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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Wireless Direct Broadcast System) File No. EB-02-TS-684
)
Operator of Wireless Cable System in:)
)
Bisbee, Arizona )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: August 19, 2003 Released: August 21,
2003
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we grant Wireless Direct Broadcast
system (``WDBS'') a temporary waiver of Section 11.11(a) of
the Commission's Rules (``Rules'') for the above-captioned
wireless cable television system. Section 11.11(a) requires
wireless cable systems serving fewer than 5,000 subscribers
from a single transmission site 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 extend the EAS requirements to
wireless cable systems and 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. WDBS filed a request for a temporary, 48-month waiver
of Section 11.11(a) for the captioned wireless cable system on
October 30, 2002. In support of its waiver request, WDBS
states that this small, rural wireless cable system serves 935
subscribers. Based on price quotes provided by EAS equipment
vendors, WDBS estimates that it would cost approximately
$10,000 to purchase and install EAS equipment at this system.
WDBS asserts that this cost will impose a substantial
financial hardship on it and provides its financial statement
for 2001 in support of this assertion. In addition, WDBS
submits that its subscribers will continue to have ready
access to national EAS information from other sources
including its cable system. WDBS also submits 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 WDBS, we deny WDBS a 48-month waiver
of Section 11.11(a) but conclude that a temporary waiver for
the captioned wireless cable system from October 30, 2002
until October 1, 2005 is warranted.9 However, we note that
WDBS did not file its waiver request until October 30, 2002,
after the October 1, 2002 deadline for cable systems serving
10,000 or fewer subscribers to install EAS equipment. We find
that WDBS was in violation of the requirement in Section
11.11(a) of the Rules to install EAS equipment by October 1,
2002. We admonish WDBS for this violation.
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 Wireless Direct
Broadcast System IS GRANTED a waiver of Section 11.11(a) of
the Rules from October 30, 2002 until October 1, 2005 for the
captioned wireless cable television system.
7. IT IS FURTHER ORDERED that Wireless Direct Broadcast
System IS ADMONISHED for violating the requirement in
Section 11.11(a) of the Rules to install EAS equipment by
October 1, 2002.
8. IT IS FURTHER ORDERED that Wireless Direct Broadcast
System place a copy of this waiver in its system file.
9. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to counsel
for Wireless Direct Broadcast System, Suzanne S. Goodwyn,
Esq., 1661 Hunting Creek Drive, Alexandria, Virginia 22314.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement 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 We clarify that the waiver we are granting also encompasses
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.