Washington -- Liberty Cable Co., which has since become
part of RCN Corp., deliberately misled the Federal Communications Commission in its
operation of 19 wireless broadcasting sites in New York, and the company is not qualified
to be a licensee, according to a decision by an FCC judge that was released March 6.
"Liberty deliberately stalled in making full
disclosure of readily available and highly relevant documentary evidence," wrote
Administrative Law Judge Richard L. Sippel.
Time Warner Cable had accused Liberty of operating a
cable-hardware connection between buildings and of misleading the FCC in statements. In
effect, Sippel agreed with Time Warner's complaints.
"Relevant evidence demonstrates a reckless disregard
or abandonment of Liberty's duty to produce such evidence or, in a worse-case
scenario, an intention to conceal 'hot documents' until it became too late to
effectively use them," Sippel wrote. "Any suggestion that there was simply a
series of inadvertent oversights is rejected."
Liberty has since been bought, and Bartholdi Cable Co. Inc.
is the holding company for the licenses, according to Melissa Krantz, spokeswoman for
"We thoroughly disagree with the decision, and
it's being appealed," Krantz said.
Although it anticipates an appeal, Time Warner welcomed the
"We're very happy about that, of course,"
said R. Bruce Beckner, who represents Time Warner for law firm Fleischman and Walsh L.L.P.
"The appropriate action was to not grant the application. From our view, the judge
agreed with us right down the line."
The decision was based on an application for 15 of the 35
new wireless licenses for which Liberty was applying. Sippel charged that Liberty had been
using those sites before it was granted a license, and that the company misled the FCC by
saying that it hadn't.
"It completely misrepresented that it had a policy and
practice of compliance with licensing prior to activation," Sippel wrote.
Sippel also determined that because he was denying the
license applications, Liberty should not be assessed $1 million in fines for the
company's infractions. However, "if a [fine] is subsequently determined to be
warranted in this case, the total amount ... would be warranted."
The impact of the decision was not immediately clear, but
it will probably serve notice to potential Time Warner competitors that they must follow
FCC rules, said Robert Jacobs, general counsel for Time Warner in New York.
"All we're saying is that the playing field
should be level," Jacobs said.
"The FCC has always taken very seriously the proper
licensing of the spectrum," Jacobs said. "No. 1 is to follow all of the rules,
and No. 2 is to be honest and forthright in the proceedings."
The facts of the case, Sippel wrote, "demonstrate that
Liberty, in practice and as a matter of policy, will decide for itself when it will
disclose significant information to the commission and how completely it will make that
States News Service