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After nine months of rumors and uncertainty as to where the FCC is headed after last summer’s indecency decision by the Supreme Court in FCC v. Fox Television Stations, Inc. (which we discussed in this post), the FCC today released a very brief public notice that:

  1. Announces the FCC staff has disposed of over one million indecency complaints (which it states is over 70% of those that were pending at the FCC), “principally by closing pending complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent.”
  2. Announces that the FCC will continue to actively investigate “egregious indecency cases.”
  3. Announces that it is opening up a new docket (GN Docket No. 13-86), and is seeking comments from the public in that docket as to whether the FCC should change its broadcast indecency policies, and if so, how. While not limiting the breadth of potential changes, the FCC specifically asks whether it is time to go back to the old policy of prosecuting on-air expletives only where there is “deliberate and repetitive use in a patently offensive manner,” or stick with the more recent policy of pouncing on a single fleeting expletive, the policy that led to the Supreme Court’s 2012 decision. The Public Notice also asks if the FCC should treat “isolated (non-sexual) nudity the same or different than isolated expletives?”
  4. Finally, emphasizing again the broad nature of the FCC’s proposed review, the Public Notice asks commenters “to address these issues as well as any other aspect of the Commission’s substantive indecency policies.”

The Public Notice indicates that comments will be due 30 days after the request for comments is published in the Federal Register, with reply comments being due 30 days after that.

While the timing of the Public Notice, just ahead of Chairman Genachowski’s (and Commissioner McDowell’s) announced departure from the FCC, is interesting, more interesting is the “spontaneous” look of the document. In an agency that can readily produce requests for comments that are hundreds of pages long, and on a subject that has produced reams of pleadings and precedent over several decades, the substantive portion of the Public Notice is but a few paragraphs long–a few paragraphs that open the door to a fundamental rethinking of the FCC’s approach to indecency.

The Public Notice therefore has the look of a document that was not long in the making, and which may have emerged as result of a departing Chairman beginning to move the ball forward for his successor. The process forward will likely be complex and arduous, and the ultimate result is anyone’s guess, but by at least launching the proceeding before his departure, Chairman Genachowski will absorb some of the political heat that could have otherwise fallen on his successor, while also challenging that successor to address an issue that has become a significant distraction and consumer of increasingly scarce FCC resources.

While also a result of its brevity, the lack of any “initial” or “tentative” conclusions by the FCC in the document gives the impression that the FCC may indeed be ready to commence a fundamental reexamination of indecency policy, and is not just going through the motions of collecting comments before proceeding on a largely predetermined route. It is not asking so much how it should proceed in light of the Supreme Court’s decision, but how it should proceed in general. For those who loudly proclaim that the FCC has failed in its duties as a “content cop”, as well as broadcasters struggling to figure out on a minute by minute basis what program content might cross the FCC’s invisible indecency line, a fresh look at the issue will be welcome. Whether this “reset” can resolve the many tough questions surrounding indecency enforcement is, however, another question entirely.

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March 2013

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:

  • Delay in Providing Access to Public Inspection File Leads to Fine
  • FCC Fines Broadcaster for Antenna Tower Fencing, EAS and Public Inspection File Violations

Radio Station Fined $10,000 for Not Providing Immediate Access to Public File

This month, the Enforcement Bureau of the FCC issued a Notice of Apparent Liability for Forfeiture and Order (“NAL”) in the amount of $10,000 against a Texas noncommercial broadcaster for failing to promptly make its public inspection file available. For the delay of a few hours, the Commission proposed a fine of $10,000 and reminded the licensee that stations must make their public inspection file available for inspection at any time during regular business hours and that a simple request to review the public file is all it takes to mandate access.

According to the NAL, an individual from a competitor arrived at the station at approximately 10:45 a.m. and asked to review the station public inspection file. Station personnel informed the individual that the General Manager could give him access to the public files, but that the General Manager would not arrive at the station until “after noon.” The individual returned to the studio at 12:30 p.m.; however, the General Manager had still not arrived at the studio. According to the visiting individual, the receptionist repeatedly asked him if he “was with the FCC.” Ultimately, the receptionist was able to reach the General Manager by phone, and the parties do not dispute that at that time, the individual asked to see the public file. During that call, the General Manager told the receptionist to give the visitor access to the file. According to the visitor, when the General Manager finally arrived, he too asked if the individual was from the FCC, and then proceeded to monitor the individual’s review of the public file.

