FCC Extends Deadline for Emergency Alert System (EAS) CAP Compliance Until June 30, 2012

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. 

FCC Rule Making Suggesting Changes to EAS Rules has been Published in the Federal Register; Deadline for Comments is July 20

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

FCC Extends Deadline to September 30, 2011 for EAS Participants to Be Able to Receive CAP Formatted Alerts

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. 

FEMA Adopts Digital Message Format for EAS CAP Standard, Triggering 180-Day Clock for Compliance

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. 

Comments Regarding Possible Revisions to FCC's Emergency Alert System (EAS) Rules due May 17

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. 

Accordingly, in light of the short time frame following FEMA's adoption of the CAP standard, and order to get ahead of any rulemaking that may be necessary to update its rules, on March 25th the FCC’s Public Safety and Homeland Security Bureau issued a Public Notice seeking informal comments regarding what, if any, changes might be necessary to the FCC's EAS Rules in order to accommodate the introduction of CAP.  The FCC has asked that commenters specifically identify the existing rules that need to be modified or deleted, and to suggest new rules for EAS system architecture, equipment requirements, organization, operations, testing, access for people with disabilities and non-English speakers, etc.  More detailed information regarding the specific questions the Public Safety and Homeland Security Bureau has asked and the information it is hoping to gain from commenters is available in the FCC’s recent Public Notice, which is available here.

Parties interested in commenting have until May 17th to do so, and Reply Comments are due by June 14th.  Commenters should be sure to reference the subject public notice and EB Docket No. 04-296.  Comments can be filed either via ECFS, the the Federal Government’s eRulemaking Portal, or in paper with the FCC.  Given the impact on broadcasters, we'll continue to follow this issue and report on any changes to the EAS rules as the FCC and FEMA conduct their respective proceedings. 
 

FCC Proposes National Test of EAS - Emergency Alert System; Comments on Proposed Rules due March 1

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.

The NPRM suggests that the following test-related diagnostic information would be provided by the EAS participants for each alert received from each message source monitored at the time of the national test:  (1) whether they received the alert message during the designated test; (2) whether they retransmitted the alert; and (3) if they were not able to receive and/or transmit the alert, their ‘best effort’ diagnostic analysis regarding the cause or causes for such failure.  In addition, the Commission would require participants to provide information regarding the station, date and time of the message and relay, information on the source of the message, and make and model number of they EAS equipment that they utilized.  The Commission proposes to make the information publicly available, but seeks input on whether it would be more appropriate to limit availability to other authorized governmental agencies. 

The final issue the NPRM raises is the fact that different encoder/decoder manufacturers may program their devices to receive and transmit emergency alert notices differently, which could impact the proper relay of an emergency message.  The Commission seeks input on the issue and what costs would be involved or options available to ensure that a legitimate emergency alert notification is passed along the network. 

The Commission has stated that it intends to "move quickly to adopt any and all necessary rule changes to ensure that the Commission and other federal, state, local, and non-governmental EAS stakeholders have the necessary diagnostic tools to evaluate EAS performance and readiness nationwide."  So interested parties should similarly act with alacrity to get comments in by March 1st (or reply comments by March 30th) to inform the Commission's rule making process.  Comments can be submitted in paper or through the FCC's Electronic Comment Filing System

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. 

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.

Iowa Broadcasters - Floods, Tornadoes and Localism

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.

No doubt some will say that the new rules are necessary not to regulate those broadcasters that responded in the ways that I set forth above, but for those who do not.  But that, to me, seems to beg the question of how you make rules about what is important to listeners.  While the national TV news reports may have made it seem like all of Iowa was underwater, in fact life went on as normal in many parts of the state, including the portions of Des Moines where I was.  People in those areas, while inconvenienced by road closures and while concerned about the plight of others in their community and their state, went about their lives.  And many stations continued with their normal programming, interrupting only as necessary with news and alerts - including EAS alerts about severe weather.  It seems to me that this was entirely appropriate - you don't want or need every station to be going wall-to-wall flood coverage when the majority of the people were not affected, when information about weather issues was available on many media outlets, and when emergency updates were given on virtually all outlets through EAS activations when National Weather Service or other sources indicated that severe weather threatened a particular community.  But for the vast majority of people, there was nothing wrong with providing them entertainment, sports, national news or spiritual programming serving their non-weather related needs.  In fact, I'm sure that some of the normal programming gave residents the ability to preserve somewhat of a normal life, without making the existing severe problems seem so all-encompassing that normal life would cease entirely.  All of these stations are serving their audiences. 

