Emergency Communications

With Hurricane Florence about to hit the East Coast, broadcasters are well reminded of their obligations with respect to the airing of emergency information. Broadcasters may also want to consider the benefits that the FCC can offer in an emergency. While the FCC yesterday announced the postponement of its test of DIRS, the Disaster Information Reporting System, broadcasters may want to consider quickly getting familiar with this system. The voluntary system allows stations in the area affected by any disaster to report on the status of their operations. In the past, FCC officials have assisted stations that were off-the-air or operating with emergency facilities in order to direct resources (like gas trucks to fuel emergency generators) to these stations so that they could continue to provide emergency information. Registering in DIRS can facilitate getting the information about your station’s status to the FCC. More information is available on the FCC’s website, here. [Update, 9/11/2018, 1:30 PM the FCC just released a Public Notice providing contact information in various FCC Bureaus for licensees to contact about service outages, STA filings and their needs to resume service to the public].

But emergencies also impose regulatory obligations on broadcasters – particularly TV broadcasters. Last year, the issued a FCC Public Notice reminding all video programmers of the importance of making emergency information accessible to all viewers. The FCC has just posted a link to a notice about a disaster preparedness webinar it will be conducting on September 27 for state and local government officials, and we would not be surprised to see a new notice reminding broadcasters of their emergency obligations in the coming days. Last year’s notice serves as a good refresher on all of the obligations of video programmers designed to make emergency information available to members of the viewing audience who may have auditory or visual impairments that may make this information harder to receive. The notice also reminded readers that they could file complaints against video programming distributors who do not follow the rules. Thus, TV broadcasters need to be extremely sensitive to all of these requirements.
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While September is one of those months with neither EEO reports nor Quarterly Issues Programs or Children’s Television Reports, that does not mean that there are no regulatory matters of importance to broadcasters. Quite the contrary – as there are many deadlines to which broadcasters should be paying attention. The one regulatory obligation that in recent years has come to regularly fall in September is the requirement for commercial broadcasters to pay their regulatory fees – the fees that they pay to the US Treasury to reimburse the government for the costs of the FCC’s operations. We don’t know the specific window for filing those fees yet, nor do we know the exact amount of the fees. But we do know that the FCC will require that the fees be paid before the October 1 start of the next fiscal year, so be on the alert for the announcement of the filing deadline which should be released any day now.

September 20 brings the next Nationwide Test of the EAS system, and the obligations to submit information about that test to the FCC. As we have written before (here and here), the first of those forms, ETRS Form One, providing basic information about each station’s EAS status is due today, August 27. Form Two is due the day of the test – reporting as to whether or not the alert was received and transmitted. More detailed information about a station’s participation in the test is due by November 5 with the filing of ETRS Form Three. Also on the EAS front, comments are due by September 10 on the FCC’s proposal to require stations to report on any false or inaccurate EAS reports originated from their stations. See our articles here and here.
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The last month has been one where there has been lots of activity dealing with EAS. The FCC announced that it will be conducting a Nationwide EAS Test on September 20, 2018. The FCC has been conducting these Nationwide tests routinely over the last few years (see, for instance, our articles here and here on past tests). This test will include wireless carriers as well as broadcasters. To be prepared for this test, the FCC reminded EAS participants to file their updated ETRS Form One by August 27 (see our article here), and to be prepared to file the post-test Forms Two (filed on the day of the test) and Three (due by November 5) to report on the results of the test at their stations.

At its July meeting (as we briefly noted here), the FCC adopted an Order making some changes to the EAS rules, as well as asking further questions in an included Further Notice of Proposed Rulemaking. The changes included:

  • New rules allowing “live code testing” – using actual EAS alert tones in practice alerts, but only after providing lots of publicity that the tones are being used only as part of a test
  • Allowing the use of the EAS attention signal in PSAs and other informational announcements from FEMA and other public interest organizations – but only where simulated tones developed by FEMA are used, as these simulated tones will not trigger other station’s EAS alerts, and only where the tones used are specifically identified as not being a real notice of an emergency.

Use of the alert tones like this have been approved in the past by the FCC, but only by use of a waiver process. The FCC actions allow for more testing and more public information without having to request FCC approval for each such use.
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It may be time for summer vacations, but the FCC seemingly never rests, so there are a number of important dates of which broadcasters need to take note. By August 1, EEO Annual Public File Reports are due to added to the public files of Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in California, Illinois, North Carolina, South Carolina, and Wisconsin, if those stations are part of an Employment Unit with five or more full-time employees. TV stations in California have the added requirement that they submit an EEO Mid-Term Report with the FCC by that same date. While the FCC last year simplified EEO recruiting, it still enforces the EEO rules, as evidenced by an admonition that was issued to a TV station at the end of last week, and the fines imposed on radio stations late last year. So don’t forget these obligations (especially as the enforcement of these rules will soon be handled by the FCC’s Enforcement Bureau, rather than the Media Bureau, suggesting that there will be more enforcement of those rules – see our article here).

