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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’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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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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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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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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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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