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.

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.

No doubt, the results of the test will be assessed in coming months, and given the breakdowns in the system, further tests are sure to be conducted.  Whether these tests will occur before or after the introduction of the IP-based CAP (Common Alert Protocol) system to provide more robust alerts to the traditional media (now scheduled for June 30, 2012) remains to be seen.  As we have written before, CAP will augment, not replace, the current daisy-chain system.  So the problems discovered by this test will still need to be resolved. With the issues that were discovered, there can be no doubt that broadcasters and other media outlets - quite possibly including on-line media outlets - will hear more about EAS obligations in the near future. 

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. 

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.

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. 

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. 

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.

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.

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. 

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 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. 

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.