After the station visit, the competitor filed a Complaint with the FCC alleging that the station public files were incomplete and that the station improperly denied access to the public inspection files. The FCC then issued a Letter of Inquiry to the station, requesting that the station respond to the allegations and to provide additional information. The station denied that any items were missing from the public file and also denied that it failed to provide access to the files.

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At the end of every quarter, TV stations across the land must electronically file with the FCC a Form 398–The Children’s Television Programming Report. However, stations attempting to do that filing for the first quarter of 2013 are discovering that the FCC’s online filing system for those forms ends with the fourth quarter of 2012. As a result, it is preventing many TV stations from preparing their electronic report for the first quarter of 2013, rejecting all efforts to select “First Quarter 2013” as the report to be filed.

At first, it appeared that the FCC had bought into the “Mayan Prophecy” that the world was ending in December 2012, marking the end of the Mayan (and perhaps the FCC’s) calendar. And, had the world actually ended in 2012, filing a Form 398 covering the first quarter of 2013 would have indeed ranked low on most broadcasters’ “to do” lists. However, with 2013 well under way, TV stations are now flummoxed as to how to get the FCC’s electronic filing system to allow the preparation and filing of a first quarter 2013 kidvid report.

Fortunately, there is an answer, but it requires a little background. We reported in a 2010 KidVid Advisory that the FCC had suddenly begun requiring stations to enter their FCC Registration Number and password as the final step before permitting a Form 398 to be filed. As it turned out, this was apparently the first step in creating a new FCC Form 398 filing system.

In July 2012, the FCC released what it termed an “alternate” link for accessing the Form 398 filing system and updated its user manual to indicate that the web address for filing the form is the alternate link. However, the FCC’s main Children’s Television Programming page on the Internet continues to show that the original link is the one to use for filing a Form 398, and until this quarter, that original link has continued to work correctly. Of course, most TV stations just have the original link bookmarked, and have no reason to visit the FCC’s website/user manual to see if the filing procedures have been changed. Adding to the confusion is the fact that following the original link does not generate a warning or error message, but takes you to the same filing page stations have been using for years. It is only when a station tries to create a report for first quarter 2013 that a problem arises.

As a result, the “alternate” link is not just an alternate any more, and must be used to file all post-2012 kidvid reports. So, from here on out, use this link for filing your kidvid reports: http://licensing.fcc.gov/KidVidNew/public/filing/submit_login.faces

Note also that, at the new link, you will have to provide your call sign, Facility ID, FCC Registration Number and Password to even be able to log into the system. This is all information you previously needed to file a Form 398, but you supplied it at the end of the filing process. Now, you can’t even get started without it. For TV stations that have been banging their heads against the wall trying to figure out why they can’t prepare, much less file, their Form 398, using the alternate link should solve that problem. It may be a small problem compared to the end of the world, but then the Mayans never had to deal with online filing.

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As we have discussed at great length in the past, the FCC’s rules require that certain video programming delivered online be captioned if the programming previously aired on television with captions. The rules kicked in on April 30 of last year, and all video programming that appeared on television with captions after that date is considered “covered Internet Protocol (IP) video” and will ultimately need to be captioned when being shown online.

The first step of the captioning phase-in occurred on September 30, 2012. Since that date, stations have been required to display captioning for prerecorded full-length programming delivered via IP if the programming was first aired on television with captions on or after the April 30 date noted above.

The second phase of the FCC’s IP captioning rules begins March 30, 2013 (a Saturday), at which time the FCC’s IP captioning rules require all live and near-live programming subject to the rules and shown on television with captions to be captioned when delivered online. The FCC’s definition of “live” or “near-live” captures all programming performed simultaneously or recorded within 24 hours of its first transmission to a video programming distributor. Note that as long as they do not constitute “substantially all” of a full-length program, online video clips are currently exempt from the IP captioning rules.

