National EAS Test Raises Interesting Issues for Participants

As we previously reported here and here, the Federal Emergency Management Agency (FEMA), along with the Federal Communications Commission (FCC) and the National Oceanic and Atmospheric Administration (NOAA), will conduct the first nationwide Emergency Alert System (EAS) Test on November 9, at 2:00 p.m. Eastern.

FEMA and the FCC have strongly urged EAS Participants to get advance word of the test out to the public in order to avoid an Orson Welles “War of the Worlds” type of panic when the national test is initiated. To that end, FEMA has produced a Public Service Announcement (PSA) that EAS Participants can use to forewarn the public of the national test. The FCC has indicated that it will soon be making scripts available on its website for EAS participants to use to warn the public.

An interesting issue that has arisen in connection with broadcasters and other EAS Participants using the PSAs is whether the spots require sponsorship identification under the FCC’s sponsorship identification rules. Even though it is reasonable to argue that no “money, service or other valuable consideration [will be] directly or indirectly paid, or promised to or charged or accepted” for airing the PSA, recent FCC sponsorship identification decisions involving Video News Releases have fined parties for using spots (unrelated to EAS) provided free of charge by third parties (in this case, FEMA).

Given the public service nature of the spot, and the fact that it is being provided by the Federal Government, it seems unlikely that the FCC will have an appetite for pursuing those who air the spot without adding sponsorship identification. However, in light of the FCC’s decisions finding fault with airing even a portion of a third party Video News Release without including sponsorship identification, those airing FEMA spots might want to consider adding sponsorship ID tags to them.

It is also important to remember that the FCC will be requiring EAS Participants to file reports on the results of the test, including whether, and from whom, parties received the alert message and whether they were able to rebroadcast the test message. The FCC is in the process of establishing an electronic filing system on its website to allow EAS Participants to file the reports in as close to real time as possible following the test. Although only paper filing of the reports is required under the FCC’s rules, the FCC is strongly encouraging parties to file electronically in order to allow FEMA and the FCC to review the results as quickly as possible. This will allow them to determine sooner rather than later if there are any problems with the EAS system that need to be addressed.

While the FCC has left open the question of whether it may take enforcement action against parties reporting problems in fulfilling their EAS obligations during the national test, it is clear is that the FCC will have little sympathy for parties who fail to actually participate in the test at all. Also, given that the FCC’s rules currently require weekly and monthly EAS tests, EAS Participants should ensure that their EAS equipment is operating in compliance with FCC rules now so that they have no unhappy surprises to report to the FCC following the national test.

More information regarding the details of the national test can be found on the FCC’s website here, and on FEMA’s website here. The national EAS test date is drawing near, and the time for resolving these preparatory questions is running out.