Articles Posted in Emergency Alert System

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Late today, the FCC released an Order laying the groundwork for the first national test of the Emergency Alert System. As we noted in an earlier post, the FCC began this process nearly a year ago, when it released a Notice of Proposed Rulemaking seeking public comment on the implementation of regular national EAS tests. Today’s order modifies the FCC’s Rules to authorize such tests as well as to establish the ground rules for conducting them.

Specifically, the Order:

  • Requires all EAS participants to participate in national EAS tests scheduled by the FCC in consultation with the Federal Emergency Management Agency;
  • Requires that the first national test use the Emergency Alert Notification code, the live event code used for nationwide Presidential alerts;
  • Provides that the national test replaces the monthly and weekly EAS tests in the month and week it is held;
  • Requires the Public Safety and Homeland Security Bureau of the FCC provide at least two months’ public notice prior to a national test;
  • Requires EAS participants to submit test-related data within 45 days of the test;
  • Requires that test data received from EAS participants be treated as presumptively confidential, but allows it to be shared on a confidential basis with other federal agencies and state emergency management agencies that have confidentiality protection at least equal to that provided by the Freedom of Information Act; and
  • Delegates authority to the Public Safety and Homeland Security Bureau, in consultation with FEMA and other EAS stakeholders, to establish various administrative procedures for national tests, including the location codes to be used in the alerts and the pre-test outreach to be conducted.

While many following this proceeding had anticipated that the FCC might hold off on a national test until it had modified its rules to incorporate Common Alerting Protocol and the deadline for EAS participants to install CAP-compliant equipment had passed, it appears the first national test could occur as early as this Fall. The order specifically notes that the first “national EAS test is strictly of the legacy EAS system and is independent of the transition to CAP.”

The Order notes the need for significant public outreach prior to the test (to avoid public panic), and acknowledges that, at least for the first test, EAS participants will likely get more than the minimum two months’ warning to accomplish that public education objective.

Of particular note to EAS participants is the requirement that they record and submit to the FCC within 45 days of the test a fair amount of detail regarding that participant’s performance during the test (e.g., was the alert received and passed on successfully, what equipment was used, what was the cause of any problems that occurred, etc.). In order to facilitate the submission of that data, the FCC also announced that it will be creating an electronic filing system that EAS participants may elect to use to comply with the reporting requirement.

Because the FCC wishes to encourage EAS participants to be honest in reporting failures that occur during national tests, it did note that it would treat the required submissions as a “voluntary disclosure”. In the past, the FCC has considered a licensee’s voluntary disclosure of a rule violation to be a mitigating factor that can merit a reduction in the fine or other sanction imposed. Notably, however, the FCC did not foreclose itself from issuing fines or taking other action against an EAS participant reporting a failure of its equipment/performance in the national test, particularly where the violation is “repeated, egregious, or not promptly remedied.”

As a result of today’s Order, and the wheels it puts in motion, broadcasters, cable providers, and other EAS participants will need to make sure they and their EAS equipment are ready to participate in a national EAS test as early as this Fall. The FCC, FEMA and other governmental agencies also have much to do before a national test can occur. However, today’s action clears the initial obstacles away, and will allow the FCC to achieve its goal of assessing “for the first time, the readiness and effectiveness of the EAS from top-to-bottom, i.e., from origination of an alert by the President and transmission through the entire EAS daisy chain, to reception by the American public.” That assessment has been a long time coming, and while it does present some regulatory risks for EAS participants, most will be pleased to have confirmation that the EAS equipment they have maintained day in and day out, year after year, will serve its intended purpose should a national emergency require it.

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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:

  • Antenna Structure Owner’s Failure to Act Results in $25,000 Fine
  • FCC Fines Microwave Licensee $15,000 for Late-Filed Renewal
  • AM Broadcaster Receives Reduced Fine for EAS Violation


FCC Fines Texas Antenna Structure Owner for Multiple Ongoing Antenna Structure Violations

In January 2010, a Houston Field Office agent responding to a complaint inspected a 253 foot antenna structure located in Yorktown, Texas. According to the Notice of Apparent Liability (“NAL”) issued by the Federal Communications Commission (“FCC”), the antenna structure was unlit and unidentifiable at the time of inspection, in violation of Section 17.51 and Section 17.4 of the FCC’s Rules. The field agent later determined that the antenna structure owner had failed to notify (1) the Federal Aviation Administration (“FAA”) of the lack of tower lighting, thereby violating Section 17.48 of the FCC’s Rules, and (2) the FCC of a change in ownership of the antenna structure, which violated Section 17.57 of the FCC’s Rules.

