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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Adelphia Communications Corporation ) File No. EB-02-TS-555
)
Operator of Cable Systems in the States of: )
)
Florida, Indiana, Kentucky, Massachusetts, )
New Hampshire, North Carolina, )
Ohio, Pennsylvania, Vermont, )
Virginia, and West Virginia )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: December 4, 2002 Released: December 5,
2002
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant Adelphia Communications
Corporation (``Adelphia'') temporary waivers to April 1, 2003
of Section 11.11(a) of the Commission's Rules (``Rules'') for
65 cable television systems in the 11 above-captioned states
and listed in Attachment A. Section 11.11(a) requires cable
systems serving fewer than 10,000 subscribers from a headend
to provide national level Emergency Alert System (``EAS'')
messages on all programmed channels by October 1, 2002, but
allows 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 September 24, 2002, Adelphia filed a request for
temporary, six-month waivers of Section 11.11(a) for 278 small
cable systems in 16 states. In support of the waiver request,
Adelphia states that the 278 cable systems each serve between
22 and 9,958 subscribers. Adelphia states that its normal
course of business was disrupted by events leading up to and
including its filing for Chapter 11 bankruptcy on June 25,
2002. Adelphia explains that the resignation and criminal
indictment of three of its senior executives, the resignation
of the majority of its Board of Directors, and the subsequent
investigation initiated by the Securities and Exchange
Commission precluded Adelphia from borrowing under its credit
facilities, precipitating a liquidity crisis which ultimately
resulted in its filing for bankruptcy. The bankruptcy filing
prevented Adelphia from pursuing its planned installation
schedule for EAS equipment. At the time of filing the request
for waiver, Adelphia had arranged for funding from its debtor
in possession for the purpose of meeting its EAS requirements.
It is now engaged in an aggressive program of procuring and
installing EAS equipment, but is unable, due primarily to
funding delays caused by the bankruptcy, to meet the October
1, 2002 deadline. Adelphia indicates that it expects to have
all of its systems in compliance with the EAS rules on or
before April 1, 2003. In addition, Adelphia submits that its
subscribers will continue to have ready access to national EAS
information from other sources, including its cable systems.
In this regard, Adelphia notes that all of its systems carry
local off-the-air programming that includes EAS messages.
Adelphia also asserts that its subscribers will have access to
EAS information through over-the-air reception of broadcast
television and radio stations. Finally, Adelphia offers to
file monthly progress reports on the status of its EAS
equipment installation efforts.
4. Between October 2, 2002 and November 11, 2002, Adelphia
submitted supplemental information showing that a total of 213
systems for which it had initially requested waivers have been
brought into compliance. With respect to the remaining 65
systems, Adelphia has committed to completing installation of
EAS equipment at a minimum of 33 cable systems by the end of
February 2003, and 32 cable systems by the end of March 2003.
Based upon our review of the information submitted by
Adelphia, we conclude that granting Adelphia temporary waivers
of Section 11.11(a) of the Rules will serve the public
interest by accommodating the objectives underlying the
bankruptcy laws.9 Additionally, we find that the aggressive
program of EAS equipment installation initiated by Adelphia
immediately upon receipt of funding from its debtor in
possession to be an appropriate and acceptable response to its
financial crisis. Accordingly, we grant Adelphia temporary
waivers of up to six months of Section 11.11(a) for the 65
remaining cable systems in Attachment A.10 As a condition of
these waivers, Adelphia must install EAS equipment pursuant to
the schedule set forth above. Adelphia must also file
progress reports with the Commission every thirty days until
completion of its installation program or until these
temporary waivers expire, whichever occurs first. The initial
report is due on January 1, 2003, with subsequent progress
reports due on the first business day of each successive month
during the waiver period. A final report is due on or before
April 1, 2003.
5. Accordingly, IT IS ORDERED that, pursuant to Sections
0.111, 0.204(b) and 0.311 of the Rules,11 Adelphia
Communications Corporation IS GRANTED temporary waivers of
Section 11.11(a) of the Rules as specified herein for the 65
cable television systems listed in Attachment A.
