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Almost a year and a half ago, the FCC held its first ever test of the EAS system designed to alert the country in the event of a nationwide emergency. On Friday, the FCC’s Public Safety and Homeland Security Bureau issued a report on the results of the test. While there have been many articles in the trade press reporting on some of the findings of the Bureau, few have focused on one footnote indicating that many EAS participants – including some broadcasters and cable systems – never bothered to file their reports as to the results of their participation in the tests. The Bureau notes that the identity of these broadcasters will be turned over the FCC’s Enforcement Bureau for further action – potentially fines for their failures to report on the results of the test (we warned that this might be a consequence of the failure to file a report of the results of the test in our article here).  Broadcasters should watch for further action from the Enforcement Bureau at some point in the future.

The Report indicated that approximately 83% of all broadcasters who reported to the FCC had received the test. However, the FCC received reports from only about 13,787 stations.  According to the FCC’s tabulation of the number of broadcast stations in the US, as released in another FCC report last week, there are approximately 15,256 radio stations and 1781 TV stations in the United States. This could mean that there are a substantial number of broadcast stations that did not report the results of the nationwide test. The Commission apparently did not try to determine if the results achieved by those nonresponsive stations were different than the results of those who reported to the FCC.  One might assume that these stations, which somehow missed all the warnings about the need to file with the FCC the results of the tests, probably also missed instructions about how to comply with the EAS rules and thus were probably less likely to have fully operating EAS systems. So there is concern that the report may even understate the shortcomings of the nationwide test.

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It's time for our annual April Fools Day warning – be careful with on air pranks prepared especially for the day. This year, with thetragedy caused by the Australian morning show hosts calling the nurse for the Duchess of Cambridge, broadcasters have an example of what can happen when an on-air prank goes wrong. Where harm is caused, lawsuits may follow, and stations could become a target if someone is hurt as a result of a station's broadcasts. But not only do stations need to worry about potential civil liability in a case like this, the FCC itself has a rule against on-air hoaxes - and, of any day in the year, April 1 is the day that the broadcaster is most at risk. The FCC's rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused. Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties." So even if the prank does not cause any injuries, the mere fact that an on-air report was false and it ties up first-responders, is enough to lead to FCC liability. 

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood. In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies. In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  While the rule has been rarely enforced since, it is on the books and ready for use against any station that ties up police and fire companies when there is no emergency.   So FCC fines are possible on top of any damages that may result from a prank-gone-wrong. Have fun, but be careful out there next Monday!

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In the last few weeks, the FCC has fined a number of broadcast stations for failing to keep up with their EAS obligations. In one case, a low power FM operator was fined $1750 for not having any EAS receiver installed at its station – and not knowing that it was required. LPFM stations must have a decoder to receive EAS messages, but can opt out of having an encoder to send such messages. This station had neither. In another case, an $8000 fine was imposed on an AM/FM combo that did not have an operational EAS system, and whose logs did not show that it had received any EAS alerts since 2008. A station's Chief Operator should be noting in the official station log each week the receipt and transmission of required tests.  If this is done, then an error of this magnitude should not take place. 

In a different aspect of the EAS rules, there was recently reports on an advisory by the Society of Broadcast Engineers about the trailer from a movie that contains actual EAS tones, which could trigger EAS alerts on stations monitoring the stations on which the ads are run. As we have written before, the FCC rules prohibit the use of EAS tones on any broadcast station other than for required tests or for an actual emergency. As was the case with the recent zombie alerts, using these EAS tones improperly could undermine the EAS system. So, if you get a commercial where the producers have ignored this prohibition, don't air it, as it could lead to FCC actions.

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In the last two days, several radio and television stations across the country had their station's EAS systems hacked – and ended up broadcasting alerts dealing with zombie attacks that went out using the standard EAS systems and appeared or sounded to the viewer or listener to be real alerts. The FCC and others involved in the EAS program fear that other fake alerts have already been inserted into stations' systems and may be broadcast soon – perhaps during events like the State of the Union address or other widely-viewed programs. To combat these issues, the FCC has issued the following advice to all stations:

All EAS Participants are required to take immediate action to secure their CAP EAS equipment, including resetting passwords, and ensuring CAP EAS equipment is secured behind properly configured firewalls and other defensive measures.  All CAP EAS equipment manufacturer models are included in this advisory.

 

All Broadcast and Cable EAS Participants are urged to take the following actions immediately

 

 

1.            EAS Participants must change all passwords on their CAP EAS equipment from default factory settings, including administrator and user accounts. 

2.            EAS Participants are also urged to ensure that their firewalls and other solutions are properly configured and up-to-date.

3.            EAS Participants are further advised to examine their CAP EAS equipment to ensure that no unauthorized alerts or messages have been set (queued) for future transmission.

4.            If you are unable to reset the default passwords on your equipment, you may consider disconnecting your device’s Ethernet connection until those settings have been updated.

5.            EAS Participants that have questions about securing their equipment should consult their equipment manufacturer.

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With very limited exceptions, all broadcast stations are required to participate in Emergency Alert System, and to transmit any alerts that they may receive during their hours of operation. The FCC has just proposed to issue an $8000 fine to a station that allegedly had a working EAS receiver  (unlike some of the stations we havewritten about before who were fined for EAS violations when their receivers were not connected or otherwise inoperable when the FCC inspectors came knocking). But, here, the issue leading to the fine was that, while the station could receive the EAS alerts, it could not rebroadcast those alerts without a station employee manually reducing the volume of the normal programming that was running at the time. While such a system is not prohibited, the FCC fine arose as the station was not manned during all hours of operation. During those hours when the station was not manned, their EAS equipment did not provide for an automatic override of the programming, and thus any alerts could not be passed on over the air. The lack of any automatic system for getting EAS alerts on the air during the hours when the station was operating in the unattended mode resulted in an $8000 fine, and a condition requiring that the station report in 30 days that it had come into compliance.

The emergency alerts system has traditionally operated on a "daisy chain" basis – where primary EAS stations receive alerts from governmental sources, pass on the alerts to other stations, which in turn relay that message to other stations on down the line. If any link in the chain is broken, then the alert does not reach the public listening to those stations further down the line. While thenew CAP system does not rely on this daisy chain (as it has all stations polling the FEMA – the Federal Emergency Management Agency - IPAWs alert system directly with an Internet connection), the older over-the-air daisy chain remains in place as a back-up to the Internet based system. This case shows how seriously the FCC takes violations of its requirements. Safety issues are a high priority for the FCC, so check your compliance now. 

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For one blog entry, I'll depart from our usual discussion of legal issues. There is plenty of time to analyze the effect that last night's election will have on the broadcast industry, and to discuss other issues of importance to broadcasters. Instead, as we approach the holiday season, I thought that I'd go into another direction. I've just returned from the NJ coast, where my family has a home that was partially flooded by Hurricane Sandy. While we had some property damage, it was nothing compared to the destruction I saw in other neighborhoods on the Jersey Shore. Seeing the number of people affected by the storm, and hearing the radio reports from locations up and down the coast where the destruction was far worse, made me think that I should talk a little about the good things that the broadcast and communications industry does, and how those in the industry can help take care of their own.

It has been great to see the many TV networks broadcasting programs with the specific purpose of promoting hurricane relief. And, in a post that we'll put on the blog later today, the FCC has just made it easier for noncommercial broadcasters to contribute in these. Being on the ground at the NJ shore for a few days, without electricity other than what was provided by a small gas-powered generator, demonstrated to me the power and importance of portable media – including radio. Throughout my weekend at the shore, we could get news and entertainment from a battery-powered radio and the radio in our car. Together with tidbits of news from Facebook posts, a local list-serve and the few other sites that we could get on our mobile phones (for as long as the phones stayed charged) in an area where the mobile networks were often slow due to the high demand for wireless service as the storm had ruined many landline connections  – these were our links to the outside world. Radio kept going, providing updates of all that was going on in the area. One local radio station was particularly noteworthy, as it was operating even though it did not have operating phones or email access. Yet it continued to broadcast, conveying information as to how people could help each other. That information was collected from people posting on the station's Twitter feed. The station truly showed how convergence of electronic and broadcast media can really work well together. 

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With Hurricane Sandy bearing down on the US East Coast, the FCC has issued reminders to consumers and communications companies about what to do in areas affected by the storm. Late Friday, it issued two public notices. The first public notice advised broadcasters and other communications companies that the FCC will be available 24-7 over the weekend and during the storm to answer calls about service outages, to assist where possible in restoring any lost service, and to issue emergency authorizations for temporary facilities.  As we have written before, the FCC has been helpful in past disasters - seemingly able to bridge bureaucratic barriers that might otherwise delay the restoration of communications services.  The second public notice was directed to consumers, telling them to try a variety of means to communicate if one service is not working, suggesting text messages if mobile networks are affected by the storm, and urging that communications be kept short and limited to immediate needs so as not to overload any communications systems.

The FCC did not issue another notice that is usually issued in these circumstances, but we will remind television broadcasters and other video providers of their obligations to visually present any information that identifies an immediate threat or which conveys actionable information about an emergency to the public.  This information was related to broadcasters in a Public Notice issued just before Hurricane Isaac reminding video providers - particularly television stations, but other video providers as well - that they need to visually present emergency information that they may be conveying verbally on the air so that the hearing impaired have access to that information, and similarly that information that is provided visually (e.g. through a crawl), be also provided aurally, or at least alert tones must be used to put the visually-impaired on notice of the fact that emergency information is running on the station.  It is important that video providers remember this obligation, as many complaints are filed with the FCC each year by groups who represent those with a disability, calling television stations to task for not meeting their captioning obligations.