Following the initial inspection, in an effort to maintain public safety and avoid hazards to aircraft, the field agent requested that the FAA issue a Notice to Airman (“NOTAM”) about the tower’s lack of lighting. The field agent also contacted the antenna structure owner to discuss the violations discovered during the inspection. In a subsequent inspection, some eight months later, the field agent determined that none of the violations had been cured by the antenna structure owner. Again, the field agent contacted the FAA with a request to reissue another NOTAM regarding the unlit antenna structure.

Section 17.51 establishes that obstruction lighting must be functioning between sunset and sunrise. Section 17.4 requires antenna structure owners to display the ASR number in a “conspicuous place so that it is readily visible near the base of the antenna structure.” Section 17.48 requires antenna structure owners to notify the FAA in the event that a structure’s lights are malfunctioning or inoperable for more than 30 minutes. Section 17.57 establishes, among other things, that an antenna owner must immediately notify the FCC of any change in the ownership of the structure.

The base fines for the violations discussed above are $10,000 (lighting and FAA notification), $2,000 (displaying ASR) and $3,000 (failure to notify FCC of ownership change). Based on the antenna owner’s lack of responsiveness, the FCC upwardly adjusted the fines to $15,000, $4,000 and $6,000, for a total forfeiture of $25,000.

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As Scott Flick reported in a previous post, our firm filed a Petition on behalf of an unlikely coalition of broadcast and cable associations and their allies, including 46 of the state broadcasters associations, the National Association of Broadcasters, the National Cable and Telecommunications Association, the Society of Broadcast Engineers, the American Cable Association, the Association for Maximum Service Television, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service. The parties joined forces to ask the FCC to extend the deadline for all EAS Participants to acquire and install the equipment necessary to use the Common Alerting Protocol (CAP) standard for Emergency Alert System alerts. The unified effort paid off, as today the FCC released an Order waiving Part 11.56 of its Rules and extending the CAP deadline from March 29, 2011 to September 30, 2011.

Last September 30, FEMA announced the adoption of the CAP v1.2 standard, which triggered a 180-day deadline for implementation. In a post found here, I described CAP and what the CAP compliance deadline requires of EAS Participants.

The extension means that the estimated 25,000 to 30,000 EAS Participants now have more time to acquire the new and sophisticated equipment they need to become CAP-compliant, while giving FEMA more time to certify CAP-compliant EAS equipment. The six-month delay will also allow equipment manufacturers to test their CAP products and to make any changes needed to meet the certification requirements. This process, in turn, will give EAS Participants the certainty they need to make better informed decisions regarding what equipment they should obtain and install to ensure compliance with CAP. Finally, the extension will give all parties, including noncommercial broadcasters, smaller cable systems, and rural broadcasters more time to budget for the purchase of new equipment.

The FCC acknowledged that if it failed to extend the 180-day deadline, it could “lead to an unduly rushed, expensive, and likely incomplete process.”

The Order also leaves open the possibility of extending the CAP deadline beyond September 30, 2011. This is because the FCC will soon be conducting a rulemaking proceeding to incorporate CAP into its Part 11 Rules, and at this point it is unclear what specific Part 11 rule changes will be made as a result of the new CAP standard. According to the FCC, it plans to complete that rulemaking prior to September 30, 2011, but will ask for comments on “whether the extension for CAP acceptance by EAS Participants granted in this waiver order is sufficient, and reserves the right to further extend the date for CAP reception in any new rule we may adopt.” Given that the outcome of the rulemaking proceeding will likely result in a number of significant revisions to the FCC’s EAS Rules, another extension of the deadline is certainly plausible in order to give parties enough time to come into compliance with the new rules.

