**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Part 11 of the Commission's Rules ) EB Docket No. 04-51

Regarding the Emergency Alert System ) RM 10619

)

**REPORT AND ORDER**

**Adopted: January 28, 2005 Released: February 7, 2005**

By the Commission:

# INTRODUCTION

1\. In this *Report and Order*, the Federal Communications Commission
(Commission) adopts revisions to the Part 11 rules governing the
Emergency Alert System (EAS)[^1] that will allow wireless cable
television systems to provide EAS alerts to their subscribers in a more
efficient and less burdensome manner.[^2] Specifically, wireless cable
system operators will now be able to install equipment that provides a
means to switch all programmed channels to a predesignated channel that
carries an EAS alert in lieu of installing an EAS decoder for each and
every system channel. Accordingly, upon receipt of an EAS alert,
subscribers' equipment will automatically be tuned to the channel
carrying the EAS message.[^3]

# BACKGROUND

2\. The EAS affords national, state and local authorities the capability
to provide emergency communications and information to the general
public via broadcast stations, cable systems, and wireless cable
systems.[^4] Participation in national EAS alerts is mandatory, whereas
participation in state and local area EAS activations is voluntary.[^5]
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.[^6] In 1994, the Commission adopted
rules to implement the statutory mandate and required all cable systems
to carry EAS messages on all programmed channels.[^7] In 1997, the
Commission revised these rules to accommodate the special needs of
smaller cable systems by allowing systems that serve fewer than 5,000
subscribers either to provide the national level EAS message on all
programmed channels or to 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 that same action
the Commission included wireless cable systems in this requirement, with
the qualified support of that industry.[^8]

3\. On September 9, 2002, W.A.T.C.H. TV and its corporate parent, the
Benton Ridge Telephone Company (collectively "W.A.T.C.H. TV") filed a
request for waiver of Part 11 of the Commission's rules to allow
W.A.T.C.H. TV to connect the video/audio output of its EAS equipment to
one of W.A.T.C.H. TV's channels, rather than requiring W.A.T.C.H. TV to
insert the EAS feed into each of its 128 digital satellite feeds. Upon
receipt of an EAS alert, W.A.T.C.H. TV would then "force tune" its
subscribers to the EAS alert by sending a signal to its subscribers'
wireless cable equipment to automatically tune to the channel carrying
the EAS message.[^9] On September, 27, 2002, the former Technical and
Public Safety Division of the Commission's Enforcement Bureau released
an Order denying the request. The Division concluded, in part, that the
request sought a permanent rule change, which could not be granted by
waiver, and noted that the proper procedure for the W.A.T.C.H. TV
request would be a petition for a rulemaking. The Order did grant
W.A.T.C.H. TV a thirty day waiver that, upon the filing of such a
petition, would be extended until either the effective date of a rule
change, or a Commission decision declining to adopt any such
change.[^10]

4\. On October 31, 2002, the WCA, on behalf of W.A.T.C.H. TV and other
wireless cable television systems, filed a petition for rulemaking
requesting the Commission to revise its 1997 rules to allow wireless
cable systems to force tune subscriber equipment to a system channel
dedicated to EAS alerts and messages.[^11] According to WCA, upon
receipt of an EAS alert or message, wireless cable systems using force
tune technology could switch subscribers from any programmed channel to
a specific system channel carrying the EAS message. WCA represented that
modification of the rules to allow use of this technology would provide
EAS notices to subscribers while relieving system operators of
substantial financial burdens. Subsequently, on December 18, 2002, the
staff issued a public notice soliciting comments on WCA's petition.[^12]
Comments were filed by the WCA and separately by REC Networks (REC). The
WCA comments provided clarification to its original proposal.[^13] The
REC comments endorsed the WCA proposal without making any new requests
or suggesting modification of the WCA proposal.[^14]

5\. On March 12, 2004, the Commission released a *Notice of Proposed
Rulemaking* (*NPRM*), proposing adoption of the rules suggested in the
WCA petition, as clarified,[^15] and seeking comment on revisions to
Part 11 of the Commission's rules.[^16] Comments and replies were due
May 10, 2004 and May 24, 2004, respectively.[^17] WCA and W.A.T.C.H. TV
both submitted comments in support of the proposed modifications.[^18]
W.A.T.C.H. TV, in its comments, noted that it had successfully adopted
force tuning subsequent to the *September 27 Order*, and recommended a
permanent rule change.[^19] No comments opposed the suggested rule
revision, and no replies were submitted.

