Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-06-IH-2402       |
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| Time Warner Cable                | ) | FRN: 0007556251              |
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| Los Angeles, California          | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: March 7, 2007 Released: March 7, 2007**

By the Chief, Investigations and Hearings Division, Enforcement Bureau:

**I. INTRODUCTION**

1\. In this *Memorandum Opinion and Order* ("*MO&O*"), we admonish Time
Warner Cable ("Time Warner" or the "Company")[^1] for failure to provide
prompt access to its public inspection files on September 13 and 16,
2005, in violation of Section 76.1700 of the Commission's rules.[^2] We
have reviewed the record thoroughly, including Time Warner's responses,
and conclude that Time Warner willfully violated Section 76.1700 on
September 13, 2005, by requiring a member of the public to schedule an
appointment to view the Company's public file during regular business
hours. Time Warner again violated the cable public file rule on
September 16, 2005, by not promptly making its public file available for
inspection. For the reasons stated below, we conclude that Time Warner
should be admonished for its repeated violations of Section 76.1700.

**II. BACKGROUND**

2\. In a letter to the Commission dated October 4, 2005, James Shelton
alleges that Time Warner denied him prompt access to the Company's
public inspection file, including its Equal Employment Opportunity
("EEO") file, in violation of Section 76.1700.[^3] According to Mr.
Shelton, he and an associate, Donald Todd, arrived at Time Warner's
Gardena, California, office on September 13, 2005, to view the Company's
EEO public file.[^4] Gregory S. Drake, in-house counsel for Time Warner,
gave the Company's EEO files to Messrs. Shelton and Todd for review.[^5]
After viewing the EEO files, Mr. Shelton and Mr. Todd then asked to see
the remainder of the file.[^6] Mr. Drake, however, did not provide the
other sections of the public file and instead told them to contact him
to schedule an appointment to see the rest of the file.[^7]

3\. On September 16, 2005, Mr. Shelton and another associate, Paul
Beckett, visited Time Warner's Torrance, California, office and asked
the receptionist to see the Company's public EEO files.[^8] According to
Mr. Shelton, the receptionist was unfamiliar with the EEO files and did
not know where they were located, but did provide him with the phone
number of an individual at the Company's main office in Garden Grove,
California.[^9] Messrs. Shelton and Beckett then traveled to the Garden
Grove office and asked to see the Company's EEO files.[^10] The employee
at the Garden Grove office informed them that the public EEO files were
not in that office and that she would have to contact the human
resources manager to find out which office had them.[^11] Mr. Shelton
decided to leave rather than wait to hear from the manager about the
location of the EEO files.[^12]

4\. Based on the allegations contained in the Complaint, the Media
Bureau sent a letter of inquiry to Time Warner on April 18, 2006.[^13]
Time Warner responded by letter dated May 16, 2006 (hereinafter "LOI
Response").[^14] The Company states generally that it did not engage in
any misconduct and denies specifically that it withheld access to any of
its public inspection files at any of its offices.[^15]

**III. DISCUSSION**

5\. The public inspection file is a source of information to subscribers
and other interested members of the public about their local cable
system and its compliance with Commission rules. Cable operators must
ensure that the public file contains all required records, such as the
company's relevant EEO records and sponsorship identification.[^16]
Cable operators also must provide the file upon request.[^17]
Specifically, Section 76.1700 states:

> The public inspection file shall be maintained at the office which the
> system operator maintains for the ordinary collection of subscriber
> charges, resolution of subscriber complaints, and other business or at
> any accessible place in the community served by the system unit(s) . .
> . . The public inspection file shall be available for public
> inspection *at any time during regular business hours*.[^18]

6\. We find that Time Warner violated Section 76.1700 by not making its
public file -- whether only the EEO file or the entirety of its public
inspection file -- readily available. The Commission has interpreted the
Rule's phrase "at any time during regular business hours" to mean that
the file shall be made available for inspection upon request.[^19] In
December 2004, the Commission reminded cable operators of their
obligation that "\[e\]ach system's public inspection file must be made
available *promptly* upon request."[^20] Thus, a cable operator may not
require a member of the public to make an appointment to inspect its
public file.[^21] On September 13, 2005, however, personnel at Time
Warner's Gardena office did not make the entire file available when
requested during regular business hours, and instead instructed the
complainant and his associate to make an appointment to view the entire
public file.[^22]

7\. Time Warner disputes that it denied access to the Company's entire
public file on September 13.[^23] The record, however, does not support
Time Warner's position. Indeed, Mr. Drake admits that he did not provide
the entire public file upon request. According to Mr. Drake: "At the end
of the meeting in Gardena, Mr. Todd asked what he should do if he wanted
to review other documents. I suggested that he either call me or write
me a letter. We had this conversation in front of Mr. Shelton."[^24]
Additionally, although Mr. Drake initially states that Mr. Shelton did
not request access to the entire public file, his declaration later
undermines that contention, albeit indirectly, by noting that at the
meeting: "\[Mr. Shelton\] did not specify a date for viewing the \[other
files\]."[^25] Time Warner's actions in this regard are inconsistent
with the cable public file rule.

