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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Galaxy Telecom, L.P. ) File No. EB-02-TS-122
)
Operator of Cable Systems in: )
)
Alma, Missouri )
Wilber, Nebraska )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: June 18, 2002 Released: June 21, 2002
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant Galaxy Telecom, L.P.,
(``Galaxy'') temporary, 18-month waivers of Section 11.11(a)
of the Commission's Rules (``Rules'') for the two above-
captioned cable television systems. 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. On April 2, 2002, Galaxy filed a request for temporary
waivers of Section 11.11(a) for 234 small rural cable systems
in 15 states. Galaxy requests waivers ranging from 18 months
to 36 months depending on the system size. In particular,
Galaxy requests 18-month temporary waivers for the two
captioned cable systems. Galaxy indicates that the Alma,
Missouri cable system serves approximately 6,814 subscribers,
and the Wilber, Nebraska cable system serves approximately
3,173 subscribers. In further support of its waiver request,
Galaxy states that it is currently operating under Chapter 11
bankruptcy pursuant to a Court-approved plan of
reorganization.9 Based on price quotes provided by EAS
equipment manufacturers, Galaxy estimates that it would cost
approximately $10,000 per headend, for a total of over $2.3
million to install EAS equipment at these systems. Galaxy
asserts that this cost will impose a substantial financial
hardship on it and provides its financial statements for 2000
and 2001 in support of this assertion. In addition, Galaxy
submits that its subscribers will continue to have ready
access to national EAS information from other sources,
including its cable systems. In this regard, Galaxy notes
that its subscribers currently have access to national EAS
messages from several sources, including from Galaxy's own
cable systems. Galaxy also asserts that its subscribers will
have access to EAS information through over-the-air reception
of broadcast television and radio stations. Finally, Galaxy
expects to be able to fund the EAS equipment and installation
for its largest system by April 2004, with the remainder of
its systems being brought into compliance on a phased-in
schedule by October 2005.
4. Based upon our review of the financial data and other
information submitted by Galaxy we conclude that a temporary,
18-month waiver of Section 11.11(a) for the two systems is
warranted.10 In particular, we find that the estimated $2.3
million cost of EAS equipment for these cable systems could
impose a financial hardship on Galaxy.
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.11 Based on comments from equipment
manufacturers, we anticipate that such a decoder-only system
could result in significant cost savings to small cable
systems.12
6. Accordingly, IT IS ORDERED that, pursuant to Sections
0.111, 0.204(b) and 0.311 of the Rules,13 Galaxy Telecom, L.P.
IS GRANTED a waiver of Section 11.11(a) of the Rules until
April 1, 2004 for the captioned cable systems.
7. IT IS FURTHER ORDERED that Galaxy Telecom, L.P. 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 Galaxy Telecom, L.P., 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 On October 31, 2001, Galaxy Telecom, L.P. and Galaxy Telecom
Capital Corp. filed for Chapter 11 bankruptcy with the United
States Bankruptcy Court, the Eastern District of Missouri.
10 The waivers will extend 18 months from October 1, 2002,
until April 1, 2004. Galaxy Telecom, L.P. also specifically
requested waiver of the testing and monitoring requirements of
the EAS rules for the two systems. We clarify that the waivers
we are granting also encompass the EAS testing and monitoring
requirements.
11 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).
12 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.
13 47 C.F.R. §§ 0.111, 0.204(b) and 0.311.