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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-067
)
Operator of Cable Systems in: )
)
Washington, Kansas )
Hebron, Nebraska )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: May 29, 2002 Released: May 31, 2002
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant Cunningham Communications, Inc.
(``Cunningham'') temporary waivers of Section 11.11(a) of the
Commission's Rules (``Rules'') for the two above-captioned
cable television systems. Specifically, we grant a temporary,
12-month waiver of Section 11.11(a) for the Washington, Kansas
system and a temporary, 24-month waiver of Section 11.11(a)
for the Hebron, Nebraska system. 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
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. Cunningham filed a request for temporary waiver of
Section 11.11(a) for the two captioned cable systems on
February 12, 2002. Cunningham seeks a 12-month waiver for the
Washington, Kansas system and a 24-month waiver for the
Hebron, Nebraska system. In support of its waiver request,
Cunningham states that these are small cable systems, with the
Washington system serving 475 subscribers and the Hebron
system serving 591 subscribers. Based on price quotes
provided by EAS equipment manufacturers, Cunningham estimates
that it would cost approximately $9,500 to install EAS
equipment at each of these systems for a total cost of
$19,000. Cunningham states that it plans to complete fiber
optic interconnections of the Washington and Hebron systems
with its Glen Elder, Kansas system by October 2003 and October
2004, respectively. Cunningham further states that when these
interconnects are completed, the Washington and Hebron
headends will be eliminated and its Washington and Hebron
subscribers will receive national EAS messages from the Glen
Elder system, which will have EAS equipment installed by the
October 1, 2002 deadline. Cunningham asserts that the cost of
installing EAS equipment at the two systems that are slated
for elimination will impose a substantial financial hardship
on it and provides a financial statement for 2001 in support
of this assertion. In addition, Cunningham submits that its
subscribers will continue to have ready access to national EAS
information from other sources, including its cable systems.
In this regard, Cunningham notes that its subscribers
currently have access to national EAS messages on at least one
third of all programmed channels. Cunningham also asserts
that its subscribers will have access to EAS information
through over-the-air reception of broadcast television and
radio stations. Finally, Cunningham observes that the
Washington system maintains a local EAS capability which
allows local police and public safety officials to transmit
emergency messages over the system.
4. Based upon our review of the financial data and other
information submitted by Cunningham, we conclude that a
temporary, 12-month waiver of Section 11.11(a) for the
Washington, Kansas system and a temporary, 24-month waiver for
the Hebron, Nebraska system is warranted.9 In particular, we
find that the estimated $19,000 cost of EAS equipment for
these small cable systems, which are slated for elimination,
could impose a financial hardship on Cunningham.
5. We note that the Commission recently amended the EAS
rules to permit cable systems serving fewer than 5,000
subscribers to install FCC-certified decoder-only units,
rather than both encoders and decoders, if such a device
becomes available.10 Based on comments from equipment
manufacturers, we anticipate that such a decoder-only system
could result in significant cost savings to small cable
systems.11
6. Accordingly, IT IS ORDERED that, pursuant to Sections
0.111, 0.204(b) and 0.311 of the Rules,12 Cunningham
Communications, Inc. IS GRANTED a waiver of Section 11.11(a)
of the Rules until October 1, 2003 for its Washington, Kansas
cable system and IS GRANTED a waiver of Section 11.11(a) of
the Rules until October 1, 2004 for its Hebron, Nebraska cable
system.
7. IT IS FURTHER ORDERED that Cunningham Communications,
Inc. place a copy of this waiver in its system files.
8. 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, Technical and Public Safety
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) (``First Report and Order''),
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)
(``Second Report and Order'').
5 Id. at 15512-13.
6 Id. at 15516-15518.
7 Id. at 15513.
8 Id. at 15513, n. 59.
9 The waiver for the Washington, Kansas system will extend 12
months from October 1, 2002, until October 1, 2003 and the waiver
for the Hebron, Nebraska system will extend 24 months from
October 1, 2002, until October 1, 2004. Cunningham also
specifically requested waiver of the testing and monitoring
requirements of the EAS rules for these two systems. We clarify
that the waivers we are granting also encompass the EAS testing
and monitoring requirements.
10 Amendment of Part 11 of the Commission's Rules Regarding
the Emergency Alert System, EB Docket 01-66, FCC 02-64 at ¶ 71
(released February 26, 2002).
11 One manufacturer estimated that an EAS decoder-only system
can reduce the cost by 64% over what a cable operator would spend
for an encoder/decoder unit. Id. at ¶ 70.
12 47 C.F.R. §§ 0.111, 0.204(b) and 0.311.