# DISCUSSION

6\. Our EAS rules are designed to ensure that individual TV viewers,
including viewers of wireless cable TV systems, receive all national
level EAS alerts, no matter what channel the viewer may be watching. As
these rules are currently written, wireless cable providers serving more
than 5,000 subscribers are required to install special equipment
sufficient to display the audio and video EAS message on every channel
in their systems.[^20] Systems serving fewer than 5,000 subscribers are
required to display the audio and video EAS message only on one channel,
but must provide a video interrupt and an audio alert on every
channel.[^21]

7\. WCA argued in its petition that our current rules are unnecessarily
burdensome and that force tuning would allow wireless cable TV systems
to supply EAS alerts more efficiently.[^22] We are persuaded that under
our current EAS system requirements and given the current state of the
wireless cable industry, force-tuning presents an efficient solution for
wireless cable operators. As WCA pointed out, EAS equipment provides
outputs designed to be inserted into analog signals.[^23] For wireless
digital cable systems, digital channels are received via a multiplexed
digital feed. To insert EAS information into each channel requires
specialized equipment to separate the digital feeds into individual
program streams, convert each program stream to analog format, insert
the EAS video/audio into each program stream, re-encode the program
stream to digital format, and recombine all of the streams into
multiplexed feeds for further transmission to subscribers.[^24] For a
128 channel digital system, WCA represented that a reasonable cost
estimate for this process is \$1,848,250.00.[^25] In contrast, by
permitting a software-based force tune solution, the EAS alert will
still reach the viewer, but in a more technically efficient and
inexpensive manner. According to WCA, with force tuning, the video/audio
output of the EAS equipment will be connected to an encoder for a
channel selected to carry EAS messages. Upon EAS activation, the EAS
equipment will send a trigger signal to the system headend which then
will forward the trigger to the subscriber's set-top box as part of the
control data included in every multiplexed program stream transmitted by
the system. The software in the set-top box will recognize the trigger
and force tune the set-top box to the selected EAS message channel. WCA
represents that a reasonable cost estimate for this alternative is
\$46,000.00 or about 2.5% of the cost of channel by channel
implementation.[^26] Further, as WCA pointed out in its comments
clarifying its petition, these arguments would also apply to wireless
cable systems that are not fully digital.[^27]

8\. Our EAS rules were neither intended to require a particular
technical solution nor to impose an unnecessary financial burden on
participating cable providers. We believe that WCA has demonstrated that
such a burden exists under the current rules for wireless cable
operators, and that a good technical alternative exists to minimize that
burden without harm to the public. As a result of these modifications, a
wireless cable operator would be able to install EAS equipment for one
channel only at the headend of each of its systems, and in the event of
an EAS alert, automatically force each subscriber's equipment to tune to
the channel carrying the EAS alert. This would allow wireless cable
providers to deliver EAS alerts to all viewers in a more technologically
and economically efficient manner. We believe these revisions would
satisfy the Communications Act's intent to provide national alert and
warning to the public, while reducing the regulatory burden on wireless
cable systems. We also note that W.A.T.C.H. TV, a wireless cable system,
has successfully deployed force tuning in its system, and that no
comments were filed opposing this approach. Accordingly, we modify our
EAS rules to allow wireless cable TV systems to supply an EAS alert to
their viewers by force tuning their systems.[^28] Also, because the
revisions we adopt today do not affect wireless cable systems' EAS
equipment, we adopt our tentative conclusion that no new authorization
standards for such equipment are required.[^29]

9\. The Commission recently released an NPRM in which we sought comment
on whether EAS as currently constituted is the most effective and
efficient public warning system available to the American public. [^30]
One of the primary objectives of this NPRM is to determine whether there
are any specific steps the Commission may take to enhance the
effectiveness of EAS, particularly as regards digital, wireless, and
other emerging communications technologies. Accordingly, regardless of
the modifications made in this *Report and Order*, wireless cable
operators are still subject to any future rulemaking proceedings.
Nothing we do here today affects the Commission's ability to adjust any
of the wireless cable requirements or impose other obligations on
wireless cable operators through general rulemaking proceedings.

# CONCLUSION

10\. Because the modifications to our EAS Rules will contribute to an
economically efficient and technologically current public alert and
warning system, in this *Report and Order*, we adopt the proposed
revisions to the EAS rules for wireless cable operators, as set forth in
Appendix A of this *Report and Order*.