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With Hurricane Isaac soon to make landfall on the Gulf Coast, the FCC is issuing its usual reminders to broadcasters and other communications facilities in areas that are likely to be affected by the storm.  It has today issued two public notices.  The first Public Notice reminds video providers - particularly television stations, but other video providers as well - that they need to present visually emergency information that they may be conveying verbally on the air so that those that are hearing impaired have access to that information, and similarly that information that is provided visually (e.g. through a crawl), be also provided aurally, or at least alert tones must be used to put the visually-impaired on notice of the fact that emergency information is running on the station.  A second public notice tells communications users that they can use the FCC's Disaster Information Reporting System ("DIRS") to notify the FCC about service outages that may be caused by the storm

The information about making emergency information accessible is one that is commonly issued by the FCC (see our stories here and here about past warnings).  The FCC reminds  video providers that emergency information must be made available to those with hearing or visual impairments.  For those who are hearing impaired, information must either be provided by closed caption, or by some other means that does not block the closed caption information.  Even where a station is exempt from captioning a story - as many are in the case of breaking news - a visual element must still be provided for all audio information given on the air about "critical details regarding the emergency and how to respond to the emergency."  So stations should do open captions or have their on-air announcers use whiteboards or other means to visually convey the emergency information that they are providing in their commentary.  In the past, big fines have followed from stations that have not provided such information visually (see our post here), and the FCC has made the complaint process easier in recent years, as highlighted by today's Public Notice.

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The conversion of EAS alerts from text to speech by broadcast stations and cable systems, through systems contained in the stations and systems EAS equipment, was prohibited in the FCC's Fifth Report and Order (summarized here) implementing the rules for the technology for the Common Alerting Protocol - the Internet-based alert system that must be activated by stations and systems by June 30.  After objections to the text-to-speech prohibition raised by the Federal Emergency Management Administration and many other broadcast and technical groups, the FCC reviewed and eliminated that restriction in an Order released late last week.  That order will be effective immediately on its publication in the Federal Register, allowing participants in EAS to use text-to-speech if they want to - not making it mandatory, but also not prohibiting its use as had the Fifth Report and Order.

FEMA and the other parties that complained to the Commission suggested that the prohibition on text-to-speech technologies would actually result in less information about certain alerts being conveyed to the public.  The Commission was concerned that automatic text-to-speech conversion could result in inaccurate or misleading information being conveyed to the public from a system that it concluded was not yet perfect.  The objecting parties disputed that any glitches were serious enough to mandate the prohibition against the use of such systems.  For instance, broadcasters and others in Washington State already are using a text-to-speech system.  The objecting parties also pointed out that the technology was such that warnings sent using the CAP system without audio already attached might actually cut warnings broadcast on stations short before the public knew the basis of the alert, and even if they didn't, the 90 character limit imposed on textual warnings broadcast through the current SAME system would be insufficient to provide the kinds of information possible through text-to-speech systems.  Even National Weather Service alerts are to be formatted in a way so as to use text-to-speech capabilities.  Thus, prohibiting the use of text-to-speech might impede the delivery of such warnings

Given these objections, the FCC revoked its prohibition on the use of text-to-speech systems in EAS, making such use optional for broadcasters.  The rule was adopted to become effective immediately upon publication in the Federal Register, so that all stations that have to comply with CAP will be able to use text-to-speech systems, if they so desire, by the June 30 implementation deadline.

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The Commission's Fifth Report and Order on the Emergency Alert System (EAS) has now been published in the Federal Register, establishing the effective date of the rules as April 23rd.  We previously issued an Advisory, available here, summarizing the Order, which was adopted in January of this year.  This Fifth Report and Order did not impose new obligations on EAS Participants, but rather specified in detail how EAS Participants should implement the new Common Alerting Protocol (CAP) standards.  In a nutshell, the Order states the manner in which EAS Participants—which include radio and television broadcast stations, cable systems, wireline video systems, wireless cable systems, direct broadcast satellite (DBS) service providers, and satellite digital audio radio service (SDARS) providers—must be able to receive alert messages formatted in the CAP. In particular, all EAS Participants are required to be able to receive CAP-formatted EAS alerts no later than June 30, 2012. CAP is an Internet-based system that allows for more robust messaging, including audio and video alerts, and links to other sources of information about emergency information, instead of the simple text-based alert codes that come from the current system.

With today's publication in the Federal Register, the rules will become effective on April 23rd (30 days from today), which is also the deadline for filing Petitions for Reconsideration.  Some parties have already raised concerns about the Commission's Order, in particular with the prohibition on the use of text-to-speech conversion technology on CAP receiving devices.  And if fact, it looks like FEMA has already filed a Petition seeking reconsideration of that very issue.  Specifically, FEMA's Petition "recommends that the Commission reconsider the statement in CFR 47 § 11.56(a)(2) regarding exceptions to the ECIG Guidelines and delete the reference to 'using text-to-speech technology'. While not explicitly endorsing or mandating use of text-to-speech technology this would allow use of text-to-speech technology to be a marketplace decision driven by the resources of local alerting officials and EAS Participants..."  Interested parties have until April 23rd to prepare and file petitions with the FCC seeking clarification or revision of the rules and policies established by the Order. 

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All broadcasters and other EAS participants need to remember to file their reports on whether or not they received the Nationwide EAS Test by December 27.  With everyone preparing for the holidays, and with much of the publicity about that test having died down, it may be very easy for some to have forgotten that the test was conducted in early November, and that all stations and other EAS participants have an obligation to file with the FCC by December 27 reports on their experience with the test.  The FCC Forms are available on its website.  As we wrote after the test was completed, there were many problems in the transmission of the test, and the failure of your station to receive or rebroadcast the test in unlikely to have a regulatory penalty - the effectiveness of the test being what the whole exercise was designed to measure.  But the failure to file the form to give the FCC the information to assess the effectiveness of the test and to locate problem areas, could well cause enforcement issues.  So, in your holiday scrambles, make time to remember to let the FCC know about your station's experience with the Nationwide EAS test by next Tuesday's deadline.   

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Now that we've completed last week's first-ever Nationwide test of the EAS system, designed to alert Americans in the event of an emergency, the FCC is in the process of collecting information about the successes and failures of the test, through the submissions of participants.  Forms reporting on the results of the test are due by December 27.  At the same time, there has been at least one Congressional call for an expansion of the system in order to provide alerts not only by broadcast, cable and direct broadcast satellite systems, but also through on-line social networking communications tools. 

According to press reports (see, e.g. this article from the NY Times), the nationwide test uncovered many shortcomings in the system, as many broadcast stations (including all stations in two states) never received the alerts from the station that they were monitoring, in some cases because the message was never delivered to primary stations which were supposed to start the relay of the message to other stations along the daisy-chain system that is supposed to be in place.  Cable and satellite also had many problems.  Despite the fact that there may have been issues at your station or in your area, all participants should report on how their facilities fared in the test.  The FCC will take this information to assess what needs to be done to repair the problems that were witnesses.  The necessary Forms to report on the results of the test are available on the FCC's website.  In adopting the rules for the test, the FCC stated that it was not intending that the reporting system be a way to punish stations whose facilities did not receive or transmit the test, but instead to be a diagnostic tool to determine whether or not the system worked.  So the failure to file the forms to report on the success of the test on your stations is much more likely to bring an FCC enforcement action against your station than is reporting that, for one reason or another, the test did not work.  These forms are due on December 27.

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Tomorrow (November 9) will be the first ever Nationwide test of the Emergency Alert System, and last minute questions and issues continue to come in.  One caution relayed to us from a very experienced broadcast technical consultant concerns post-test news coverage.  This consultant surmises, probably accurately, that news reports, and perhaps comedy writers, will want to do bits about the test, and may be tempted to use a recording of the test itself in their on-air programs.  As we wrote several months ago, if your station broadcasts the EAS tones in any such story or comedy bit, the tones will trigger the EAS monitoring system of any station down the 'daisy chain" line, and thus the emergency information associated with these tones (in this case a national emergency) could end up being broadcast on other stations.  The broadcast of the EAS tones where there is no real emergency is a violation of the FCC's rules - so warn your on-air staff now to avoid any use of the real tones in post-alert broadcasts.

Second, there have been many questions about the forms to be used to report on the tests.  The instructions to the on-line forms have been posted (here), even though only Form 1 is still the only form available (not Form 3, which will actually report the results of the test, and which will apparently form the basis of the paper form that stations can file if decide not to file electronically).  The instructions make clear several points.  This includes the fact that each full-power station should file a separate report, even if they are commonly owned and operate from a common studio with common EAS equipment. The Instructions also suggest that the FCC would like to get information about translators, boosters and other secondary stations that carry the test, so that the FCC can get a complete picture as to how far the test was disseminated.  While the instructions suggest that information about the translators can be filed in a separate paper filing (and that information about translators is apparently a request, rather than an order), they do indicate that some reference to that filing should be made, presumably in a comment section in the as yet unavailable Form 3.  So look carefully at these instructions, so that you can be ready to supply the information requested by the FCC by the December 27 filing deadline.  For more information about the test, see our previous posts here and here. 

Update - 11/09/2011 - The FCC late yesterday issued a public notice reiterating our concerns about stations using the EAS tones in news reports or other coverage of the Nationwide Test. 

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With less than a week to go before the first ever Nationwide Test of the Emergency Alert System ("EAS"), changes are being made for the November 9 test.  In a Public Notice released today, the FCC announced that the EAS message that will be conveyed will be only 30 seconds long, not the two or three minutes that were originally planned.  There were some concerns expressed by certain groups, include groups representing cable television operators, that while the test was underway, certain automatic systems would kick in, overriding the visuals from the programming channel being broadcast.  The automatic EAS alerts that would be transmitted in a textual format would not specifically say that they were being conveyed as part of a test.  While the audio accompanying the test would provide that information, representatives of the hearing-impaired community were concerned that some people might believe that a real emergency was taking place.  While the FCC and FEMA had initially indicated that a two or three minute test was necessary to make sure that the message could be conveyed throughout the whole daisy chain system and that the system would be capable of conveying a long message that might be necessary in the event of a real emergency, it appears that they have now agreed that a 30 second message will be sufficient, and less likely to start a "War of the Worlds" panic among those who don't hear the audio message from the test.

