Click here for Adobe Acrobat version
Click here for Microsoft Word version
Click here for statement of Chairman Michael K. Powell
Click here for statement of Commissioner Kathleen Q. Abernathy
Click here for statement of Commissioner Michael J. Copps
Click here for statement of Commissioner Kevin J. Martin
Click here for statement of Commissioner Jonathan S. Adelstein
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
) EB Docket No. 04-296
Review of the Emergency Alert )
System )
)
)
)
NOTICE OF PROPOSED RULEMAKING
Adopted: August 4, 2004 Released: August 12, 2004
Comment Date: [60 days after publication in the Federal
Register]
Reply Comment Date: [90 days after publication in the Federal
Register]
By the Commission: Chairman Powell and Commissioners Abernathy,
Copps, Martin, and Adelstein issuing separate statements.
I. INTRODUCTION
1. This Notice of Proposed Rulemaking (NPRM) examines
the Emergency Alert System (EAS), and seeks comment on
whether EAS in its present form is the most effective
mechanism for warning the American public of an emergency
and, if not, on how EAS can be improved. This NPRM is the
most recent in a series of proceedings in which the Federal
Communications Commission (Commission) has sought to
contribute to an efficient and technologically current public
alert and warning system.1
2. Since the tragic events of September 11, 2001, an
expanding circle of interested parties, including individual
citizens, public/private groups, and our federal, state, and
local partners, have raised issues about the efficacy of EAS
as a public warning mechanism. Some of these issues are
rooted in the fact that EAS mandates only delivery of a
``Presidential message.''2 The Commission's EAS rules
primarily are concerned with the implementation of EAS in
this national role.
3. Along with its primary role as a national public
warning system, EAS and other emergency notification
mechanisms, are part of an overall public alert and warning
system, over which the Federal Emergency Management Agency
(FEMA) exercises jurisdiction. EAS use as part of such a
public warning system at the state and local levels, while
encouraged, is merely voluntary.3 Thus, although Federal,
state, and local governments, and the consumer electronics
industry have taken steps to ensure that alert and warning
messages are delivered by a responsive, robust and redundant
system,4 the permissive nature of EAS at the state and local
level has resulted in an inconsistent application of EAS as
an effective component of overall public alert and warning
system. Accordingly, we believe that we should now consider
whether permissive state and local EAS participation is
appropriate in today's world.
4. There are similar questions about the technical
capabilities of EAS. For example, since it relies almost
exclusively on delivery through analog radio and television
broadcast stations and cable systems, is EAS, in the current
communications universe, outdated? How could it be made more
efficient? Should it be phased out in favor of a new model?
If so, what would the new model look like? If a new model
were to be adopted, what legal and practical barriers would
have to be overcome to ensure its implementation and
effectiveness? Would a new model require legislation from
Congress or an Executive Order? What technologies should
serve as the basis for such a model? Alternatively, should
EAS requirements be extended to other services (e.g. cellular
telephones)?
5. It is our intention in this proceeding to seek
comment on these and an array of other questions and
potential rule changes. We have already begun ¾and will
continue throughout this proceeding ¾ to coordinate carefully
with the Department of Homeland Security (DHS), its
component, FEMA, and the Department of Commerce and its
component, the National Oceanic and Atmospheric
Administration's (NOAA's) National Weather Service (NWS). We
anticipate these federal partners will be active participants
in the proceeding. In addition to seeking comments from all
interested individuals and federal entities on the issues
raised in this NPRM, we also specifically seek the
participation of state and local emergency planning
organizations and solicit their views. Finally, we seek
input from all telecommunications industries concerned about
developing a more effective EAS.
II. BACKGROUND
II.A. History of EAS
6. In 1951, during the Korean War, President Harry S.
Truman established CONELRAD (Control of Electromagnetic
Radiation), the first national warning system, to provide a
means for the President to address the American people, to
provide attack warning, and to supply emergency information.5
Under CONELRAD, designated AM radio stations operated on 640
or 1240 kHz during an emergency alert so that enemy missiles
or bombers could not use broadcast transmissions of other
stations as a guide to their targets. CONELRAD had a simple
system for alerting the public and other ``downstream''
stations; the alerting system consisted of a sequence of
shutting the station off for five seconds, returning to the
air for five seconds, again shutting down for five seconds,
and then transmitting a tone for 15 seconds.
7. In 1963, President John F. Kennedy replaced
CONELRAD with the Emergency Broadcast System (EBS), a system
that allowed all broadcast stations to continue operating on
their assigned frequencies during an emergency.6 The EBS was
an analog transmission system which required broadcasters to
install specified equipment, and relied upon these
broadcasters to control the system.7 Technical requirements
for EBS equipment were developed during the 1960s, and the
Commission did not amend its rules to replace the CONELRAD
signaling technique with the EBS audio signal until the
mid?1970s.
8. In 1994, the Commission adopted rules that replaced
EBS with EAS (described in further detail below) and,
consistent with a statutory requirement,8 required cable
systems as well as broadcast stations to install EAS
equipment and participate in national alerts and required
testing.9 In 1997, the Commission extended EAS requirements
to wireless cable systems, with the qualified support of that
industry.10
II.B. Federal/State Program Responsibility
9. The Commission, in conjunction with FEMA and the
NWS, implement EAS at the federal level. The respective
roles currently are based on a 1981 Memorandum of
Understanding between FEMA, NWS, and the Commission,11 on a
1984 Executive Order,12 and on a 1995 Presidential Statement
of Requirements.13 In addition, State Emergency Coordination
Committees (SECCs) and Local Emergency Coordination
Committees (LECCs) develop state and local EAS plans.
10. The Commission. The Commission's authority to
regulate emergency broadcasting emanates primarily from
sections 1, 4(i) and (o), 303(r), and 706 of the
Communications Act of 1934, as amended, (Act).14 Section 1
of the Act states that the Commission was created for the
purposes of, inter alia, national defense and promoting
safety of life and property through the use of wire and radio
communication.15 In section 4(i), there is a general grant
of authority to perform any and all acts, make such rules and
regulations, and issue such orders, not inconsistent with the
Act, as may be necessary in the execution of the Commission's
functions. Section 4(o) provides the Commission with
authority to investigate, study, and propose best methods to
resolve any and all problems preventing the maximum effective
use of radio and wire communications in connection with
safety of life and property. Section 303(r) is a general
grant of rulemaking authority to the Commission. Section 706
grants specific, communications-related powers to the
President in time of war or national emergency. In such
event, the President may, for example, take control of, or
suspend or amend the rules and regulations applicable to, any
or all cable and radio and television broadcast stations
within the Commission's jurisdiction.