In other words, stay on alert, as we will definitely be hearing much more about CAP in the near future.

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In what has become one of our most popular posts at CommLawCenter, a few months ago I discussed a radio ad that contained an “attention getting” Emergency Alert System tone that was activating broadcast stations’ EAS equipment around the country. The post noted that airing the commercials violated Section 11.45 of the FCC’s Rules (“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.”).

The earlier post also noted that these ads potentially violated Section 73.1217 of the FCC’s Rules, which is the FCC’s prohibition on airing broadcast hoaxes. These rules are the result of the FCC’s longstanding concern with the airing of material that could cause public panic, dating all the way back to the Orson Welles Halloween broadcast of War of the Worlds in 1938, just four years after the FCC was created by Congress.

Television stations have now joined their radio brethren in unintentionally airing Emergency Alert System tones. The Society of Broadcast Engineers disclosed yesterday that a television ad for the new movie Skyline, which hits theaters tomorrow, began airing earlier this week with an EAS tone repeated six times throughout the length of the spot. A copy of the spot can be found on the SBE website here, with the EAS tones being very audible in the background.

Stations airing such spots put themselves at risk of adverse action by the FCC, particularly for any airings that occur after the station has learned of the issue. However, stations that aired the spot before SBE’s announcement yesterday are not off the hook, as the FCC holds broadcasters liable for the content they air, and normally takes the position that stations should have checked the spots before they aired for problematic content.

While an EAS tone sounds like digital hash to the human ear, it contains a lot of information that is used to trigger the EAS receivers of stations in a “daisy chain” fashion to quickly spread emergency information. In that regard, each signal is like human DNA, containing information that allows you to determine its origin. In this case, the EAS signal being used is a recording of a Pennsylvania statewide monthly test that fails to include the normal “End of Message” tone. As a result, stations whose EAS equipment is activated by another station airing the false tone could suddenly find themselves retransmitting the content of the other station for a couple of minutes after the tone airs.

Unfortunately, because it is generally the broadcast station and not the creator of the ad that will be held liable, advertisers are not always adequately incentivized to make sure their ads comply with FCC regulations. That means it is up to broadcasters to check each and every ad they run for violations of the law, including violations of the FCC’s sponsorship identification rule, the FCC’s rules involving ads in children’s programming, and ads with questionable content, whether it be indecency, defamation, false product claims, or, in this case, false EAS alerts.

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With the Fox-Cablevision carriage dispute grabbing headlines, and the cable and broadcast industries preparing for battle in Congress and at the FCC over retransmission issues, you would be hard pressed to find common ground between these two media players. However, I have seen it, and it is now on file at the FCC.

When FEMA signed off on a technical standard for the next generation of emergency alert technology, known as CAP, a few weeks ago, it activated a 180 day deadline for the government to certify CAP-capable equipment and for media entities to acquire and install that certified equipment. At the time, we wrote that 180 days likely would not be enough time to have equipment based on the new standard manufactured, certified by FEMA (and possibly the FCC), installed, tested, and operational. While no one wants to hinder deployment of this next-generation emergency alert technology, the immense complexity of CAP, which is intended to distribute alerts not just on television and radio, but potentially through cell phones, the Internet, and myriad other communications channels, makes implementation very challenging. There are still a lot of issues to work out, and just as important as deploying the technology is making sure that it will work properly once deployment is complete.

To ensure that happens, and to try to facilitate an orderly rather than rushed deployment of EAS CAP technology, earlier today Dick Zaragoza and Paul Cicelski of our firm filed a request to extend the time period during which media entities must implement the CAP standard. The current deadline for EAS implementation is March 29, 2011. Today’s extension request urges the FCC to extend the implementation period through at least September 30, 2011, and to consider a longer implementation period tied to completion of the FCC’s own potential CAP equipment certification process and/or the FCC’s anticipated proceeding to modify its rules to complete the implementation of CAP.

This is the interesting part. Participating in today’s extension request were 46 of the state broadcasters associations, the National Association of Broadcasters, the National Cable and Telecommunications Association, the Society of Broadcast Engineers, the American Cable Association, the Association for Maximum Service Television, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service.