8\. Time Warner again violated Section 76.1700 by denying access to its
public files on September 16, 2005, because its employees were unable to
direct members of the public to the Time Warner offices at which the
files were located. As explained in the aforementioned *2004 Public
Notice*, if a member of the public asks to see a cable operator's file
during regular business hours, the operator should produce the file or,
if the file is not located at the office at which the request is made,
should timely provide the location of the office where the relevant file
may be viewed.[^26] Here, various Time Warner employees at both the
Torrance and Garden Grove locations did not know where the Company's
public files were maintained.[^27] Employees at the Torrance office did
not know the location of the file and misdirected Mr. Shelton to the
Garden Grove office, which also did not maintain the EEO file.[^28] The
Commission has reminded cable operators that its personnel, especially
those who deal directly with the public, "should be able to timely
inform any party as to the location of the office where the relevant
file may be inspected."[^29] The record shows in this case, however,
that Time Warner did not properly train its employees to respond to
public file requests.

9\. Under Section 503(b)(1) of the Communications Act of 1934, as
amended (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.[^30]
Section 503(b)(6)(B) of the Act, however, limits the time period in
which the Commission can initiate a forfeiture proceeding against
non-broadcast entities to only those violations that occur within one
year of the issuance date of a notice of apparent liability for
forfeiture.[^31] The violations here occurred more than 12 months ago;
thus, the statute of limitations prohibits us from initiating a
forfeiture proceeding against Time Warner. But for the running of the
statute of limitations, however, we would have initiated a forfeiture
proceeding in this case.[^32]

10\. Section 503 does not, however, prohibit us from assessing whether
Time Warner's conduct prior to the expiration of the one-year statute of
limitations violated the Act or the rules. Based on the evidence before
us, we find that Time Warner violated Section 76.1700 of the
Commission's rules on September 13 and 16, 2005, and we admonish the
Company for its failure to timely make available its public inspection
files. Moreover, in light of Time Warner's previous violation,[^33] we
remind the Company that we expect it to take the steps necessary to
ensure that its personnel understand and comply with the requirements of
Section 76.1700, and we caution Time Warner that we will not hesitate to
subject it to sanctions commensurate with further violations of the
cable public file rule. []{.mark}

**IV. ORDERING CLAUSES**

11\. **ACCORDINGLY, IT IS ORDERED**, pursuant to Section 4(i) of the
Communications Act of 1934, as amended,[^34] and Sections 0.111 and
0.311 of the Commission's rules,[^35] that Time Warner Cable is hereby
**ADMONISHED** for its failures to timely make available for inspection
its public inspection files on September 13 and 16, 2005, in violation
of Section 76.1700 of the Commission's rules.[^36]

11\. **IT IS FURTHER ORDERED** that the complaint filed by James Shelton
**IS GRANTED** to the extent indicated herein and the complaint
proceeding **IS HEREBY TERMINATED**.

12\. **IT IS FURTHER ORDERED** that copies of this *Memorandum Opinion
and Order* shall be sent, by Certified Mail/Return Receipt Requested, to
the following: James Shelton, at his home address; Roger Keating,
President, Los Angeles Division, Time Warner Cable, 959 South Coast
Drive, Suite 300, Costa Mesa, California 92626; and to Juan Munoz, Vice
President, Employee Relations, Time Warner Cable, Corporate Human
Resources, 7910 Crescent Executive Drive, Charlotte, North Carolina
28217.

**FEDERAL COMMUNICATIONS COMMISSION**

Hillary S. DeNigro

Chief, Investigations and Hearings Division

Enforcement Bureau

[^1]: Time Warner, owner of a cable television system serving the Los
    Angeles, California, area, also owns cable units in Orange County,
    California, where some of the offices mentioned in the Complaint are
    located.

[^2]: *See* 47 C.F.R. § 76.1700 (the "cable public file rule" or
    "Section 76.1700"). *See* *also* *Reminder of Cable Television
    System Public Inspection File Obligations*, Public Notice, 19 FCC
    Rcd 23632 (Media Bur. 2004) ("*2004 Public Notice*").