11. Commission authority to regulate participation by
cable systems in the emergency alerting process stems
primarily from section 624(g) of the Act.16 That provision
requires the Commission to ensure that cable viewers are
afforded the same access to emergency communications as
broadcast viewers and listeners. Additionally, the Americans
with Disabilities Act,17 strives to make all facets of our
society fully accessible to individuals with disabilities.18
12. In general, the Commission's rules prescribe: (1)
technical standards for the EAS; (2) procedures for radio and
television broadcast stations and cable systems to follow in
the event EAS is activated; and (3) EAS testing protocols.
Under the rules, national activation of the EAS for a
Presidential message with the Emergency Action Notification
event code is designed to provide the President the
capability to transmit within ten minutes from any location
at any time, and must take priority over any other message
and preempt other messages in progress.19 As noted, use of
the EAS by state or local governments to initiate warnings
and the broadcast and transmission of other-than-Presidential
alerts by broadcasters and cable systems is voluntary.20 The
rules mandate EAS obligations only for analog radio and
television stations, and wired and wireless cable television
systems.21 Other systems, including, for example, low earth
orbit satellite systems, paging, direct broadcast satellite
(DBS), digital television (DTV), satellite Digital Audio
Radio service (satellite DARS), and In-Band-On-Channel
Digital Audio Broadcasting (IBOC DAB) currently have no EAS
requirements.22
13. FEMA. Activation of the national-level EAS rests
solely with the President. The Stafford Act23 authorizes the
President to make provisions for emergency preparedness
communications and dissemination of warnings to governmental
authorities and the civilian population in areas endangered
by disasters.24 This authority has been delegated to DHS'
Undersecretary for Emergency Preparedness and Response as
director of FEMA. FEMA acts as the White House's executive
agent for the development, operations, and maintenance of the
national level EAS and is responsible for implementation of
the national level activation of EAS, tests, and exercises.
14. NOAA. As the originator of emergency weather
information, NOAA, through its component agency, the NWS,
plays a significant role in the implementation of EAS at the
state and local level.25 Through its All-Hazards Network,
NWS originates approximately 80 percent of all EAS alerts.26
The NWS supplies local alerts to broadcast and cable entry
points designated in approved EAS state and local plans.27
Many broadcast stations and cable systems also directly
monitor NWS transmissions and relay the NWS messages to their
audiences over EAS.28 In order to ensure that there is
equipment interoperability between EAS and NWS Specific Area
Message Encoding (SAME) technology used by NOAA Weather
Radios, the Commission's rules specifically provide that EAS
event codes must be compatible with the codes used by the NWS
SAME encoder.29
15. SECCs and LECCs. State Emergency Communications
Committees (SECCs) and Local Emergency Communications
Committees (LECCs), comprised of emergency management
personnel and volunteers from industry, may be established in
each state and territory to prepare coordinated emergency
communications systems and to develop state and local
emergency communications plans and procedures for EAS and
other Public Alert and Warning (PAW) systems the state may
use in combination with EAS. These committees also establish
an authentication procedure and establish the date and time
of the required monthly EAS tests.
II.C. EAS Structure and EAS Codes
16. Primary Entry Points (PEPs). The EAS is
essentially a hierarchal, trickle down distribution system.30
FEMA has designated 34 radio broadcast stations as Primary
Entry Point (PEP) stations. At the request of the President,
FEMA distributes ``Presidential Level'' messages to these PEP
stations.31 As the entry point for national level EAS
messages, the PEP stations have a National Primary (NP) EAS
designation, and are monitored in turn by other stations in
the hierarchical chain.
17. The United States is divided into approximately 550
EAS local areas, each containing a key EAS source, called the
Local Primary One (LP-1). The LP-1 monitors its regional PEP
station for Presidential messages, and serves as the point of
contact for local authorities and NWS officials to activate
EAS. Other stations and cable systems in the area monitor
their LP-1 station, and if a Presidential message is sent,
they are required to air the message received from their LP-1
station. For non-Presidential messages, these monitoring
stations and cable systems may carry the message at their
discretion. Local Primary sources are assigned numbers in
the sequence they are to be monitored by other broadcast
stations in the local area (i.e., LP-1, 2, 3, etc.).
Broadcast stations and cable systems are required to monitor
at least two EAS sources for Presidential alerts, as
specified in their state EAS plans.32 As we discuss in
paragraph 31 below, however, the number of households that
actually are watching or listening to these broadcast and
cable outlets at any point in time is often relatively small.
18. State and local emergency operations managers can
request activation of EAS for state and local public alert
and warning. State-level EAS entry points are designated as
State Primary and State Relay.33 State Primary Entry Points
can be broadcast stations, state emergency operation centers,
or other statewide networks, and can act as sources of EAS
state messages originating from the State Governor or a State
Emergency Operations Center. State Relay sources relay state
common emergency messages into local areas.34 Local Primary
sources are responsible for coordinating the carriage of
common emergency messages from sources such as the NWS or
local emergency management offices as specified in EAS local
area plans.35
19. EAS Codes. Initiating an EAS message, whether at
the national, state, or local level, requires the
broadcaster, cable operator or emergency administrator to
enter certain codes into dedicated EAS equipment.36 EAS
equipment also provides a method for automatic interruption
of regular programming and is capable of providing warnings
in the primary language that is used by the station or cable
system.37 The EAS protocol, including any codes, may not be
amended, extended or abridged without Commission
authorization.38 EAS header codes identify the party that
originated the emergency message, the nature of the event or
emergency, the location of the emergency, and the valid time
period of the message. The national level EAS activation
audio message is unrestricted in length. However, for state
and local implementation of EAS, the audio portion is
restricted to two minutes.39
III. DISCUSSION
III.A. General Considerations
20. The main objective of this NPRM is to seek comment
on whether EAS as currently constituted is the most effective
and efficient public warning system that best takes advantage
of appropriate technological advances and best responds to
the public's need to obtain timely emergency information. We
also seek comment on rules that the Commission may adopt to
enhance the effectiveness of EAS. One of the central issues
on which this NPRM seeks comment is the current efficacy of
EAS in an age when the communications landscape has evolved
from what it was when EAS predecessors¾and EAS itself¾were
originally conceived.
21. We note initially that two public/private
partnerships have studied and addressed this issue
extensively. The Media Security and Reliability Council
(MSRC) is an industry-led Federal Advisory Committee created
by the Commission and comprised of leaders from the radio,
television, multi-channel video, public safety and disabled
communities. 40 The Partnership for Public Warning (PPW) was
incorporated in January 2002 as a not-for-profit public-
private partnership, whose goal is to promote and enhance
effective, integrated dissemination of public warnings and
related information that will save lives, reduce losses and
speed recovery from acts of terrorism, accidents and natural
disasters.41 Both PPW and MSRC advocate upgrading, not
replacing, EAS.42 In particular, PPW asserts that any new
public warning system design should take advantage of the
existing EAS infrastructure and should be able to accommodate
existing EAS equipment in place, noting that it would be
difficult to replace or rebuild such a capability today at a
reasonable cost.43 In responding to the general issue of the
EAS system's future viability, as well as other issues raised
in this NPRM, we encourage commenters to take into account
MSRC's and PPW's recommendations.
