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Emergency Alert System Waiver Order

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Released: July 15, 2013

Federal Communications Commission

DA 13-1575

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Review of the Emergency Alert System;
)
)

EB Docket No. 04-296
Independent Spanish Broadcasters Association,
)
the Office of Communication of the United
)
Church of Christ, Inc., and the Minority Media
)
and Telecommunications Council, Petition for
)
Immediate Relief;
)
)

Randy Gehman Petition for Rulemaking
)

ORDER

Adopted: July 15, 2013

Released: July 15, 2013

By the Chief, Public Safety and Homeland Security Bureau:

I.

Introduction

1.
In this Order we address the petitions for waiver of Section 11.56 of the Commission's
rules,1 filed by Southern Communications Volunteers, Inc. (SCV), Applegate Media, Inc. (Applegate),
Telecommunications Management, LLC and Avenue Broadband Communications, Inc., (New Wave),
Lakeview Cable, Inc. (Lakeview), RB3, LLC and Arklaoktex, LLC, d/b/a Reach Broadband (Reach),2
(collectively, the Petitioners).3 Section 11.56 requires Emergency Alert System (EAS) Participants to
have installed operational equipment that can receive and process EAS alerts in the Common Alerting
Protocol (CAP) by June 30, 2012.4 For the reasons set out herein, we deny these petitions.

1 47 C.F.R. 11.56.
2 New Wave, Lakeview and Reach each filed requests for waivers of the Commission's June 30, 2012 CAP deadline
on behalf of multiple cable systems, each of which stated separate bases for the requests. Thus, we are able to
separate those requests for waiver that are based solely on vendor delay. Accordingly, this order resolves:

New Wave's request for waiver of the June 30, 2012 deadline on the basis of vendor delay for its Ashdown,
Arizona; Brazil and Clinton, Indiana; and Westville and Coatesville, Illinois systems;

Lakeview's request for waiver of the June 30, 2012 deadline on the basis of vendor delay for its
Cache/Indiahoma, Oklahoma system; and

Reach's request for waiver of the June 30, 2012 deadline on the basis of vendor delay for its Eufala, Hondo, and
Kenedy, systems.
This Order does not address any other requests for waiver of the June 30, 2012 deadline contained in the filings of
New Wave, Lakeview and Reach.
3 See Request for Waiver, EB Docket No. 04-296 (filed July 2, 2012) (SCV Petition); Request for Waiver, EB
Docket No. 04-296 (filed June 29, 2012) (New Wave Petition); Request for Waiver, EB Docket No. 04-296 (filed
June 29, 2012) (Lakeview Petition); Request for Waiver, EB Docket No. 04-296 (filed June 28, 2012) (Reach
Petition); Letter, Lindsey Riggs to FCC, EB Docket No. 04-296 (filed June 28, 2012) (Applegate Petition).
4 The EAS is a hierarchical alert message distribution system that delivers alerts initiated by federal, state and local
alerting authorities utilizing the transmission facilities of radio and television broadcast stations, cable operators,

Federal Communications Commission DA 13-1575

II.

Background

2.
In its 2007 EAS Second Report and Order, the Commission, among other things,
mandated that EAS Participants be able to receive a CAP-formatted EAS alert message issued by the
Federal Emergency Management Agency (FEMA) no later than 180 days after FEMA adopted technical
standards for CAP.5 On September 30, 2010, FEMA published the technical standards and requirements
for CAP-formatted EAS alerts, triggering the 180-day clock for EAS Participants to be able to receive
CAP-formatted alerts.6 On November 18, 2010, the Commission adopted the Waiver Order, which
extended the 180-day deadline for EAS Participants to meet the CAP-related obligations it adopted in the
Second Report and Order until September 30, 2011.7 Finally, on September 16, 2011 the Commission
extended the deadline a final time, amending section 11.56 of the Commission's EAS rules to require
EAS Participants to be able to receive CAP-formatted EAS alerts as required by Part 11 no later than June
30, 2012.8
3.
SCV, New Wave, Lakeview, Reach, and Applegate filed petitions seeking temporary
waiver of section 11.56 on the basis that they could not meet the June 30, 2012 deadline due to vendor
delay.9

III.