# PROCEDURAL MATTERS

11\. [Final Regulatory Flexibility Analysis]{.underline}. As required by
the Regulatory Flexibility Act, 5 U.S.C. § 603, the Commission has
prepared a Final Regulatory Flexibility Analysis (FRFA) for this *Report
and Order*, set forth in Appendix B. The Commission will send a copy of
the *Report and Order*, including the FRFA, to the Chief Counsel for
Advocacy of the Small Business Administration.[^31]

12\. [Paperwork Reduction Act of 1995 Analysis]{.underline}. This
document does not contain new or modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, therefore, it does not contain any new
or modified "information collection burden for small business concerns
with fewer than 25 employees," pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198; *see* 44 U.S.C. § 3506(4).

**VI. ORDERING CLAUSES**

13\. Accordingly, IT IS ORDERED that pursuant to the authority contained
in sections 1, 4(i), 4(j), and 4(o), 303(r), 624(g) and 706 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
154(j), and 154(o), 303(r), 544(g) and 606, this *Report and Order* IS
ADOPTED.

14\. IT IS FURTHER ORDERED that Part 11 of the Commission's Rules, 47
C.F.R. Part 11, IS AMENDED as set forth in Appendix A attached hereto,
effective thirty (30) days after publication of this *Report and Order*
in the Federal Register.

15\. IT IS FURTHER ORDERED that the Reference Information Center,
Consumer and Governmental Affairs Bureau, SHALL SEND a copy of this
*Report and Order*, including the Final Regulatory Flexibility Analysis,
to Congress pursuant to the Congressional Review Act, 5 U.S.C. §
801(a)(1)(A).

16\. IT IS FURTHER ORDERED that the Reference Information Center,
Consumer and Governmental Affairs Bureau, SHALL SEND a copy of this
*Report and Order*, including the Final Regulatory Flexibility Analysis,
to the Chief Counsel for Advocacy of the Small Business Administration
in accordance with the Regulatory Flexibility Act.

FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch Secretary

**APPENDIX A**

**FINAL RULES**

> Part 11 of the Code of Federal Regulations is amended as follows:
>
> **PART 11 -- EMERGENCY ALERT SYSTEM (EAS)**

1.  The authority for Part 11 continues to read as follows:

> **Authority: 47 U.S.C. 151, 154(i) and (o), 303(r), 544(g) and 606.**
>
> **\*\*\*\*\***

1.  Section 11.11 is amended by revising the table in paragraph (a)
    titled **WIRELESS CABLE SYSTEMS (MDS/MMS/ITFS STATIONS)** by
    redesignating footnote 3 as footnote 4, adding a new footnote 3 (the
    title of this table has been changed to conform to recently revised
    rules), and revising footnote 1 as follows:

**§ 11.11 The Emergency Alert System (EAS).**

\(a\) \*\*\*\*\*

  -------------------------------------- ------------------ ----------------
  WIRELESS CABLE SYSTEMS (BRS/EBS                           
  STATIONS)                                                 

  \[A. Wireless cable systems serving                       
  fewer than 5,000 subscribers from a                       
  single transmission site must either                      
  provide the National level EAS message                    
  on all programmed channels---including                    
  the required testing---by October 1,                      
  2002, or comply with the following EAS                    
  requirements. All other wireless cable                    
  systems must comply with B.\]                             

  B. EAS Equipment Requirement           System size and    
                                         effective dates    

                                         [\>]{.underline}   \< 5,000
                                         5,000 subscribers  subscribers

  EAS decoder                            Y 10/1/02          Y 10/1/02

  EAS encoder \[FN1\] \[FN2\]            Y 10/1/02          Y 10/1/02

  Audio and Video EAS Message on all     Y 10/1/02          N
  channels \[FN3\]                                          

  Video interrupt and audio alert        N                  Y 10/1/02
  message on all channels;\[FN4\] Audio                     
  and Video EAS message on at least one                     
  channel.                                                  
  -------------------------------------- ------------------ ----------------

\[FN1\] The two-tone signal is used only to provide an audio alert to an
audience prior to an EAS emergency message or to the Required Monthly
Test (RMT) under § 11.61(a)(1) of this Part. The two-tone signal must be
8-25 seconds in duration.

\[FN2\] Wireless cable systems serving \<5,000 subscribers are permitted
to operate without an EAS encoder if they install an FCC-certified
decoder.

\[FN3\] All wireless cable systems may comply with this requirement by
providing a means to switch all programmed channels to a predesignated
channel that carries the required audio and video EAS messages.

\[FN4\] The Video interrupt must cause all channels that carry
programming to flash for the duration of the EAS emergency message. The
audio alert must give the channel where the EAS messages are carried and
be repeated for the duration of the EAS message.

