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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Diode Cable Company ) File No. EB-02-TS-141
)
Operator of Cable Systems in: )
)
Alexandria, Nebraska )
Diller, Nebraska )
Hardy, Nebraska )
Home, Nebraska )
Jansen, Nebraska )
Morrowville, Kansas )
Oketo, Kansas )
Republic, Kansas )
Ruskin, Nebraska )
Virginia, Nebraska )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: June 18, 2002 Released: June 21, 2002
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant Diode Cable Company (``Diode
Cable) a temporary, 36-month waiver for each of the ten above-
captioned cable television systems of Section 11.11(a) of the
Commission's Rules (``Rules''). 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. Diode Cable filed a request for temporary waiver of
Section 11.11(a) for each of the ten captioned cable systems
on April 10, 2002. In support of its waiver request, Diode
Cable states that each of the ten systems serves small, rural
communities and has few subscribers. Specifically, Diode
Cable indicates that the ten systems altogether serve only
about 482 basic subscribers, with nine of the systems serving
50 or fewer subscribers. Based on price quotes provided by
EAS equipment manufacturers, Diode Cable estimates that it
would cost approximately $5,796 - $6,916 to install EAS
equipment at each of these systems for a total cost of over
$63,000. Diode Cable asserts that this cost will impose a
substantial financial hardship on it and provides its
financial statements for 2001 in support of this assertion.
In addition, Diode Cable submits that its subscribers will
continue to have ready access to national EAS information from
other sources, including its cable systems. In this regard,
Diode Cable notes that its subscribers currently have access
to national EAS messages on between 50 and 100 percent of
their programmed channels. Diode Cable also asserts that its
subscribers will have access to EAS information through over-
the-air reception of broadcast television and radio stations.
Finally, Diode Cable believes that it can fund EAS equipment
for the ten systems in the next three years.
4. Based upon our review of the financial data and other
information submitted by Diode Cable, we conclude that
temporary, 36-month waivers of Section 11.11(a) for these ten
systems are warranted.9 In particular, we find that the
estimated $63,000 cost of EAS equipment for these very small
cable systems could impose a financial hardship on Diode
Cable.
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 Diode Cable Company,
IS GRANTED a waiver of Section 11.11(a) of the Rules until
October 1, 2005 for each of the ten captioned cable systems.
7. IT IS FURTHER ORDERED that Diode Cable Company 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 Diode Cable Company, Christopher C. Cinnamon, Esq.,
Cinnamon Mueller, 307 North Michigan Avenue, Suite 1020,
Chicago, Illinois 60601.
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 waivers will extend 36 months from October 1, 2002,
until October 1, 2005. Diode also specifically requested waiver
of the testing and monitoring requirements of the EAS rules for
the ten systems. 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.