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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Craig Wireless Honolulu Inc. ) File No. EB-03-TS-101
)
Operator of Wireless Cable System in:)
)
Oahu, Hawaii )
)
Request for Waiver of Section 11.11(a) of the )
Commission's Rules )
ORDER
Adopted: October 7, 2003 Released: October 9,
2003
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we grant Craig Wireless Honolulu Inc.
(``Craig'') a temporary waiver of Section 11.11(a) of the
Commission's Rules (``Rules'') for the above-captioned
wireless cable television system. Section 11.11(a) requires
wireless cable systems serving more than 5,000 but fewer than
10,000 subscribers from a single transmission site to install
Emergency Alert System (``EAS'') equipment and begin providing
EAS audio and video messages on all channels by October 1,
2002.1 Section 11.11(a) requires cable systems serving fewer
than 5,000 subscribers from a single transmission site to
either provide national level 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.
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 extend the EAS requirements to
wireless cable systems and 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
3. On September 30, 2002, Craig filed a request for a
permanent waiver of the requirements of Section 11.11(a)
applicable to wireless cable systems with more than 5,000 but
fewer than 10,000 subscribers or in the alternative, a five-
year extension of time to comply with these requirements for
the captioned wireless cable system. In support of its waiver
request, Craig states that the captioned system is an all-
digital wireless cable television system which serves 8,780
subscribers. Craig submits that it already provides a
complete EAS message on one channel with audio and video
alerts on all of its other programmed channels. Craig notes
that its EAS system currently conforms to the EAS requirements
for wireless cable system with 5,000 or fewer subscribers, but
does not conform to the additional requirements for those
systems with more than 5,000 subscribers. Based on a price
quote from an EAS equipment manufacturer, Craig estimates that
it would cost a total of approximately $255,000 to install the
required EAS equipment at the captioned system's transmission
site because it must insert the EAS video and audio content
into its encoded digital systems. Craig asserts that this
cost will impose a substantial financial hardship on it and
provides its financial statements for 2002 and 2003 in support
of this assertion. Craig submits that it provides a complete
EAS message on one channel with audio and video alerts on all
of its other programmed channels. Craig asserts that its
subscribers will continue to have ready access to national EAS
information from other sources, including its cable system.
Craig further submits that its subscribers will have access to
EAS information through over-the-air reception of broadcast
television and radio stations.
4. We note that in September 2002, another digital
wireless cable system filed a request for a permanent waiver
of Section 11.11(a) to enable it to use an alternative method
for providing EAS alerts, asserting that compliance with the
EAS requirements impose substantially greater costs on
wireless cable systems using digital technology than on other
cable systems.7 We declined to grant the system a permanent
financial hardship waiver, concluding that the system was
seeking what was in effect a revision of the EAS rules to
reflect the impact of the use of digital technology by
wireless cable systems. However, we granted the system a
limited, 30-day waiver of Section 11.11(a) to enable a
revision of the Commission's EAS rules to be requested through
the petition for rulemaking process. In addition, we stated
that if a petition for rulemaking is filed, this waiver would
be automatically extended until either the effective date of
any changes adopted by the Commission to the EAS rules for
wireless cable systems using digital technology, or 90 days
after the Commission issues a decision declining to adopt any
such changes. On October 31, 2002, the Wireless
Communications Association International, Inc. filed a
petition for rulemaking requesting an amendment of the EAS
rules for digital wireless cable systems.8 A public notice
seeking comment on this petition for rulemaking was released
on December 18, 2002.9
5. Craig is seeking either a permanent waiver of the
requirements of Section 11.11(a) applicable to wireless cable
systems with more than 5,000 but fewer than 10,000
subscribers, or a five-year extension of time to comply with
those requirements. We believe that the issues raised by
Craig concerning the impact of the EAS rules on digital
wireless cable systems are more appropriately addressed in the
proceeding described above. Accordingly, while we decline to
grant Craig Wireless's waiver request on financial hardship
grounds, we grant Craig Wireless a waiver of the requirements
of Section 11.11(a) applicable to wireless cable systems with
more than 5,000 but fewer than 10,000 subscribers until either
the effective date of any changes adopted by the Commission to
the EAS rules for wireless cable systems using digital
technology, or 90 days after the Commission issues a decision
declining to adopt any such changes.
6. Accordingly, IT IS ORDERED that, pursuant to Sections
0.111, 0.204(b) and 0.311 of the Rules,10 Craig Wireless
Honolulu Inc. IS GRANTED a waiver of Section 11.11(a) of the
Rules as specified herein and in all other respects its
request for a waiver of Section 11.11(a) of the Rules IS
DENIED.
7. IT IS FURTHER ORDERED that Craig Wireless Honolulu Inc.
place a copy of this waiver in its system file.
8. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to counsel
for Craig Wireless Honolulu Inc., Peter D. Shields, Esq.,
Wiley Rein & Fielding LLP, 1776 K Street, N.W., Washington,
D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement 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 W.A.T.C.H. TV and Benton Ridge Telephone Co., 17 FCC Rcd
18329 (Enf. Bur., Tech. & Pub. Safety Div., 2002).
8 The Wireless Communications Association International, Inc.,
Petition for Rulemaking to Request Amendment of the Commission's
Rules to Permit Use of ``Force Tune'' Technology by Digital
Wireless Cable Systems, RM-10619 (filed October 31, 2002).
9 Public Notice, Consumer & Government Affairs Bureau
Reference Information Center Petitions for Rulemaking Filed,
Report No. 2589 (December 18, 2002).
10 47 C.F.R. §§ 0.111, 0.204(b) and 0.311.