*Pages 1--4 from Microsoft Word - 22097.doc* Federal Communications Commission DA 02- 2607 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Eagle West , LLC ) File No. EB- 02- TS- 422 ) Operator of Cable Systems in the States of: ) ) Arizona, New Mexico, Nevada ) ) ) Request for Waiver of Section 11. 11( a) of the ) Commission’s Rules ) ORDER Adopted: October 10, 2002 Released: October 16, 2002 By the Chief, Technical and Public Safety Division, Enforcement Bureau: 1. In this Order, we grant Eagle West, LLC (“ Eagle West”) temporary, 36- month waivers of Section 11.11( a) of the Commission’s Rules (“ Rules”) for 33 cable television systems in the three above- captioned states as listed in Attachment A. 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 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”). 1 Federal Communications Commission DA 02- 2607 2 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. Eagle West filed a request for a permanent waiver of Section 11.11( a) for 33 cable television systems in the three captioned states on August 14, 2002. Eagle West states that these cable systems serve between 23 and 2,738 subscribers. Eagle West asserts that the cost of EAS equipment will impose a substantial financial hardship on it and provides its financial statements for 1999 and 2000 in support of this assertion. In addition, Eagle West submits that its subscribers will continue to have ready access to national EAS information from other sources, including its cable systems. Eagle West 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 Eagle West, we conclude that temporary, 36- month waivers of Section 11.11( a) for the 33 cable systems in Attachment A are warranted 9 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 5 Id. at 15512- 13. 6 Id. at 15516- 15518. 7 Id. at 15513. 8 Id. at 15513, n. 59. 9 The waiver 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). 2 Federal Communications Commission DA 02- 2607 3 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 Eagle West, LLC. IS GRANTED a waiver of Section 11.11( a) of the Rules until October 1, 2005 for thirty- three cable television systems listed in Attachment A. 7. IT IS FURTHER ORDERED that Eagle West, LLC. 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 Al H. Williams, Consultant, Eagle West, LLC 9333 East Main Street Suite 122 Mesa, Arizona 85207.. FEDERAL COMMUNICATIONS COMMISSION Joseph P. Casey Chief, Technical and Public Safety Division Enforcement Bureau 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. 3 Federal Communications Commission DA 02- 2607 4 Attachment A Eagle West, LLC Cable Systems: Waivers: Arizonia Alpine, Arizona Granted Until October 1, 2005 Bagdad, Arizona Granted Until October 1, 2005 Black Canyon City, Arizona Granted Until October 1, 2005 Casa Grande, Arizona Granted Until October 1, 2005 Christopher Creek, Arizona Granted Until October 1, 2005 Concho Valley, Arizona Granted Until October 1, 2005 Eagar/ Springerville, Arizona Granted Until October 1, 2005 Florence, Arizona Granted Until October 1, 2005 St. Johns, Arizona Granted Until October 1, 2005 Thompson Draw, Arizona Granted Until October 1, 2005 Williams, Arizona Granted Until October 1, 2005 Yarnell, Arizona Granted Until October 1, 2005 Arizona City, Arizona Granted Until October 1, 2005 Cave Creek, Arizona Granted Until October 1, 2005 Hayden, Arizona Granted Until October 1, 2005 Winkelman, Arizona Granted Until October 1, 2005 Dudleyville, Arizona Granted Until October 1, 2005 Indian Hills, Arizona Granted Until October 1, 2005 Heber, Arizona Granted Until October 1, 2005 Overgaard, Arizona Granted Until October 1, 2005 Kearny, Arizona Granted Until October 1, 2005 Mammoth, Arizona Granted Until October 1, 2005 Oracle, Arizona Granted Until October 1, 2005 Peach Springs, Arizona Granted Until October 1, 2005 San Manuel, Arizona Granted Until October 1, 2005 Superior, Arizona Granted Until October 1, 2005 Nevada Beatty, Nevada Granted Until October 1, 2005 Boulder City, Nevada Granted Until October 1, 2005 Calville Bay, Nevada Granted Until October 1, 2005 Goldfield, Nevada Granted Until October 1, 2005 Tonopah, Nevada Granted Until October 1, 2005 New Mexico Reserve, New Mexico Granted Until October 1, 2005 4