The EAS Handbook for this Nationwide test (which we wrote about last week, here) is supposed to be at the control point of all stations and has been revised to take into account the new length of the test.  The revised handbook is available here.  Also, the Commission has made heard complaints about Form 1 on its on-line reporting system for this test, which we also wrote about last week.  One complaint was that the form required information about the location of the station in geographical minutes in decimal format, not in the minutes and seconds as expressed on the face of FCC licenses and in most FCC databases.  Many broadcasters had complained about that requirement - not knowing how to convert from minutes and seconds to minutes in a decimal format.  In response to those complaints, the Form has been revised to provide a link to a decimal converter program - where you can put in the minutes and seconds as expressed on your license and get the decimal expression of the transmitter site location.  Other minor changes in the form have also been made - including making some information (like a cell phone number for someone at the station) optional.

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The FCC has released its EAS Handbook, specially directed to the Nationwide EAS Alert that will occur on November 9.  This Handbook is to be posted at all stations that are participants in the EAS Network (which is virtually all stations) for purposes of this test only (stations should also have the standard EAS Handbook at their control points, but this Handbook will be used for the Nationwide Test).  Cable systems are also participating in the EAS system and are included in the test as well. As we have written before, the November 9 test is the first time that the Emergency Alert System (originally adopted in the 1960s as the Emergency Broadcast System) will be tested for a national alert, even though that was the original, and remains the primary, focus of the EAS system.  EAS is now used mostly for localized weather and Amber alerts. 

The Handbook also points to three FCC forms, to be accessed and filed online through the FCC's website.  While the use of these electronic forms are, according to an FCC Public Notice summarizing the EAS obligations, not mandatory, any station not choosing to use this system will have to file a paper report at the FCC by December 27 providing all of the required information.  If you elect to use the simplified electronic forms, Form 1 is to be completed by all stations and cable systems prior to the November 9 test, to provide information about the station or system and a contact person.  Form 2 is to be submitted on November 9, indicating whether the test was received.  Form 3 is submitted after the test, by December 27, to report information about how the test was received, or why it was not received.  Stations deciding to use the electronic filing (which is easier than getting an original and a mandatory copy to the FCC if a paper form is filed) should begin to review and complete Form 1 immediately.

In addition, the NAB has provided much material on the EAS Nationwide test, available here, including PSAs that stations should run now alerting the public that the November 9 test is only a test and not a real emergency, and also providing a suggested slide for TV stations to air during the test itself.  The message that this is only a test, to be aired by radio stations, is contained in the Emergency Action Notification message that will be sent to stations during the alert.  A sample of that text is in the EAS Handbook.  As this is an important test of the EAS system, and will require broadcasters to report on their compliance, everyone should be preparing to take part - and checking their systems to make sure that they are fully functional - now. 

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The FCC today announced that it is extending the deadline for participants to comply with the new EAS CAP (Common Alerting Protocol) rules until June 30, 2012.  The deadline had previously been set for just two weeks from now, September 30th; however, in light of the fact that the FCC had yet to finalize all of the new EAS CAP rules, it decided to extend the deadline until next June.  Thus, according to today's Order, available here, EAS participants will be required to be able to receive CAP-formatted EAS alerts no later than June 30, 2012.  Such an extension had been widely supported by EAS participants and commenters in the current EAS CAP rule making proceeding.  The FCC expects to adopt the CAP-based revisions to its Emergency Alert System rules in a subsequent order, and it expects those new rules to be out sufficiently in advance of the June 30, 2012 deadline in order to allow EAS participants ample time to come into compliance with those new rules. 

In addition, the Commission's Order urges EAS participants that have purchased or are considering purchasing any type of EAS equipment to verify with the manufacturer or vendor that the equipment fully complies with the FCC rules.  As the FCC has yet to rule on many issues related to the use of intermediary devices -- i.e., devices that connect in some fashion with previously certified EAS equipment to allow receipt of CAP-formatted alerts -- including whether such intermediary equipment must be certified under the FCC's rules or whether they fully satisfy the new CAP requirements, it is not clear whether such intermediary devices will ultimately satisfy all elements of the Commission's new EAS CAP rules.  So until the FCC issues its subsequent Report and Order addressing such issues, buyer beware.  See our earlier postings here for more information about the new EAS CAP rules. 

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There has been much focus on emergency communications recently, with the East Coast earthquake re-igniting the debate over FM-enabled mobile phones, and with Hurricane Irene forcing stations to gear up for emergency coverage in the coming days.  But even without these unusual events, the emergency communications world has been much in the news, given the current requirement for broadcast stations to be ready for the new Common Alerting Protocol ("CAP"), an Internet-based alerting system, by the end of September, and with the first-ever test of the National EAS system scheduled for November.  The CAP conversion date has recently been the subject of debate in a number of FCC filings - and there seems like a good chance that the September 30 deadline will be delayed - if for no other reason than the fact that the FCC has yet to adopt final rules for the equipment required for such compliance.  The National Test, however, should go on as scheduled.  More on all of these subjects below.

First, the coming hurricane should prompt stations to be ready for potential emergency operations.  The FCC in the past has publicized its Disaster Information Reporting System (DIRS).  Stations can voluntarily register with DIRS to give the FCC a contact person to assess damage after the storm, and to notify the FCC of the need for any aide that the Commission might be able to provide.  During the aftermath of Hurricane Katrina, I was personally involved in discussions with FCC personnel who coordinated with other government agencies to get clearance for diesel tanker trucks to gain access to restricted area to deliver fuel to a client's radio station that was still operational (on generator power) providing emergency information to Mississippi's Gulf Coast. The FCC personnel can be of great assistance in such situations, so DIRS registrations may be worth considering.  The FCC's website also provides helpful information about planning for disaster recovery  and about hurricanes specifically.  FCC emergency contact information is also on their site.

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The FCC’s recent Notice of Proposed Rule Making outlining changes to the FCC's Part 11 Rules governing the Emergency Alert System ("EAS") was published in the Federal Register today.  Today's publication establishes the timing for submitting Comments in this proceeding.  Comments will be due by July 20, with Reply Comments due by August 4th.  By its Third Further Notice of Proposed Rulemaking, released on May 26, 2011 (“NPRM”), the Commission suggested changes to its EAS rules intended to integrate Common Alerting Protocol or "CAP" based alert messaging into the existing EAS while laying the foundation for transitioning to next generation alert mechanisms. The current "SAME" protocol ("Specific Area Message Encoding") will continue to be used.  But CAP messaging, which allows for more information to be conveyed with each alert, would be overlaid on the system.  CAP is an IP based system, with messages delivered to stations by the Internet, and then converted into SAME for broadcast by the participating stations. 

Please see our longer article from last week, which can be found here, discussing in detail the specific questions raised by the Commission's NPRM.  In addition, David Oxenford recently participated in a Town Hall Webinar on EAS and CAP issues, that was held on Thursday, June 16, 2011, sponsored by the National Alliance of State Broadcast Associations and the NAB.  More information about the webinar can be found here, including an archived copy of the June 16th Town Hall Webinar, which should be available shortly. 

Parties interested in filing comments with the Commission should gather their thoughts as the clock is now ticking.  Comments can be filed with the Commission in paper, or electronically via the Electronic Comment Filing System. 

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The date for a nationwide test of the Emergency Alert System ("EAS") was announced by the FCC last week, at the same meeting at which the Future of Media report was delivered.  The first ever national test of EAS will occur at 2 PM EST on November 9, 2011. As we wrote in February, the FCC amended its rules to provide for a nationwide test, in addition to the weekly and monthly tests that are already part of the FCC rules.  The nationwide test is to assess the reliability and effectiveness of EAS in being able to convey to the public a Presidential alert.  This test comes at the same time as the FCC has issued a Notice of Proposed Rulemaking to consider amendments to its rules to provide for the conversion to a new method of disseminating EAS alerts - using the Common Alert Protocol (CAP) which is IP based, rather than reliant on the daisy chain over-the-air system that has been used for so long.  One question is whether the deadline for CAP implementation, presently set for September 30, should be extended.  Thoughts about the test and the FCC proposals for CAP implementation are set out below. 

The Nationwide test, even though it will not use the CAP system (which in and of itself may show that the Commission has already recognized that the September 30 CAP implementation deadline will be extended), is still very important for broadcasters.  The FCC, in coordination with the Federal Emergency Management Agency ("FEMA"), will use the results of the test to determine what problems exist in the EAS system and what improvements are necessary to ensure that the EAS functions as a robust public warning system.  As broadcasters in recent years have highlighted their participation in EAS, and the important role that it plays in alerting communities to emergency situations, in connection with many initiatives (including the push to put FM chips in cell phones), broadcasters want to make sure that their performance during the upcoming test will be up to the level that the FCC expects. As all EAS participants will have to report to the FCC on the results of the test, all participants should use the period between now and November to assure that their systems are working and ready to fulfill their obligations under the rules. No broadcaster, cable system or other participant wants to be in the position of having to report to the FCC that their equipment was malfunctioning on the date of the test. And, certainly, no participant wants to forget to file the necessary report when due.

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At the urging of virtually the entire broadcast and cable industry, as well as the communications engineering community, the FCC today granted an extension of time for broadcasters and other EAS participants to come into compliance with the new CAP reception requirements - putting off the need for compliance until September 30, 2011.  CAP (the Common Alerting Protocol) is a new format to be used for collecting and distributing emergency communications alerts to all communications platforms.  The FCC, when it adopted CAP, mandated compliance within 180 days of the publication of technical standards for the CAP-formatted alerts by FEMA (the Federal Emergency Management Agency).  Those standards were published on September 30, 2010.  Immediately, questions arose about whether the entire communications industry could be ready to make the transition within that 180 day period (see our post here raising those questions after the FEMA adoption).

