' of
    eight days.[^15] This lapse took place during the national Nielsen
    sweeps period of April 26 -- May 23, 2007.[^16]

5.  Northland did finally delete KMVU on May 26, 2007, and according to
    Northland this occurred because KMVU refused to extend the terms of
    its retransmission consent.[^17] Prior to deletion, Northland's
    systems had used a character driven message that began to run on May
    2, 2007, to advise their customers of the potential deletion of KMVU
    as of May 26, 2007.[^18] This character driven message effectively
    provided Northland's customers with 24 days' notice. Though KMVU was
    not notified of its repositioning on May 15th, Northland claims KMVU
    was at least aware of the impending circumstances of its deletion on
    May 26th because it was involved in the negotiations for granting
    retransmission consent before that date.[^19]

# III. discussion {#iii.-discussion .unnumbered}

**A. Repositioning Without Requisite Notice During a Nielsen Sweeps
Period**

6.  As KMVU correctly points out, Section 614 of the Act provides that a
    cable operator may not delete *or* *reposition* a local commercial
    television station without first having provided 30 days prior
    notice to that station, *and* a deletion *or repositioning* cannot
    occur "during a period in which major television ratings services
    measure the size of audiences of local television stations."[^20]
    This is mirrored in Section 76.1601 of the Commission's rules, which
    requires that such 30 day notice be provided to both the broadcast
    television station and to subscribers of the cable system.[^21] The
    corresponding Note to Section 76.1601 clarifies that no deletions or
    repositionings are to occur during a period in which ratings
    services measure audience sizes, as audiences are typically measured
    "during the four national four-week ratings periods -- generally
    including February, May, July and November -- commonly known as
    audience sweeps."[^22]

7.  Northland's undisputed repositioning of KMVU occurred during the
    national Nielsen sweeps period of April 26 -- May 23, 2007, and its
    failure to provide 30 days' advance notice of that repositioning
    consistent with the Commission's rules to *either* its cable
    subscribers *or* to KMVU itself violated Section 614(b)(9) of the
    Act, Section 76.1601 of the Commission's rules, and Note 1 to
    Section 76.1601.[^23] In addition to failing to provide notice of
    its repositioning of KMVU consistent with the statutory requirements
    and the Commission's rules, Northland's repositioning of KMVU during
    the Nielsen sweep period at the time the parties were negotiating
    for an extension of their retransmission consent agreement is
    particularly egregious, because "\[d\]uring sweeps periods Nielsen
    Media Research\'s local market measurement service collects
    demographic viewing data which is used by local television stations,
    cable systems, advertisers and their agencies to buy and sell
    commercial advertising as well as make programming decisions."[^24]
    As we discuss below, the egregiousness of these apparent violations
    calls for forfeiture.

8.  The Act and the Commission's rules also apply to KMVU's eventual
    deletion from Northland's system on May 26th, for which Northland
    provided only 24 days of notice to its subscribers that it would not
    carry KMVU after May 26th, and *not* the requisite 30 days' notice.
    Even if KMVU had constructive notice of this impending deletion,
    KMVU received no formal notice of it. Finally, we should note that
    although KMVU has not alleged a violation of Section. 76.1603(c),
    Northland's acts also violate that rule provision, which requires a
    cable system to give 30 days' written notice to both subscribers and
    local franchising authorities before implementing any rate or
    service change.[^25]

    **B. Network Non-Duplication Rights**

9.  We decline to find a violation of KMVU's network non-duplication
    rights. KMVU asserts it was granted network non-duplication rights
    through KMVU's affiliation agreement with the Fox Network.[^26] The
    contractual terms granting these rights are not specified or
    attached to the Complaint. KMVU argues it holds network
    non-duplication rights in a protected geographic zone extending 55
    miles from its community of license.[^27] KMVU argues that because
    it may measure its protected network non-duplication zone from
    either market in its hyphenated market of Medford-Klamath Falls,
    Northland's cable system located in Yreka, California -- located
    less than 55 miles from Medford -- must therefore fall within KMVU's
    protected network non-duplication zone.[^28] Therefore, KMVU argues
    Northland cannot retransmit the network programming of KCVU within
    that protected zone without violating KMVU's network non-duplication
    rights.[^29]