As a result, the question we probably receive most often from clients about online captioning is: what exactly does the FCC mean by “substantially all” of a full-length program? It’s a good question that lacks a precise answer. The FCC intentionally decided not to provide a specific threshold for the length or number of clips aired that would constitute “substantially all” of a program. According to the FCC, it did not see “any evidence that Congress sought to exclude only clips of a certain duration or percentage of the full-length program.”

Parties should keep in mind, however, that the FCC will not allow them to game the system by simply “shaving” off a few minutes or brief segments of a full length program in order to avoid the IP captioning obligation. The FCC emphasized that “if there is clear evidence that an entity has developed a pattern of attempting to use video clips to evade its captioning obligations,” the FCC may find that a rule violation has occurred.

There is of course more to come. The captioning requirements for “full length” and “live or near-live” programming are just the beginning of the new IP captioning obligations being implemented in the near future. The next deadline is coming up soon with the September 30, 2013 requirement that all pre-recorded programming that is edited for Internet distribution be captioned for online viewing. Also, don’t forget there are separate captioning compliance deadlines for captioning of IP video programming that previously aired on television prior to the effective date of the rules, but that is shown again on television with captions after the effective date. Those phased-in captioning requirements are scheduled to take place between March 2014 and March 2016, with progressively shorter periods to caption the programming for IP video after it airs on television with captions.

As was the case with the original broadcast captioning rules, each phase-in “deadline” shrinks the amount of programming exempt from the online captioning requirement while requiring the distributor to tackle ever more complex captioning issues. IP captioning will therefore consume a growing portion of the attention of those posting broadcast video online. The big difference is that broadcast captioning was phased in over eight years (twelve years for Spanish language programming), whereas online captioning is being phased in on a much faster schedule.

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While in the works for a while, today’s formal announcement by FCC Commissioner McDowell that he will be departing the FCC leaves a hole in the FCC’s ranks that will be difficult to fill. In many regards, Commissioner McDowell was a throwback to an earlier time, both at the FCC and in Washington, in that his tenure was distinguished not just by his congenial nature, but by an abiding adherence to his regulatory principles, rather than to reaching a particular result. While I suspect he might bristle at being described as a “rational regulator”, preferring instead to be known as a “devoted deregulator”, Commissioner McDowell represented a common-sense approach to the communications industry and the business of regulating it.

Since the job of a lawyer is to obtain for a client the best result legally possible, you would think that lawyers would be big fans of the “predictable vote”–the commissioner whose policy positions are so embedded that there is little doubt as to where they will stand on any particular issue. And of course, if three of the five commissioners are on your side of an issue, that’s a pretty warm and fuzzy place to be. The problem, however, is that for every time three of the five commissioners support your position, there will be a time when three of the five do not.

For that reason, an experienced lawyer will always prefer an inquisitive and open-minded regulator over an ideologue, even when it is an ideologue that agrees with you (today). While the independent-minded regulator will make you work to persuade them each and every time, the opportunity to persuade them is never foreclosed. If you fail to persuade them that your cause is just, then the failure is yours, and not just the result of an agency formalizing a preordained result.

Over the years, the FCC has been blessed with a number of commissioners that have been particularly good at compartmentalizing natural biases, and giving the parties before them a full and fair opportunity to make their case. Probably not coincidentally, many of these same commissioners have had both a healthy sense of humor and humility, putting those around them at ease and creating an environment conducive to an open and lively discussion of the issues. A final characteristic found among this select group–and helpful to anyone in Washington–is the ability to separate the advocate from the issue, recognizing that just because you disagree with the argument that the advocate must make today on behalf of a client doesn’t diminish the advocate who, like the commissioner, is just trying to do their job to the best of their ability, and will have to make a different argument on behalf of a different client tomorrow.

Unfortunately, these characteristics are rarely those that will get you nominated by a President, or see you through a partisan confirmation process, so commissioners with all of these characteristics will inevitably tend to be the exception rather than the rule. Because of this, Commissioner McDowell will be missed by many who work at, and with, the FCC. In a town where some individuals have countdown calendars marking the number of days remaining in a particular government official’s tenure, it is perhaps the ultimate backhanded Washington compliment that the most arresting part of Commissioner McDowell’s departure announcement was where it noted he had been at the FCC for “nearly seven years.” It’s hard to believe it has been that long.