NOTE: Programmed channels do not include channels used for the
transmission of data services such as Internet.

\*\*\*\*\*

3\. Paragraphs (g) and (h) of Section 11.51 is amended by adding
paragraphs (g)(5) and (h)(5) to read as follows:

**§ 11.51 EAS code and Attention Signal Transmission requirements.**

\*\*\*\*\*

\(g\) \*\*\*

\(5\) Wireless cable systems with a requirement to carry the audio and
video EAS message on at least one channel and a requirement to provide
video interrupt and an audio alert message on all other channels stating
which channel is carrying the audio and video EAS message, may comply by
using a means on all programmed channels that automatically tunes the
subscriber\'s set-top box to a pre-designated channel which carries the
required audio and video EAS messages.

\(h\) \*\*\*

\(5\) Wireless cable systems with a requirement to carry the audio and
video EAS message on all downstream channels may comply by using a means
on all programmed channels that automatically tunes the subscriber's
set-top box to a pre-designated channel which carries the required audio
and video EAS messages.

\*\*\*\*\*

**APPENDIX B**

**FINAL REGULATORY FLEXIBILITY ANALYSIS**

1\. As required by the Regulatory Flexibility Act ("RFA"),[^32] an
Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the
*NPRM*. The Commission sought comment on the proposals in the *NPRM*,
including comment on the IRFA. The present Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.

## Need for, and Objectives of, the Rules

2\. In this *Report and Order*, the Commission adopts revisions to the
Part 11 rules governing the Emergency Alert System ("EAS").[^33] The
revisions will reduce burdens on EAS participants and improve the
overall performance of the EAS.

## Summary of Significant Issues Raised by Public Comments in Response to the IRFA

3\. There were no comments filed specifically in response to the IRFA.
Nevertheless, the

agency has considered the potential impact of the rules proposed in the
IRFA on small entities. As a result of these modifications, a wireless
cable operator will now be able to install EAS equipment for one channel
only at the headend of the system. In the event of an EAS alert, the
system will automatically force each subscriber set-top box to tune to
the channel carrying the EAS alert. This will allow wireless cable
providers to deliver EAS alerts to all viewers in a more technologically
and economically efficient manner. While this rule revision provides the
greatest economic benefit to systems with over 5,000 subscribers by
obviating the need for special signal conversion for all channels, it
also provides a benefit to those systems with fewer than 5,000
subscribers.

##  {#section .unnumbered}

## C. Description and Estimate of the Number of Small Entities to which the Rules Will Apply {#c.-description-and-estimate-of-the-number-of-small-entities-to-which-the-rules-will-apply .unnumbered}

4\. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that will be
affected by the proposed rules.[^34] The RFA generally defines the term
"small entity" as having the same meaning as the terms "small business,"
"small organization," and "small governmental jurisdiction."[^35] In
addition, the term "small business" has the same meaning as the term
"small business concern" under the Small Business Act.[^36] A small
business concern is one which: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business Administration
(SBA).[^37] A small organization is generally "any not-for-profit
enterprise which is independently owned and operated and is not dominant
in its field."[^38] The arts, entertainment, and recreations sector had
96,497 small firms.[^39]

5\. *Broadband Radio Services.* The adopted rules would apply to
Broadband Radio Services (BRS) operated as part of a wireless cable
system.[^40] The Commission has defined "small entity" for purposes of
the auction of BRS frequencies as an entity that, together with its
affiliates, has average gross annual revenues that are not more than
\$40 million for the preceding three calendar years.[^41] This
definition of small entity in the context of BRS auctions has been
approved by the SBA.[^42] The Commission completed its BRS auction in
March 1996 for authorizations in 493 basic trading areas. Of 67 winning
bidders, 61 qualified as small entities. At this time, we estimate that
of the 61 small business BRS auction winners, 48 remain small business
licensees.