Specifically, there were questions about the ability of all the EAS participants being able to budget for the purchase of the equipment and to make those purchases and to then install the new equipment within the specified period.   But more fundamentally, there were questions of whether there was even equipment ready to be deployed, as there was an issue as to whether FEMA and the FCC had to first certify CAP-enabled equipment, before it could be sold.  Those questions remain unresolved.  In today's order, the FCC, while stating that it does not anticipate a further extension of the deadline, does state that it will initiate a rulemaking to determine if CAP equipment must be certified under Part 11 of the Commission's rules.  As part of that rulemaking, the Commission will seek comment on whether this extension is sufficient to give all EAS participants time to make the change.  As the FCC repeatedly states that it does not intend any further extensions of the deadline, don't count on more delays.  But watch this proceeding as, while the Commission states that they intend to complete the process before the new deadline, unanticipated delays could conceivably further extend the mandatory adoption date. 

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In the "what were they thinking" category, the Society of Broadcast Engineers reports that there is a commercial for the new Skyline movie that contains an EAS tone - that can actually set off EAS receivers.  If a station is operating without an attendant, with the EAS on automatic, a receiving station could be automatically start retransmitting its primary station if it hears the tone in the ad - causing the receiving stations to start running the commercial thinking that it is an EAS alert, and it might continue running that commercial and subsequent programming from the primary station for several minutes as there was no termination code in the commercial.  This is not the first time in recent months that this issue has arisen - only a few months ago an ad by BP for its ARCO subsidiary also contained alert tones.  While this may be a mistake by commercial advertisers aiming for reality in their some marketers, as opposed to a cynical marketing ploy to take over stations that received the signal from the primary station on which the ad was run, this type of ad could be a violation of the FCC's rules - so broadcasters should be vigilant in policing these ads.

Section 11.45 of the Commission's Rules states:

No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS. Broadcast station licensees should also refer to § 73.1217 of this chapter.

While this rule also refers broadcasters to Section 73.1217, the prohibition on broadcast hoaxes that might cause substantial harm, Section 11.45 is an absolute prohibition on the use of EAS tones for other than an emergency - whether or not harm is caused.  Stations need to police these ads - and advertisers themselves need to be aware that these ads are prohibited under FCC rules. 

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In yet another example of the importance that the FCC places on emergency communications and safety issues, an FCC Enforcement Bureau District Field Office issued a Notice of Apparent Liability, proposing to fine a radio station $25,000 for violations including an EAS system that was not operational, as well as a tower that needed repainting and with lights that were not functioning properly.  Together with various other issues - including missing quarterly issues programs lists - the FCC found that a $25,000 fine was appropriate.  This is another in a series of recent notices of apparent liability from FCC District Offices, demonstrating the high cost of noncompliance with technical and operational issues at broadcast stations.

On the tower issues, the FCC found that the tower lights, which were required to be flashing, were in either not operational at all or not flashing, and that the licensee admitted that no visual inspection of the lights had occurred in at least a week.  Citing Section 17.47 of the FCC rules, which require a visual inspection of tower lights every 24 hours unless there is an automatic inspection system (which was not present at this tower), the FCC found that there was a violation here.  In addition, the inspection revealed that the tower paint was faded and, in some places, had peeled to reveal bare steel, as the tower had not been painted since 1996.  Towers must be cleaned and painted "as often as necessary to maintain good visibility" under Section 17.50 of the FCC Rules.  The failure of the tower owner to monitor the tower lights resulted in a $2000 fine, and a $10,000 fine was imposed for the failure to repaint the tower.

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Earlier this week, I posted a Top Ten list of legal issues that should keep a broadcast station operator up at night.  In two orders released today, the FCC found stations where these issues apparently had not been keeping their operators awake, as the FCC issued fines for numerous violations.  At one station, the FCC found that the EAS monitor was not working, the fence around the AM tower site was unlocked, and the station had no public inspection file, resulting in a $5500 fine (see the FCC's Enforcement Bureau order here).  At another station, the FCC inspectors were told that the station had no public file, and they also found the AM tower site fence unlocked, resulting in a $3500 fine (see the order here).  These cases are one more example that, while broadcasters have plenty of big-picture legal and policy issues that they need to be concerned about, they also need to worry about the nuts and bolts, as the failure to observe basic regulatory requirements like tower fencing, EAS, and public file requirements can bring immediate financial penalties to a station. 

The tower fencing issue is one that we have written about before.  FCC rules require that public access be restricted to areas of high RF radiation, which are likely to occur at ground levels near AM stations.  The FCC has many times issued fines for fences with unlocked gates, holes, or areas where there are gullies where a child could climb under the fence into the tower area.  The FCC has been  unwilling to accept excuses that the fence was locked "yesterday" or "last week" or at some other less defined time in the absence of proof, as they've heard that excuse many time.  If the fence is open when they arrive, expect a fine.

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As summarized by Brian Hurh on our sister site broadbandlawadvisor.com, yesterday the FCC's Consumer and Government Affairs Bureau released a Public Notice seeking comments to refresh the record on closed captioning that was last addressed in the Commission's 2005 and 2008 Closed Captioning NPRMs. As recognized by the Commission, much has happened since those proceedings, both technologically and regulatory. As directed by the recently enacted 21st Century Communications and Video Accessibility Act (which we blogged about earlier here, and discussed in DWT's Advisory here), the FCC's rules must be revised to extend closed captioning to the Internet within 6 months of the Advisory Committee's report on closed captioning, which must be released by October 2011. As we noted earlier, the Advisory Committee must be formed by December 8, and hold its first meeting by April 2011.

The revised closed captioning rules will necessarily require a new closed captioning rule making proceeding, and presumably, the Commission is gathering information now to determine what the forthcoming rule making proceeding will look like. Some of the issues that the Commission seeks to refresh include:

• Whether to establish quality standards for non-technical aspects of closed captioning, including whether different quality standards should apply to live and pre-recorded programming;
• The need for mechanisms and procedures over and above the "pass through" rule, and whether there should be a per violation forfeiture amount for non-compliance;
• Whether the FCC should revise its rules to disallow the use of electronic newsroom technique for certain DMAs;
• How the section 79.1(d)(12) exemption for channels producing revenues of less than $3 million should apply to digital mulitcast, specifically, the ramifications of treating each multicast stream as a separate channel for purposes of the exemption.

Comments are due November 24.  Reply comments are due December 9.  Comments can be submitted to the FCC in paper, or electronically via the FCC's Electronic Comment Filing System. 

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Update 10/15/10:  A copy of the Davis Wright Tremaine advisory published on October 13 is now available here and provides further details about the new accessibility Act.

Last week Congress adopted legislation to promote the accessibility of communications and media services. The law, entitled the “Twenty First Century Communications and Video Accessibility Act of 2010”, is expected to be signed into law by President Obama, possibly as early as today, October 8th. The Act contains a number of changes to improve media accessibility, the most notable of which for broadcasters and cable operators is the reinstatement of the Commission’s defunct Video Description rules. The Act reinstates the FCC’s prior video description rules adopted in 2000 and subsequently struck down by the Court of Appeals in the case of MPAA v. FCC following a challenge to the rules by the Motion Picture Association of America, the National Association of Broadcasters, and the National Cable & Telecommunications Association.  At the time, the Court found that the FCC did not have the authority to adopt  video description rules, but Congress has now eliminated that issue by specifically authorizing the FCC to promulgate such rules and instructing it to reinstate the earlier regulations. 

We are currently in the process of reviewing and summarizing the new legislation and expect to publish shortly a Davis Wright Tremaine advisory with complete details and a time line for implementation. Once that advisory is published, we'll update this post and provide a link.   In the meantime, some of the highlights and specifics of the Act are detailed below:  

The Act effectively reinstates video description rules adopted in 2000 as 47 CFR § 79.3 and struck down in MPAA v. FCC.  The rules will go into effect within one year after enactment (i.e. by October 2011).  Those rules will initially require that:

1. Affiliates of the Big 4 Networks (ABC, CBS, Fox, and NBC) in the top 25 DMAs will have to provide 50 hrs./quarter of prime time or children's programming with video description
2. The top 5 national nonbroadcast (i.e. cable) networks, must provide 50 hrs./quarter of programming with video description;
3. Broadcast stations and MVPDs with technical capability to do so generally must pass through video descriptions.

Before the rules go into effect, the FCC will conduct a rule making to make certain modifications to the 2000 rules including:

1. Updating the list of top 25 DMAs and top 5 cable networks, determining the first calendar quarter in which video description compliance will be required, and the phase-in for compliance;
2. specifying that the rules apply to television programming in digital format only;
3. specifying that live or near-live programming is not covered;
4. creating a way for covered programming providers or owners to seek exemptions
5. allowing FCC to exempt services, programs, and/or equipment (or classes thereof) based on economic burden

After all the above is complete, the rules as modified may be expanded to require a greater number of hours of video-described programming per quarter and to expand the television markets that must comply.  However, such expansion of the rules would only be after the FCC provides Congress with a report on the financial, technical, and operational costs associated with video descriptions, and the availability, use, and benefits of video descriptions.  According to the Act, the Commission may not issue additional regulations unless the Commission determines, at least two years after completing the required reports, that the need and benefit of the rules outweighs the costs of providing additional programming. 

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This afternoon, FEMA (Federal Emergency Management Agency) adopted the new digital message format for the Common Alerting Protocol (CAP) standard.  The adoption of this message format is the next step in the implementation of Integrated Public Alert and Warning System (IPAWS), which expands the traditional Emergency Alert System used by radio and television to other communications devices, such as mobile phones and personal computers.  In the words of the FEMA news release issued today:  "This open standard will enable alert messages to be easily composed by emergency management officials for communication with citizens using a much broader set of devices to reach as many people as possible."

