Lawyer Article

The Federal Communications Commission has announced a Notice of Proposed Rulemaking to consider improvements in or substitutions for its Emergency Alert System (EAS). The proceeding appears to have been prompted by security concerns following 9/11 and field reports of operational problems.

EAS is the current incarnation of warning systems that have been in place for the last half century, beginning with CONELRAD during the Korean War, and then the Emergency Broadcast System in the 1970s. As presently structured, EAS is a largely voluntary system for the dissemination of public alerts. Although analog radio and television stations and all but the smallest cable systems are required to install equipment and run monthly and weekly tests, other mass media are exempt. The only mandatory alerts are those issued by the President, while all others are conveyed at each station or cable system's discretion.

As currently structured, EAS is arranged in a hierarchy. Thirty-four radio stations are Primary Entry Points, to which presidential-level messages are distributed by the Federal Emergency Management Agency. These stations are monitored by approximately 550 Local Primary One stations, which also serve as the point of contact for local authorities and the National Weather Service to activate all or only a portion of EAS for regional matters. Those stations, in turn, are monitored by all other stations and cable systems in their area. It is left to each monitoring station and cable system to carry non-presidential messages at their discretion, presumably based upon their assessment of local relevance and need. At a station's option, EAS is designed to work automatically to interrupt regular programming with spoken warnings, as triggered by a standard protocol of digital header codes that identify the originating party, the nature of the event or emergency, its location and the time period for which the matter is relevant.

The Commission is concerned that EAS is ineffective and possibly outdated and seeks to consider more effective and efficient public warning systems to take better advantage of technological advances and to provide the public with more comprehensive and timely emergency information. The Commission has relied heavily upon recommendations by two groups - the FCC-created and industry-led Media Security and Reliability Council (MSRC) and the not-for-profit public-private Partnership for Public Warning (PPW), both of which advocate upgrading, rather than replacing, EAS. The Commission seeks comment in the following areas:

Responsibility - Both MSRC and PPW have recommended that a single federal entity be responsible for EAS operation and oversight. The Commission questions the extent to which various federal agencies and private entities should be involved to ensure EAS efficiency. As it considers the dissemination of emergency information to be a fundamental component of broadcasters' local public service obligations, the Commission suggests that the broadcast of all levels of information, rather than just presidentially-initiated ones, should be mandatory. Even so, the Commission realizes that incessant activation would lead to a burdensome level of program interruption. Accordingly, the Commission wishes to consider whether uniform national guidelines should be determined and imposed or whether it should require the preparation and implementation of state and/or local EAS plans subject to federal standards or monitoring.

Structure and Codes - The Commission notes that the present hierarchical structure, by which most stations depend upon monitoring others rather than direct contact with a primary source, has led to lapses in reliability. Accordingly, the Commission suggests that satellite delivery systems or other technology could become the backbone for direct distribution of alerts to each entry point and that local originating agencies might transmit their alerts directly to stations and cable systems without intervening relay stations. The Commission further notes that only EAS equipment manufactured after August 1, 2003 must be capable of receiving and transmitting new state and local event codes (such as for child abductions) that arose after most equipment was designed and installed. The Commission is considering a mandatory upgrade of all existing EAS equipment to acquire this capability but seeks information concerning an appropriate timeframe and the economic impact upon small broadcasters and cable operators.

Expansion to Digital Services - Although the Commission encourages digital broadcasters to participate in EAS, they are not required to do so. In notices of inquiry exploring localism and digital broadcasting, the Commission has tentatively concluded that EAS rules should apply to all radio audio streams and now wishes to consider digital TV and direct broadcast satellite as well. The Commission's primary concern is that, with the proliferation of digital distribution to increasingly larger portions of the American public, a market could be left without EAS participants unless all technologies participate. The Commission further is exploring "force tuning" (by which cable and other multicasting services may temporarily switch subscribers from any program channel to a specific system channel that would carry EAS messages).

Alternate Warning Mechanisms - As a related matter, the Commission is concerned over the relatively small penetration level for EBS alerts and questions if a comprehensive national public warning system can be created to reach virtually everyone all the time. The FCC notes that at any given time the vast majority of Americans are not viewing or listening to a source upon which EAS alerts are required to be given (i.e.: analog broadcasting or cable), and would seek to include users of telephones, the Internet and other technologies. Perhaps its most far-reaching proposal is to explore requiring consumer receivers of all types to turn on automatically in response to an emergency communication.

Other Issues—Among the corollary issues which the FCC wishes to consider are the need to coordinate EAS information with close captioning and audio alerts relied upon by persons with hearing and visual disabilities; translation to reach non-English speakers; security to protect EAS from vulnerability (especially during periods of unattended station operation); coordinated testing of the entire system in lieu of individual weekly and monthly tests; training resources for emergency management personnel and educational initiatives for the public; financial assistance or limited waivers for small entities; and the imposition of substantially higher forfeitures for failure to install or properly maintain and operate required EAS equipment.

While some have suggested with alarm that EAS proved ineffective during 9/11, industry leaders have pointed out that activation was unnecessary, as broadcasters and their news resources undertook to inform their audiences voluntarily. Indeed, many broadcasters are wary of expanding governmental authority into the realm of mandated announcements that could stem from political or other questionable motivations rather than from independent judgment as to genuine public need. Broadcasters may wish to consider encouraging the Commission to explore means of facilitating, rather than requiring, the dissemination of emergency information.

A complete copy of the Commission's Notice of Proposed Rulemaking (EB Docket No. 04-296) is available from the FCC's website (fcc.gov) or we would be glad to provide a copy. If you plan to file comments (due 90 days after publication in the Federal Register) or if you wish to discuss the impact of these proposals, please let us know.