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As our readers are aware, we did a great deal of reporting before and after the first-ever Nationwide Emergency Alert System (EAS) Test conducted on November 9, 2011. The purpose of that test was to assess the readiness and effectiveness of the system in the event of an actual national emergency. Broadcasters, as well as cable, satellite, and wireline providers across the country (EAS Participants), all took part in the test. For a quick refresher, see my previous posts on the test here, here, here, here, and here. Late this past Friday, the FCC’s Public Safety and Homeland Security Bureau released a report summarizing the outcome of the national test entitled: “Strengthening the Emergency Alert System (EAS): Lessons Learned from the Nationwide EAS Test”.

As the FCC and FEMA have made clear on numerous ocassions, the national EAS test was not intended to be a pass or fail event, but was to be used to identify and address the limitations of the current EAS. The Report concludes that the national EAS alert distribution architecture is sound and that the national test was received by a large majority of EAS Participants and could be seen and heard by most Americans. The results of the test show that more than 80 percent of EAS Participants across the country successfully received and relayed the FEMA test message.

The Report also indicates, however, that there are a number of technical areas where the system can be improved. According to the Report, among the problems that impeded the ability of EAS Participants to receive and/or retransmit the emergency Action Notification (EAN) issued by FEMA, and of the public to receive it, were:

  • Widespread poor audio quality;
  • Lack of a Primary Entry Point (PEP) in an area to provide a direct connection to FEMA;
  • Use of alternatives to PEP-based EAN distribution;
  • The inability of some EAS Participants either to receive or retransmit the EAN;
  • Short test length; and
  • Anomalies in EAS equipment programming and operation.

As a result of its findings, the Report recommends that another nationwide test be conducted after the FCC commences a number of formal rulemaking proceedings seeking public comment on steps to improve EAS related to these and other shortcomings.

In its Report, the Bureau also recommends that, in connection with any future EAS testing, the FCC develop a new Nationwide EAS Test Reporting System to improve the electronic filing of test result data. The Report also encourages the Executive Office of the President to reconvene the Federal EAS Test Working Group to work with Federal partners and other stakeholders to use the results of the test to find ways to improve EAS and plan for future nationwide tests.

Despite the audio problems and other issues identified in the Report with respect to the nationwide EAS test, the first ever test appears to have achieved its goal of helping the FCC, FEMA, and EAS Participants identify areas where EAS can be improved in the event of an actual emergency. If the recommendations outlined in the Report are implemented by the FCC, the public will likely have a number of opportunities during upcoming rulemaking proceedings to provide their input to the FCC on ways to further improve the reliability of the nation’s EAS.

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With the State of the Union Address occurring tonight, the FCC wasted no time in advising broadcast stations and other EAS Participants to take immediate steps to prevent unauthorized uses of the Emergency Alert System like the fake zombie attack alerts that went out over a few stations in Michigan and Montana yesterday. While federal and state authorities are investigating the source of those hoax alerts, which appear to have come from outside the U.S., the FCC has just released instructions for EAS Participants in hopes of heading off any more false alerts.

The haste with which these instructions have been generated is demonstrated by the fact that they are not even on FCC letterhead, nor formatted for such a release. It is also worth noting that they are not described as “recommendations” or “guidelines”, but as actions EAS Participants “must” or “are required” to take. A copy of the FCC release can be found here, but the full text is below:

Urgent Advisory: Immediate actions to be taken regarding CAP EAS device security.

All EAS Participants are required to take immediate action to secure their CAP EAS equipment, including resetting passwords, and ensuring CAP EAS equipment is secured behind properly configured firewalls and other defensive measures. All CAP EAS equipment manufacturer models are included in this advisory.

All Broadcast and Cable EAS Participants are urged to take the following actions immediately

  1. EAS Participants must change all passwords on their CAP EAS equipment from default factory settings, including administrator and user accounts.
  2. EAS Participants are also urged to ensure that their firewalls and other solutions are properly configured and up-to-date.
  3. EAS Participants are further advised to examine their CAP EAS equipment to ensure that no unauthorized alerts or messages have been set (queued) for future transmission.
  4. If you are unable to reset the default passwords on your equipment, you may consider disconnecting your device’s Ethernet connection until those settings have been updated.
  5. EAS Participants that have questions about securing their equipment should consult their equipment manufacturer.

I’ll have more to say about the zombie apocalypse in the next few days, as I was already writing a post on the subject when the FCC release arrived. However, I wanted to get the FCC’s message out to broadcasters, cable operators, and other EAS Participants quickly, so that they can take action to prevent further hoax alerts, as well as be aware of the seriousness with which the FCC is taking these false alerts. Management should make sure that their staff is on alert for unusual EAS activity, particularly during major events coverage.

While the farcical nature of the initial hoax caused more amusement than panic, it is easy to see how a more realistic message could have caused far more damage. Yesterday’s events will hopefully be isolated incidents, but we will be seeing a lot more attention focused on the security, as opposed to the reliability, of the EAS system.

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Today, December 13, 2012, is the effective date of the FCC’s rules implementing the Commercial Advertisement Loudness Mitigation (CALM) Act. As a result, all commercial broadcast television stations and multichannel video program providers (“MVPDs”) must have by today either sought a waiver or installed equipment and undertaken procedures to comply with the Advanced Television Systems Committee (ATSC) A/85: “ATSC Recommended Practice: Techniques for Establishing and Maintaining Audio Loudness for Digital Television,” also known as the RP.

For locally inserted commercials, stations must install and maintain equipment and software that measures the loudness of the content and ensures that the dialnorm metadata value matches the loudness of the content when encoding audio for transmission (try saying that three times fast!). For commercials already embedded in the programming, stations must be able to pass through that CALM-compliant programming without adverse changes.