III.B. Federal/State Program Responsibility
22. PPW has recently recommended that a single federal
entity, specifically DHS, should take the lead in creating
and overseeing an effective national public warning
program.44 PPW also noted that DHS, with other federal
agencies and stakeholders, should update and clearly
designate EAS management, operational and oversight
responsibilities among the appropriate federal agencies and
other authorities.45 Additionally, MSRC has recommended that
a single federal entity should be responsible for assuring:
(1) that public communications capabilities and procedures
exist, are effective, and are deployed for distribution of
risk communication and warnings to the public by appropriate
federal, state and local government personnel, agencies and
authorities; (2) that lead responsibilities and actions under
various circumstances are established at federal, state and
local levels within the overall discipline of emergency
management; and (3) that a national, uniform, all-hazard risk
communication warning process is implemented from a public
and private consensus on what best meets the needs of the
public, including people of diverse language and/or with
disabilities, including sensory disabilities.46 MSRC and PPW
also assert that effective delivery of emergency information
to the public should be achieved through a public/private
partnership that makes coordinated use of mass media and
other dissemination systems.47 We seek comment on PPW's and
MSRC's suggestions. Would legislation be required to
effectuate the recommendations described in this paragraph?
23. We seek comment regarding the respective roles of
the federal government departments and agencies involved with
the implementation of EAS, specifically the Commission, DHS,
FEMA and NOAA. Should each of these agencies remain
involved? If not, what specific changes in roles should
occur? For changes to occur, would the Commission or other
federal entity have to recommend that current legal
authorities be updated or supplemented?48 Should a new
public/private partnership be created to ensure the effective
and efficient delivery of emergency information to the public
and, if so, how should this partnership be structured and
what should its responsibilities be? What federal agency
should be its primary point of contact? Should a particular
federal agency take the lead role for the future EAS?
24. We also seek comment about several aspects of
state and local EAS. First, we note that some parties assert
that voluntary (as opposed to mandatory) participation in
state and local EAS alerts impairs the credibility of the
entire EAS. They claim that it makes no sense to mandate
participation only on a national level in a system that has
never issued a Presidential alert and is instead used to
deliver vital information about life-threatening local,
state, and regional events.49 These parties believe that the
voluntary nature of participation in state and local EAS
alerts also makes it difficult to find enough dedicated
people to participate with system implementation.50 As we
noted in the Localism NOI, the dissemination of emergency
information is a critical and fundamental component of
broadcasters' local public service obligations,51 and we
accordingly seek comment on whether voluntary participation
in EAS is consistent with those obligations. We seek comment
on whether the Commission should adopt rules to require
broadcasters to make their facilities available to local
emergency managers? If so, what should be the nature and
scope of any such rules? In their comments, parties should
address the issue of whether there would be adverse effects
from imposing some uniform requirement on broadcasters rather
than allowing them to continue to make voluntary arrangements
with local officials? Conversely, should incentives be
provided to encourage the participation of broadcasters and
cable operators? What incentives could be provided? To
avoid what broadcasters and cable operators might view as a
burdensome level of program interruptions, should there be a
federal rule establishing a standard regarding when state
emergency managers may and must activate EAS and, if so, what
should that standard be? Should use of any of the existing
voluntary EAS codes be mandated? Should the federal
government monitor EAS usage to determine a standard?
25. We also seek comment on whether Commission rules
that require states with EAS plans to file those plans with
the Commission for approval have little impact because
Commission rules do not require that states have plans in the
first instance. Further, no current guidelines or standards
exist for the structure/creation of state or local EAS
plans.52 We seek comment on whether the Commission should
adopt rules requiring state and/or local EAS plans. We
further seek comment on whether the Commission should
establish national guidelines and standards for the structure
of such plans? Parties filing comments should consider the
following issues: Should there be a specific standard of
review, and if so, what should it be? Is the Commission the
appropriate agency to undertake this task? Is the SECC and
LECC structure the appropriate mechanism for generating such
plans? Who should generate such plans? Does the Commission
or other federal entity currently have legal authority to
require and oversee the development of such plans? Where
would enforcement action lie for failure to develop an
appropriate plan? Should periodic updating and review of
state and local plans be required and, if so, how often?
Should adjacent state and local jurisdictions implement
standardized EAS plans so that responses to large-scale
emergencies that impact more than one state or local area can
be better coordinated? Should multi-state regions be defined
and plans developed for them? Should there be reporting
requirements for EAS activations to facilitate the
development of accurate reports?53
26. We also seek comment on whether uniform national
guidelines are preferred over the disparate manner in which
states and localities implement EAS. For example, EAS alerts
may be requested by FEMA emergency managers, state and local
emergency managers, public safety officials, and other
individuals identified in state plans. EAS may also be
activated at the state or local level by any AM, FM, or TV
station or cable system, at management's discretion, in
connection with day-to-day emergency situations posing a
threat to life and property. Additionally, broadcasters and
cable operators can, but are not required to, monitor the NWS
and activate EAS in response to an NWS warning. We seek
comment on whether the Commission should adopt rules to
require all EAS participants to monitor the NWS where signals
are available. Should staff at any broadcast station or
cable system continue to be permitted to initiate EAS alerts
without concurrence from local or state emergency managers
and, if so, should the Commission or some other federal
entity establish standards regarding the issuance of public
warning by these entities?
III.C. EAS Structure and EAS Codes
27. The primary method of delivery of Presidential EAS
messages to state and local areas is over-the-air broadcast
signals that follow a hierarchical structure, beginning with
FEMA's relay of the message to the 34 PEP stations, which in
turn are monitored by the 550 LP1 and state relay stations,
which in turn are monitored by over 14,000 broadcast stations
and 10,000 cable systems nationwide. However, some emergency
managers and SECC members say they lack confidence in the
manner in which this system is implemented in their states.54
They believe stations ``down the chain'' may miss important
state and local messages because, for example, stations that
they monitor ``up the chain'' chose not to air a non-
Presidential message or are unattended stations that have
pre-programmed their EAS equipment to forward only certain
event codes. Some claim that this interdependent structure
could be problematic even for a national level alert. They
believe a non-PEP station may be unable to reliably monitor a
signal due to problems with terrain, because it is located in
a rural area too far from a PEP station, or because the PEP
station's signal cannot cover the large area it is supposed
to cover.55 Some assert that, in any event, the process
takes too long to transmit across an entire state. 56
Accordingly, we seek comment regarding how to improve the
distribution of emergency alerts, both national and
state/local. Should the originating local agencies transmit
alerts directly to as many stations and cable systems as
possible without intervening relay stations?57 Should other
technologies, such as satellite delivery systems, be used as
part of a backbone to distribute the alert to entry points?