6\. BRS also includes licensees of stations authorized prior to the
auction. As noted, the SBA has developed a definition of small entities
for pay television services, Cable and Other Subscription Programming,
which includes all such companies generating \$12.5 million or less in
annual receipts.[^43] This definition includes BRS and thus applies to
BRS licensees that did not participate in the BRS auction. Information
available to us indicates that there are approximately 392 incumbent BRS
licensees that do not generate revenue in excess of \$11 million
annually. Therefore, we find that there are approximately 440 (392
pre-auction plus 48 auction licensees) small BRS providers as defined by
the SBA and the Commission's auction rules which may be affected by the
rules adopted herein.

7\. *Educational Broadband Services.* The adopted rules would also apply
to Educational Broadband Services (EBS).[^44] The SBA definition of
small entities for pay television services also appears to apply to
EBS.[^45] There are presently 2,032 EBS licensees. All but 100 of these
licenses are held by educational institutions. Educational institutions
are included in the definition of a small business.[^46] However, we do
not collect annual revenue data for EBS licensees, and are not able to
ascertain how many of the 100 non-educational licensees would be
categorized as small under the SBA definition. Thus, we conclude that at
least 1,932 EBS are small businesses and may be affected by the adopted
rules.

## Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

8\. There are no reporting or recordkeeping requirements adopted in this
*Report and Order*. The revisions adopted in the *Report and Order* are,
for the most part, intended to enhance the performance of the EAS while
reducing the burden on digital wireless cable systems. We emphasize that
participation in state and local EAS activities remains voluntary and
that we do not impose additional costs or burdens on entities that
choose not to participate in state and local area EAS plans. The *Report
and Order* adopts rules that permit new equipment capabilities and new
policies with regard to method of delivery of EAS messages to viewers
for all EAS alerts: national, state and local. These modifications will
lessen cost and operational burdens on digital wireless cable system EAS
participants.

## Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

9\. The RFA requires an agency to describe any significant alternatives
that it has considered in reaching its approach, which may include the
following four alternatives: (1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.

10\. In the *NPRM*, we sought comment on the impact of our proposals on
small entities and on any possible alternatives that would minimize the
impact on small entities. In adopting the modifications contained in
this *Report and Order*, we have attempted to minimize the burdens on
all entities.

## Report to Congress

11\. The Commission will send a copy of this *Report and Order*,
including the FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act, *see* 5 U.S.C. § 801(a)(1)(A). In addition,
the Commission will send a copy of the *Report and Order*, including the
FRFA, to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the *Report and Order* and FRFA (or summaries
thereof) will also be published in the Federal Register.

[^1]: 47 C.F.R. §§ 11.1, et *seq*. For purposes of the EAS rules, a
    "wireless cable system" is a collection of channels used to provide
    video programming services to subscribers. The channels may be
    licensed to or leased by wireless cable system operators. *See* 47
    C.F.R. § 11.11(c)(1). As part of its ongoing efforts to promote the
    deployment of wireless broadband services, the Commission recently
    adopted revisions that transform this collection of channels by
    renaming MDS/MMDS as Broadband Radio Service (BRS) and ITFS as
    Educational Broadband Service (EBS) to provide greater flexibility
    and a more functional band plan for licensees. *See Amendment of
    Parts 1, 21, 73, 74 and 101 of the Commission's Rules to Facilitate
    the Provision of Fixed and Mobile Broadband Access, Educational and
    Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands*,
    WT Docket No. 03-66, Report and Order and Further Notice of Proposed
    Rulemaking, FCC 04-135, Appendix C (rel. July 29, 2004) (rules
    effective 30 days after publication in the Federal Register).

[^2]: *See Amendment of Part 11 of the Commission's Rules Regarding the
    Emergency Alert System,* Notice of Proposed Rulemaking, 19 FCC Rcd
    4995 (2004) (*Amendment of Part 11 NPRM*) (proposing revisions to
    Part 11 EAS rules).

[^3]: In the Petition for Rulemaking that initiated this proceeding, the
    Wireless Communications Association International Inc. (WCA),
    referred to this process as "force tune" technology. *See Amendment
    of Section 11.11(a) of the Commission's Rules To Permit Use of
    "Force Tune" Technology by Digital Wireless Cable Systems, Petition
    for Rulemaking*, 1, (filed Oct. 31, 2002) (*WCA Petition*).