I can’t recall any prior issue inspiring such unanimity among this diverse group of participants, and that should provide an indication of the seriousness with which they view the upcoming task. If implemented successfully, EAS CAP will bring a more ubiquitous and content-rich emergency alert system to the United States. If implemented poorly, vast amounts of time and money will have been expended without significantly improving public safety. Knowing many individuals who have dedicated themselves to making CAP a reality over the past few years, it would be a shame to not see the full benefits of the technology realized.

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The Department of Homeland Security’s Federal Emergency Management Agency (FEMA) announced in a public notice released today that it has adopted the Common Alerting Protocol (CAP) v1.2 Standard for FEMA’s Integrated Public Alert Warning System (IPAWS). Under the FCC’s Rules, Emergency Alert System (EAS) participants (e.g., radio and television stations, and wired and wireless cable television systems) must be able to receive CAP-formatted EAS alerts no later than 180 days after FEMA publishes the technical standards and requirements for CAP transmissions. Although FEMA’s public notice does not mention the 180 day clock, an FCC representative stated today that the 180 day period commences with issuance of the FEMA public notice. As a result, all EAS participants should assume that the release of the public notice today (September 30) initiated the 180 day period to acquire and install CAP-compliant equipment.

At its essence, IPAWS is a network of alert systems through which FEMA is upgrading the way Americans receive alert and warning information, providing that information through as many communications pathways as possible. CAP is an alerting format that uses digital technology to allow a consistent warning message to be disseminated simultaneously over as many different warning systems as possible. In addition to enhanced audio and video, CAP permits digital photos and text to be included in emergency alerts and AMBER alerts.

FEMA and the FCC are to be commended for their hard work in seeking to improve EAS and better alert the American people in the event of an emergency. However, EAS participants and equipment manufacturers alike have argued that 180 days is not enough time to acquire equipment compatible with the new CAP standards and to configure EAS systems to receive and relay CAP messages. Manufacturers of EAS equipment may not be able to meet the sudden demand for new equipment by that deadline if every EAS participant is indeed required to have CAP-capable equipment installed within 180 days. Many EAS players have also noted that the 180 day time frame does not take into account legitimate budgeting concerns, given that the equipment alone can cost $2,000-$3,000. With tight federal, state, and local budgets, most EAS participants will likely get no assistance in acquiring the equipment necessary to make the new alerting system work.

There is also the issue of equipment certification and testing. FEMA is expected to wrap up its initial certification process by issuing a list of CAP-certified equipment by the end of November. But it isn’t clear if the FCC will conduct its own certification process to provide EAS participants and EAS equipment manufacturers with the certainty of FCC rule compliance they would like prior to moving forward with acquiring CAP-compliant equipment. Many also complain that it remains unclear if parties will be able to fully test the reliability of their new CAP equipment until late 2011, given that the first national FEMA test of CAP is not expected to occur until that time.

Also, while EAS participants are required to meet the 180 day deadline, there are no rules requiring state or local Emergency Management Agencies or public safety departments to be able to actually deliver such alerts by that deadline. So while EAS participants will need to be able to receive national CAP messages delivered by FEMA, they will also need to make sure that their new equipment can simultaneously receive older “legacy” messages that may continue to be issued locally. And if states decide to implement a CAP-compliant EAS system in the future, there is no guarantee that the equipment they acquire then will be fully compatible with the equipment purchased earlier by EAS participants in that state.

The good news is that staff at both FEMA and the FCC have been made aware of these and other concerns surrounding the 180 day deadline and seem sympathetic to those concerns. It is therefore possible that the 180 day compliance period could be extended, but EAS participants should not rely on that being the case. Because of this, EAS participants will need to carefully assess their situation to determine when and how to select EAS equipment appropriate to their needs. EAS participants that wait until too late to focus on this issue will certainly face an emergency of their own.