As long as that benign pass-through is accomplished, stations can rely on appropriate certifications from program suppliers to demonstrate compliance with respect to embedded commercials. If a program supplier does not provide the certification, “large” television stations and “large” and “very large” MVPDs (as defined by the FCC) must conduct annual spot checks of the programming. The first spot checks must be completed one year from today, by December 13, 2013. Details on these compliance requirements can be found in Paul Cicelski’s post on the CALM Act earlier this year. We will also shortly be posting a Pillsbury Advisory on ensuring continuing CALM Act compliance.

As noted above, the FCC created a waiver procedure for stations and MVPDs where compliance would be financially burdensome, allowing them up to a year of additional time to come into compliance. Waiver requests were originally due back in October, but the FCC announced two days ago that it would accept waiver applications from small television stations filed through today. “Small” television stations, that is, those with less than $14 million in revenues in 2011 or that are in markets 150 to 210, were not required to submit highly detailed financial data with their waiver requests, and the FCC indicated that waiver requests would be deemed granted upon filing unless the FCC later advises the applicant otherwise.

In response, more than 125 waiver requests were filed. Earlier this week, the FCC granted two of them, including one from a television station in the midst of a studio move that will include installation of upgraded equipment for CALM Act compliance. Stations that do not have a waiver request on file with the FCC by today need to have the equipment and procedures in place to ensure they are operating in compliance with the CALM Act. That means that stressed television viewers will be having a calmer holiday season, while station and MVPD engineers and managers stress out trying to remain CALM.

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September 2012
Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • FCC Follows Up a $25,000 Fine With a $236,500 Fine
  • Two Tower Owners Fined for Fading Paint

FCC Issues Second Fine to Cable TV Operator for $236,500
As we previously reported in October 2011, the operator of a cable television system in Florida was fined $25,000 for a variety of violations of the FCC’s Rules, including failing to install and maintain operational Emergency Alert System (“EAS”) equipment, failing to operate its system within the required cable signal leakage limits, and failing to register the cable system with the FCC. This month, the FCC issued a second Notice of Apparent Liability for Forfeiture and Order (“NAL”) to the operator for continued violations of the FCC’s cable signal leakage and EAS rules and for failing to respond to communications from the FCC requiring that the operator submit a written statement of compliance.

In January 2011, agents from the Tampa Office of the FCC’s Enforcement Bureau inspected the cable system and discovered extensive signal leakage, prompting the issuance of a NAL in 2011. The FCC has established signal leakage rules to reduce emissions that could cause interference with aviation frequencies. Sections 76.605 and 76.611 of the FCC’s Rules establish a maximum cable signal leakage standard of 20 microvolts per meter (“µV/m”) for any point in the system and a maximum Cumulative Leak Index (“CLI”) of 64. If potentially harmful interference cannot be eliminated, the FCC’s Rules require that the system immediately suspend operations following notification from the FCC’s local field office. Normal operations cannot resume until the interference has been eliminated “to the satisfaction of” the FCC’s local field office.

In early September 2011, agents from the Enforcement Bureau conducted a follow-up inspection of the cable system. During the inspection, the agents discovered 33 leakages, 22 of which measured over 100 µV/m, and found that the CLI for the system was 86.97, well in excess of the maximum permitted. Two days after the inspection, the local field office issued an Order to Cease Operations, directing the cable system to cease operations until the leakages were eliminated and to seek written approval from the local field office prior to resuming normal operations. At the time of its issuance, the President of the cable system verbally consented to abide by the terms of the Order. However, the cable system operator never contacted the field office to seek approval to resume operations, and the field office has yet to approve further cable system operations.

Between September 2011 and March 2012, agents from the FCC inspected the cable system an additional five times. During those inspections, the agents found that not only had the cable system resumed operation without permission, but they once again observed numerous signal leakages during each inspection.

Continue reading →

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There has been a recent uptick in class action lawsuits against video programming distributors under the Video Privacy Protection Act. The VPPA was enacted in 1988 in response to the disclosure of the video tape rental records of Supreme Court nominee Robert Bork during his confirmation hearings. Reflecting the era of its passage, the law refers to information regarding “video cassette tapes”, but is much broader, requiring those who are involved in renting, selling or distributing “prerecorded video cassette tapes or similar audio visual materials” to discard consumer information after a period of time (generally one year) and to get consumers’ consent before disclosing information about an individual’s viewing habits.

In this day and age of apps that share the songs individuals listen to and the newspaper articles they read, the VPPA has been cited as a major impediment to similar online sharing regarding video downloads and rentals. Congress has considered legislation that would amend the VPPA to permit social media sharing of an individual’s video viewing without requiring that individual’s consent on a title by title basis. While it may seem an anachronism to those accustomed to rampant social sharing, the VPPA’s requirements, and those of similar state privacy laws, apply to far more than just local video rental stores.

The attached Client Alert discusses a recent California case in which an individual brought a class action lawsuit against Sony. The suit claimed that Sony had retained the history of customers’ PlayStation Network movie and video game purchases and rentals, and that it disclosed such information to the new owner of the PlayStation Network when the network was transferred, and that the new owner then disclosed that information to advertisers.

As a review of the Client Alert reveals, any video on demand provider, whether cable, satellite, or online, needs to be knowledgeable of the requirements of the VPPA. The VPPA provides an avenue for individuals to bring class actions on behalf of thousands of affected customers, and to seek actual, liquidated, and/or punitive damages for the violation, as well as legal fees. Because of this, the financial stakes can be quite high for what might be an entirely unintentional violation of consumers’ privacy.