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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Midcontinent Communications )
) File No. EB-02-TS-416
Operator of Cable Systems in the States of: )
)
Minnesota, North Dakota and South Dakota )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: November 12, 2002 Released: November 26,
2002
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant Midcontinent Communications
(``Midcontinent'') temporary waivers of Section 11.11(a) of
the Commission's Rules (``Rules'') for 12 cable television
systems in the above-captioned state. Specifically, we grant
12-month waivers of Section 11.11(a) for two cable systems
listed in Attachment A and 36-month waivers of Section
11.11(a) for ten cable systems listed in Attachment A.
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 August 12, 2002, Midcontinent filed a request for
temporary, 36-month waivers of Section 11.11(a) for 12 cable
systems in the States of Minnesota, North Carolina and South
Carolina. In support of its waiver request, Midcontinent
states that these are small, rural cable systems serving
between 28 and 1,240 subscribers. Based on price quotes
provided by an EAS equipment manufacturer, Midcontinent
estimates that it would cost approximately $92,738 to
interconnect and install EAS equipment at these systems.
Midcontinent asserts that this cost will impose a substantial
financial hardship on it and provides its 2001 financial
statement in support of this assertion. In addition,
Midcontinent submits that its subscribers will continue to
have ready access to national EAS information from other
sources, including its cable systems. In this regard,
Midcontinent notes that its subscribers currently have access
to national EAS messages on at least one-sixth of all
programmed channels. Midcontinent 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 Midcontinent, we conclude that
temporary, 12-month waivers of Section 11.11(a) are warranted
for the largest two cable systems in Attachment A and
temporary, 36-month waivers of Section 11.11(a) are warranted
for the smaller 10 cable systems in Attachment A.9 In
particular, we find that the estimated $92,738 cost of
interconnection and EAS equipment for these small cable
systems could impose a financial hardship on Midcontinent.
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 Midcontinent
Communications IS GRANTED a waiver of Section 11.11(a) of the
Rules until October 1, 2003 for two cable television systems
in Attachment A and IS GRANTED a waiver of Section 11.11(a) of
the Rules until October 1, 2005 for 10 cable television
systems in Attachment A.
7. IT IS FURTHER ORDERED that Midcontinent Communications
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 counsel for
Midcontinent Communications, J. Christopher Redding, Esq.,
Dow, Lohnes & Albertson, PLLC, 1200 New Hampshire Avenue,
N.W., Suite 800, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Technical and Public Safety
Division
Enforcement Bureau
Attachment A
Cable Systems: Temporary Waiver Granted
Until:
Ortonville, Minnesota October 1, 2003
Casselton, North Dakota October 1, 2003
Cooperstown, North Dakota October 1, 2005
Hankinson, North Dakota October 1, 2005
Manvel, North Dakota October 1, 2005
Mayville, North Dakota October 1, 2005
Minto, North Dakota October 1, 2005
Ashton, South Dakota October 1, 2005
Colton, South Dakota October 1, 2005
Humboldt, South Dakota October 1, 2005
Milbank, South Dakota October 1, 2005
Prairiwood Development/Aberdeen, South Dakota October 1, 2005
_________________________
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 waivers will extend from October 1, 2002, until
October 1, 2003, and the 36-month waivers will extend from
October 1, 2002, until October 1, 2005. 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.