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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
NewPath Communications, L.C. ) File No. EB-02-TS-261
)
Operator of Cable Systems in: )
)
Batavia, Iowa )
Brandon, Iowa )
Fertile, Iowa )
Goodell, Iowa )
Grafton, Iowa )
Joice, Iowa )
Ledyard, Iowa )
Libertyville, Iowa )
Liscomb, Iowa )
Lockridge, Iowa )
Milton, Iowa )
Randolph, Iowa )
Rowley, Iowa )
Swaledale, Iowa )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: October 21, 2002 Released: October 25,
2002
By the Chief, Technical and Public Safety Division, Enforcement
Bureau:
1. In this Order, we grant NewPath Communications, L.C.
(``NewPath'') temporary, 36-month waivers of Section 11.11(a)
of the Commission's Rules (``Rules'') for the 14 above-
captioned cable television 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. On June 20, 2002, NewPath filed a request for
temporary, 36-month waivers of Section 11.11(a) for the
14 captioned cable systems. In support of its waiver request,
NewPath states that these small, rural cable systems each
serve between 4 and 104 subscribers. Based on price quotes
provided by EAS equipment manufacturers, NewPath estimates
that it would cost between $98,000 and $112,000 to install EAS
equipment at these systems. NewPath asserts that the cost
will impose a substantial financial hardship on it and
provides financial statements for 2000 and 2001 in support of
this assertion. In addition, NewPath submits that its
subscribers will continue to have ready access to national EAS
information from other sources, including its cable systems.
In this regard, NewPath notes that its subscribers currently
have access to national EAS messages on at least 52 percent of
all programmed channels. New Path 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.
4. Based upon our review of the financial data and other
information submitted by NewPath, we conclude that temporary,
36-month waivers of Section 11.11(a) for the 14 cable systems
are warranted.9 In particular, we find that the estimated
$98,000 plus cost of EAS equipment for these small cable
systems could impose financial hardship on NewPath.
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 NewPath
Communications, L.C. IS GRANTED a waiver of Section 11.11(a)
of the Rules until October 1, 2005 for the 14 captioned cable
television systems.
7. IT IS FURTHER ORDERED that NewPath Communications, L.C.
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 NewPath Communications, L.C., 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 from October 1, 2002 until October
1, 2005. 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.