PNP Facility Eligibility

November 14, 2007

Colonel Thomas Kirkpatrick
State Coordinating Officer
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806

RE: Second Appeal – Greater New Orleans Educational Television Foundation (WYES-TV) 071-UQTCO-00, PNP Facility Eligibility, FEMA-1603-DR-LA

Dear Col. Kirkpatrick: This is in response to your letter dated August 3, 2007, which transmitted the referenced second appeal on behalf of WYES-TV. WYES-TV is appealing the Federal Emergency Management Agency’s (FEMA’s) decision to deny its request for assistance for damages caused by Hurricane Katrina.

WYES is a private nonprofit (PNP) public television station that provides cultural, educational, entertainment and general interest programming to the general public in the greater New Orleans area. In addition, it participates in the Emergency Alert System and the Digital Emergency Alert System, rebroadcasting emergency notices to the public. Hurricane Katrina flooded WYES’ broadcast facilities and it requested assistance from FEMA to repair the disaster damages. FEMA denied WYES’ request for assistance because it determined that WYES did not own and operate an eligible PNP facility as required by section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act), Public Law 93-288, as amended, 42 U.S.C. 5121, and 44 CFR §206.221(e). WYES submitted a first appeal of FEMA’s decision stating that it provides an essential governmental service in the form of emergency communications; therefore, should be eligible to receive federal assistance. The Regional Administrator denied the appeal in a letter dated May 18, 2007, determining that WYES did not operate an eligible educational or communication facility as defined in 44 CFR §206.221.

WYES submitted a second appeal in a letter dated July 12, 2007, stating that FEMA used a restrictive definition of communication services to deny WYES’ first appeal, and that FEMA provided assistance to other public broadcasting television stations in the past. Specifically, it stated that FEMA provided assistance to WNET, a Public Broadcasting Station, following the World Trade Center explosion, and to the Louisiana Educational Television Authority (LETA) following Hurricane Katrina. WYES requested that FEMA grant a regulatory exception so that WYES can continue to provide essential emergency communication services to the region.

Section 406 of the Stafford Act authorizes assistance to State and local governments and to the owners of certain PNP facilities to repair disaster-damaged facilities following a major disaster declaration. Sections 102(8) and (9) define eligible public and private nonprofit facilities, respectively. All active State and local government owned facilities are eligible for assistance. However, only those PNP facilities that provide services listed in 44 CFR §206.221 are eligible for assistance. We concur with the Regional Administrator’s determination that WYES does not meet the definition of a PNP educational facility as defined in 44 CFR §206.221(a), and is therefore ineligible for assistance under that provision.

WYES asserts that it operates an eligible PNP communication facility, and that FEMA’s definition of such facilities is overly restrictive. 44 CFR §206.221(e) states that “private nonprofit facility means…utility,” and 44 CFR §206.221(e)(2) states in part that utility includes “…communication.” FEMA has consistently interpreted “communication utility” to mean telephone services. FEMA does not and has not considered television stations to be “communication utility” systems under the Stafford Act.

WYES argues that FEMA has established precedents by providing assistance to WNET following the World Trade Center explosion, and to LETA following Hurricane Katrina. Both are addressed below:

• Following the World Trade Center attacks, Congress appropriated special funds for recovery efforts, and specifically authorized those funds to be used for both Stafford Act and non-Stafford Act activities. Because of the special appropriation and unique usage authority, we do not consider the approval of WNET for funding a precedent for future funding of PNP television stations under the Stafford Act.

• LETA is a legal subdivision of the State of Louisiana. Therefore, its facilities are eligible for assistance pursuant to section 102(8) of the Stafford Act, irrespective of the purpose of those facilities. Although WYES provides the same services as LETA stations, such services are not recognized by the Stafford Act and supporting regulation as a PNP activity eligible for Stafford Act assistance.

Based on my review of all information submitted with the appeal, I have determined that the Regional Administrator’s decision on the first appeal is consistent with program, statute, regulation, and established practice. Therefore, the second appeal is denied.

Please inform WYES of my decision. My decision is the final determination in the matter pursuant to 44 CFR §206.206.


Sincerely,
/s/

Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: William Peterson
Regional Administrator
FEMA Region VI