Discussion

4.
The Commission has authority to waive its rules if there is "good cause" to do so.10 The
Commission generally finds such good cause where special circumstances warrant a deviation from the

satellite radio and television service providers, and wireline video service providers, collectively referred to as "EAS
Participants." See 47 C.F.R. 11.2(c). CAP is an open, interoperable XML-based standard that allows an alert
initiator to deliver information-rich alerts to multiple devices. See Review of the Emergency Alert System;
Independent Spanish Broadcasters Association, the Office of Communication of the United Church of Christ, Inc.,
and the Minority Media and Telecommunications Council, Petition for Immediate Relief; Randy Gehman Petition
for Rulemaking, EB Docket 04-296, Fifth Report and Order, 27 FCC Rcd 642, 648 10 (2012) (Fifth Report and
Order
).
5 See Review of the Emergency Alert System; Independent Spanish Broadcasters Association, The Office of
Communication of the United Church of Christ, Inc., and the Minority Media and Telecommunications Council,
Petition for Immediate Relief, ET Docket No. 04-296, Second Report and Order and Further Notice of Proposed
Rulemaking
, 22 FCC Rcd 13275 26 (2007) (EAS Second Report and Order).
6 See Review of the Emergency Alert System; Independent Spanish Broadcasters Association, the Office of
Communication of the United Church of Christ, Inc., and the Minority Media and Telecommunications Council,
Petition for Immediate Relief; Randy Gehman Petition for Rulemaking, EB Docket 04-296, Fourth Report and
Order
, 26 FCC Rcd 13710, 13713 4 (2011) (EAS Fourth Report and Order).
7 See Review of the Emergency Alert System, Order, EB Docket No. 04-296, 25 FCC Rcd 16376 1 (2010) (Waiver
Order
).
8 See Fourth Report and Order, 26 FCC Rcd at 13711-12 1 (2011).
9 See SCV Petition at 1, New Wave Petition at 3, Lakeview Petition at 1, Reach Petition at 2, Applegate Petition at
1.
10 47 C.F.R. 1.3. See Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990).
2

Federal Communications Commission DA 13-1575

general rule, and such deviation will serve the public interest.11 The waiver applicant faces a high hurdle
and must plead with particularity the facts and circumstances that warrant a waiver.12
5.
We find that the Petitioners have failed the first prong of the Commission's waiver
analysis. Vendor delay alone does not ordinarily constitute the "special circumstances" that would justify
a waiver.13 In order to constitute "special circumstances" justifying a waiver, the delay must have arisen
from some event or events that occurred despite Petitioner's diligent business operations, and not as a
result of Petitioner's actions.14
6.
The SCV, New Wave, Lakeview, and Reach waiver requests, however, show that they
chose to wait until very close to the deadline to order equipment, and thus any delay in receiving
equipment was entirely attributable to each company's business decisions. SCV states that it did not
order the equipment until May 24, 2012 because it had a long-standing relationship with its equipment
vendor who normally "delivered the ordered equipment within a matter of days each time SCV
ordered."15 SCV also says it only ordered the equipment after its fund drive ended, which provided the
money necessary to purchase the equipment.16 New Wave stated that it contacted its vendor in April,
2012, and was told the equipment was on back order and would not be delivered in time to meet the June
30, 2012 deadline.17 According to New Wave, it attempted unsuccessfully to obtain the required

11 Northeast Cellular, 897 F.2d at 1166 (citing WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir.1969), aff'd, 459
F.2d 1203 (1973), cert. denied, 409 U.S. 1027 (1972)).
12 WAIT Radio, supra, 418 F.2d at 1157.
13 See, e.g., Wendell & Associates Request to Waive the Period to Construct Unbuilt Station WKNJ (AM)
Harriman, New York, File No. BMAP-200001023ACF, Memorandum Opinion and Order, 17 FCC Rcd 18576,
18578 7 (2002) ("vendor problems, whatever their cause, are ordinary risks for which businesses should prudently
plan, and would not generally form the basis for a waiver"). See also Application for Review of Specialized Mobile
Radio Station WZZ545, licensed to Motek Engineering San Jose, California, Memorandum Opinion and Order, 98
F.C.C.2d 323 4, 10 (1984) ("delays in the manufacture or shipment of equipment provide no basis for an
extension ...The nature of [the licensee's] relationship with its supplier is the result of [its] independent business
judgment and may not be used to absolve [it] or any other licensee from the ... requirements [of] our rules.");
Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
Docket No. 94-102, Order, 16 FCC Rcd 18330, 18354 Statement of Commissioner Michael Copps (2001) ("waivers
will not be granted merely ... because of delays by a vendor").
14 See, e.g. Winnebago Cooperative Telephone Association, File No. EB-02-TS-663, Order, 18 FCC Rcd 14332,
14333 4 (EB 2003) (Winnebago) (Commission grants waiver where petitioner ordered equipment but after
installing it, "found certain components of the EAS system missing [and] its vendor's delivery of the missing
components has been delayed."); D&P Cable, Inc., File No. EB-02-TS-673, Order, 18 FCC Rcd 14336, 14337 3
(EB 2003) (D&P Cable) (Commission grants waiver where petitioner installed the equipment and "once installed
[found that the] equipment did not work properly ... and submits that although its vendor promised prompt delivery
of replacement EAS equipment, there has been a delay").
15 See Letter, Marjorie Conner, Counsel to Southern Communications Volunteers, Inc., to Thomas Beers, Chief,
Policy and Licensing Division, Public Safety and Homeland Security Bureau, Federal Communications Commission
(dated Aug. 24, 2012) (SCV Letter), at 1.
16 Id. at 2.
17 See Letter, James N. Moskowitz, Counsel to Telecommunications Management, LLC and Avenue Broadband
Communications, Inc., to Thomas Beers, Chief, Policy and Licensing Division, Public Safety and Homeland
Security Bureau, Federal Communications Commission (dated September 5, 2012) (New Wave Letter), at 2, 3.
3