More importantly for broadcasters, the adoption of this digital message format triggers the clock for updating their EAS equipment to ensure that it is able to handle the new Common Alerting Protocol.  As we wrote about earlier, as part of an EAS Order adopted by the FCC back in 2007, the Commission mandated that all EAS participants -- which includes radio, television, and cable -- must accept CAP-based EAS alerts within 180 days after the date on which FEMA publishes the applicable technical standards for CAP.  Thus, with FEMA's adoption of the CAP messaging standard today it would appear that the 180-day clock has been triggered and the countdown for broadcast stations to acquire CAPS-compliant EAS equipment has begun.  I say "it would appear" because it is a bit unclear whether the 180-day clock is triggered instantaneously by the release of FEMA's notice.  Trade press this evening is reporting that the FCC has confirmed that the clock has indeed been triggered and is counting down, but no official notice has been released yet by the FCC.  Readers will recall that that the Commission is still in the midst of a proceeding to adopt revisions to its EAS rules to facilitate the CAP standard.  In addition, several parties commenting in the EAS proceeding requested an extension or tolling of the 180-day clock in order to allow broadcast stations more time to acquire the necessary equipment and to allow equipment manufacturers more lead time to meet the demand for new equipment brought about by the rule changes.  In comments today at the NAB/RAB Radio Show today, FCC staff members acknowledged that several requests for extension of time had been made and were being considered along with the comments filed in the proceeding.  We will update this post with further information if and when the FCC releases a Public Notice regarding the 180-day clock, but in the meantime broadcasters should operate under the premise that the 180-day clock is now ticking and start making plans to ensure that they have CAP-compliant EAS equipment in place within 180 days from today. 

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The FCC recently fined a station $8500 for not having an operational EAS system for almost two years, and for not having a main studio that was manned during normal business hours. The EAS fine was evident, as the station did not dispute that it did not have an operational EAS system in place.  It did, however, challenge the conclusion that it should be fined for having a main studio  that was not manned during normal business hours.  The licensee argued that the studio was not manned because of the precarious financial state of the station following the termination of an LMA. It said that, when faced with the choice of taking the station off the air because it could not afford to pay a staff to man the main studio or violating the staffing requirements, it decided to violate the rules.  The FCC said that the lack of financial resources was not an excuse for operating within the rules, and thus issued the fine (though reducing the cumulative amount of the fine based on the station's inability to pay more).

The Commission did suggest that the station could have asked for a waiver of the main studio staffing requirements based on its financial distress (though it did not say if it would have granted such a request).  But making the choice to violate the FCC's rules without even trying to ask for permission was essentially asking for trouble.  The FCC's policies require that stations have main studios manned during normal business hours,  Two employees are supposed to be based out of that studio, using it as their principal place of business, and at least one of them must be physically present and available at the studio during the business day.  Observe those rules, or risk an FCC fine. 

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The FCC issued a reminder to all video program distributors - including TV stations, cable systems and satellite television providers -  that emergency information must be made accessible to those with hearing or vision disabilities.  For those with hearing difficulty, the Commission reminded providers that they must make information available visually as well as aurally - either through closed captioning or some other method that the aurally impaired can understand the nature of the emergency. For the visually impaired, if the emergency information is provided in a crawl or through some other non-verbal manner, there need to be alert tones broadcast identifying that emergency information is being conveyed so that visually impaired viewers can make arrangements to find out what the emergency is.  With hurricane season upon us, the Commission wanted to remind video service providers of these obligations.

The Commission also reminded service providers and viewers of the new complaint process, about which we wrote here, that sets up a process for viewers who believe that there has not been proper captioning information provided.  This reminder alone should alert broadcasters and other video program providers of the seriousness with which the FCC views these rules.

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So it seems like we have been posting about Closed Captioning issues at least once a month recently, and this month is no exception as word comes now that the FCC is expecting to ratchet up enforcement of its closed captioning rules as it has now become easier for consumers to file complaints directly to the FCC.  Today, the FCC released a Public Notice aimed at informing consumers of just how easy it is to file complaints with the FCC regarding closed captioning.  The Notice also instructs viewers on how they can find contact information for video programming providers in order to contact satellite providers, cable systems, and broadcast television stations directly with any issues they may have.  Today's Public Notice, a copy of which is available here, is specifically aimed at viewers and touts that:  "The simplified complaint rules make it easier for consumers to bring their concerns about closed captions on television to the attention of the Commission." 

Today's notice comes on the heels of public statements made earlier this week about the fact that the FCC intends to ramp up its enforcement of the captioning rules.  According to trade press reports, the Deputy Chief of the FCC's Consumer and Governmental Affairs Bureau believes that the DTV transition has resulted in an increased number of captioning issues, and that the FCC expects to step up enforcement in this area to respond to the growing number of complaints.  So television stations, cable operators, and satellite television providers are on notice that the FCC is paying close attention to closed captioning issues.  Video programming providers should be vigilant to ensure that they are complying with the rules and that they respond promptly and thoroughly to any inquiry or complaint from either a viewer or the FCC.  Further details about the recent changes to the closed captioning complaint rules can be found in our earlier post here.   

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The FCC today issued a further Public Notice reminding all Video Programming Distributors (VPDs)-- including those who might otherwise be exempt from some elements of the closed captioning rules -- to register their contact information with the FCC.  All VPDs, including television stations, should have already identified appropriate contact people within their organizations and filed their contact information with the FCC.  Although that info was due to the FCC by March 22, 2010, today's Public Notice, available here, indicates that many folks still have not yet complied with the new rules.  Accordingly, the FCC is seeking to increase compliance by reminding VPDs of this obligation and encouraging distributors to register their contact belatedly.  All television stations and other VPDs should ensure that they have taken the necessary steps and registered their contact information with the FCC.  While the FCC has exercised its discretion thus far and issued a reminder instead of simply cracking down and commencing enforcement proceedings, video programming distributors are now on notice.  And the next actions by the Commission with regard to this new rule will undoubtedly be more aggressive and could possibly involve enforcement actions.

As we've discussed previously, a new FCC closed captioning rule recently went into effect that requires video programming distributors to establish:  1.)  a contact person for handling immediate closed captioning concerns, and 2.)  a contact person for receiving written captioning complaints of a general or non-time sensitive nature.  In order to assist viewers and potentially facilitate the resolution of such captioning complaints, the rule requires that video programming distributors publicize the appropriate contact information and also provide the contact information to the Commission, which will maintain a database open to consumers.  Thus, by March 22, 2010, all television stations and other distributors were to have designated a contact person, posted the necessary contact information on their web site (and in any phone directories the distributor may advertise in), and submitted the information to the FCC.

If stations failed to file that info by March 22nd, they should do so immediately.  The best way for stations to file this information with the FCC is to visit the FCC's website and submit the information online. The Commission’s website contains a detailed web form with step-by-step instructions to walk applicants through the process.  Alternatively, the contact information can be e-mailed directly to the FCC’s Disability Rights Office at: CLOSEDCAPTIONING_POC@fcc.gov . 

Video programming distributors must keep their contact information current and update both their websites and the Commission’s database within 10 business days of any changes to the information. Further details about the contact information requirement and the revised FCC closed captioning complaint rules can be found in our earlier posting here.

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With the recent April 15th publication of an FCC Public Notice in the Federal Register, the due date for Comments regarding possible revisions to the FCC's Emergency Alert System (EAS) rules has been set at May 17th, with Reply Comments due by June 14.  By this recent Public Notice, the Commission has requested  informal comments regarding revisions to its EAS rules in connection with the forthcoming adoption of the Common Alerting Protocol (CAP) by the Federal Emergency Management Agency (FEMA).  So what, you might ask, is “CAP”? 

CAP stands for “Common Alerting Protocol” and is the next-generation protocol for distributing emergency warnings and safety notifications.  In technical jargon it is “an open, interoperable, data interchange format for collecting and distributing all-hazard safety notifications and emergency warnings to multiple information networks, public safety alerting systems, and personal communications devices.” In layman’s terms, it will allow FEMA, the National Weather Service, a state Governor, or others authorized to initiate public alert systems to automatically format and even target a specific geographic area and simultaneously alert the public using multiple media platforms including broadcast television, radio, cable, cell phones, and electronic highway signs. CAP will also allow for alerts specifically formatted for people with disabilities and for non-English speakers.

As part of an EAS Order adopted by the FCC back in 2007, the Commission mandated that all EAS participants -- which would include radio, television, and cable -- must accept CAP-based EAS alerts within 180 days after the date on which FEMA publishes the applicable technical standards for CAP.  According to the FCC, FEMA has recently announced its intention to adopt a version of CAP as early as the third quarter of 2010, which would in turn trigger the Commission’s 180-day requirement.  Given that the Commission’s current EAS rules pre-date the concept of Common Alerting Protocol, the existing EAS rules will likely need significant revision or even replacement once CAP is adopted and implemented. 

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In two separate Orders today, the FCC issued monetary forfeitures against a cable operator for failure to install Emergency Alert System (EAS) equipment and for various tower violations.  These same violations could have been cited against a broadcaster, so these cases are instructive to both broadcasters and cable operators.  The FCC issued monetary forfeitures of $20,000 and $18,000 against two Texas cable systems owned by the same company.  In both cases, the cable operator failed to install EAS equipment, failed to notify the FAA of a tower lighting outage and failed to exhibit red obstruction tower lighting from sunset to sunrise.   The higher fine related to a system's failure to display a tower's Antenna Structure Registration (ASR) number "in a conspicuous place so that it is readily visible near the base of the antenna structure."  

These same requirements apply equally to broadcast stations that have their own towers.   While most broadcasters are aware of the requirement to maintain working EAS equipment, many may not know that  FCC rules require a tower's ASR to be conspicuously displayed at the base of the tower.  To be compliant, the ASR must be displayed on a weather-resistant surface and of sufficient size to be easily seen at the base of the tower.