10. Broadcast station licensees are entitled to exercise non-duplication
    rights pursuant to Section 76.92 of the Commission's rules in
    accordance with the contractual provisions of their
    network-affiliate agreements.[^30] However, a cable operator is
    compelled by law not to carry duplicative programming only
    "\[*u*\]*pon receiving notification* pursuant to \[Section\]
    76.94."[^31] Section 76.94 describes the procedures that a broadcast
    station must follow to provide notice to a cable system operator in
    order to perfect its non-duplication rights. In particular, the rule
    calls for notification of cable systems within 60 days of the
    broadcaster signing a contract providing it with network
    non-duplication protection, or in the alternative, it calls for the
    broadcaster to provide a "modified notice."[^32] The kinds of
    information required by each type of notice are specific and
    varied.[^33] However, "\[i\]f a broadcaster fails to provide notice
    to a cable system within 60 days of the signing of a new contract
    containing \[syndicated exclusivity\] rights, all of these rights
    under the contract (vis-à-vis that cable system) are lost (although
    they can be recaptured by recontracting for them)."[^34] The same 60
    day notification principles that apply to syndicated exclusivity
    rights apply in the network non-duplication context, albeit with
    some modifications.[^35]

11. KMVU alleges it invoked its network non-duplication rights by
    sending an email to Northland on May 16, 2007, advising Northland
    that it was precluded from entering a retransmission consent
    agreement with KCVU for carriage on Northland's cable system serving
    Siskiyou County.[^36] In response to KMVU's claim of network
    non-duplication, Northland maintains that because KMVU never
    provided it with the required 60 day notice in the proper form, as
    mandated by the Commission's rules, any claim to such rights is
    without merit.[^37] We find that the email provided by KMVU does not
    meet the Commission's notice requirements described above for
    perfecting network non-duplication rights.[^38] KMVU has also failed
    to introduce any other evidence that it perfected its rights for
    network non-duplication protection.

    **C. Forfeiture**

12. Under Section 503(b)(1) of the Act, any person who is determined by
    the Commission to have willfully or repeatedly failed to comply with
    any provision of the Act or any rule, regulation, or order issued by
    the Commission shall be liable to the United States for a monetary
    forfeiture penalty.[^39] To impose such a forfeiture penalty, the
    Commission must issue a notice of apparent liability, and the person
    against whom the notice has been issued must have an opportunity to
    show, in writing, why no such forfeiture penalty should be
    imposed.[^40] The Commission will then issue a forfeiture if it
    finds by a preponderance of the evidence that the person has
    violated the Act or a Commission rule.[^41] We conclude under this
    standard that Northland is apparently liable for a forfeiture for
    its apparent willful violation of Section 614(b)(9) of the Act,
    Section 76.1601 of the Commission's rules, Note 1 to Section
    76.1601, and Section 76.1603(c),[^42] due to its failure to provide
    thirty (30) days' advance notice of the repositioning of KMVU to
    either its cable subscribers or to KMVU itself, due to its failure
    to provide thirty (30) days' advance notice to its cable subscribers
    and the relevant franchising authority prior to its eventual
    deletion of KMVU from its cable system serving Yreka, California,
    and for its repositioning of KMVU on its Yreka cable system during
    the national Nielsen sweeps period of April 26 -- May 23, 2007.

13. After considering the record and all of the factors contained in
    Section 503(b)(2)(D) of the Act,[^43] and the Forfeiture Policy
    Statement, we believe a twenty thousand dollar (\$20,000.00)
    forfeiture is appropriate in this case. As the Commission has stated
    before, "\[u\]nder these standards, \$7,500 is the base forfeiture
    amount for a willful and repeated violation of the cable broadcast
    signal carriage rules, although the Commission and the Bureau retain
    the discretion not to issue any forfeiture, or to issue a higher or
    lower forfeiture."[^44] We find a forfeiture of \$20,000.00 is
    warranted in light of the seriousness of Northland's violations and
    due to its willful conduct in repositioning KMVU on the cable system
    serving Yreka, California during a Nielsen sweeps period, due to its
    failure to provide necessary notice of this repositioning to KMVU
    and its cable subscribers, and due to its failure to provide 30
    days' notice of KMVU's eventual deletion to its cable subscribers
    and the relevant franchising authority.[^45]

# IV. ordering clauses {#iv.-ordering-clauses .unnumbered}

14. **ACCORDINGLY, IT IS ORDERED THAT**, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, 47 U.S.C. § 503(b), and
    Section 1.80 of the Commission's rules, 47 C.F.R. § 1.80, Northland
    Cable Television, Inc. is hereby **NOTIFIED** of its **APPARENT
    LIABILITY FOR FORFEITURE** in the amount of Twenty Thousand Dollars
    (\$20,000.00) for willfully violating Section 614(b)(9) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 534(b)(9), and
    Section 76.1601, Note 1 to Section 76.1601, and Section 76.1603(c)
    of the Commission's rules, 47 C.F.R. § 76.1601, Note 1 to 47 C.F.R.
    § 76.1601, and 47 C.F.R. § 76.1603(c).