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In response to a request by the Coalition for Broadcast Investment (“Coalition”), the FCC, through its Media Bureau, has invited the filing of comments on the question of whether the Commission should now be open to allowing non-citizens and foreign companies to hold more than a 25% equity interest in U.S. radio and television stations. The deadline for filing comments is April 15, with reply comments due by April 30.

The Coalition is comprised of national broadcast networks, radio and television station licensees, as well as community and consumer organizations. It is urging the FCC to publicly commit, going forward, to considering on their individual merits transactions proposing significant foreign investment in broadcast stations, rather than reflexively rejecting foreign ownership above the 25% mark, as the FCC has traditionally done when reviewing broadcast transactions.

But for the Commission’s decades-old refusal to be flexible, the Coalition’s request would not have been necessary as Section 310(b)(4) of the Communications Act states that a broadcast license will not be granted to “any corporation directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock is owned of record or voted by aliens, their representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign country, if the Commission finds that the public interest will be served by the refusal or revocation of such license.” The very language of the Act therefore indicates that alien ownership above the 25% mark will be permitted unless the FCC specifically finds that such foreign ownership would not, in the particular situation presented, serve the public interest.

Despite the language of the statute, the FCC has routinely declined to consider broadcast-related transactions proposing more than 25% foreign ownership of a broadcast parent company. The Coalition contends that, by considering the merits foreign ownership proposals in excess of the 25% mark, the FCC will encourage “access to additional and new sources of investment capital [which] will benefit the broadcast industry and American consumers by financing advanced infrastructure, innovative services and high quality programming; and by promoting the creation of highly skilled, well-paying jobs” as well as “provide new opportunities for minority businesses and entrepreneurs, whose access to the domestic capital markets has been limited….”

A clear statement by the FCC that it will now review, on the merits, radio and television transactions proposing significant foreign investment in U.S. broadcast stations should send a very constructive signal to the broadcast industry, to potential foreign investors and to U.S. investors looking to syndicate more of their capital needs offshore for U.S. broadcast investments. Such a new openness and flexibility on the part of the Commission will also serve to create a more equitable “access to capital” environment for broadcasters particularly in relation to other forms of media.

Future Commission actions publicly approving, disapproving and conditioning transactions proposing “plus 25%” foreign ownership will, over time, provide the necessary predictability that is so important for investment decision-making. Pillsbury has considerable experience in crafting FCC-friendly ownership/control structures for banks, companies and firms with foreign ownership that wish to invest in U.S. broadcast stations. Action by the Commission on the Coalition’s letter will hopefully simplify and speed the heretofore painstaking process of balancing the return on investment objectives of foreign investors against the need to meet the letter and intent of the FCC’s rules and policies with respect to foreign ownership of U.S. broadcast stations.

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As we all know, it’s easy to complain about the Federal Government these days given the gridlock that currently exists on Capitol Hill, the Sequester, and the looming debt ceiling battle. But let’s give credit where credit is due.

The FCC has revised its Equal Employment Opportunity (EEO) audit letter for all broadcast licensees, and has eased the burden on respondents by eliminating the need to produce copies of each and every job vacancy notice that was sent out to every referral source, allowing stations instead to file only a representative copy of each job opening notice along with a list of the referral sources to which it was sent. In addition, the FCC has changed its audit letter to allow the submission of a single on-air job advertisement log sheet instead of requiring stations to provide multiple log sheets. The letter also states that stations are not required to provide copies of “applicants’ resumes …, company training manuals, posters, employee handbooks, or corporate guidebooks.” While responding to an EEO audit remains a time consuming task, the FCC has at least taken a step in the right direction by better focusing the audit request on the most consequential materials.

The new version of the EEO audit letter was, as required by the FCC’s rules, sent to randomly selected radio and television stations in the past few weeks. The FCC annually audits the EEO programs of approximately five percent of broadcast stations and has released the list of the stations subject to the most recent audit. All stations, whether targeted for this round of audits or not, should carefully review the FCC’s sample audit letter, as it informs stations of what they will need to present when their time comes.