6. IT IS FURTHER ORDERED that Adelphia Communications
Corporation submit monthly progress reports on its EAS
equipment installation program with the Chief of the Technical
and Public Safety Division, Enforcement Bureau.
7. IT IS FURTHER ORDERED that Adelphia Communications
Corporation place a copy of this waiver in its systems files.
8. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to counsel
for Adelphia Communications Corporation, Stuart F. Feldstein,
Esq., Fleishman and Walsh, L. L. P., 1400 Sixteenth Street,
N.W., Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Technical and Public Safety
Division
Enforcement Bureau
Attachment A
Adelphia Communications Corporation
Cable Systems:
Florida
Archer, Florida
Citrus/Inverness, Florida
Dunnellon, Florida
Key Biscayne, Florida
Meadow Lakes MHP, Florida
Tampa, Florida
Trenton, Florida
West Palm Beach (Comcast), Florida
Indiana
Elizabeth, Indiana
Kentucky
Cloverport, Kentucky
Cromwell, Kentucky
Maloneton, Kentucky
Nelson, Kentucky
Sandy Hook, Kentucky
Massachusetts
Martha's Vineyard, Massachusetts
New Hampshire
Claremont, New Hamshire
Moultonborough, New Hamshire
North Carolina
Bailey, North Carolina
Elkin, North Carolina
Fountain, North Carolina
Halifax, North Carolina
Hollister, North Carolina
Lake Gaston, North Carolina
Laurinburg, North Carolina
Mid Lakes, North Carolina
Oak City, North Carolina
Pine Topps, North Carolina
Whitakers, North Carolina
Ohio
Amsterdam, Ohio
Ashley Corner, Ohio
Cadiz, Ohio
Compton Hills MHP, Ohio
Coshocton, Ohio
Crown City, Ohio
Eagles Lake MHP, Ohio
Eureka, Ohio
Freeport Twp., Ohio
Green Lawn MHP, Ohio
Hopedale, Ohio
Jewett, Ohio
Leesville, Ohio
Minerva, Ohio
Pedro, Ohio
Put-n-Bay, Ohio
Riverside, Ohio
Salineville, Ohio
Scio, Ohio
Sebring, Ohio
Pennsylvania
Cresson, Pennsylvania
Houtzdale OTN, Pennsylvania
Lewistown, Pennsylvania
Mt. Union, Pennsylvania
Philipsburg, Pennsylvania
Rochester, Pennsylvania
South Fork, Pennsylvania
Towanda, Pennsylvania
Vermont
Bennington, Vermont
Virginia
Culpeper, Virginia
Gordonsville, Virginia
Green Co, Virginia
Hot Spring, Virginia
Palmyra, Virginia
Troutville Hub #1 (Blue Ridge), Virginia
West Virginia
Apple Grove, West Virginia
Graysville, West Virginia
Sandyville, West Virginia
_________________________
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 The Commission has recognized that, under its public
interest mandate, it has an obligation to consider the national
policy underlying other federal laws, such as the bankruptcy
laws. See San Diego Television, Inc., Debtor-in-Possession, 11
FCC Rcd 14689, 14693 (1996); see also La Rose v. FCC, 494 F.2d
1145, 1146 n. 2 (D.C. Cir. 1974). As the Commission has noted,
the objectives underlying the bankruptcy laws are three-fold:
equality of distribution among creditors, a fresh start for
debtors, and the efficient and economical administration of
cases. Fox Television Stations, Inc., 8 FCC Rcd 5341, 5344-45,
recon. denied, 8 FCC Rcd 8744 (1993).
10 The waivers will extend up to six months, from October 1,
2002 until April 1, 2003. Adelphia also specifically requests
waiver of the testing and monitoring requirements of the EAS
rules for these systems. We clarify that the waivers we are
granting also encompass the EAS testing and monitoring
requirements.
11 47 C.F.R. §§ 0.111, 0.204(b) and 0.311.