Federal Communications Commission DA 13-1575

equipment from other vendors, finally ordering the equipment from its initial vendor in June, 2012.18
Lakeview states that it first attempted to order its equipment in late May, 2012, and was told that the
equipment would not be delivered until 6 to 8 weeks after the June 30, 2012 deadline.19 Reach states that
it first attempted to order its equipment from the manufacturer in "spring, 2012," and was told to order the
equipment form the National Cable Television Cooperative, which Reach did on June 25, 2012.20 None
of these explanations show the kind of exogenous circumstances necessary to a showing of special
circumstances. Applegate has also failed to make a showing of special circumstances in its waiver
request because, despite a request for further information from the Commission, Applegate has not
provided an explanation as to why it waited until May 7, 2012 to order CAP-compliant EAS equipment.21
Thus, in each of the petitions we consider today, the Petitioners have failed to show the special
circumstances necessary to justify a deviation from section 11.56 of the Commission's rules.
7.
Moreover, we find that the lack of due diligence shown by the Petitioners to obtain the
required equipment in a timely fashion is inconsistent with the public interest and thus offers no
justification for the requested waiver. The Commission implemented the June 30 deadline for CAP
compliance in order to ensure that "Next Generation EAS" would be transmitted in an efficient, rapid, and
secure manner over a variety of formats.22 The Commission acknowledged EAS Participant concerns
with the potential difficulties associated with the introduction of a new technology such as CAP, and
provided EAS Participants with a series of compliance windows, the final one of which exceeded nine
months.23 Despite this, SCV did not order its equipment until May 24, 2012,24 New Wave did not order
its equipment until June, 2012,25 Lakeview did not order its equipment until late May, 2012,26 Reach did
not attempt to order its equipment until late spring 2012 at the earliest,27 and Applegate did not order its
CAP-compliant equipment until May 7, 2012,28 As we discuss in paragraph 6 above, this delay, to the
extent it was explained, was not attributable to circumstances beyond the Petitioner's business choice, and
so does not provide justification for rule waiver.

18 Id.
19 See Letter, James N. Moskowitz, Counsel to Lakeview Cable, Inc., to Thomas Beers, Chief, Policy and Licensing
Division, Public Safety and Homeland Security Bureau, Federal Communications Commission (dated September 7,
2012) (Lakeview Letter), at 1.
20 See Letter, Scott C. Friedman, Counsel to RB3, LLC and Arklaoktex, LLC, d/b/a Reach Broadband, to Thomas
Beers, Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau, Federal
Communications Commission (dated September 7, 2012) (Reach Letter), at 3.
21 See Letter, Thomas Beers, Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau,
Federal Communications Commission (dated June 28, 2012), to Lindsay Riggs, Applegate Media, Inc. (dated Oct. 5,
2012).
22 See Fourth Report and Order, 26 FCC Rcd at 13710, 13711-12 1, 4.
23 Indeed, EAS Participants have been on notice since 2007 that they would need to purchase CAP-compliant EAS
equipment. See Second Report and Order, 22 FCC Rcd 13275, 13288 26.
24 See SCV Letter at 1.
25 See New Wave Letter at 2.
26 See Lakeview Letter at 1.
27 See Reach Letter at 3.
28 See Applegate Petition at 1.
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Federal Communications Commission DA 13-1575

8.
In conclusion, we find that the Petitioners have failed to show special circumstances to
justify departure from the requirements of section 11.56(a) of the Commissions' rules, and that it is not in
the public interest to grant waiver of Section 11.56(a) to Applegate and SCV. We therefore deny their
waiver petitions.

IV.

Ordering Clauses

9.
Accordingly, IT IS ORDERED that pursuant to Section 4(i) of the Communications Act
of 1934, as amended, 47 U.S.C. 154(i), and Sections 1.3 and 1.8 of the Commission's Rules, 47 C.F.R.
1.3, 1.8, the "Requests for Waiver," filed by Southern Communications Volunteers, Inc. and the
Petitions for Waiver filed by Telecommunications Management, LLC and Avenue Broadband
Communications, Inc.; Lakeview Cable, Inc.; RB3, LLC and Arklaoktex, LLC, d/b/a Reach Broadband;
and Applegate Media, Inc., ARE DENIED.
10.
This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of the
Commission's rules, 47 C.F.R. 0.191, 0.392.
FEDERAL COMMUNICATIONS COMMISSION
David Turetsky
Chief
Public Safety and Homeland Security Bureau
5

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