The FCC’s EEO rules require broadcast station employment units with five or more full-time employees to recruit broadly and inclusively for all job openings, and require substantial recordkeeping, periodic reports to the FCC, and the placement of those reports in stations’ public inspection files and on their websites. Broadcasters must also regularly analyze the results of their recruitment efforts to ensure that broad and inclusive outreach is being achieved and must keep detailed records of their recruitment outreach efforts to submit to the FCC in the event of an EEO audit.

For everything you ever wanted to know about ensuring compliance with the FCC’s EEO rules, see our comprehensive and recently updated Client Advisory: “The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters.”

The fact that stations will no longer need to provide multiple ad log sheets or the corporate materials described above will certainly make responding to an audit easier. That said, the FCC’s EEO rules are, and will continue to be, a significant regulatory burden on broadcasters. While broadcasters will not be required to submit as much material to the FCC as part of an EEO audit, they will continue to be required to maintain records extensively detailing their job recruitment efforts. In addition, stations should take note that the FCC’s Public Notice released with the new version of the EEO audit letter seems to indicate that in exchange for the reduced response burdens, the FCC is raising the bar and now expects stations to adopt a standard of “vigorous recruitment.”

Still, despite concerns as to what the FCC means by “vigorous”, it’s nice to see that the FCC is moving in the direction of simplified audits in an effort to actually ease regulatory filing burdens on broadcasters.

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February 2013

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 Takes Action Against Interference and Unlicensed Operations
  • FCC Assesses $25,000 Fine for Unresponsiveness

Licensee Cannot Escape Fine for Intentional Jamming and Unlicensed Operations
In a rather odd chain of events, the FCC recently issued a Memorandum Opinion and Order (“Order”) against an individual in Thousand Oaks, California stemming from a 2009 investigation and a 2011 Forfeiture Order. The Order rejected a petition for reconsideration of the earlier Forfeiture Order and affirmed the FCC’s decision to fine the individual for unlicensed radio operations, intentional interference with radio operations, and refusal to allow an inspection of radio equipment.

In March 2009, an agent from the FCC’s Enforcement Bureau investigated radio interference at a shopping center. The agent located an unlicensed repeater transmitter operating from a secure radio communications facility on Oat Mountain with a beam antenna pointed in the direction of the shopping center. The repeater was transmitting pulsating signals on 461.375 and 466.375 MHz, the land mobile frequencies licensed to the shopping center for its own operations. These transmissions were jamming the shopping center’s licensed land mobile operations.

During the investigation, an unidentified individual communicated with shopping center personnel on a different set of frequencies, telling them they had “plenty of warning”, that he was jamming their licensed frequencies to force them to cease use of those frequencies, and that they needed to apply to the FCC to cancel their current land mobile license and apply for a new license to operate on different frequencies. He then began transmitting NOAA weather radio on the licensed frequencies to block any use of those frequencies by the shopping center.

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At this stage in the media cycle, few could have missed the news of several Michigan and Montana TV stations airing an EAS alert warning the public of a zombie attack. As I noted earlier this week, while the facts surrounding these alerts are still developing, it appears they were the result of someone outside the U.S. triggering the stations’ EAS equipment via that equipment’s Internet connection. While the resulting burst of media stories quickly devolved into a flurry of zombie jokes, the movie that came to mind as the story developed was not Night of the Living Dead, but the Terminator films, which feature an interconnected national defense network called Skynet. In the films, Skynet becomes so sophisticated as to turn on its creators, causing a nuclear launch that brings destruction to the human race and, after the movie, Arnold Schwarzenegger to the California Governor’s Office.

For many years, the EAS system, as well as its predecessor, the Emergency Broadcast System, operated by having a number of primary broadcast stations connected to governmental agencies through a closed network (typically over telephone lines). When an alert was sent to these primary stations, they would broadcast the alert, which would then be picked up and aired by stations monitoring the signal of the primary station, and in turn, by other stations monitoring those secondary stations. This created a daisy chain in which an announcement over one station quickly spread to stations throughout the alert area.

