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

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

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

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

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

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

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

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

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

Section 11.45 of the Commission's Rules states:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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. 

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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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