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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
                                )
Cunningham Communications, Inc. )    File No. EB-02-TS-246
                                )
Operator of Cable System in:    )
                                )
Glen Elder, Kansas              )
                                )
                                )
Request for Waiver of Section 11.11(a) of the     )    
Commission's Rules              )    
                                        
                              ORDER 

Adopted:   September 25, 2003           Released:  September  30, 
2003

By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

1.        In this Order, we grant Cunningham Communications, Inc. 
  (``Cunningham'')  a   limited,  temporary  waiver  of   Section 
  11.11(a) of  the Commission's Rules  (``Rules'') for the  video 
  portion of  a single channel  on its Glen  Elder, Kansas  cable 
  television  system  that  carries  locally-inserted   community 
  programming.  Section  11.11(a) requires cable systems  serving 
  fewer than 5,000  subscribers from a headend to either  provide 
  national  level Emergency  Alert System  (``EAS'') messages  on 
  all programmed channels or install EAS equipment and provide  a 
  video interrupt and audio alert on all programmed channels  and 
  EAS  audio  and  video messages  on  at  least  one  programmed 
  channel by October  1, 2002.1  The temporary waiver will  apply 
  for only long as  the video programming on the local  community 
  channel continues  to be  inserted at the  community nodes  and 
  the audio portion  of the local community channel continues  to 
  carry  national EAS  alerts.  In  addition, as  a condition  of 
  this grant, Cunningham must include an insert with its bill  to 
  subscribers  once a  year alerting  the subscribers  that  this 
  local community  channel will  not carry the  video portion  of 
  national  EAS alerts  because  Cunningham has  been  granted  a 
  partial waiver  of the  EAS requirements with  respect to  this 
  channel.  The  first billing  insert to be  provided within  90 
  days of release of this order.     

2.        The Cable Act of 1992  added new Section 624(g) to  the 
  Communications  Act  of 1934  (``Act''),  which  requires  that 
  cable  systems be  capable of  providing  EAS alerts  to  their 
  subscribers.2  In 1994, the Commission adopted rules  requiring 
  cable systems to participate in EAS.3  In 1997, the  Commission 
  amended the  EAS rules  to provide financial  relief for  small 
  cable systems.4  The Commission declined to exempt small  cable 
  systems  from the  EAS requirements,  concluding that  such  an 
  exemption would be  inconsistent with the statutory mandate  of 
  Section  624(g).5    However,  the   Commission  extended   the 
  deadline   for  cable   systems  serving   fewer  than   10,000 
  subscribers to  begin complying with the  EAS rules to  October 
  1, 2002,  and provided cable systems  serving fewer than  5,000 
  subscribers the option  of either providing national level  EAS 
  messages  on   all  programmed  channels   or  installing   EAS 
  equipment and  providing a video interrupt  and audio alert  on 
  all programmed channels and EAS audio and video messages on  at 
  least  one programmed  channel.6  In  addition, the  Commission 
  stated that  it would grant waivers of  the EAS rules to  small 
  cable  systems  on  a case-by-case  basis  upon  a  showing  of 
  financial  hardship.7   The Commission  indicated  that  waiver 
  requests must contain at least the following information:   (1) 
  justification for the waiver, with reference to the  particular 
  rule sections  for which  a waiver is  sought; (2)  information 
  about the financial status of the requesting entity, such as  a 
  balance sheet and  income statement for the two previous  years 
  (audited, if possible);  (3) the number of other entities  that 
  serve the  requesting entity's coverage area  and that have  or 
  are expected to  install EAS equipment; and (4) the  likelihood 
  (such  as proximity  or frequency)  of hazardous  risks to  the 
  requesting entity's audience.8