15. **IT IS FURTHER ORDERED**, pursuant to Section 1.80 of the
    Commission's rules, 47 C.F.R. § 1.80, that within thirty days of the
    release of this Notice, Northland Cable Television, Inc. **SHALL
    PAY** the full amount of the proposed forfeiture or **SHALL FILE** a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

16. Payment of the proposed forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Account Number and FRN
    Number referenced in the caption above. Payment by check or money
    order may be mailed to Federal Communications Commission, at 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, BNF:
    FCC/ACV\--27000001 and account number as expressed on the remittance
    instrument. If 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). Please
    contact the Financial Operations Group Help Desk at 1-877-480-3201
    or Email: ARINQUIRIES@fcc.gov with any questions regarding payment
    procedures.

17. The response, if any, must be mailed to the Office of the Secretary,
    Federal Communications Commission, 445 12th Street, S.W.,
    Washington, D.C. 20554, to the Attention of: Ron Parver, Assistant
    Division Chief, Policy Division, Media Bureau, Room 4-A822, and must
    include the NAL/Acct. No. referenced in the caption above.

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; 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. Requests for payment of the full amount of the NAL 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.

20. **IT IS FURTHER ORDERED** that a copy of this Notice shall be sent,
    by Certified Mail/Return Receipt Requested, to Dennis P. Corbett and
    John W. Bagwell, Leventhal, Senter & Lerman, PLLC, 2000 K Street,
    N.W., Suite 600, Washington, D.C. 20006-1809, and to Steven J.
    Horvitz, Davis Wright Tremaine LLP, 1919 Pennsylvania Avenue, N.W.,
    Suite 200, Washington, D.C. 20006.

21. This action is taken pursuant to authority delegated under Section
    0.283 of the Commission's rules.[^46]

    FEDERAL COMMUNICATIONS COMMISSION

    Monica Shah Desai

    Chief, Media Bureau

[^1]: 47 U.S.C. § 534(b)(9); 47 C.F.R. § 76.1601; Note 1 to 47 C.F.R. §
    76.1601; and, 47 C.F.R. § 76.1603(c).

[^2]: Unless otherwise specified, we hereafter refer to broadcast
    station KMVU as the complainant rather than its licensor, BLLP.

[^3]: Complaint by Broadcasting Licenses, L.P., filed June 12, 2007, at
    1, 3 (hereinafter "Complaint"). Although KMVU's Complaint originally
    pleads that it was "deleted" from Northland's cable system, *see*
    Complaint at 3, in light of Northland's admission that it
    repositioned KMVU, KMVU has subsequently sought liability against
    Northland for both deletion and repositioning, arguing that as a
    matter of law that there is no distinction between these actions
    under the Act and the Commission's rules. *See* Reply to Opposition
    to Complaint by Broadcasting Licenses, L.P., filed July 17, 2007, at
    2-3 ("Reply"). We have considered both deletion and repositioning in
    our analysis. *See infra* ¶ 6.

[^4]: We note that KMVU is located in the Nielsen Designated Market Area
    ("DMA") of Medford-Klamath Falls in Oregon, whereas KCVU is located
    in the Nielsen DMA of Chico-Redding in California.

[^5]: Complaint at 1.

[^6]: *Id*.

[^7]: *Id*.

[^8]: Opposition to Complaint by Northland Cable Television, Inc., filed
    July 2, 2007 ("Opposition").

[^9]: Northland concedes that it repositioned KMVU and notes this was
    "technically improper" and an "error." *See* Opposition at 1 and 2.

[^10]: Complaint at 1 n.1; Reply at 3 n.3.

[^11]: Complaint at 1.

[^12]: Opposition at 2.

[^13]: *Id*.

[^14]: Complaint at 2; Exhibit B.

[^15]: We have determined that the channel positioning lapse lasted
    eight days, though Northland asserts it lasted for seven days. *See*
    Opposition at 2*.*

[^16]: Complaint at 1*.*

[^17]: Opposition at 2-3. As of the date of KMVU's June 12, 2007,
    Complaint, Northland had continued carriage of KCVU in place of
    KMVU. *See* Complaint at 4.

[^18]: Opposition at 3, n.1.

[^19]: *Id*.

[^20]: 47 U.S.C. § 534(b)(9).

[^21]: 47 C.F.R. § 76.1601.

[^22]: Note 1 to 47 C.F.R. § 76.1601.

[^23]: 47 U.S.C. § 534(b)(9); 47 C.F.R. § 76.1601; Note 1 to 47 C.F.R. §
    76.1601.

[^24]: *Time Warner Cable*, 15 FCC Rcd 7882, 7883, ¶ 3 (2000) (citing
    http://www.nielsenmedia.com).