[^4]: The Commission recently released a *Notice of Proposed Rulemaking*
    seeking comment on whether the EAS in its present form is the most
    effective mechanism for warning the American public of an emergency,
    and if not, on how EAS can be improved. *See Review of the Emergency
    Alert System*, EB Docket No. 04-296, Notice of Proposed Rulemaking,
    FCC 04-189 (rel. Aug. 12, 2004) (*EAS NPRM*). We are considering
    this matter apart from the *EAS NPRM* because the rule revisions we
    adopt today are narrowly constructed to affect a small number of
    entities.

[^5]: 47 C.F.R. §§ 11.41-11.47.

[^6]: 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).

[^7]: *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), *reconsideration granted in part,
    denied in part*, Memorandum Opinion and Order, 10 FCC Rcd 11494
    (1995).

[^8]: *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*). All wireless cable systems were required to
    install EAS equipment by October 1, 2002.

[^9]: *See* Letter from Robert Primosch, Esq., Counsel, W.A.T.C.H. TV
    and Benton Ridge Telephone Company, to the Chief, Technical and
    Public Safety Division, Enforcement Bureau (filed Sept. 9, 2002).

[^10]: *W.A.T.C.H. TV, et al, Request for Waiver of Section 11.11(a) of
    the Commission's Rules*, File No. EB-02-TS-510, Order, 17 FCC Rcd
    18329 (2002) (*September 27 Order*).

[^11]: *See supra* note Error: Reference source not found.

[^12]: *See* FCC Public Notice No. 2589, *Consumer & Governmental
    Affairs Bureau Reference Information Center Petitions for Rulemaking
    Filed,* (Consumer & Governmental Affairs Bur., rel. Dec. 18, 2002).

[^13]: WCA Comments (filed Jan. 17, 2003) (WCA Comments).

[^14]: REC Comments (filed Jan. 6, 2003).

[^15]: *See generally* WCA Comments.

[^16]: *See generally Amendment of Part 11 NPRM*, 19 FCC Rcd 4995.

[^17]: *Id*.

[^18]: *See* WCA Comments (filed May 10, 2004); W.A.T.C.H. TV Comments
    (filed May 10, 2004).

[^19]: W.A.T.C.H. TV Comments at 2.

[^20]: 47 U.S.C. § 11.11(a).

[^21]: *Id.*

[^22]: *See generally WCA Petition*.

[^23]: *Id*. at 3.

[^24]: *Id*.

[^25]: *Id*. at 3-5.

[^26]: *Id*. at 5.

[^27]: WCA Comments at 1-2. No comments were filed disputing this
    position.

[^28]: The revised rules are contained in Appendix A to this *Report and
    Order*. Unlike set-top boxes, cable-ready televisions lack the
    technological capability to force-tune. Therefore, we cannot extend
    this requirement to regular cable providers that do not utilize
    set-top boxes.

[^29]: *Amendment of Part 11 NPRM*, 19 FCC Rcd at 4995 (Commission
    tentatively concluded that WCA's proposal is software driven, that
    it requires the use of approved EAS equipment at the headend, and
    that no changes to app

[^30]: roved equipment are required.).

    ^?^ *See supra* note 4.

[^31]:

[^32]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601, *et seq.*,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) ("CWAAA"). Title II
    of the CWAAA is the Small Business Regulatory Fairness Enforcement
    Act of 1996.

[^33]: 47 C.F.R. §§ 11.1, *et seq*.

[^34]: 5 U.S.C. §§ 603(b)(3), 604(a)(3).

[^35]: *Id*. § 601(6).

[^36]: *Id.* § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies "unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." 5 U.S.C. § 601(3).

[^37]: Small Business Act, 15 U.S.C. § 632 (1996).

[^38]: 5 U.S.C. § 601(4).

[^39]: *Id.*

[^40]: *See supra* note Error: Reference source not found (renaming
    MDS/MMDS as Broadband Radio Service (BRS)).

[^41]: 47 C.F.R. § 21.961(b)(1).

[^42]: *See Amendment of Parts 21 and 74 of the Commission's Rules With
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the* Communications *Act -- Competitive
    Bidding*, MM Docket No. 94-131 and PP Docket No. 93-253, Report and
    Order, 10 FCC Rcd 9589 (1995).

[^43]: 13 C.F.R. § 121.201, NAICS Code 515210.

[^44]: *See supra* note Error: Reference source not found (renaming ITFS
    as Educational Broadband Service (EBS)).

[^45]: *Id*.

[^46]: 5 U.S.C. § 601(3).