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One of the great things about being a communications lawyer is the wide array of issues you deal with over the course of a day. Contract lawyers negotiate contracts, and litigators litigate, but communications lawyers negotiate contracts, litigate, argue government policy, and generally are thrown into the breach whenever a problem emerges affecting their clients. As a very senior communications practitioner said when I was a young lawyer, “if you want to be a communications lawyer, you better be very good at your trade or have a damn good smile!”
Because of the diversity of communications issues out there, you never know when you answer the phone what the issue will be. One question I have received on multiple occasions over the years is whether it’s true that radio stations are prohibited from airing the sound of a police siren. I have had broadcasters swear there is a flat prohibition on this and that they were taught about it early in their career. While there is no outright prohibition, this “old broadcaster’s tale” stems from a 1970 FCC proceeding where several complainants sought such a ban. The FCC declined to prohibit these sound effects, but basically told broadcasters to use common sense when airing them. Not coincidentally, 1970 was the year that R. Dean Taylor’s song Indiana Wants Me made it to Number 5 on the Billboard charts, complete with siren. A siren-free version of the song was also produced to appease nervous radio stations (take a listen to the “with sirens version“; go ahead, I’ll wait till you get back).

I was reminded of all this today when I received a client call asking about a radio ad from the oil company ARCO that includes the Emergency Alert System tone at the beginning of the spot. The Society of Broadcast Engineers has posted an MP3 of the ad here.

The EAS tone differs from police sirens in two important ways. First, the airing of the EAS tone or a simulation of the tone where no emergency or authorized EAS test exists is flatly prohibited by Section §11.45 of the FCC’s Rules (“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.”). It could also potentially violate Section 73.1217, the FCC’s prohibition on broadcast hoaxes.

Second, unlike members of the public who usually can discern from context whether a siren or other emergency sound is a cause for concern (does Indiana really want them?), the electronics that monitor radio signals do not have this capability. As a result, the airing of the commercial has accidentally activated EAS receivers around the country, which hear the alert tone and activate the local emergency alert system as though an actual emergency is occurring. It appears the tone in the spot was tweaked to speed it up a bit, but apparently not enough to avoid fooling at least some EAS receivers.

Stations airing the spot, particularly where EAS activations have occurred, should get in touch with their communications counsel immediately. The FCC’s words from 1970 are still relevant here: “The selection and presentation of advertising and other promotional material are, of course, the responsibility of licensees. However, in this selection process, licensees should take into account, under the public interest standard, possible hazards to the public. Accordingly, in making decisions as to acceptability of commercial and other announcements, licensees should be aware of possible adverse consequences of the use of sirens and other alarming sound effects.” It may take 40 years, but what goes around, comes around.

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Comments are due by March 1, 2010 and Reply Comments are due March 30, 2010 to the FCC’s proceeding to implement national emergency alert testing at least once a year and to collect station data from such tests.

In a Second Further Notice of Proposed Rulemaking (“NPRM”) concerning updating of the nation’s Emergency Alert System (“EAS”) to meet modern security concerns, the FCC proposes to require testing of the EAS on a nationwide basis. To date, the EAS has never been used to deliver a national EAS alert. While Part 11 of the FCC’s rules requires periodic testing of state and local EAS alerts by all radio and television EAS participants, no national test of the EAS has ever been conducted, and the current rules do not require such testing. As a result, it is not known whether the system would in fact function as required should the President issue a national alert. Accordingly, the FCC proposes to require EAS participants to take part in national EAS testing, as well as continue a modified schedule of the weekly and monthly EAS already in effect.

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November 2008
Topics include:

  • FCC Upholds $9,000 Fine for Noncommercial FM Radio Station Airing Advertisements
  • FCC Fines New York AM Radio Station $12,800 for Failing to Sign Off at Sunset, Failing to Maintain Daytime Operating Power, Failing to Maintain an Operational Emergency Alert System, and Failing to Maintain a Complete Public Inspection File

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March 2008
Topics include:

  • FCC Fines Mississippi Radio Station for Broadcasting a Conversation Without First Informing the Other Party
  • Commission Fines Wyoming Radio Licensee $4,200 for Failing to Enclose Tower With an Effective Locked Fence
  • FCC Fines Louisiana Radio Licensee $10,000 for Tower Lighting and Operating Power Violations
  • FCC Fines Licensee of Florida Low Power FM Radio Station $6,400 for Emergency Alert System Violation

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