Given the changes in technology within the broadcasting
industry, is there still a need to structure EAS with the PEP
system? To the extent that any businesses using such
technologies are small businesses, how should that status
affect our analysis? As we discussed in paragraph 25 above,
could inconsistencies in the manner in which states implement
EAS be alleviated by the adoption of national guidelines?
28. In the 2002 Report and Order, the Commission
amended Part 11 of the Commission's rules by, inter alia,
adding new state and local event codes, most of which are for
non-weather events such as child abductions (Amber Alerts)
and new location codes. The Commission did not mandate the
use of these codes. Rather, effective May 16, 2002,
broadcast stations and cable systems could upgrade their
existing EAS equipment to add the new codes on a voluntary
basis until the equipment is replaced.58 All models of EAS
equipment manufactured after August 1, 2003, had to be
capable of receiving and transmitting the new codes.59
Broadcast stations and cable systems that replace their EAS
equipment after February 1, 2004, must install equipment that
is capable of receiving and transmitting the new event
codes.60 We seek comment regarding whether circumstances
have changed such that the Commission should adopt rules that
require broadcasters and cable operators to upgrade their EAS
equipment so that it is capable of receiving and transmitting
all current event and location codes, including those adopted
in the 2002 Report and Order. If such upgrading of EAS
equipment should be required, how much time should
broadcasters and cable operators have to replace their EAS
equipment? How will this impact small cable operators and
broadcasters? Should the government fund upgrades for small
systems to mitigate the burden?
III.D. Expanding EAS Requirements to Other Services
29. In the 1994 First Report and Order on EAS, the
Commission encouraged - but did not require - EAS
participation by digital broadcasters.61 In the Localism
NOI, however, we noted that digital technologies have
evolved, and can allow broadcasters to provide emergency
information in innovative ways.62 For example, using digital
technology, broadcast stations can pinpoint specific
households and neighborhoods at risk, with minimal burden on
the available spectrum.63 Accordingly, we seek comment on
how digital technology can be used to enhance warnings, and
to what extent broadcast stations currently make use of that
technology. We also recently reached the tentative
conclusion that EAS rules should apply to all audio streams
broadcast by a radio station, such as IBOC.64 We seek
comment on whether we should adopt rules extending EAS
obligations to other digital broadcast media, such as DBS,
DTV, and satellite DARS services. Commenters should also
address whether, when television stations turn off their
analog signals as part of the DTV transition, they could
leave a market devoid of an EAS participating broadcaster?
Is digital cable television service treated in the same
regulatory fashion as is ``over the air'' digital broadcast?
If so, should the Commission extend EAS obligations to
digital cable television? Does it continue to serve the
public interest to exempt services that reach increasingly
larger portions of the American public from any requirement
to provide public warning? What burdens would extending the
obligations place on these services, and do the benefits
outweigh the burdens? For example, if DBS satellites were
required to carry EAS, what effect would inclement weather
have on their ability to send signals. Further, if an EAS
alert needed to be sent to an area on the border of a DMA,
where a DBS provider only provided local-into-local service
in one DMA, satellite customers in the unserved DMA would not
receive the signal. How would an EAS signal be fed to a DBS
operator? While it could be sent over fiber to their local
receive facility (LRF) where they offer local-into-local
service, they would not have an LRF where they don't provide
local-into-local service. Similarly, how would DBS operators
conduct testing, particularly on a national v. local level?
Finally, to the extent that software updates were needed in
set top boxes, what would be an appropriate implementation
time frame? What about legacy boxes that have already been
deployed? Satellite DARS serves the public primarily on a
nation-wide, rather than regional, basis. Does this
distribution structure affect the ability of satellite DARS
licensees to discharge EAS obligations effectively? If the
national distribution of satellite DARS services limits the
ability to discharge state and local EAS obligations, are
such limitations technological or regulatory in nature?
30. We seek comment generally on what is needed to
extend EAS obligations to digital broadcasting, whether this
step should be taken regardless of other alternatives, and
the timing of any such extension. Digital broadcast services
such as DTV and DAB have the ability to transmit more than
one program stream on their assigned channel (multicasting).
Should DTV broadcasters be required to transmit EAS messages
on all program streams?65 Should they transmit EAS messages
only on one stream and force-tune receivers to that stream?66
What percentage of receivers in the public have the ability
to be force tuned? IBOC DAB broadcasters typically use the
digital part of their signal to replicate their analog
programming. In that case, should EAS messages be carried on
the analog, the digital, or both program streams? If an IBOC
broadcaster chooses to transmit a different program on their
digital stream, how should EAS messages be carried? Do IBOC
receivers have the ability to be force tuned? The IBOC
signal also has the ability to carry text data to be
displayed by the receiver. Should a textual alert be part of
the EAS message sent by the IBOC broadcaster? How should
other multicasting services, such as digital cable, be
treated with regards to EAS messages and forced tuning?
III.E. Alternate Public Alert and Warning Mechanisms
31. In creating EAS, the Commission sought to design a
public alert and warning system that would function
seamlessly with many sources of emergency communications.67
The Commission wished to avoid limiting EAS to a particular
transmission system, so it adopted a mandatory standard
digital protocol with a flexible architecture that the
Commission believed could be used by many kinds of
transmission media, encompass new technologies, and be
expanded and upgraded as new kinds and generations of
transmission systems became available.68 Despite this
intended technical flexibility, EAS, as currently
constituted, reaches the very limited audience listening to
broadcast radio or watching broadcast or cable television at
the time the emergency announcement is made. The most
ubiquitous outlet for EAS is radio.69 However, on average,
Americans listen to the radio for only about an hour and a
half a day, primarily between 6:00 a.m. and 6:00 p.m.70 Even
fewer people are reached by television. Although more than
98 percent of households in the United States have at least
one television, the average set is in use only 31 percent of
the day.71 We seek comment on whether this level of
penetration is sufficient to comprise an effective public
warning system.72 If it is not, what level of penetration
should we seek and what is the best mechanism for reaching
that goal?