Broadcasters know their service areas, and they know their audiences.  They know what their audience wants to hear, and their stations are programmed to meet the needs of that audience.  People in larger cities know where to get wall-to-wall news, and they know where to get entertainment or other programming.  They don't go to the rock radio station to get full information about the governor's press conference any more than they go to the news-talk station to get information about concerts at the local civic center or music club.  In smaller towns, they know which station will have the information about their communities.  All broadcast stations are not, and cannot be, all things to all people.  But that is the beauty of the American system of broadcasting - station owners can choose how to serve their audiences, and by allowing that choice, audiences of virtually all interests can be served in the ways most relevant to them.  And broadcasters can freely adapt to changes in their audiences or changes in their markets, without needing government approval.

Broadcasters serve these communities, even if their main studio is two miles outside the city limits.  And they don't need to have some minimum wage employee babysitting the transmitter in the middle of the night.  As more than one Iowa Broadcaster told me, if there was a real emergency, their regular employees will cover it, even if it is in the middle of the night, as so many of the broadcasters in the hardest hit communities have been doing this last week.  They are not going to trust some low-wage overnight board operator with gathering and distributing important information.  In fact, many of the rural stations said that, if a rule was adopted requiring that they be manned during every hour of operation, their stations would probably be silent during overnight hours, eliminating EAS sources that run regardless of whether or not the station is manned, and abandoning the audience that now knows that they can rely on 24 hour service from virtually all broadcast stations.

At Monday's 10th Annual Service to America Awards - an award ceremony held in Washington DC each year to honor achievements in community service by broadcast stations - Commissioner Robert McDowell was presenting an award to a station that had performed a litany of public service programs for its community.  He marveled, in a way that was clearly a message to fellow Commissioners in the audience, how this kind of public service was all done without government mandate or intervention.  Broadcasters are serving their communities every day, as I witnessed in Iowa, and they don't need to have the FCC regulations telling them how.

FCC Schedules Summit on Status of EAS

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. 

Issues to be discussed at the Summit include how the state and Federal emergency communications systems should interact.  Also to be discussed is how to make the system more reliable.  One issue now is that the system relies on a "daisy-chain" of stations - one station passing on the alert to the next one down the line. Concerns exist as to how the alert will be delivered if an intermediate link in the chain somehow fails.  Satellite connections and other communications technologies are among the considerations - some states having already implemented such systems.

In addition to the broadcast alerts, the Commission has been working to expand the reach of its emergency notification systems into other media.  Quite some time ago, the Commission adopted rules for extending the alert system to satellite-delivered media.  Earlier this month, rules were also adopted to provide emergency alerts to mobile devices.  These developments should be monitored so that communications companies are current on their obligations to delver emergency alerts should the occasion arise.

FCC Releases New EAS Manuals Explaining Obligations for Broadcasters and Video Providers

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)

Shape of Things To Come: New Public Interest Obligations, Changes in TV DMAs and More Flexibility For LPFM

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

The Chairman's statement makes much of the efforts of the Commission to promote new entrants into broadcast ownership, citing efforts to bring back a tax certificate for minority ownership, efforts to allow minority groups to acquire and construction unbuilt stations even if they may have expiring construction permits, and waiving Equity Debt Plus requirements (allowing more financing by companies that might be prohibited by the ownership rules from providing more than 1/3 of the financial backing to an applicant)(see our summary of some of the pending proposals to enhance minority ownership, here).   However, some of his other proposals actually make ownership by new entrants problematic.

On the radio side, requiring the manning of a studio 24 hours a day for stations operating full time may be an expense that a multi-station cluster in a large market would have no trouble handling.  However, the costs that the adoption of such a proposal would entail for a small, stand-alone station in a small market could be prohibitive.  The financial return in a small market from operating all night is slight, but stations continue such operations as a service to their listeners.  Years ago, when the FCC required manned main studios, many smaller stations would sign off in late evenings and overnight hours to avoid the costs of such operations.  Re-imposing a requirement that the station be manned whenever it is operated might bring back such limited service during overnight hours, or force smaller stations to consolidate so that the costs of overnight operations could be spread over multiple stations.  And to what end?  The rules already require that stations be controlled during all hours of operation.  With modern technology, the FCC recognized a decade ago when doing away with the requirement that studios be manned, control can be exerted without someone sitting at the studio, and can even originate programming without physically having someone present at the station.  And stations should be able to provide contact information to emergency officials so that they can respond to any overnight developments that might take place during unmanned hours. 