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Just a reminder that all Video Programming Distributors -- which includes broadcast television stations --  must identify a contact person for closed captioning issues, both immediate issues and general complaints, and file that contact information with the FCC by March 22, 2010.  As we've discussed previously, new FCC closed captioning rules recently went into effect that require video programming distributors to establish a contact for handling immediate closed captioning concerns, as well a contact for receiving written captioning complaints of a general or non-time sensitive nature.  In order to assist viewers and potentially facilitate the resolution of such captioning complaints, the rules require that video programming distributors publicize the appropriate contact information and also provide the information to the Commission, which will maintain a database open to consumers.  

Accordingly, by March 22, 2010, television stations must designate a contact person, post the necessary contact information on their web site (and in any phone directories the station may advertise in), and submit the information to the FCC.  The best way for stations to file this information with the FCC is to visit the FCC's Web site and submit the information online. The Commission’s Web site contains a detailed form with step-by-step instructions that will walk applicants through the process.  Alternatively, the contact information can be e-mailed directly to the FCC’s Disability Rights Office at: CLOSEDCAPTIONING_POC@fcc.gov.

Video programming distributors must keep their contact information current and update both their Web sites and the Commission’s database within 10 business days of any changes to the information.  Further details about the contact information requirement and the revised FCC closed captioning complaint rules can be found in our earlier posting here. 

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On Friday, Feb. 19, 2010, two important new closed captioning rules were published in the Federal Register and went into effect. The new rules require immediate attention by video programming distributors -- including broadcast television stations -- to ensure that they respond promptly to viewer complaints regarding closed captioning issues, and to ensure that they timely file contact information with the FCC by March 22, 2010. 

As detailed in Davis Wright Tremaine’s November 2008 advisory and subsequent January 2009 advisory update, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Order in late 2008 that, among other things, imposed new requirements on video programming distributors with respect to fielding inquiries and complaints about closed captioning.  While the implementation of some aspects of those rules was delayed initially, with Friday's publication in the Federal Register, two of those are now in effect.  The new rules, and the obligations they impose on video programming distributors, are discussed below. 

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The FCC has proposed amending its rules governing the Emergency Alert System (EAS) in order to test and improve the effectiveness of the system.  In particular, the Commission has proposed that all EAS participants be required to join in a nationwide test -- to be scheduled by the FCC in consultation with the Federal Emergency Management Agency (FEMA) -- to ensure that the system will function properly to inform the public in the event of a national crisis.  The FCC proposes to implement the national test on a yearly basis and seeks comment on the specific language of the proposed rule.  A copy of the Commission's Notice of Proposed Rule Making (NPRM) was recently published in the Federal Register establishing the deadline for Comments on the proposed rules as March 1, 2010, with Reply Comments due on or before March 30, 2010.

In issuing its NPRM, available here, the Commission acknowledged the shortcomings of the current rules and its belief that a national test -- and the data gathered from such a test -- is critical to ensuring consistency and reliability in a system that has actually never been used to deliver a national Presidential alert.  Under the current system, an EAS message is initiated, which is then passed via specially encoded messages to a broadcast-based transmission network, and then on to broadcast stations, cable operators, and other EAS participants in a daisy-chain distribution to the final end users, i.e., the public who is listening, watching, or reading, on radio, television, cable, or other services.  This daisy-chain structure leaves the system, in the Commission's estimation, vulnerable to a significant failure if the message distribution is severed or delayed at any one point.  By proposing an annual national test, the Commission seeks to test the system in an organized, controlled manner, gather data from the EAS participants, and apply what is learned.  Under the Commission's proposed rule, the annual test would replace one of the required monthly tests and participants would have at least two months advance notice of the nationwide test.  EAS participants would be required to log the test results of the test and provide information on the results to the Commission's Public Safety and Homeland Security Bureau within 30 days of the test.  The Commission seeks input on the proposed rule, including whether once a year is sufficient, and what the costs would be attendant to the testing and reporting.

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You've arrived here as the result of a broken link. 

The full article regarding the proposed revisions to the Emergency Alert System (EAS) posted on February 2, 2010 can be found here.  

We apologize for the inconvenience, and thank you for reading. 

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The FCC last week did an about face on a fine for a violation of the EAS rules, canceling a fine issued to a broadcaster who had violated the rules and instead issuing only an admonition.  This case resulted when a local primary EAS station, KWVE, one monitored by other stations and cable systems for test messages and alerts, ran the wrong EAS test - running a required monthly test in lieu of the weekly test that was supposed to run.  The problem was compounded when the on-duty operator somehow stopped the test in the middle.  By doing so, the End of Message ("EOM") code was never sent or received, so some stations that were passing through the alert simply continued to run audio from the primary station, including the religious programming that the station featured and a commercial message from that station.  One viewer of a cable system that picked up the test complained to the FCC, and the FCC issued a fine in the amount of $5000 - the fine which was vacated last week.

The initial fine had resulted in criticism from many diverse broadcast groups and associations - including many state broadcast associations and engineering groups.  This station was volunteering to act as the primary station for the area - taking on additional EAS responsibilities to initiate tests and otherwise be responsible for potentially originating and relaying important emergency information.  Here, as a result of an inadvertent error, the station made a one-time mistake.  The protesting groups argued that the Commission's fine set a bad precedent, one which would discourage stations from volunteering for responsibilities under this and possibly under other programs which could benefit the public, if the result was that the stations were subjecting themselves to substantial liability for even the tiniest, inadvertent infractions.  And, of course, this error took place in the course of a test - and what's the purpose of a test but to discover issues with training or execution that need to be corrected in the event of a real emergency.  If everyone was already perfect, you wouldn't need to conduct tests.  The Commission decision this week, to back off the fine and just issue a warning  was seemingly a correct one - and should be applauded. 

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The FCC recently issued two reminders about television programmer's obligations to members of their audience who are hearing impaired.  The first notice made clear that stations must caption 100% of their "new, non-exempt" Spanish language programming as of January 1, 2010.  The second notice was to remind broadcasters that, when providing emergency information, they must make that information accessible to the hearing impaired, even if the programming falls into one of the captioning exemptions.  For instance, emergency information provided in live programming on a broadcast station with less than $3 million in revenues must still be accessible to the hearing impaired, either through closed or open captions, or through white boards or chalk boards or other devices that can be read by those who cannot hear the aural announcement on the station.

These issues are addressed in more detail in our Davis Wright Tremaine Advisory, here.  The memo also summarizes the current obligations of broadcasters and other video programmers under the FCC's captioning rules, and the status of pending proceedings to potentially change the exemption for programming channels with less than $3 million in revenue so that DTV multicast streams would be included with a station's main channel in deciding if the station met the exception.  It also discusses the status of implementation of new FCC rules changing the complaint process for violations of these rules.  These are important rules that the FCC takes seriously so, for more information, check out our Advisory. 

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Last week, the FCC issued several fines to broadcasters for failure to observe some basic FCC rules.  As there many FCC rules to observe, broadcasters should use the misfortune of others who have suffered from these fines as a way to check their own operations to make sure that they meet all of the required Commission standards.  In the recent cases, fines were issued for a variety of violations, including the failure to have a manned main studio, the failure to have a working EAS system, incomplete public files, operations of an AM station at night with daytime power, and the failure to have a locked fence around an AM tower.  This post deals with the issues discovered at the studios of stations - a separate post will deal with the issues at the transmitter sites. 

The main studio rule violation was a case that, while seemingly obvious, also should remind broadcasters of their obligations under the requirement that a station have a manned main studio.  In this case, when the FCC inspectors arrived at the station's main studio, they found it locked and abandoned.  Once they were able to locate a station representative to let them into the studio, they found that there was some equipment in the facility, but it was not hooked up, nor was there any telephone or data line that would permit the station to be controlled from the site.  The Commission's main studio rules require that there be at least two station employees for whom the studio is their principal place of business (I like to think of it as the place where these employees have their desks with the pictures of their kids or their dog, as the case may be, and where they show up in the morning to drink their morning cup of coffee before heading out to do sales, news or whatever their job may be).  At least one of the two employees who report to the studio as their principal place of business must be a management level employee, and at least one of those employees must be present during all normal business hours.  Thus, the studio should never be devoid of human life.  The studio must be able to originate programming, and the station must be able to be controlled from that location so that the employees there could originate programming in the event of a local emergency.  In light of these violations and others, the station in this case was fined $8000.

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The threat from the recent fires to the tower farm on Mount Wilson from which many of the radio and television stations serving the Los Angeles area operate highlight the need for broadcasters to have an emergency plan in the event that some local catastrophe affects their tower site.  The fact that this fire comes near to the anniversary of Hurricane Katrina, where many broadcasters lost power, but where others where able to provide a lifeline to their communities, reminds broadcasters that emergencies can strike anywhere in the country, and broadcasters need to be ready.  The FCC's Public Notice issued this week, adopting special procedures for stations in the area affected by the fire, demonstrate that the FCC is ready to work with broadcasters to provide service in the time of a widespread disaster, relaxing many of its normal rules.  The FCC has been very good in helping stations in the event of a mass disaster - even helping broadcasters during Katrina cut through the red tape of other agencies in order to assure their continued operation.  But broadcasters need to familiarize themselves with the rules about emergency operations, and be ready to deal with a more isolated disaster that may not receive enough attention for the FCC to, on its own, relax these rules.

One of the rules highlighted by the FCC's public notice is Section 73.1250(f) of the Commission's Rules, which allows an AM station to operate at night with its daytime power in the event of an emergency.  As many AMs operate only during daylight hours, and others routinely reduce power at night or use a directional antenna that restricts radiation in directions which may contain significant populations, this ability to continue to operate with daytime power and antenna pattern at night can allow a station to fully serve its community in times of emergency.  However, a broadcaster taking advantage of this provision needs to observe the requirements of the rule.  First, it must notify the FCC that it is operating under this rule within 48 hours of beginning to do so.  If the station causes irreparable interference to another station, it may be forced to curtail such operations. Moreover, the operation must be on a noncommercial basis (apparently to limit any financial incentive for a station to abuse this provision).  And finally, one issue not addressed in the FCC's public notice about the Southern California fires, the use is only permitted if there is no other full-time service "serving the public need."  Obviously, that last clause is open to interpretation, but it would certainly seem to preclude an AM daytimer co-owned and simulcasting an FM station that covers the same are from suddenly operating at night.

