*Pages 1--5 from Microsoft Word - 29296* Federal Communications Commission DA 03- 2247 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 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 1 Federal Communications Commission DA 03- 2247 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. 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. 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. 2 Federal Communications Commission DA 03- 2247 3 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 10 47 C. F. R. §§ 0.111, 0. 204( b) and 0.311. 3 Federal Communications Commission DA 03- 2247 4 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 4 Federal Communications Commission DA 03- 2247 5 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 5