32. Because EAS relies almost exclusively on delivery
through analog radio and television broadcast stations and
cable systems, is EAS, in the current communications
universe, outdated? Instead, should there be a concerted
government/industry effort to combine EAS with alternative
public alert and warning systems (APAWS) to form a
comprehensive national public warning system capable of
reaching virtually everyone all the time? The possibilities
are numerous and varied. Several companies offer landline-
based interactive notification systems that would convey
national, regional, and local emergency messages via the
public switched telephone network to wireline telephone
subscribers located in the specific geographic areas affected
by emergencies.73 Other companies offer systems that use
Internet and/or cellular capabilities, including the cell
broadcast feature of digital cellular networks, to deliver
alerts to mobile handsets of wireless subscribers or to
televisions, cable boxes, clock radios, cars, computers,
stand alone units or other devices after incorporating
patented receiver devices. Some companies offer satellite
based warning and messaging systems which use very small
aperture terminal networking to provide direct satellite
communications. There are also emergency message and warning
systems offered on a subscription basis that use computerized
calling systems, fax, email, and digital messaging to reach
many different types of devices. Some of these systems are
used currently by certain states, along with EAS as part of
their public alert and warning system. How could a combined
warning system that makes use of some or all of the features
described here be implemented? Should the Commission require
any APAWS to participate in the existing EAS and, if so,
which ones and how should they participate? For example,
should all APAWS be required to be compatible with the
existing EAS protocol? In considering these issues, should
our analysis distinguish between wireless systems used
primarily for one-versus two-way communication, or point-to-
point or multi-point versus broadcast? Commenters should
discuss any legal or practical barriers to its implementation
and effectiveness, noting whether legislation would be
required from Congress or by Executive Order.
33. As an alternative, would the appropriate approach
be to integrate EAS into a PAW ``system of systems'' by
adopting and using a single, integrated interface that would
link the emergency manager and all emergency notification and
delivery systems, regardless of the technology on which a
particular system is based? In this regard, we note that the
Organization for the Advancement of Structured Information
Standards (OASIS), a not-for-profit, international consortium
that addresses the development, convergence and adoption of
e-business standards, has adopted the Common Alerting
Protocol (CAP) as an OASIS standard.74 CAP is a
standardized, non-proprietary, data interchange format that
simultaneously disseminates consistent all-hazard emergency
alerts or public warning messages over different kinds of
communications networks and systems, including those designed
for multilingual and special needs populations. The CAP
format is compatible with emerging and existing formats, such
as web service applications, NWS' SAME, and the EAS protocol
and offers a number of enhanced capabilities.75 Proponents
assert that CAP has the potential to increase warning
effectiveness and reduce costs and operational complexity by
eliminating the need for multiple custom software interfaces
to the many APAWS involved in all hazard warning. CAP has
also been implemented by several government agencies and
private companies, including DHS, NWS, and Comlabs, Inc.76
We seek comment on whether the CAP could act as an effective
interface through which an emergency manager could access
multiple emergency notification services, including EAS.
34. MSRC's Future Technologies/Digital Solutions Task
Force recommends that the government should coordinate
development of a Media Common Alert Protocol (MCAP) which
should: (1) be designed to deliver emergency messages via
digital networks; (2) flow over all methods of digital
transport; (3) be received by all digital receivers; and (4)
be optimized for point-to-multi-point networks and devices
only. MSRC also suggests that key attributes of the MCAP
should be addressability, scalability, interoperability and
prioritizing. MSRC recommends that industry organizations
and companies should develop standards and specifications for
carriage of MCAP on various media.77 We seek comment on
MSRC's recommendation. We are mindful that the availability
of particular delivery methods may differ in rural and
insular areas from more urban areas. We seek comment on any
particular needs or considerations we should afford rural
areas.
35. Finally, to what extent does an effective public
warning system depend on the consumer electronics equipment
that receives the warning? MSRC has identified as two
primary functionalities of a future warning system the
ability of a device (such as a radio or television set) to
automatically turn on and tune in to the channel carrying the
warning, and the capability of such a device to receive a
geographically addressed message (through FIPS or GPS). We
note that the technology exists to have consumer electronic
devices turn on automatically in the event of an emergency.
We note that, as described in paragraph 14 above, NOAA
Weather Radios currently supply both these functions. Would
mandating the adoption of such technology to other consumer
electronic devices enhance the effectiveness of EAS and other
PAW systems?
III.F. Public Warnings and Alerts for Individuals with
Disabilities and Individuals for Whom English is a
Second Language
36. Notifying Persons with Hearing and Vision
Disabilities. Any consideration of best methods to contact
the public during an emergency must address the needs of
persons with disabilities. It is the policy of the United
States for federal agencies to consider persons with
disabilities in their emergency preparedness planning.78
According to the Department of Commerce, one in five
Americans is disabled and one in ten is severely disabled.79
Fifty million people have some type of long lasting condition
or disability, three million of whom have sensory
disabilities involving sight or hearing.80
37. The Commission's commitment to ensuring that
persons with disabilities have equal access to public
warnings is well documented. For example, in addition to
EAS, the Commission requires all distributors of video
programming (including local broadcasters, cable operators
and satellite television service providers) that provide
emergency information to do so in a format that is accessible
to persons with hearing and vision disabilities.81 When
emergency information is provided in the audio portion of the
programming, critical details about the emergency and how to
respond must be provided in a visual format, such as closed
captioning, open captions, crawls, or scrolls.82 Further,
emergency information provided by crawls, scrolls or other
visual means should not block closed captioning, and closed
captioning should not block any emergency information
provided by crawls, scrolls, or other visual means.
Emergency information that is provided in the video portion
of a regularly scheduled newscast or a newscast that
interrupts regular programming must also be made accessible
to persons who are blind or have low vision. If this
information is not part of a regularly scheduled newscast or
is part of programming that interrupts regular programming
(e.g. the emergency information is provided through
``crawling'' or ``scrolling''), then this information must be
accompanied by an aural tone. The same information must also
be provided in an audible manner that is accessible to
persons who are blind or have low vision.83 Emergency
information provided by means other than closed captioning or
video description should not block any closed captioning or
video description and closed captioning or video description
should not block any emergency information provided by means
other than closed captioning or video description.84
38. We note that section 79.2 of the Commission's rules
specifies particular triggering events and methods for
emergency transmittal separate from those required by EAS.
We seek comment on whether there are disparities in or
conflicts between our EAS rules and those contained in
section 79.2 that should be reconciled or combined and the
manner in which such disparities or conflicts could be
resolved in subsequent rules.
39. We also note that the digital and alternative
technologies discussed in paragraphs 29 to 30 above may have
particular benefits for persons with hearing and vision
disabilities. We seek comment on how individuals with
disabilities can be notified of EAS activation or other
emergency alerts by such means. Such comments should address
whether particular technological and economic resources
associated with bringing state of the art emergency
notification to the disabled community are adequate and, if
not, what additional provisions are necessary. They should
also address what the associated burdens would be of adding
such resources.
40. Emergency Warning for Non-English Speakers. We
should also consider the needs of people with primary
languages other than English when considering the best method
of contacting the public during an emergency. In order to
ensure that foreign language audiences are alerted, the
Commission's EAS rules provide that EAS announcements may be
made in the same language as the primary language of the
station.85 We seek comment of the efficacy of these rules.