One of the perceived flaws of the Emergency Broadcast System was the amount of human interaction it required. For example, when a national alert was accidentally triggered in 1971, it caused little disruption, since many station managers intercepted it and did not air it because they heard no corroboration of the emergency over their newswires. While it turned out that those station managers were correct in concluding it was an accidental alert, critics of the Emergency Broadcast System counted this event as a failure of the system, since the delay inherent in station managers deciding whether an alert should be aired (and the risk that they may reach the wrong conclusion) puts more lives in danger.

The shift to EAS from the Emergency Broadcast System was done largely to increase the automation, and therefore the reliability, of the system. That digital squeal you hear accompanying an EAS warning is a digital code instructing other equipment, including the public’s radios (if properly equipped), to activate, lessening the chance that emergency alerts go unheard, either because a link in the daisy chain failed to relay the message, or because the public was not listening to radio or watching TV at the time.

The downside to this level of automation soon became apparent. As I wrote in September of 2010, a radio ad for gas stations sought to satirize emergency alert announcements, right down to including the EAS digital tone. Because EAS equipment has a poor sense of humor and is no judge of context, any station airing the ad would trigger EAS alerts on the stations “downstream” from it in the EAS daisy chain. For this reason, Section §11.45 of the FCC’s Rules provides that “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.” Just a few months later, the problem repeated itself when TV ads for the disaster movie Skyline included an EAS tone among the many sound effects in the ad.

The highly automated nature of EAS was demonstrated yet again this week, when a Wisconsin radio station’s morning show disc jockeys played a tape of the zombie EAS alert, including the digital tone. The result was–you guessed it–the alert being automatically rebroadcast over at least one local television station whose EAS equipment was activated by the digital EAS tone.

While the automatic nature of EAS creates the risk of false alerts propagating rapidly, at least the false alerts up until now were somewhat self-inflicted wounds, caused by either the system being erroneously activated by a governmental mistake, or by an EAS Participant accidentally airing an activation code contained in third-party content. Because of the closed nature of the system, false activations necessarily required a mistake from a participant in the EAS system, even if that mistake was airing third party content that had not been screened for EAS tones.

This week’s episode, however, appears to have been something entirely different. In an effort to expand the types of consumer devices capable of relaying an alert, the backbone of the EAS system was moved not long ago from the closed network model to an Internet-based system. The benefit is that mobile and other devices connected to the Internet will be able to relay alerts to the public automatically, ensuring the broadest possible distribution of the alert. The bad news, however, is that by shifting to an Internet backbone, we have opened the public alert system to the same outside forces that plague every other aspect of the Internet. In this week’s case, it appears that someone outside the U.S. spent a number of days trying to use those Internet connections to access station EAS equipment. In at least a few cases, they succeeded, generating the now-infamous zombie alerts.

So the good news is that we are well along in the development of an automated emergency alert system that can spread emergency information to most Americans in a matter of minutes. The bad news is that by putting the system almost entirely under the control of “the machines” (a Terminator term), the moderating effect of human involvement is greatly limited. In addition, by connecting this equipment through the Internet, we have expanded the ubiquity of the system, but at the cost of making every EAS Participant’s equipment, whether in Michigan, Montana, or elsewhere, readily accessible to every miscreant in the world with an Internet connection.

Thus, we are perfecting an automated response system that operates most efficiently without human involvement, while creating opportunities for control of that system (or at least portions of it) to fall into the hands of those who do not have our best interests at heart. In other words, Skynet is now a reality. This Skynet does not, thankfully, have the power to initiate nuclear launches, but it certainly does have the capability to launch public panic. A more realistic alert than a zombie attack could cause immense confusion and harm, particularly where the false message is being reinforced by identical EAS alerts on every source of information available, whether it be broadcast, cable, satellite, or smartphone.

I have worked with many of the individuals who created and have dedicated themselves to improving and expanding the current EAS system, and I have no doubt that they are moving quickly to seal off any vulnerabilities discovered in the zombie attacks. Still, I can’t help but wonder if EAS is now subject to the same Internet arms race that bedevils online security everywhere, with ever-evolving measures and countermeasures being deployed in an effort to stay one step ahead of those wishing to commandeer the alert system for their own benefit or amusement. If so, the questions becomes: which is worse, false alerts that panic the populace, or a populace that becomes so used to false alerts that they ignore a real one?

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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.