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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
South Dakota Network, LLC ) File No. EB-02-TS-271
Santel Communications Corporation )
Sioux Valley Telephone, Inc. )
Splitrock Telecom Cooperative, Inc. )
Sully Buttes Telephone Cooperative, Inc. )
Valley Telecommunications Cooperative)
Association d/b/a Valley Cable & Satellite )
Communications )
)
Operators of Cable Systems in the States of: )
)
Iowa, Minnesota and South Dakota)
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: April 16, 2003 Released: April 21, 2003
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant South Dakota Network, LLC and
five of its owners, Santel Communications Corporation, Sioux
Valley Telephone, Inc., Splitrock Telecom Cooperative, Inc.,
Sully Buttes Telephone Cooperative, Inc., and Valley
Telecommunications Cooperative Association d/b/a Valley Cable
& Satellite Communications, (``Joint Petitioners'') temporary
waivers of Section 11.11(a) of the Commission's Rules
(``Rules'') for 22 small cable television systems in the three
above-captioned states. Specifically, we grant the Joint
Petitioners a temporary, 12-month waiver of Section 11.11(a)
of the Rules for one cable television system and a temporary,
26-month waivers of Section 11.11(a) of the Rules for 21 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 June 24, 2002, the Joint Petitioners filed a request
for temporary waivers of Section 11.11(a) until December 31,
2004 for 22 small, rural cable systems in the three captioned
states. In support of this request, the Joint Petitioners
state that 21 systems serve between 42 and 1,073 subscribers
with the largest system serving 2,500 subscribers. Based on
price quotes provided by EAS equipment manufacturers, the
Joint Petitioners estimate that it would cost between $8,000
and $10,000 to install EAS equipment at each of the 22 cable
systems for a total cost of approximately $208,000. The Joint
Petitioners assert that this cost will impose an unnecessary
financial hardship for the systems and provide financial
statements for 2000 and 2001 in support of this assertion. In
addition, the Joint Petitioners submit that its subscribers
will continue to have ready access to national EAS information
from other sources, including its cable systems. The Joint
Petitioners also submit that its subscribers will have access
to EAS information through over-the-air reception of broadcast
television and radio stations. Finally, the Joint Petitioners
submit plans to begin interconnecting the 22 cable systems to
a newly constructed common headend in Sioux Falls, South
Dakota. The Joint Petitioners believe that interconnection
can be completed by December 31, 2004.
4. Based upon our review of the financial data and other
information submitted by the Joint Petitioners, we conclude
that a temporary, 12-month waiver of Section 11.11(a) is
warranted for the largest cable system and temporary, 36-month
waivers of Section 11.11(a) are warranted9 for the remaining
21 cable systems. In particular, we find that the estimated
$208,000 cost to install EAS equipment at these cable systems
could impose an unnecessary financial hardship on the Joint
Petitioners.
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 On July 23, 2002, The Commission granted and
equipment authorization for a decoder-only unit.12
6. Accordingly, IT IS ORDERED that, pursuant to Sections
0.111, 0.204(b) and 0.311 of the Rules,13 the Joint
Petitioners ARE GRANTED a waiver of Section 11.11(a) of the
Rules until October 1, 2003 for one cable television system in
Brandon, South Dakota and ARE GRANTED a waiver of Section
11.11(a) of the Rules until December 31, 2004 for 21 cable
television systems in the states of Iowa, Minnesota and South
Dakota, as listed in Attachment A.
7. IT IS FURTHER ORDERED that the Joint Petitioners 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 the Joint Petitioners, Gerard J. Duffy, Esq., Blooston,
Mordkofsky, Dickens, Duffy & Prendergast, 2120 L Street, N.W.,
Suite 300, Washington, D.C. 20037.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Technical and Public Safety
Division
Enforcement Bureau
Attachment A
South Dakota Network, LLC
Cable Systems: Waivers:
Splitrock Telecom Cooperative, Inc.
Brandon, South Dakota Granted Until
October 1, 2003
Howard, South Dakota Granted Until
December 31, 2004
Santel Communications Corporation
Woonsocket, South Dakota Granted Until December
31, 2004
Mt. Vernon, South Dakota Granted Until December
31, 2004
Ethan, South Dakota Granted Until December
31, 2004
Sioux Valley Telephone, Inc.
Dell Rapids, South Dakota Granted Until
December 31, 2004
Plankinton, South Dakota Granted Until
December 31, 2004
Corsica, South Dakota Granted Until
December 31, 2004
Valley Springs, South Dakota Granted Until
December 31, 2004
Montrose, South Dakota Granted Until
December 31, 2004
Hills, Minnesota Granted Until December
31, 2004
Larchwood, Iowa Granted Until December
31, 2004
Inwood, Iowa Granted Until December
31, 2004
Sully Buttes Telephone Cooperative, Inc.
Highmore South Dakota Granted Until December
31, 2004
Wessington Springs, South Dakota Granted Until
December 31, 2004
Langford, South Dakota Granted Until
December 31, 2004
Valley Telecommunications Cooperative Association
d/b/a Valley Cable & Satellite Communications
Eureka, South Dakota Granted Until
December 31, 2004
Glenham, South Dakota Granted Until
December 31, 2004
Herried, South Dakota Granted Until
December 31, 2004
Hosmer, South Dakota Granted Until
December 31, 2004
Leola, South Dakota Granted Until December
31, 2003
Pollock, South Dakota Granted Until
December 31, 2004
_________________________
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 26-month waiver will extend from October
1, 2002, until December 31, 2004. 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 See Public Notice, Notice Regarding FCC Certification of
EAS Decoder, DA 02-2312 (released September 19, 2002).
13 47 C.F.R. §§ 0.111, 0.204(b) and 0.311.