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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Blue Mountain TV Cable Co. ) File No. EB-02-TS-512
)
Operator of Cable Systems in: )
)
Dayville, Oregon )
John Day, Oregon )
Prairie City, Oregon )
Seneca, Oregon )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: May 9, 2003 Released: May 15, 2003
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant Blue Mountain TV Cable Co.
(``Blue Mountain'') temporary waivers of Section 11.11(a) of
the Commission's Rules (``Rules'') for the four above-
captioned cable television systems. Specifically, we grant a
temporary, 12-month waiver for one cable system, and
temporary, 36-month waivers for three 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. Blue Mountain filed a request for temporary, 36-month
waivers of Section 11.11(a) for the four captioned cable
systems on September 9, 2002. In support of its waiver
requests, Blue Mountain states that these four small, rural
cable systems have few subscribers. Blue Mountain notes that
the Dayville and Seneca, Oregon systems serve between 32 and
35 subscribers, the Prairie City, Oregon system serves 295
subscribers, and the John Day, Oregon system serves 1,081
subscribers. Based on price quotes provided by EAS equipment
manufacturers, Blue Mountain estimates that it would cost
approximately $36,150 to install EAS equipment at these
systems. Blue Mountain 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, Blue Mountain submits that its
subscribers will continue to have ready access to national EAS
information from other sources, including its cable systems.
Blue Mountain 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 Blue Mountain, we conclude that a
temporary, 36-month waiver of Section 11.11(a) for three of
the captioned cable systems is warranted. However, we find
that a temporary, 36-month waiver of Section 11.11(a) is not
warranted for the John Day cable system. Therefore, we
conclude that a temporary, 12-month waiver of Section 11.11(a)
for this cable system is warranted.9 In particular, we find
that the $36,150 cost of EAS equipment for these small cable
systems could impose a financial hardship on Blue Mountain.
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 Blue Mountain TV
Cable Co. IS GRANTED a waiver of Section 11.11(a) of the Rules
until October 1, 2003 for the John Day, Oregon cable
television system and IS GRANTED a waiver of Section 11.11(a)
of the Rules until October 1, 2005 for the Dayville, Oregon,
Prairie City, Oregon and Seneca, Oregon cable television
systems.
7. IT IS FURTHER ORDERED that Blue Mountain TV Cable Co.
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 Blue Mountain TV Cable Co., Robert L. James, Esq., Cole,
Raywid & Braverman, LLP, 1919 Pennsylvania Avenue, N.W., Suite
200, Washington, D.C. 20006.
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 36-month waivers 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.