Posted on November 3, 2011 by David Oxenford

Revisions to Nationwide EAS Test Plans - Shorter Message and Changes in the FCC Handbook and Forms

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.

Broadcasters, cable operators, and others subject to the test should be getting prepared for next week, and making sure that their EAS equipment is properly installed and in operating condition.  The FCC indicted in its Order requiring the Nationwide Test that it is using this test principally to learn about weaknesses in the system, not to penalize participants.  So not receiving the test should not lead to any FCC enforcement action - that is the information that the FCC is seeking.  But, should the failure not be due to a failure in the system, but instead because the EAS encoder/decoder at your stations was still in its box, or not plugged in, or not connected to an antenna, that might be a different story - as might the failure to file the necessary Form after the report, reporting on the results of the test.  That report must be filed by December 27.  So be ready, and be alert for any further updates which may come out of the FCC or FEMA in the next few days before the test. 

Update 11/4/2011 - When I wrote this article yesterday, the December date in the previous paragraph was listed as December 24, as the date for filing the final report on the EAS test.  That information comes from the FCC EAS Forms page, here, where it says Form 3 will be available through December 24.  I did not compare it to our last article on the test, here, where we reported the due date for the report, as it had been listed on the FCC Forms page, was December 27.  We are not sure of why the change in date was made, and if it is accurate.  It seems very unusual for December 24 to be the last date for the Form to be available, as the FCC had said in its prior Public Notice that the deadline would be December 27 (see that Notice here).  It would be unusual for the FCC to make a form unavailable before the deadline date, or to have a deadline on a Saturday (December 24), and the FCC does not routinely have weekend deadlines.  We thus assume that December 27 will be the deadline, but will update this entry as we get more information. 
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Posted on July 21, 2011 by David Oxenford

$25,000 Fine for Unlocked Tower Fence and Missing EAS Receiver and Public File

If a broadcaster is looking to maximize the fine that they receive for FCC violations, one would be hard pressed to pick three violations more likely to draw the ire of the FCC than those that were found after a field inspection of a North Carolina AM station, leading to a Notice of Apparent Liability proposing to fine the station $25,000.  The inspection found a tower site with an unlocked fence (a fence which was also observed to be in disrepair) around areas of high RF radiation, and no evidence of either an EAS receiver or a public file at the station's main studio.  In the FCC's estimation, that public file violation was the most serious, warranting a $10,000 fine.  Those pesky violations that could lead to actual harm to real people if someone wandered onto the tower site or if an emergency message did not reach its intended audience - drew fines of $7000 (for the unlocked fence) and $8000 (for the missing EAS receiver). 

A number of excuses were provided by the licensee, and rejected by the Commission.  The fact that subsequent remedial actions were taken did not reduce the severity of the violations found during the inspection.  An excuse offered after the inspection, that the studio was in the process of being moved to another location at the time of the inspection, meaning that the public file and EAS system were in transit, was also rejected - as the move was not mentioned to the FCC inspectors as a reason for the violation at the time of the inspection, and as the fact was that the station was in violation at the time of the inspection - during normal business hours, no public file or EAS equipment was at what was then the main studio.  The fact that no EAS outage were noted on any station log was also taken into account by the FCC.

One of the most striking aspects of the Commission's summary of the inspection was the reported inability of the station's manager to explain the violations. The manager reportedly did not know where the public file or the EAS receiver were, or how long they were missing.  When the excuse that they were in transit to the new studio was later advanced, the FCC was perhaps understandably suspicious.  If nothing else, this case should serve as a warning to managers to be aware of FCC compliance issues or, in the event of an inspection, have someone meet with the inspectors who can answer their questions. 

The case also highlights the absurdity of the importance that the FCC places on the public file rule.  Here, there were two violations that could have posed real threats to real people.  Yet these violations drew fines less than those imposed for a public file violation - a violation that, at most stations, harms no one, as public files are rarely if ever visited by the public.  As we have written, the government is doing a review of its rules - including specifically the public file rule - to determine if their costs of compliance outweigh any public benefit received.  Let's hope that this review places some rationality into the assessment of the importance of the enforcement of these rules. 
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Posted on November 11, 2010 by David Oxenford

$25,000 FCC Fine for Safety Related Issues - No EAS, Tower With Painting and Lighting Issues

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.

In connection with the EAS equipment, the station had a disconnected receiver, which had apparently been disconnected for at least 4 years, and perhaps as many as 10 years.  The licensee blamed the failure on the inability to find an engineer who could repair the malfunctioning equipment.  The failure to have an operational system, and the failure to log the required weekly and monthly EAS tests, resulted in an $8000 fine, which was adjusted upward to $9000, as the licensee had a similar violation when inspected in 1997.

To add to these technical fines, the FCC found that the station had no quarterly issues programs lists for 2009 and 2010, adding $4000 to the total fine.  In addition to the fines, the FCC required that the licensee provide a sworn statement within 30 days stating how he had resolved the issues identified in the Notice.  While these violations are unlikely to be ones that are found at most stations, the amount of the fines imposed here reinforces the need for all stations to monitor compliance with the rules to avoid potentially very significant financial penalties.  A licensee cannot sit on a known problem and hope that it will resolve itself.  It must affirmatively take all steps necessary to fix the problem, request temporary authority from the FCC to operate with facilities that are noncompliant if they cannot be promptly resolved, note technical issues (like malfunctioning tower lights and EAS receivers) in the station's log, and notify the FAA if the tower lights are not functioning as required.  Moreover, a pattern of violations could have a more serious impact in the upcoming license renewal cycle.  A history of violations can result in penalties at license renewal time - and perhaps even a loss of license.  So be prepared.
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Posted on October 27, 2010 by David Oxenford

Non-Functioning EAS, An Unavailable Public File and Open Tower Site Gates Result in FCC Fines of $5500 and $3500

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.

