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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 )
Adopted: September 25, 2003 Released: September 30,
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
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
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
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
10 47 C.F.R. §§ 0.111, 0.204(b) and 0.311.