[^25]: 47 C.F.R. § 76.1603(c); *see Time Warner Cable*, 21 FCC Rcd 9016,
    9023, ¶ 21 (2006). During the period of Northland's violations, KMVU
    and Northland were heavily involved in negotiating a retransmission
    consent agreement for Northland to carry KMVU. While Northland has
    not filed a formal complaint against KMVU for failing to negotiate
    for retransmission consent in "good faith," Northland argues that
    KMVU actively increased the cost for its retransmission consent
    demands to several times what it previously charged per customer,
    and actively sought to interfere with a valid retransmission consent
    agreement between Northland and Sainte Television Group -- licensee
    of KCVU. Opposition at 6. The Commission does not address these
    claims. Furthermore, the impending lapse of the retransmission
    agreement for KMVU provides no excuse for Northland's actions
    because Northland would have been in violation for removing
    programming during a sweeps period, *even if* the retransmission
    consent agreement had lapsed *during* that period. *See* *Time
    Warner*, 15 FCC Rcd at 7885, ¶ 7.

[^26]: Complaint at 4.

[^27]: *Id*. at 3.

[^28]: *Id.* at 3-4, citing 47 C.F.R. § 76.92(a) and Note to 47 C.F.R. §
    76.92(g).

[^29]: *Id.* at 4.

[^30]: 47 C.F.R. § 76.93.

[^31]: 47 C.F.R. § 76.92(a) (emphasis added).

[^32]: 47 C.F.R. § 76.94(b).

[^33]: *Compare* 47 C.F.R. § 76.94(a)(1)-(3) *with* 47 C.F.R. §
    76.94(b)(1)-(3).

[^34]: *Amendment of Parts 73 and 76 of the Commission's Rules Relating
    to Program Exclusivity in the Cable and Broadcast Industries*,
    Memorandum Opinion and Order, 4 FCC Rcd 2711, 2723, ¶ 72 (1989).

[^35]: The syndicated exclusivity (or "syndex") rules are largely in
    conformance with the network non-duplication rules so as to
    streamline procedures for cable operators except for a few instances
    which are not relevant here. *See id.* at 2726-27, ¶¶ 81-88.

[^36]: Complaint at 4 and Exhibit A (Email from Cary Jones, KMVU to Paul
    Milan, Northland Cable (May 16, 2007)). Though KMVU's May 16 email
    discusses Siskiyou County, KMVU's complaint only alleges network
    non-duplication rights with respect to Northland's cable system in
    Yreka, California and we are limiting our consideration to Yreka.
    *See supra* para. 9 and n.29; *see also* Complaint at 3-4. We
    address any claims with respect to Northland's Mt. Shasta system in
    a separate order.

[^37]: Opposition at 3-4.

[^38]: *See* 47 C.F.R. § 76.94(a)(1)-(3) and 47 C.F.R. §
    76.94(b)(1)-(3).

[^39]: *See* 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1). 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. *See* 47 U.S.C. § 312(f)(1). 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, H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982), and
    the Commission has so interpreted the term in the Section 503(b)
    context. *See, e.g.*, *S. Cal. Broad. Co.*, 6 FCC Rcd 4387, 4388, ¶
    5 (1991). The Commission may also assess a forfeiture for violations
    that are merely repeated, and not willful. *See, e.g.,* *Callais
    Cablevision, Inc.*, Notice of Apparent Liability for Monetary
    Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a Notice of Apparent
    Liability for, *inter alia,* a cable television operator\'s repeated
    signal leakage). \"Repeated\" merely means that the act was
    committed or omitted more than once, or lasts more than one day. *S.
    Cal. Broad. Co.*, 6 FCC Rcd at 4388, ¶ 5; *Callais Cablevision,
    Inc.*, 16 FCC Rcd at 1362, ¶ 9.

[^40]: *See* 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^41]: *See, e.g.*, *SBC Communications, Inc.*, Forfeiture Order, 17 FCC
    Rcd 7589, 7591, ¶ 4 (2002) (forfeiture paid).

[^42]: 47 U.S.C. § 534(b)(9); 47 C.F.R. § 76.1601; Note 1 to 47 C.F.R. §
    76.1601; and, 47 C.F.R. § 76.1603(c).

[^43]: 47 U.S.C. § 503(b)(2)(D).

[^44]: *Time Warner Cable*, 16 FCC Rcd 5403, 5404, ¶ 4 (2001) (citing 47
    C.F.R. § 1.80(b)(4), *amended by* 47 C.F.R. § 1.80(b)(1) (2004)).

[^45]: 47 U.S.C. § 534(b)(9); 47 C.F.R. § 76.1601; Note 1 to 47 C.F.R. §
    76.1601; and, 47 C.F.R. § 76.1603(c).

[^46]: 47 C.F.R. § 0.283.