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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Fibervision, Inc. ) File No. EB-02-TS-292
)
Operator of Cable Systems in: )
)
Big Timber, Montana )
Columbus, Montana )
Fairchild, Washington )
Forsyth, Montana )
Hardin, Montana )
Laurel, Montana )
Missoula, Montana )
Park City, Montana )
Red Lodge, Montana )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: January 31, 2003 Released: February 5,
2003
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant Fibervision, Inc.
(``Fibervision'') temporary waivers of Section 11.11(a) of the
Commission's Rules (``Rules'') for the nine above-captioned
cable television systems. Specifically, we grant temporary,
12-month waivers of Section 11.11(a) of the Rules for three
cable systems and temporary, 36-month waivers of Section
11.11(a) of the Rules for six 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. Fibervision filed a request for permanent or temporary,
36-monthh waivers of Section 11.11(a) for the nine captioned
cable systems on July 9, 2002. In support of its waiver
requests, Fibervision states that these are small, rural cable
systems with the six systems in Big Timber, Columbus, Forsyth,
Hardin, Park City, and Red Lodge, Montana serving between 162
and 955 subscribers and the three systems in Laurel and
Missoula, Montana, and Fairchild, Washington serving between
1,387 and 1,760 subscribers. Based on price quotes provided by
EAS equipment manufacturers, Fibervision estimates that it
would cost more than $8,500 to install EAS equipment at each
of these systems for a total cost of approximately $94,500.
Fibervision asserts that this cost will impose a substantial
financial hardship on it and provides financial data for 2000
and 2001 in support of this assertion. Fibervision indicates
that subscribers will continue to have ready access to
national EAS information from other sources, including many of
the programmed channels carried over its cable system.
Fibervision further indicates that 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 Fibervision, we find that temporary,
36-month waivers of Section 11.11(a) are not warranted for
each of the nine captioned cable systems. However, we conclude
that temporary, 12-month waivers of Section 11.11(a) are
warranted for the Laurel and Missoula, Montana; and Fairchild,
Washington cable systems, and temporary, 36-month waivers of
Section 11.11(a) are warranted9 for the Big Timber, Columbus,
Forsyth, Hardin, Park City, and Red Lodge, Montana cable
systems. In particular, we find that the estimated $94,500
cost of EAS equipment for these small, cable systems could
impose a financial hardship on Fibervision.
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 Fibervision, Inc. IS
GRANTED waivers of Section 11.11(a) of the Rules until October
1, 2003 for three cable television systems in Laurel and
Missoula, Montana; and Fairchild, Washington and IS GRANTED
waivers of Section 11.11(a) of the Rules until October 1, 2005
for six cable television systems in Big Timber, Columbus,
Forsyth, Hardin, Park City, and Red Lodge, Montana.
7. IT IS FURTHER ORDERED that Fibervision, Inc. place a
copy of these waivers 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 Fibervision, Inc., Robert L. James, Esq., Cole, Raywid &
Braverman, 1919 Pennsylvania Avenue, 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 waivers will extend from October 1, 2002, until
October 1, 2003 and the 36-months waivers will extend from
October 1, 2002 until October 1, 2005. Additionally, 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.