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In its rush to complete the "analog nightlight" program rules in time for television stations to make plans for the February 17 end date for analog television, and to comply with a statutory mandate to have the program in place by January 15, the FCC will require some people to work through their New Years Weekend to have comments to the FCC by Monday, January 5.  Federal Register publication of the Commission's Notice of Proposed Rulemaking on this proposal took place today.  We wrote about the program to allow some analog television stations to operate for 30 days after the end of the digital transition, to carry emergency information and to inform viewers who missed the message on the digital conversion about what they need to do to receive digital television, and about some of the issues posed by the FCC, here.  Reply comments on this proposal are due three days later -January 8. 

As the comment date is also when stations who were not included on the original list of those who automatically qualify for nightlight status are supposed to ask to be included and show how they will protect digital television operations, some engineers will also need to be busy this weekend.  With this short response time, station operators need to quickly get going on the comments due on Monday. 

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In two recent FCC decisions, one dealing with a commercial operator and that other with a noncommercial licensee, the Commission's staff addressed the issue of how large an FCC fine could be imposed on a broadcaster without that fine being subject to reduction because of the licensee's inability to pay.  In the first case, a commercial station was fined for violations of the EAS rules.  As we've written before, EAS seems to be the most common violation found at broadcast stations by FCC inspectors.  However, what is most notable about this decision is not the violation, but the Commission's discussion of the penalty for that violation.  As in many cases, the licensee argued that, as it had experienced several years of financial losses, the amount of its fine should be reduced as the payment of that fine would impose a financial burden on it.  The FCC rejected the argument, finding that as the fine was less than 2% of the licensee's gross revenues, it was not excessive.  The Commission stated that, while profits and losses may be important in determining whether a licensee can pay a fine, in most cases, if the fine is less than 2% of gross revenues, it will not be considered excessive even if the licensee has not been making a profit as it it not a significant overall expense.  Therefore, the Commission refused to reduce the fine because of financial hardship argument.

In the noncommercial case, the applicant claimed that a fine that it was issued for not having any quarterly programs issues lists in it public file should have been reduced because that fine would significantly deplete the station's budget that had been allocated to it by the School District with which it was associated.  However, the licensee only provided the FCC with information concerning the budget allotted to the radio station, and it did not provide any financial information about finances of the licensee school district.  Without that information, the Commission stated that it could not determine that the fine was excessive, so it did not reduce the fine on the basis of financial hardship.  Clearly, the Commission is not anxious to reduce a fine based on the licensees financial inability to pay, so a licensee looking for such a reduction must carefully document its request showing that the fine would impose a financial hardship.

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The FCC has just issued orders fining two stations, one for $8000 and one for $5000, for not having EAS receivers that were in compliance with FCC rules.  The stations, which are located in the same building, shared one EAS receiver.  According to FCC rules, co-located stations can share EAS receivers when they are also co-owned.  Here, however, the stations were not under common ownership so, under the rules, they could not share the same receiver.  In addition, in connection with the station that received the higher fine, the FCC noted that the receiver was not properly calibrated, having incorrect date and time information - being set permanently on January 10, 1995.  As the system was set up to automatically retransmit the required monthly EAS tests, and those tests would not be properly relayed if they were encoded with a date that the system did not think had yet occurred, the station had not been transmitting the required monthly tests, nor noting the failure to do so in their station log.

In attending several engineering seminars at broadcast conventions in the last few months, I've noted that broadcast compliance inspectors consistently identify non-working EAS receivers as the number one compliance problem at broadcast stations.  And one of the biggest problems is with receivers that either have never had the correct date set, or which have a clock which is malfunctioning so that the correct date and time is not properly updated.  Inspectors have also noted that many times they find EAS receivers not having the proper audio inputs so that they can receive the station that they are supposed to be monitoring, or proper outputs so that they can relay the tests that they do receive.  And, as a station's chief operator is supposed to be weekly checking the station's log, which should include a record of all EAS tests sent and received, these discrepancies should be noted within a few days - yet they often go unnoticed for long periods of time - meaning that the station can also be fined for not having properly maintained their station log.  As these fines can add up, stations should insure that their equipment is working and monitored to avoid making some involuntary contributions to the US Treasury.

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I’m writing this entry as I return from the annual convention of the Iowa Broadcasters Association, held this year in Des Moines, Iowa. Anyone who has read, watched or listened to the national news this week knows of the terrible tornadoes that devastated a Boy Scout camp in that state, and the floods ravaging many of its cities and threatening others. I arrived in Iowa on Wednesday having just completed the filing of reply comments in the FCC’s localism proceeding, and after reviewing the many comments filed in that proceeding. After talking with, watching and listening to the Iowa Broadcasters, I was struck by the contrast between the picture of the broadcast industry contained in the Commission’s notice of proposed rulemaking and that which I saw and heard reflected in the words and actions of the broadcasters. I could only think of how the broadcasters of Iowa and the remainder of the country have dealt admirably in their programming with the disasters that nature has sent their way, and with the other issues facing this country every day, and have been able to do this all without any compulsion by the government. Why, when we have probably the most responsive broadcast system on earth, do we need the government to step in and tell broadcasters how to serve their communities?

At dinner on Wednesday, I watched one station general manager repeatedly getting up from his meal to take calls from his station about their coverage of a tornado that had come within a quarter mile of his studio, and how he had to insist that his employees take shelter from the storm rather than continuing to broadcast news reports from their exposed location as the tornado bore down on them. Another told me of how he and another employee had spent the previous day piling sandbags around the station to keep the water from flooding the studio, all the time reporting between every song the station played updates on the weather and travel conditions in their community. Other stations had continued to operate after their tower sites flooded by gerry-rigging antennas on dry land to permit their continued operation. In one of the more minor inconveniences, one station talked about operating for a few days after their city’s waterworks had been inundated by floods , meaning that their studio (and the rest of town) had no running water for drinking or even for flushing the toilets.  Yet, between these inconveniences, large and small, the broadcasters continued their service, without being told how by the government.

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With the recent spate of severe weather throughout the country, a reminder about the FCC's rules on the presentation of specific emergency information is in order.  The FCC rules requires that any specific emergency information - not a generalized warning, but a specific warning directed at a specific location - must be presented visually as well as in oral form. So if you say that there is a tornado headed to a particular community, and people in the northern portions of the city should head to their basements or an interior room, that information should be presented visually as well as through the statements of the weathercaster who is stating those words.  The nature of the emergency and any information about how to cope with it that is aurally presented must also be presented in some visual manner.  Some time ago, the FCC issued a public notice on this subject.  A correction to that notice, making clear that the emergency information need not be closed-captioned in an emergency, as long as the information is presented in a visual format, is accessible through a previous post on our blog, here.


The Commission made clear that television stations, in emergency situations, need not close caption this information about an immediate and specific emergency, but can present it open captioned, on a chalk board or white board, or in any other way that it is visually apparent to those with hearing difficulties.  The Commission recognized that closed captioning might not be available if an emergency arose outside of the normal news hours, and felt that it was more important that the information be carried than that it be closed captioned.  As the FCC has fined stations for not providing in a visual form this specific information about where there is an emergency and what steps to take to prepare for the emergency, stations should be sure that they are observing these requirements. 

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The FCC has scheduled a Summit on the Emergency Alert System ("EAS"), to be held on May 19.  The EAS system is the alert system used by broadcasters to pass on emergency information from government officials to their listeners.  EAS replaced the Emergency Broadcast System ("EBS") and was intended to be a more reliable substitute for the system originally adopted during the Cold War to convey a Presidential message about a nuclear attack or similar emergency to the entire country.  Over the years, the system has adapted to include information about local emergencies and "amber alerts" about the kidnapping or disappearance of children.  However, especially since 9-11 and some of the hurricanes in the South, questions have been raised about the effectiveness of the system, and means to make the distribution of emergency information more reliable and efficient have been sought.  The FCC currently has a rulemaking pending to determine ways in which that system can be made more efficient - a question sure to be addressed at the Summit.

In the current proceeding on reforming the EAS system, one of the questions that has been asked is how the system should be activated for non-Federal emergencies.  Obviously, the President can still activate the system for a national emergency, but how alerts about local emergencies are initiated is one of the more controversial issues in the proceeding.  Currently, there is no uniform system.  Instead, each state's system may have different points from which an alert can be initiated.  Concerns have been raised that if the ability to initiate an alert is too broadly distributed, alerts may be initiated haphazardly, and if too many alerts are issued, the system will lose its impact and other important programming may be preempted unnecessarily.  Thus, proposals have been made that the alerts should be initiated only by a state's Governor or his or her specifically designated representative. 

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At its December meeting, the FCC adopted a Notice of Proposed Rulemaking on Localism.  At that meeting, while the Commissioners discussed the generalities of the proposals being made, the specifics of the proposals were unknown.  The full text of the NPRM has now been released, and it sets out the areas in which the Commission proposes to re-regulate broadcast stations.  The order also hints at a number of other proceedings that the Commission intends to launch in the near future, and reminds broadcasters of a number of other existing proceedings that will potentially bring about greater regulation.  From the discussion in the NPRM, new rules will apply to all broadcasters - large and small - and potentially place significant burdens on all stations which, as always, are hardest for small stations to deal with.  Given the number of new regulatory initiatives discussed by the Commission, the NPRM is a must-read for all broadcasters, and this proceeding is one in which all broadcasters should participate.

