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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Upper Peninsula Communications, Inc. ) File No. EB-02-TS-428
)
Operator of Cable Systems in: )
)
Mellen, Michigan )
Camey, Michigan )
Naubinway, Michigan )
Portage Township, Michigan )
Alpha, Michigan )
Amasa, Michigan )
Champion, Michigan )
Detour, Michigan )
Garden, Michigan )
Germfask, Michigan )
Marenisco, Michigan )
Michigamme, Michigan )
Nahma, Michigan )
Phelps, Wisconision )
Wolverine, Michigan )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: October 10, 2002 Released: October 16,
2002
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant Upper Peninsula
Communications, Inc., (``Upper Peninsula'') temporary waivers
of Section 11.11(a) of the Commission's Rules (``Rules'') for
the fifteen above-captioned cable television systems.
Specifically, we grant a 12-month waiver for the Mellen,
Michigan cable system and a 24-month waiver for the Camey,
Michigan; Naubinway, Michigan; and Portage Township, Michigan
cable systems, and a temporary, 36-month waiver for the Alpha,
Michigan; Amasa, Michigan; Champion, Michigan; Detour,
Michigan; Garden, Michigan; Germfask, Michigan; Marenisco,
Michigan; Michigamme, Michigan; Nahma, Michigan; Phelps,
Wisconsin; and Wolverine, Michigan cable 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. Upper Peninsula filed a request for temporary waivers
of Section 11.11(a) for the fifteen captioned cable systems on
August 20, 2002. In support of its waiver requests, Upper
Peninsula states that these fifteen small, rural cable systems
serve between 23 and 391 subscribers. The largest of the
fifteen systems, serves just 391 subscribers. Over half of
the systems serve fewer than 100 subscribers each. Based on
price quotes provided by EAS equipment manufacturers, Upper
Peninsula estimates that it would cost approximately $10,000
to install EAS equipment at each of these systems for a total
cost of $150,000. Upper Peninsula asserts that this cost will
impose a substantial financial hardship on it and provides its
financial statements for 1999 and 2000 in support of this
assertion. In addition, Upper Peninsula submits that its
subscribers will continue to have ready access to national EAS
information from other sources, including its cable systems.
In this regard, Upper Peninsula notes that its subscribers
currently have access to national EAS messages on at least
forty percent of all programmed channels. Upper Peninsula
also asserts that its subscribers will 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 Upper Peninsula, we conclude that a
temporary 12-month waiver of Section 11.11(a) for the Mellen,
Michigan cable system, and a temporary, 24-month waiver of
Section 11.11(a) for the Camey, Michigan; Naubinway, Michigan
and Portage Township, Michigan cable systems, and a temporary,
36 month waiver of Section 11.11(a) for each of the other
eleven captioned cable systems are warranted9 In particular,
we find that the $150,000 cost of EAS equipment for these
small cable systems could impose a financial hardship on Upper
Peninsula.
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 Upper Peninsula
Communications, Inc. IS GRANTED a waiver of Section 11.11(a)
of the Rules until October 1, 2003 for the cable television
system in Mellen, Michigan and IS GRANTED a waiver of Section
11.11(a) of the Rules until October 1, 2004 for the cable
television systems in Camey, Michigan; Naubinway, Michigan,
and Portage Township, Michigan and IS GRANTED a waiver of
Section 11.11(a) of the Rules until October 1, 2005 for the
cable television systems in Alpha, Michigan; Amasa, Michigan;
Champion, Michigan; Detour, Michigan; Garden, Michigan;
Germfask, Michigan; Marenisco, Michigan; Michigamme, Michigan;
Nahma, Michigan; Phelps, Wisconsin and Wolverine, Michigan.
7. IT IS FURTHER ORDERED that Upper Peninsula
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 Upper Peninsula 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 12-month waiver will extend from October 1, 2002, until
October 1, 2003, and the 24-month waiver will extend from October
1, 2002 until October 1, 2004, and the 36-month waiver will
extend from October 1, 2002, until October 1, 2005.
Additionally, 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.