For example, if a radio station transmitting in English is
located in a predominantly Spanish-speaking community, should
the station transmit EAS alerts in both English and Spanish?
Additionally, products can be developed to convert the EAS
digital signal to provide aural and visual messages in any
language. We seek comment on whether current methodologies
for providing alert and warning to non-English speaking
persons are adequate. If not, what additional provisions are
necessary, and what would be the costs associated with
implementing such provisions?
III.G. Other Issues
41. Security. We also seek comment as to the security
issues relevant to EAS. Security and encryption were not the
primary design criteria when EAS was developed and initially
implemented. Now, however, emergency managers are becoming
more aware of potential vulnerabilities within the system.
For example, the complete EAS protocol is a matter of public
record and potentially subject to malicious activations or
interference. Further, EAS distribution methods have
potential for security concerns. For example, Internet
Protocol-based systems and control links could be subjected
to ``denial of service'' attacks aimed at preventing them
from functioning.86 Additionally, when a station is
operating unattended, no one is available on-site to
intervene should an unauthorized seizure occur.87 There is
also concern about physical security and unauthorized use of
the system at state and local EAS activation sites. Although
Commission-certified EAS encoders have the capability for
password protection, it is up to each station and cable
system to implement sufficient security and there is no way
of knowing which stations use password security.88 Finally,
EAS signal could be subject to jamming. Such vulnerabilities
could be exploited during times of heightened public anxiety
and uncertainty. We seek comment on how to improve the
security of EAS distribution methods, information, and
equipment or how to ensure the security of any public warning
system. Should the Commission require password protection of
all EAS encoders? Who should be responsible for system
security and what security standards, if any, should be
implemented? How can the authenticity of EAS messages be
verified and/or how can broadcasters be protected from
liability issues if they inadvertently rebroadcast a false or
incorrect EAS message? Would adoption of any of MSRC's Best
Practices alleviate security concerns?
42. Location of EAS Equipment. In the 2002 Report and
Order, the Commission modified its rules to exempt
satellite/repeater stations which rebroadcast 100% of their
hub station from the requirement to install EAS equipment,
provided the hub station complies with existing National
level EAS equipment installation, activation and testing
regulations.89 We acknowledge that this practice removes EAS
equipment from the satellite/repeater stations and thereby
precludes their participation in the State or local EAS
activations via the EAS network. We seek comment on the
impact this practice has or will have on any proposed changes
to EAS or public warning systems. We also seek comment on
whether the Commission should extend this practice to any
other EAS providers. In this regard, such comment should
address whether any centralized placement of EAS equipment,
such as at the head-end of a cable system or satellite
uplink, would have a positive or negative impact on the
efficacy of EAS as a national, state, or local emergency
notification system. Where is the best place to locate EAS
equipment so it can be the most useful and maintainable?
43. Testing. FEMA conducts weekly closed circuit tests
of the PEP system by sending signals to EAS equipment at each
PEP station site.90 However, no on-air tests of the PEP
system ever have been conducted. All broadcasters and cable
operators are required to conduct EAS weekly and monthly
tests to ensure their EAS equipment is in operating
condition.91 Should comprehensive periodic testing of the
entire national EAS system from the PEP stations on down to
state and local broadcast stations and cable systems be
required? If so, how often should such testing occur?
Should a special national level test code be adopted for this
purpose, and should a post-test report be required? Should
these national tests be in addition to the current testing
requirement? Would having too many tests become a public
nuisance leading to ignoring EAS alerts by the public?
Additionally, we seek comment on whether the required monthly
tests adequately evaluate the state-wide distribution of EAS
alerts and, if not, what method of testing should be
required.
44. Training. Some broadcasters and cable operators
state that the EAS system and equipment are difficult to
learn and use during actual emergencies and that the
infrequent use of the equipment results in staff members
being unable to remember how to use it when necessary.92
Additionally, lack of EAS training for emergency management
personnel is a concern.93 We seek comment on whether
additional training resources should be provided to emergency
managers and, if so, what these materials should include.
Should there be periodic mandatory EAS training of broadcast
station and cable system personnel? Should emergency
managers receive mandatory education and training regarding
how and when to utilize warning systems? Who should provide
such education and training? Is there a need to educate the
public about the EAS and public warning? If yes, who should
be responsible for such education? Who should incur the
costs of training materials and employee time?
45. Small Operators. Many of the topics discussed
above would likely require participating services to incur
additional costs. While large companies may have the
resources to absorb equipment upgrades and staff, small
business entities may not. Should the level of participation
required be dependent on the size of the participating
entity? How would predicating participation based on company
size affect the usefulness of EAS? Should assistance be
provided to small businesses? Should we consider government
or other funding assistance to small entities? We note that
many small cable operators have received temporary waivers of
certain EAS rules due to financial hardship. What has been
the effect of such waivers?
46. Enforcement. The Commission has been aggressively
enforcing the Commission's EAS rules. In 2003, for example,
the Enforcement Bureau took approximately 80 EAS enforcement
actions. Nonetheless, some broadcasters have failed to
install or properly maintain EAS equipment. The base
forfeiture amount set in the Forfeiture Policy Statement94
and section 1.80 of the rules95 for an EAS violation is
$8,000. We seek comment on whether we should increase the
base amount or otherwise impose higher forfeitures in this
area, and on whether there are additional ways to better
ensure compliance. We also seek comment on whether we should
seek legislation from Congress to increase the maximum
forfeitures in this area from the current $32,500 for a
single violation or day of a continuing violation and maximum
of $325,000 for a continuing violation.96
47. Miscellaneous Issues. We request comments on any
other matters or issues, in addition to those discussed
above, that may be pertinent to establishing the most
effective and efficient public warning system in the United
States and its territories.
IV. CONCLUSION
48. We initiate this proceeding to establish a record
on how the Commission can best facilitate the implementation
of EAS as part of an effective public alert and warning
system. After review of the record we will determine what
rules or other next steps are appropriate. We may adopt new
rules or revise certain of our current EAS rules, or we may
combine an order adopting rules with a report summarizing the
record and our policy perspectives regarding matters raised
in the record in advance of further work with DHS and others
in this area. At the same time, we might make legislative
recommendations to Congress. In this regard, we invite
comments on whether the Commission should make
recommendations to Congress regarding EAS, or whether any of
the Commission's EAS rules not otherwise addressed in this
NPRM should be changed, and if so, why. Finally, although we
have identified above particular subjects that we believe of
interest to the public regarding EAS and public alert and
warning in general, we welcome comment on any other ideas
relevant to the issues addressed in this NPRM.