Communications with emergency officials is really the key - not whether the station has someone sitting at a studio.  The proposed new requirements seems to stem from the notorious "Minot" incident, when local authorities made claims that the largest cluster of radio stations in that community were not manned at night and could not respond to an emergency when a rail car carrying dangerous chemicals derailed creating a toxic cloud in parts of the city.  In fact, I have heard that general manager of those stations state that the stations were manned, and quickly had reporters covering the story, but that local officials simply did not know the how to activate their EAS system, and thus their phones were flooded by calls, which prevented them from reaching the station (which was in fact trying to call the police to obtain updated official information but prevented by the same overloaded phone system).  See Clear Channel's press release on the matter, here 

The DMA (Designated Market Area - the area defined by the Nielsen ratings service as being the primary service area of a television station) issue is another concern to small market operators.  A number of Congressional bills started popping up early in the year, seeking to either permit or require cable and satellite operators to carry in-state television stations to all counties in a state, even if those counties fell within a DMA where the television service originated from stations in a different state.  While that sounds like a noble idea -giving viewers access to news from an in-state TV station - it caused major consternation among many stations who operate in markets straddling a state border.  Especially in small markets, many station operators felt that such a rule would only expand the power of large market stations that would be imported into the market, while cutting into audiences of the small market stations and making their existence more difficult.  Some of these stations felt that, in the long term, such rules might cause the disappearance of some small markets as the big-market stations gained statewide carriage.  The disappearance of small market stations would then cause a loss in real local news in exchange for some degree of state-wide news coverage.  Again, a seemingly simple idea that can cause many real world problems.

The FM translator issue while, again seeming like a simple issue, could cause many problems.  The FCC received thousands of applications for new FM translators when it opened a filing window in 2003.  While many hundred were processed and granted, in 2004 the FCC put a 6 month moratorium on further processing, while the Commissars considered the relationship of FM translators to LPFM stations.  That 6 month moratorium has now effectively been in place for over 3 years, with no end in sight.  While the Chairman's proposal to limit the number of applications that will be processed may seem like a good idea, it may well cause problems.  First, there are a number of applicants with many pending applications who spent considerable sums to file applications (including clients of our firm).  Is it fair to change the rules on these applicants in mid-stream, after these applications were filed in good faith?  And what will the impact of the limitation be - especially on the efforts to provide AM stations with FM translators?  With so many translator applications, if these were processed and granted, there would no doubt be a secondary market in excess construction permits that would allow AM stations to acquire FM translators for their use (which is being permitted on a temporary basis now, see our post here).  If these applications are dismissed or strictly limited, there will likely be a much more limited secondary market, and AM stations may well end up having to fight LPFM applicants for rights to use this spectrum.  With the potential of a preference for LPFM applicants, this could seriously curtail the ability of AM operators to obtain FM translators for their use.

All in all, this goes to show that there are no easy answers to the complex problems of the broadcast world.  The FCC's seeming interest in intervening in the markets to force the coverage of local issues, and to mandate what it perceives to be in the public interest, may well lead to significant unintended results that actually harm those efforts.  Watch these efforts closely.

 

Comment Dates Set in Rulemaking on Emergency Alert System

The Commission’s Further Notice of Proposed Rulemaking (“Further NPRM”) regarding the next generation Emergency Alert System (“EAS”) has been published in the Federal Register, setting the date for Comments as December 3, 2007 and the date for Reply Comments as December 17, 2007.  This summer, the Commission adopted a Report and Order extending its EAS Rules to wireless services, and adjusting the rules to better serve the needs of persons with disabilities and non-English speakers.  The Report and Order also expanded the base of EAS participants, included state-level and geographically targeted EAS alerts, and improved coordination with state and local governments.  A copy of the FCC’s Report and Order and the Further NPRM can be obtained here

The Further NPRM raises additional questions regarding how the EAS rules can be adjusted to ensure that non-English speakers and persons with disabilities are reached by EAS messages.  In addition, the Further NPRM seeks input regarding whether local, county, tribal, or other state governmental entities be allowed to initiate mandatory state and local alerts, and if so, what standards or requirements be imposed in initiating an EAS message.  Finally, the rulemaking seeks comment on options for ensuring that the EAS operates as designed in an emergency, and posits several options for measuring performance.  Comments can be filed with the Commission in paper or electronically via ECFS, and should refer to EB Docket No. 04-296. 

Fine For EAS Violation - Financial Hardship Not Enough to Merit a Reduction

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.

The case also reminds stations to conduct the required tests of the EAS system, and to be sure to check their EAS equipment to make sure it has noted the receipt of the monthly EAS test that it is supposed to receive from the primary EAS stations that it is supposed to be monitoring.  If no test has been received in a month, an investigation should be conducted as to why the test was not received, and notations to that effect placed in the station log.  The FCC noted in this case that, had the station been checking for the required monthly tests, it would have noted the problems with its equipment long before the FCC inspection.  As EAS violations are consistently listed as among the most common violations by broadcast stations, the station's Chief Operator, who should be regularly reviewing the log and otherwise ensuring the station's technical compliance, should be reminded to check EAS test reception as one of his or her principal duties.  It will save the station from having to pay the FCC should one of its inspectors be the one to discover the problem.