[^3]: *See* Complaint of James Shelton to EEO Staff, Policy Division,
    Media Bureau, FCC, dated October 4, 2005 ("Complaint"). In his
    Complaint, Mr. Shelton also contends that Time Warner violated
    Section 76.1702 of the Commission's Rules, 47 C.F.R. § 76.1702,
    which requires cable operators to maintain an EEO file and describes
    the information that should be included in the file. In this *MO&O*,
    we do not address the question of whether Time Warner violated
    Section 76.1702. The EEO staff of the Media Bureau's Policy Division
    will address that issue in a separate proceeding.

[^4]: *See* Complaint at 1; *see also* Letter from Donald C. Todd to
    Estella Salvatierra, Esq., Policy Division, Media Bureau, FCC, dated
    July 25, 2006 ("Todd Letter"); Letter from Gregory S. Drake, Senior
    Counsel, Time Warner Cable, to James Shelton, dated September 1,
    2005 (a copy of which is attached at Exhibit 2 to Time Warner's
    response to a letter of inquiry) (advising Mr. Shelton that he could
    view the applicable files at the Company's Gardena office on
    September 13, 2005, at 11:00 a.m.) ("Drake Letter"). We note that
    the business hours for Time Warner's Gardena office are Monday
    through Friday, 9 a.m. to 6 p.m. *See* Time Warner Cable Customer
    Service Payment Centers, *at*
    [www.timewarnercable.com/CustomerService/PaymentCenter/TWCPaymentCenters.accountservices/complaints.ashx](http://www.timewarnercable.com/CustomerService/PaymentCenter/TWCPaymentCenters.accountservices/complaints.ashx)
    (last visited 7/26/06).

[^5]: *See* Complaint at 1. *See also* Drake Letter.

[^6]: *See* Complaint at 1. *See also* Todd Letter at 2.

[^7]: *See* Complaint at 1; Todd Letter at 2 ("When it was requested
    that we be allowed to review the rest of the public files, Mr. Drake
    denied the request and said that another appointment would need to
    be made with him in order to view the other public files we
    requested. Mr. Drake did not mention at any time where these files
    were located.").

[^8]: *See* *id*. at 2. *See also* Letter from Paul Beckett to Estella
    Salvatierra, dated July 20, 2006 (on September 16, 2005, "\[we\]
    were told at both the Torrance and Garden Grove locations that these
    \[EEO\] files were not available").

[^9]: *See* Complaint at 2.

[^10]: *See id*.

[^11]: *See id*.

[^12]: *See id.*

[^13]: *See* Letter from Lewis Pulley, Assistant Chief, Policy Division,
    Media Bureau, Federal Communications Commission, to Juan Munoz, Vice
    President, Employee Relations, Time Warner Cable, dated April 18,
    2006 ("LOI"). The LOI included a copy of Mr. Shelton's September 20,
    2005 e-mail query to Commission staff.

[^14]: *See* Letter from Roger Keating, President, Los Angeles Division,
    Time Warner Cable, to Estella Salvatierra, EEO Staff -- Policy
    Division, Media Bureau, FCC, dated May 16, 2006 ("LOI Response").
    Attached to the LOI Response is a "Declaration of Gregory S. Drake"
    (hereinafter "Drake Declaration"). Time Warner supplemented its LOI
    Response on various dates in May and July, 2006. *See* Letters from
    Gregory S. Drake, Senior Counsel, Legal Department, Time Warner
    Cable, to Estella Salvatierra, EEO Staff -- Policy Division, Media
    Bureau, dated May 31, 2006 (correcting a statement made at paragraph
    10 of the Declaration), July 6, 2006 (replying to statements
    contained in Mr. Shelton's June 12, 2006, correspondence to the
    Commission), July 19, 2006 (explaining that the public files for the
    Torrance office are located at Time Warner's Gardena facility), and
    July 20, 2006 (reiterating the location of the Torrance public files
    and explaining that the Garden Grove public files are located at
    Time Warner's Orange office).

[^15]: *See* LOI Response at 1-2.

[^16]: *See* 47 C.F.R. § 76.1700(a) (requiring cable television
    operators having 5000 or more subscribers to maintain for public
    inspection a file containing a copy of all specified records, such
    as the political file; sponsorship identification; EEO records
    available for public inspection; commercial records for children's
    programming; proof-of-performance test data; and signal leakage logs
    and repair records).

[^17]: *See* 47 C.F.R. § 76.1700(b).

[^18]: 47 C.F.R. § 76.1700(b) (emphasis added).