V. PROCEDURAL MATTERS
49. Comments and Reply Comments. Pursuant to sections
1.415, 1.419, and 1.430 of the Commission's rules, 47 C.F.R.
§§ 1.415, 1.419, 1.430, interested parties may file comments
on or before 60 days after publication of this NPRM in the
Federal Register, and reply comments on or before 90 days
after publication of this NPRM in the Federal Register. All
filings should refer to EB Docket No. 04-296. Comments may
be filed using the Commission's Electronic Comment Filing
System (ECFS) or by filing paper copies.97 For additional
information on this proceeding, please contact Jean Ann
Collins in the Enforcement Bureau, Office of Homeland
Security at (202) 418-1199.
50. Comments filed through the ECFS can be sent as an
electronic file via the Internet to http://www.fcc.gov/e-
file/ecfs.html. Generally, only one copy of an electronic
submission must be filed. In completing the transmittal
screen, commenters should include their full name, postal
service mailing address, and the applicable docket number,
which in this instance is EB Docket No. 04-296. Parties may
also submit an electronic comment by Internet e-mail. To
obtain filing instructions for e-mail comments, commenters
should send an e-mail to ecfshelp@fcc.gov, and should include
the following words in the body of the message: ``get form
.'' A sample form and instructions will
be sent in reply. You also may obtain a copy of the ASCII
Electronic Transmittal Form (FORM-ET) at
. Parties who choose
to file by paper must file an original and four copies of
each filing. Filings can be sent by hand or messenger
delivery, by commercial overnight courier, or by first-class
or overnight U.S. Postal Service mail (although we continue
to experience delays in receiving U.S. Postal Service mail).
51. For hand deliveries, the Commission's contractor,
Natek, Inc., will receive hand-delivered or messenger-
delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE, Suite 110, Washington, D.C. 20002.
The filing hours at this location are 8:00 a.m. to 7:00 p.m.
All hand deliveries must be held together with rubber bands
or fasteners. Any envelopes must be disposed of before
entering the building. Commercial overnight mail (other than
U.S. Postal Service Express Mail and Priority Mail) must be
sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
· U.S. Postal Service first-class mail, Express Mail, and
Priority Mail should be addressed to 445 12th Street, SW,
Washington, D.C. 20554.
· All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
52. Comments and reply comments must include a short
and concise summary of the substantive discussion and
questions raised in the NPRM. We further direct all
interested parties to include the name of the filing party
and the date of the filing on each page of their comments and
reply comments. We strongly encourage that parties track the
organization set forth in this NPRM in order to facilitate
our internal review process. Comments and reply comments
must otherwise comply with section 1.48 and all other
applicable sections of the Commission's rules.98
53. To request materials in accessible formats (such as
Braille, large print, electronic files, or audio format),
send an e-mail to fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at (202) 418-0531 (voice) or
(202) 418-7365 (TTY). This Public Notice can also be
downloaded in Word and Portable Document Format at
.
54. Ex Parte Rules. These matters shall be treated as
a ``permit-but-disclose'' proceeding in accordance with the
Commission's ex parte rules.99 Persons making oral ex parte
presentations are reminded that memoranda summarizing the
presentations must contain summaries of the substance of the
presentations and not merely a listing of the subjects
discussed. More than a one or two sentence description of
the views and arguments presented is generally required.100
Other requirements pertaining to oral and written
presentations are set forth in section 1.1206(b) of the
Commission's rules.
55. Initial Regulatory Flexibility Analysis. With
respect to this NPRM, an Initial Regulatory Flexibility
Analysis (IRFA) is contained in Appendix A. As required by
section 603 of the Regulatory Flexibility Act, the Commission
has prepared an IRFA of the expected impact on small entities
of the proposals contained in the NPRM. Written public
comments are requested on the IRFA. Comments must be
identified as responses to the IRFA and must be filed by the
deadlines for comments on the NPRM specified in paragraph 49
above. The Commission will send a copy of the NPRM,
including the IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration.101
56. Initial Paperwork Reduction Act of 1995 Analysis.
This document contains proposed or modified information
collection requirements. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the
general public and the Office of Management and Budget (OMB)
to comment on the information collection requirements
contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency
comments are due 60 days after date of publication of this
Notice in the Federal Register. Comments should address: (a)
whether the proposed collection of information is necessary
for the proper performance of the functions of the
Commission, including whether the information shall have
practical utility; (b) the accuracy of the Commission's
burden estimates; (c) ways to enhance the quality, utility,
and clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection
techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we
seek specific comment on how we might ``further reduce the
information collection burden for small business concerns
with fewer than 25 employees.''
VI. ORDERING CLAUSE
57. IT IS ORDERED, that pursuant to in sections 1, 4(i)
and (o), 303(r), 403, 624(g) and 706 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i) and (o),
303(r), 403, 554(g), and 606, this Notice of Proposed
Rulemaking is hereby ADOPTED.
58. IT IS FURTHER ORDERED that the Commission's
Consumer and Governmental Affairs Bureau, Reference
Information Center, SHALL SEND a copy of this Notice of
Proposed Rulemaking, including the Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary APPENDIX A
Initial Regulatory Flexibility Analysis
59. As required by the Regulatory Flexibility Act of
1980, as amended (RFA),102 the Commission has prepared this
present Initial Regulatory Flexibility Analysis (IRFA) of the
possible significant economic impact on a substantial number
of small entities by the policies and rules proposed in this
Notice of Proposed Rulemaking (NPRM). Written public
comments are requested on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by the
deadlines for comments on the NPRM provided above in
paragraph 49 of the item. The Commission will send a copy of
the NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA).103 In
addition, the NPRM and IRFA (or summaries thereof) will be
published in the Federal Register.104
VI.A. Need for, and Objectives of, the Proposed Rules
60. In this NPRM, the Commission solicits comment on
whether EAS in its present form is the most effective
mechanism for warning the American public of an emergency
and, if not, on how EAS can be improved.
VI.B. Legal Basis
61. Authority for the actions proposed in this NPRM
may be found in sections 1, 4(i) 4(j), and 4(o), 303(r),
624(g) and 706 of the Communications Act of 1934, as amended,
47 U.S.C. §§ 151, 154(i), 154(j), and 154(o), 303(r),
544(g) and 606.