EAS is another area where many stations have had issues.  In this case, it appeared that the station operators were unfamiliar with the EAS system and how it worked, or why it hadn't received the required EAS alerts.  I've heard from many engineers who work with the Alternate Broadcast Inspection Program ("ABIP") that this is a frequent problem at stations around the country.  ABIP is a program that many state broadcast associations run, where they hire private inspectors to visit stations to assess their FCC compliance.  If stations pass the ABIP program, they are exempt from a random FCC technical inspection for three years (though the FCC can still inspect a station which has passed the ABIP inspection where there are complaints or violations that are a threat to safety).  These inspections can identify problems early, so that you can avoid fines later.  All stations should consider such an inspection to avoid issues such as a non-functioning EAS receiver.

An ABIP inspection would also discover a problem that one of these stations had - no public file. Obviously, all full-power stations are supposed to have public inspection files.  See our memo on the contents of the file for commercial stations.  And all employees who could possibly be called on to greet an FCC inspector who arrives at a station should know where the file is kept.  No file, or employees who don't know about the file, expect a fine.

Careful planning now, and undergoing an ABIP inspection can avoid fines later.  In this case, a little prevention would have provided a cure from thousands of dollars of liabilities.  

[Additional thoughts - 10/28/10 - note that, in both of these cases, the FCC initially fined the stations much higher amounts, but reduced the fines to the levels reported above after the stations showed that they would be unable to pay the higher fines.  The initial fines were $25,000 - reduced to $5,500 - and $17,000 - reduced to $3,500.  These amount show just how much violations of the sort found here could cost a successful radio station.]
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Posted on August 17, 2010 by David Oxenford

No Staff At a Radio Station's Main Studio, No Working EAS Equipment, and Little Money Equals a $8,500 Fine

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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Posted on April 16, 2010 by David Silverman

FCC Fines for No EAS Equipment, Unreported Tower Light Outage, and No Posting of ASR

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.

Similarly, if tower lighting is required, FCC rules require that any outage be reported "immediately" to the FAA if it cannot be fixed within 30 minutes.  Red obstruction lighting is required to be operational from sunset to sunrise, while high and medium intensity obstruction lighting is required to be operational 24 hours a day.

These are important issues to which both broadcasters and cable operators need to stay alert to avoid big fines like those imposed here.  As they potentially involve matters of public safety, the FCC is not likely to be forgiving in the event of violations.   
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Posted on September 9, 2009 by David Oxenford

FCC Inspections - Fines for Violations of Rules on Main Studio, EAS, and Public File

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.

Another problem identified identified in another case was the lack of a functioning EAS receiver.  The FCC has this week been emphasizing the importance of emergency communications, and one of the principal means of that communication (and, as we wrote here, of demonstrating service to the public in the context of all sorts of FCC proceedings) is the EAS system by which state, local or national officials can communicate with the public in the event of an emergency.  In most states, the EAS system currently works as a daisy chain, with a series of stations monitoring other stations to pass the emergency message down the chain.  All stations are supposed to monitor both a primary and secondary station, so that if they don't get the message from one station, they will get it from the other.  In one of the recent FCC cases, FCC inspectors found that the station had not logged the receipt of any emergency alert system test from either of the stations that the inspected station was supposed to be monitoring and, after being told of the problem, the station still could not receive a test when one was conducted several days later.  I have heard from some FCC inspectors, that this is not an infrequent problem, as the EAS units can be installed improperly, can be damaged by power surges or other problems, or can simply have their receive antennas knocked off the back of the unit when inadvertently jarred.  As a station's Chief Operator is supposed to be signing off on a station's "Station Log" weekly, and the principal thing that is supposed to be recorded in the log is EAS tests (as well as any other technical issue at the station), if the Chief Operator does not notice that the regular EAS test has not been logged, someone is not doing their job.  The log should make someone notice, and problems should be rectified at once.

Another issue turned up by these inspections was with the FCC public file.  In the same case where the EAS issues were discovered, the FCC inspectors discovered that there were missing Quarterly Programs Issues lists in the station's public file.  We've written before about how the failure to have these lists in a public file can lead to fines at license renewal time (probably the most frequent source of license renewal fines), but it can also lead to a fine if the FCC inspector comes knocking.  Our Davis Wright Tremaine Advisory on the Quarterly Programs Issues List (the most recent edition is here, though a new one for October reports should be out very soon), talks about how important these lists are, and provides information on how to complete them.  Check it out, and make sure that your station is in compliance.

Given the variety of issues that can arise during an FCC inspection, and the potential for fines in connection with any violation, stations should review their operations now to avoid issues later. 
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Posted on June 13, 2008 by David Oxenford

EAS Violations - Two Non-Commonly Owned Stations Cannot Share the Same EAS Receiver

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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