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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Nucentrix Broadband Networks, Inc. ) File No. EB-02-TS-628
)
Operator of Cable Systems in the States of: )
)
Arkansas, Kansas, Illinois, Missouri,)
Oklahoma, and Texas )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: July 9, 2003 Released: July 14, 2003
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant Nucentrix Broadband Networks,
Inc. (``Nucentrix'') temporary, 36-month waivers of Section
11.11(a) of the Commission's Rules (``Rules'') for 55 cable
television systems in the six above-captioned states. 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 September 26, 2002, Nucentrix filed a request for
temporary, 36 month waivers of Section 11.11(a) for 55
small, rural wireless cable television systems operating in
the six captioned states. In support of its waiver request,
Nucentrix states that these wireless cable systems serve
between 53 and 3,997 subscribers. Nucentrix further states
that it believes that there are competing cable service
providers in each one of its 55 markets and it plans to cease
video service operation once its subscribers have been given
an opportunity to switch to another video provider. Based on
price quotes provided by EAS equipment manufacturers,
Nucentrix estimates that it would cost a total of $250,000 to
install EAS equipment at these systems. Nucentrix asserts
that the cost of installing EAS equipment at these systems
will impose a substantial financial hardship on it and
provides financial statements for 1999, 2000 and 2001 in
support of this assertion. In addition, Nucentrix submits
that its subscribers will continue to have ready access to
national EAS information from other sources, including its
cable systems. Nucentrix also asserts that its subscribers
will have access to EAS information through over-the-air
reception of broadcast television and radio stations and other
sources. Finally, Nucentrix believes that it can complete the
conversion of its subscribers to other video providers and
cease operations within the next 36 months.
4. Based upon our review of the financial data and other
information submitted by Nucentrix, we conclude that
temporary, 36-month waivers of Section 11.11(a) for the 55
cable television systems are warranted.9 In particular, we
find that the estimated $250,000 cost of EAS equipment for
these cable systems could impose a financial hardship on
Nucentrix.
5. Accordingly, IT IS ORDERED that, pursuant to Sections
0.111, 0.204(b) and 0.311 of the Rules,10 Nucentrix Broadband
Network, Inc. IS GRANTED a waiver of Section 11.11(a) of the
Rules until October 1, 2005 for the 55 cable television
systems listed in Attachment A.
6. IT IS FURTHER ORDERED that Nucentrix Broadband
Networks, Inc. place a copy of these waivers in its system
files.
7. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to counsel
for Nucentrix Broadband Network, Inc., Peter D. Shields, Esq.,
Wiley Rein & Fielding LLP, 1776 K Street, N.W., Washington, DC
20006.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Technical and Public Safety
Division
Enforcement Bureau
Attachment A
Nucentrix Broadband Networks, Inc.
Cable Systems: Temporary Waiver Granted
Until:
Arkansas
Paragould, Arkansas October 1, 2005
Kansas
Beloit, Kansas October 1, 2005
Chanute, Kansas October 1, 2005
Sterling, Kansas October 1, 2005
Manhattan, Kansas October 1, 2005
Marion, Kansas October 1, 2005
Medicine Lodge/Anthony, Kansas October 1, 2005
Illinois
Champaign, Illinois October 1, 2005
Freeport, Illinois October 1, 2005
Jacksonville, Illinois October 1, 2005
Macomb, Illinois October 1, 2005
McLeansboro, Illinois October 1, 2005
Olney, Illinois October 1, 2005
Peoria, Illinois October 1, 2005
Taylorville, Illinois October 1, 2005
Vandalia, Illinois October 1, 2005
Missouri
Monroe City, Missouri October 1, 2005
Montgomery City, Missouri October 1, 2005
Sikeston, Missouri October 1, 2005
Oklahoma
Ada, Oklahoma October 1, 2005
Ardmore, Oklahoma October 1, 2005
Enid, Oklahoma October 1, 2005
Lawton, Oklahoma October 1, 2005
Lindsay, Oklahoma October 1, 2005
McAlester, Oklahoma October 1, 2005
Muskogee, Oklahoma October 1, 2005
Stillwater, Oklahoma October 1, 2005
Tulsa, Oklahoma October 1, 2005
Watonga, Oklahoma October 1, 2005
Weatherford, Oklahoma October 1, 2005
Woodward, Oklahoma October 1, 2005
Cable Systems: Temporary Waiver Granted
Until:
Texas
Abilene, Texas October 1, 2005
Austin, Texas October 1, 2005
Corpus Christi, Texas October 1, 2005
Corsicana, Texas October 1, 2005
Gainesville, Texas October 1, 2005
George West, Texas October 1, 2005
Hamilton, Texas October 1, 2005
Jourdanton, Texas October 1, 2005
Kerrville, Texas October 1, 2005
Kingsville, Texas October 1, 2005
Laredo, Texas October 1, 2005
Lubbock, Texas October 1, 2005
Midland/Odessa, Texas October 1, 2005
Mt. Pleasant, Texas October 1, 2005
O'Donnell, Texas October 1, 2005
Olton, Texas October 1, 2005
Paris, Texas October 1, 2005
Ranger, Texas October 1, 2005
Sherman/Denison, Texas October 1, 2005
Temple, Texas October 1, 2005
Texarkana, Texas October 1, 2005
Uvalde, Texas October 1, 2005
Waco, Texas October 1, 2005
Wichita Falls, Texas 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 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 47 C.F.R. §§ 0.111, 0.204(b) and 0.311.