Among the specific proposals on which the Commission asks for comments include the following:

Community Advisory Boards:  The Commission tentatively concludes that all stations will be required to establish a community advisory board to advise the station on the issues of importance to the community that can be addressed in the station's programming.  The Commission indicated that it did not want to bring back the burden of the ascertainment process that was abolished in the 1980s, but asks how the Board should be established so as to represent the entire community, suggesting that the categories of community leaders that were used in the ascertainment process could be used as a standard to guide the licensee in determining the make-up of the board.  Other questions include how often the board should meet, and how the board members should be selected (or elected - though by whom, the Commission does not suggest).

Other Community Outreach Efforts.  The Commission also suggests that other community outreach efforts should be considered as possible mandates for broadcasters.  These would include the following:

• Listener surveys by telephone or other electronic means (general public surveys were also part of the ascertainment process abolished in the 1980s, so if this were adopted together with the Community Advisory Board, ascertainment would effectively be back)
• Focus sessions or town hall meetings
• Participation of management personnel on community boards, committees, councils and commissions (mandatory civic participation?)
• Specific phone numbers or email addresses, publicized during programming, for the public to register their comments on station operations.

Remote Station Operations.  Comments are sought as to whether television stations should be forbidden to operate without being manned during all hours of operation.  Radio operations will be addressed in the proceeding to consider the public interest issues posed in the Digital Radio Proceeding (see our summary here).

Quantitative Programming Guidelines.  The Commission proposes to adopt quantitative standards for programming that a station would have to meet to avoid extra processing and scrutiny at license renewal time.  Questions include what categories of standards should be established (just local programs - or more specific requirements to set required amounts of news, public affairs and other categories - and how to define what programming would qualify in each category), should requirements be established as specific numbers of minutes or hours per day or per week or by a percentage of programming or through some other metric, should other specific requirements or measurements be established?

Main Studios.  The commission suggests reverting to the pre-1987 requirement that each station maintain a main studio in its community of license

Network Programming Review.  The Commission asks whether rules should be adopted to require that local network affiliates have some ability to review all network programming before it is aired.  If so, what programs would be exempt from the requirement (e.g. live programs), how much prior review is necessary, would such a right disrupt network operations?

Voice Tracking.  The Commission asks if "voice-tracking," (i.e. a radio announcer who provides announcing on a radio station from outside a local market, sometimes including local inserts to make it sound as if the announcer is local) should be limited or prohibited, or if disclosure should be required.

Local Music.  While the Commission indicates that it did not think that a ban on national playlists was required, it did ask whether broadcasters should be required to report the songs that they play, and how they choose their music.  With that information, the Commission asks if it should consider the amount of local music played when assessing whether a station has served the needs of its community at license renewal time.

Class A TV.  The Commission asks whether it should adopt rules that permit more LPTV stations to achieve Class A status, meaning that they would no longer be secondary stations subject to being forced off the air by interfering uses of the TV spectrum by full-power TV stations.

 

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The FCC's Emergency Alert System ("EAS") is the bane of many broadcasters.  Failing to have operational EAS equipment, or otherwise failing to comply with the requirements of the rules, including failures to conduct the mandatory tests of the system, are among the most common causes of a fine following an FCC field inspection.  To help ensure compliance with the EAS rules, the FCC has issued a series of booklets outlining the EAS obligations not only for broadcasters, but also for cable systems, satellite radio and wireline video providers.  These booklets can be found here.  As the FCC rules require that these booklets be maintained at the location of normal duty operator for a station or systems, all media companies that are subject to the EAS rules should download and post the appropriate booklet at their control points.

The new booklets cover new requirements imposed on broadcasters in connection with their digital operations.  These operations, along with services provided by satellite radio and telephone company video providers, were only recently made subject to the EAS rules (see our post here).  These booklets provide the first full summary by the FCC of the application of the rules to these services.  Thus, operators need to be sure to not only print out and post these booklets, but read them carefully to make sure that their operations are in full compliance.  Do it today! 

(Update - 12/11/2007 - the FCC today issued an order upholding a fine of $8000 to a cable operator who had EAS equipment that was not installed at the time of an FCC inspection.  This demonstrates how costly EAS violations can be)

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As the Commission held its last localism hearing in Washington on Halloween night, FCC Chairman Kevin Martin's views on how the FCC should insure that stations are responsive to their communities became somewhat clearer.  In his opening statement, the Chairman outlined a set of actions that could be taken by the FCC to insure more service to the public.  While emphasizing the importance of efforts to encourage new entrants into broadcast ownership, the Chairman's proposals to add new regulatory requirements, including requiring that a station be manned during all hours of operation, may well have the result of making it more difficult for any new entrant (or for existing smaller operators) to profitably operate their stations.  In addition, he has offered proposals that would seemingly require cable and satellite carriage of in-state television stations not in a system's DMA - a proposal sure to cause concern to stations in DMAs that straddle state lines.

The Chairman's statement includes the following proposals:

• Requirements for uniform filings by broadcasters quantifying their public service - presumably their news and information programming and the public service announcements that they provide
• Requiring that stations have manned main studios during all hours of operations (not just during business hours)
• Allowing flexibility for LPFM stations to be sold, but adopting new rules to insure that such stations are used for local programming, not something provided from a network or other programming source
• Providing television viewers the ability to get an in-state television stations on cable and satellite even if the county in which they reside is "home" to a DMA with stations in another state
• Capping the number of applications accepted from the 2003 FM translator filing window - which might result in the dismissal of hundreds of applications that have effectively been frozen for 4 years

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The FCC recently issued a Public Notice reminding television broadcasters of the requirement that, after January 1, 2008, television stations (as well as cable and satellite television systems) must, in each calender quarter, close caption at least 75% of their Pre-Rule Programming.  Pre-Rule Programming is that programming first broadcast or exhibited prior to 1998 for analog programming and prior to 2001 for digital programming.  New Programming, that produced after those dates, should already be captioned by stations.  For details of this requirement (including the different rules that apply to Spanish-language programming), see our firm's memo on this subject, here.  Television station operators should review their programming schedules and contracts to be sure that they will be ready to meet these obligations.

The FCC Public Notice also reminds broadcasters that these requirements are different than the obligations of television broadcasters to provide emergency information visually - not closed captioned, but  visible to all.  We have written about how serious the FCC takes these emergency obligations in connection with fines that have been issued to broadcasters for providing on-air information orally without any visual presentation for the hearing impaired .  See, for instance, our entries, here and here.  With hurricane season still in full swing, broadcasters must keep these rules in mind, and remind their on-air staff to remember to comply with these obligations.

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As we're approaching the anniversary of September 11, it may be appropriate that the FCC issued an order on Friday upholding a fine imposed on a radio station that did not have an operating EAS system.  The station, while it had a system in place that was capable of transmitting the required EAS tones, had not received any EAS alerts for about a year, and had not entered any reasons for that failure in its station log at any time during the period.  The FCC initially issued an $8000 fine, but reduced the fine to $6400 based on a showing that the station did not have any history of past violations.  However, even though the station was operating at reduced power for a significant period of time due to towers damaged by a storm, the FCC refused to reduce the fine further based on financial hardship as the fine did not exceed 2% of the station's average gross revenue during the previous three years.

The FCC will reduce fines for a variety of reasons - the most common being the past good record of the station.  In most cases, as here, a showing that the station has not previously been fined will be sufficient to demonstrate the past compliance of the station and justify some reduction in the amount of the fine.  Stations also often plead that they cannot afford to pay a fine.  The 2% of gross revenue standard announced by the Commission in this case seems to set the threshold at which the Commission will consider that plea.  To prove that a reduction of a fine is in order, according to this case, a station needs to submit financial statements showing the past three years performance, and demonstrating that the proposed fine will exceed 2% of the station's average gross revenues.

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The FCC today issued the long-awaited text of its decision on Digital Audio radio - the so-called IBOC system.  As we have written, while adopted at its March meeting, the text of the decision has been missing in action.  With the release of the decision, which is available here, the effective date of the new rules can be set in the near future - 30 days after its publication in the Federal Register.  With the Order, the Commission also released its Second Further Notice of Proposed Rulemaking, addressing a host of new issues - some not confined to digital radio, but instead affecting the obligations of all radio operations.

The text provides the details for many of the actions that were announced at the March meeting, including authorizing the operation of AM stations in a digital mode at night, and the elimination of the requirements that stations ask permission for experimental operations before commencing multicast operations.  The Order also permits the use of dual antennas - one to be used solely for digital use - upon notification to the FCC.  In addition, the order addresses several other matters not discussed at the meeting, as set forth below. 

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This article is no longer available. For more information on this topic, see FCC Issues Emergency Communications Reminders to Broadcasters and Other Communications Entities in the Path of Hurricane Sandy 

 

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This article is no longer available. For more information on this topic, see FCC Releases New EAS Manuals Explaining Obligations for Broadcasters and Video Providers 

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This article is no longer available. For more information on this topic, see Looking Into the Crystal Ball - What Can Broadcasters Expect from Washington in 2010? 

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This article is no longer available. For more information on this topic, see Fine For EAS Violation - Financial Hardship Not Enough to Merit a Reduction

 

 

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As the second named tropical storm of this year makes its way up the East Coast, the FCC has warned video program distributors, including television stations and cable systems, to remember the Commission's rules on the dissemination of emergency information.  In a public notice issued today, the Commission summarized its rules regarding the visual presentation of emergency information to the hearing and visually impaired.  in the last two years, the FCC has been aggressive in penalizing stations which did not make emergency information - information about an imminent threat to health or safety - available visually so that the hearing impaired could understand the message being conveyed.  And the rules also require that an audio tone to alert the visually impaired be played if a station presents emergency information by text without interrupting other programming. 

Today's reminder ends with information about how to file a complaint against stations who do not comply with the requirements.  This seems to be a clear warning to broadcasters that they need to carefully review the requirements, and be ready to comply should disaster strike.

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