[^19]: *See* *Thomas P. Brunnock*, 50 RR 2d 1313 (Broadcast Bur. 1982)
    (noting that a station's two-hour delay in locating its public
    inspection file would violate the Commission's public inspection
    file rules), *review denied sub. nom. Complaint of Continuing
    Committee for Mayor Bergin against Station WATR-TV Waterbury,
    Connecticut*, 90 FCC 2d 813 (1982).

[^20]: *See 2004 Public Notice*, *supra* note 2 (emphasis added).

[^21]: *See* *Availability of Locally Maintained Records for Inspection
    by Members of the Public*, Public Notice, 28 FCC 2d 71 (1971)
    (reminding licensees, permittees, and applicants that public
    inspection files must be made available during regular business
    hours and that any requirement that a member of the public make an
    appointment in advance, or return at another time, to view a
    station's public inspection file is a violation of the Commission's
    public inspection file rules). *See also* *Riverside Broadcasting,
    Inc*., Notice of Apparent Liability*,* 15 FCC Rcd 18322 (EB IHD
    2000) (finding a violation of public inspection rules where, *inter
    alia*, station employees erroneously believed that a member of the
    public had to make an appointment in order to view files)
    (forfeiture paid).

[^22]: *See* Complaint at 1. *See also* Todd Letter at 2.

[^23]: *See* LOI Response, Drake Declaration, ¶ 3.

[^24]: *Id*. at ¶ 8.

[^25]: *Id.*

[^26]: *See 2004 Public Notice*, *supra* note 2.

[^27]: *See* Complaint at 2.

[^28]: According to Mr. Drake, the EEO file for the Garden Grove office
    is actually located in the Company's Orange, California facility.
    *See* LOI Response, Drake Declaration, ¶ 9.

[^29]: *2004 Public Notice, supra* note 2. *See* *also* 47 C.F.R. §
    76.1700(b); *T.V. Transmission, Inc., d/b/a Cablevision Lincoln,
    Nebraska, Petition for Order to Show Cause*, Memorandum Opinion and
    Order, 69 FCC 2d 1624, ¶ 13 (1978) (reminding cable operator that
    its "public inspection file is to be available at either the
    system's office or another accessible place in the community at any
    time during regular business hours").

[^30]: *See* 47 U.S.C. § 312(f)(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. [47
    U.S.C. §
    312(f)(1)](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS312&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.03).
    The legislative history accompanying [Section
    312(f)(1)](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS312&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.03)
    of the Act clarifies that this definition of willful applies to both
    [Sections
    312](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS312&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.03)
    and
    [503(b)](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS503&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.03)
    of the Act, and the Commission has so interpreted the term in the
    [Section
    503(b)](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS503&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.03)
    context. *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51
    (1982). *See*, *e.g.,* *Southern California Broadcasting Co*.,
    Memorandum Opinion and Order, [6 FCC Rcd 4387, 4388
    (1991)](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1991224243&FindType=Y&ReferencePositionType=S&ReferencePosition=4388&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.03)
    ("*Southern California Broadcasting Co."*). "Repeated" merely means
    that the act was committed or omitted more than once, or lasts more
    than one day. [*See Southern* *California Broadcasting Co*., 6 FCC
    Rcd at 4388, ¶
    5;](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1991224243&FindType=Y&ReferencePositionType=S&ReferencePosition=4388&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.03)
    *see also* *Callais Cablevision, Inc.*, Notice of Apparent Liability
    for Monetary Forfeiture, [16 FCC Rcd 1359
    (2001)](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=2001079448&FindType=Y&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.03)
    (issuing a Notice of Apparent Liability for, *inter alia*, a cable
    television operator's repeated signal leakage).

[^31]: *See* 47 U.S.C. § 503(b)(6)(B); *see also* *Globcom, Inc., d/b/a
    Globcom Global Communications*, Notice of Apparent Liability for
    Forfeiture, 18 FCC Rcd 19893, 19903, ¶ 23 (2003) (citations omitted)
    (subsequent history omitted).

[^32]: Time Warner's conduct is particularly egregious because it is not
    the first time the company has violated the cable public file rule.
    *See Time Warner Entertainment -- Advance/Newhouse Subsidiary, LLC,
    d/b/a Time Warner Cable*, Forfeiture Order, 19 FCC Rcd 10412 (EB
    2004) (imposing \$6,600 forfeiture for operator's failure to
    maintain all required material in its public inspection file
    pursuant to Section 76.1700(a) of the Commission's rules)
    (forfeiture paid).

[^33]: *See id*.

[^34]: *See* 47 U.S.C. § 154(i).

[^35]: *See* 47 C.F.R. §§ 0.111, 0.311.

[^36]: *See* 47 C.F.R. § 76.1700.