3.        On June  13, 2002,  Cunningham filed  a request  for  a 
  narrow and  limited temporary  waiver of  Section 11.11(a)  for 
  its   Glen   Elder,   Kansas   cable   system,   which   serves 
  approximately 2,670  subscribers in  eleven small  communities.  
  Specifically, Cunningham requests  a limited waiver of  Section 
  11.11(a)  for the  video portion  of one  channel on  its  Glen 
  Elder   system   that   carries   locally-inserted    community 
  programming.   Cunningham  states  that  this  local  community 
  channel, which  is currently  featured in seven  of the  eleven 
  communities  served  by  the  Glen  Elder  system  and  may  be 
  featured in additional communities in the future, carries  text 
  messages  inserted  at the  municipal  level.   To  enable  the 
  municipalities to  insert local text  messages, Cunningham  has 
  installed  deletion filters  at  each node,  which  remove  any 
  signal  from the  headend and  remodulate the  local  community 
  channel  so  that  the  municipalities  may  insert  community-
  specific  text messages.   Cunningham  asserts that  it  cannot 
  override  these  text   messages  with  EAS  messages   without 
  installing costly switching  equipment at each node.  Based  on 
  consultations with an engineering consultant familiar with  EAS 
  applications, Cunningham estimates that the cost of  installing 
  the necessary switching equipment ranges from $2,500 to  $4,500 
  per node,  for a  total cost  of between  $17,500 and  $31,500.  
  Cunningham asserts  that this  cost will  impose a  substantial 
  financial hardship on it and submits its financial reports  for 
  2001 and 2002 in support of this assertion.  Cunningham  states 
  that it  will install the  required EAS equipment  in the  Glen 
  Elder headend by October 1, 2002, so that EAS messages will  be 
  provided on  65 of the  66 programmed channels  carried on  the 
  system.  Further,  Cunningham notes that  the audio portion  of 
  the programming  on the local community  channel is the  signal 
  of a  local radio  station, which will  provide audio  national 
  EAS   messages.    Finally,   Cunningham   submits   that   its 
  subscribers will  also have access  to EAS information  through 
  over-the-air  reception  of  broadcast  television  and   radio 
  stations.  

4.        Based upon our review of  the financial data and  other 
  information   submitted  by   Cunningham   Communications,   we 
  conclude that limited temporary waiver of Section 11.11(a)  for 
  one  channel on  the company's  Glen  Elder, Kansas  system  is 
  warranted.9  In particular, we find that the estimated  $31,500 
  cost of switching  equipment for this small cable system  could 
  impose a  financial hardship on  Cunningham.  This waiver  will 
  extend  for as  long  as the  video  programming on  the  local 
  community channel  continues to  be inserted  at the  community 
  nodes and the audio  portion of the channel continues to  carry 
  national  EAS alerts.   In  addition,  as a  condition  of  the 
  waiver,  Cunningham must  include an  insert with  its bill  to 
  subscribers  once a  year alerting  the subscribers  that  this 
  channel  will not  carry  the  video portion  of  national  EAS 
  alerts because Cunningham has been granted a partial waiver  of 
  the EAS requirements with respect to this channel.  

5.        Accordingly, IT IS ORDERED  that, pursuant to  Sections 
  0.111,   0.204(b)  and   0.311  of   the  Rules,10   Cunningham 
  Communications, Inc. IS  GRANTED a temporary waiver of  Section 
  11.11(a) of the Rules  for the video portion of one channel  on 
  its Glen  Elder, Kansas system  which carries  locally-inserted 
  community  programming,  subject to  the  conditions  specified 
  herein.

6.        IT IS FURTHER  ORDERED that Cunningham  Communications, 
  Inc. place a copy of this waiver in its system files.

7.        IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be sent by  Certified Mail Return Receipt Requested to  counsel 
  for Cunningham  Communications, Inc., Christopher C.  Cinnamon, 
  Esq., Cinnamon Mueller, 307 North Michigan Avenue, Suite  1020, 
  Chicago, Illinois 60601.  

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         Joseph P. Casey
                         Chief, Spectrum Enforcement Division
                         Enforcement Bureau
_________________________

  1 47 C.F.R.  11.11(a).

  2 Cable Television  Consumer Protection and Competition Act  of 
1992, Pub. L. No. 102-385,  16(b), 106 Stat. 1460, 1490  (1992).  
Section 624(g) provides that  ``each cable operator shall  comply 
with such standards as the  Commission shall prescribe to  ensure 
that viewers of video programming  on cable systems are  afforded 
the same emergency  information as is  afforded by the  emergency 
broadcasting system pursuant to Commission regulations ....''  47 
U.S.C.  544(g).  

  3 Amendment  of Part 73, Subpart  G, of the Commission's  Rules 
Regarding the Emergency  Broadcast System, Report  and Order  and 
Further Notice of Proposed Rule Making, FO Docket Nos. 91-171/91-
301, 10 FCC  Rcd 1786  (1994), reconsideration  granted in  part, 
denied in part, 10 FCC Rcd 11494 (1995).

  4 Amendment  of Part 73, Subpart  G, of the Commission's  Rules 
Regarding the  Emergency  Broadcast  System,  Second  Report  and 
Order, FO Docket Nos. 91-171/91-301, 12 FCC Rcd 15503 (1997).

  5 Id. at 15512-13.

  6 Id. at 15516-15518.

  7 Id. at 15513.

  8 Id. at 15513, n. 59.

  9 We clarify that  we are also granting Cunningham a waiver  of 
the EAS testing requirements with respect to this local community 
channel.

  10 47 C.F.R.  0.111, 0.204(b) and 0.311.