On other matters, there are numerous open FCC proceedings in which broadcasters may want to participate. Comments are due on August 6 on the FCC’s rulemaking proposal to adopt simplified rules for processing complaints of interference by FM translators to full power stations. See our articles here and here for details on that proposal.
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There was lots of news out of the FCC yesterday that will give us issues to write about for weeks to come. Here are some highlights. At its open meeting, the FCC adopted a Notice of Proposed Rulemaking on potentially reforming the children’s television rules – including a review as to whether the current requirement that regularly scheduled programs of 30 minutes in length are the only means to meet the obligation to broadcast 3 hours of educational and informational children’s programming each week for each stream of free over-the-air programming broadcast by a station without facing heightened FCC scrutiny. The rulemaking will also look at whether all kid’s programming obligations could be met by broadcasts on a single multicast stream or through other efforts. The FCC Press Release on the action is here, and and the text of the notice is here.

On EAS, the FCC took actions to strengthen the reliability of the EAS system by allowing real EAS tones to be used in PSAs to promote the system, subject to certain safeguards, and to allow for testing of the EAS system using “live codes” with appropriate warnings and disclaimers. The order also requires the reporting of false emergency messages that may be sent out. The FCC Press Release on that item is here, and we will post a link to the full text when it is available.
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The FCC recently released a Public Notice reminding all EAS participants that they need to file ETRS Form One by August 27, 2018. This form needs to be filed by all radio and TV stations, including LPFM and LPTV stations (unless those LPTV stations simply act as a translator for another station). While the

July brings the obligation for each full-power broadcaster to add a new Quarterly Issues Programs List to their online public inspection file. These reports, summarizing the issues facing each station’s community of license in the prior three months and the programs broadcast by the station to address those issues, must be added to the public file by July 10. As we wrote here, these reports are very important – as they are the only documents legally required by the FCC to show how a station served the public interest. With the online file, these reports can be reviewed by anyone with an Internet connection at any time, which could be particularly concerning for any station that does not meet the filing deadline, especially with license renewals beginning again next year.

Also to be filed with the FCC by July 10, by full-power and Class A TV stations, are Quarterly Children’s Television Reports. While the FCC announced last week that it will be considering a rulemaking proposal at its July meeting to potentially change the rules (see its proposed Notice of Proposed Rulemaking here), for now the requirements remain in place obligating each station to broadcast 3 weekly hours of programming designed to meet the educational and informational needs of children for each free program stream transmitted by the station. Also, certifications need to be included in each station’s online public file demonstrating that the station has complied with the rules limiting the amount of commercialization during children’s television programs.
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In an Order released Friday, The FCC gave TV broadcasters five more years to convert non-textual emergency information delivered to audiences outside of news programs into speech that is broadcast on station’s Secondary Audio Programming (“SAP”) channels, usually used for Spanish and other non-English translations of television programs. Broadcasters, as we have written before

The FCC yesterday announced that they had seized the equipment of two Boston-area pirate radio stations that had refused to cease operations after receiving FCC notices to do so. The FCC Public Notice on the seizure thanks the US Attorney’s Office and US Marshall’s Office, and the Boston Police Department, for assisting the FCC Field Office in carrying out the seizure authorized by the Communications Act for stations operating without a license. Seizure of equipment is carried out pursuant to Section 510 of the Communications Act, and generally requires that the US Attorney receive approval of a US District Court before the equipment can be seized Thus, the cooperation of the US Attorney’s office in a local jurisdiction is vital to conducting a seizure such as that done in Boston. Commissioner O”Rielly, who has been a vocal proponent of increased actions against pirate radio (see our post here) issued a statement commending the action and calling it a complement to legislative action to enhance fines on such stations and impose clear liability on landlords who host pirate operations (see our post here about a case where the FCC has already put landlords on notice of potential liability for pirate radio operations where they had clear involvement in such operations).

Legislative action on pirate radio seems to be in the works. To combat pirate radio operations, the House Subcommittee on Communications and Technology last week held a hearing (video available here) on proposed bills to amend the Communications Act, including one called the Preventing Illegal Radio Abuse Through Enforcement (PIRATE) Act (see discussion draft here). The draft bill would raise potential fines on pirate radio operators to $2,000,000, and fines of up to $100,000 per day for violations of the Communications Act and FCC rules related to such pirate operations. It would eliminate the need to provide pirates a Notice of Apparent Liability, with the opportunity to respond, before a fine is issued to an operator of a pirate radio station, if the operator is caught in the act of operating the illegal station. The Act would also make clear that those who facilitate pirate radio operations are also liable for up to $2,000,000 fines (“facilitates” is defined to include providing property from which the pirate operates or money for their operations). The draft bill also calls on the FCC to, twice each year, dedicate staff to “sweep” the top 5 radio markets determined to have the most pirate activity to identify pirates and seize their equipment, and authorizes states to enact their own laws making such operations illegal as long as the determination of who is a pirate radio station is made by the FCC. 
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