VI.C. Description and Estimate of the Number of Small
Entities to which the Proposed Rules Will Apply
62. The RFA directs agencies to provide a description
of and, where feasible, an estimate of the number of small
entities that will be affected by the proposed rules.105 The
RFA generally defines the term ``small entity'' as having the
same meaning as the terms ``small business,'' ``small
organization,'' and ``small governmental jurisdiction.''106
In addition, the term ``small business'' has the same meaning
as the term ``small business concern'' under the Small
Business Act.107 A small business concern is one which: (1)
is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional
criteria established by the Small Business Administration
(SBA).108 A small organization is generally ``any not-for-
profit enterprise which is independently owned and operated
and is not dominant in its field.''109 The arts,
entertainment, and recreations sector had 96,497 small
firms.110
63. Television Broadcasting. The SBA has developed a
small business sized standard for television broadcasting,
which consists of all such firms having $12 million or less
in annual receipts.111 Business concerns included in this
industry are those ``primarily engaged in broadcasting images
together with sound.''112 According to Commission staff
review of BIA Publications, Inc. Master Access Television
Analyzer Database as of May 16, 2003, about 814 of the 1,220
commercial television stations in the United States had
revenues of $12 million or less. We note, however, that, in
assessing whether a business concern qualifies as small under
the above definition, business (control) affiliations113 must
be included.114 Our estimate, therefore, likely overstates
the number of small entities that might be affected by our
action, because the revenue figure on which it is based does
not include or aggregate revenues from affiliated companies.
There are also 2,127 low power television stations (LPTV).115
Given the nature of this service, we will presume that all
LPTV licensees qualify as small entities under the SBA size
standard.
64. Radio Stations. The SBA has developed a small
business size standard for Radio Stations, which consists of
all such firms having $6 million or less in annual
receipts.116 Business concerns included in this industry are
those ``primarily engaged in broadcasting aural programs by
radio to the public.''117 According to Commission staff
review of BIA Publications, Inc., Master Access Radio
Analyzer Database, as of May 16, 2003, about 10,427 of the
10,945 commercial radio stations in the United States had
revenue of $6 million or less. We note, however, that many
radio stations are affiliated with much larger corporations
with much higher revenue, and, that in assessing whether a
business concern qualifies as small under the above
definition, such business (control) affiliations118 are
included.119 Our estimate, therefore, likely overstates the
number of small businesses that might be affected by our
action.
65. Cable and Other Program Distribution. The SBA has
developed a small business size standard for Cable and Other
Program Distribution, which consists of all such firms having
$12.5 million or less in annual receipts.120 According to
Census Bureau data for 1997, in this category there was a
total of 1,311 firms that operated for the entire year.121
Of this total, 1,180 firms had annual receipts of under $10
million, and an additional 52 firms had receipts of $10
million to $24,999,999.122 Thus, under this size standard,
the majority of firms can be considered small.
66. Multipoint Distribution Systems. The proposed
rules would apply to Multipoint Distribution Systems operated
as part of a wireless cable system. The Commission has
defined ``small entity'' for purposes of the auction of MDS
frequencies as an entity that, together with its affiliates,
has average gross annual revenues that are not more than $40
million for the preceding three calendar years.123 This
definition of small entity in the context of MDS auctions has
been approved by the SBA.124 The Commission completed its
MDS auction in March 1996 for authorizations in 493 basic
trading areas. Of 67 winning bidders, 61 qualified as small
entities. At this time, we estimate that of the 61 small
business MDS auction winners, 48 remain small business
licensees.
67. MDS also includes licensees of stations authorized
prior to the auction. As noted, the SBA has developed a
definition of small entities for pay television services,
Cable and Other Subscription Programming, which includes all
such companies generating $12.5 million or less in annual
receipts.125 This definition includes MDS and thus applies
to MDS licensees that did not participate in the MDS auction.
Information available to us indicates that there are
approximately 392 incumbent MDS licensees that do not
generate revenue in excess of $11 million annually.
Therefore, we find that there are approximately 440 (392 pre-
auction plus 48 auction licensees) small MDS providers as
defined by the SBA and the Commission's auction rules which
may be affected by the rules proposed herein.
68. Instructional Television Fixed Service. The
proposed rules would also apply to Instructional Television
Fixed Service facilities operated as part of a wireless cable
system. The SBA definition of small entities for pay
television services also appears to apply to ITFS.126 There
are presently 2,032 ITFS licensees. All but 100 of these
licenses are held by educational institutions. Educational
institutions are included in the definition of a small
business.127 However, we do not collect annual revenue data
for ITFS licensees, and are not able to ascertain how many of
the 100 non-educational licensees would be categorized as
small under the SBA definition. Thus, we tentatively
conclude that at least 1,932 ITFS are small businesses and
may be affected by the proposed rules.
69. Wireless Service Providers. The SBA has developed
a small business size standard for wireless small businesses
within the two separate categories of Paging128 and Cellular
and Other Wireless Telecommunications. 129 Under both SBA
categories, a wireless business is small if it has 1,500 or
fewer employees. According to the Commission's most recent
data,130 1,761 companies reported that they were engaged in
the provision of wireless service. Of these 1,761 companies,
an estimated 1,175 have 1,500 or fewer employees and 586 have
more than 1,500 employees. This SBA size standard also
applies to wireless telephony. Wireless telephony includes
cellular, personal communications services, and specialized
mobile radio telephony carriers. According to the most
recent Trends in Telephone Service data, 719 carriers
reported that they were engaged in the provision of wireless
telephony.131 We have estimated that 294 of these are small
under the SBA small business size standard.
70. Broadband Personal Communications Service. The
broadband personal communications services (PCS) spectrum is
divided into six frequency blocks designated A through F, and
the Commission has held auctions for each block. The
Commission has created a small business size standard for
Blocks C and F as an entity that has average gross revenues
of less than $40 million in the three previous calendar
years.132 For Block F, an additional small business size
standard for ``very small business'' was added and is defined
as an entity that, together with its affiliates, has average
gross revenues of not more than $15 million for the preceding
three calendar years.133 These small business size
standards, in the context of broadband PCS auctions, have
been approved by the SBA.134 No small businesses within the
SBA-approved small business size standards bid successfully
for licenses in Blocks A and B. There were 90 winning
bidders that qualified as small entities in the Block C
auctions. A total of 93 ``small'' and ``very small''
business bidders won approximately 40 percent of the 1,479
licenses for Blocks D, E, and F.135 On March 23, 1999, the
Commission reauctioned 155 C, D, E, and F Block licenses;
there were 113 small business winning bidders.136 On January
26, 2001, the Commission completed the auction of 422 C and F
Broadband PCS licenses in Auction No. 35. Of the 35 winning
bidders in this auction, 29 qualified as ``small'' or ``very
small'' businesses.137 Subsequent events, concerning Auction
35, including judicial and agency determinations, resulted in
a total of 163 C and F Block licenses being available for
grant.
71. Incumbent Local Exchange Carriers (Incumbent
LECs). We have included small incumbent local exchange
carriers in this present IRFA analysis. As noted above, a
``small business'' under the RFA is one that, inter alia,
meets the pertinent small business size standard (e.g., a
telephone communications business having 1,500 or fewer
employees), and ``is not dominant in its field of
operation.''138 The SBA's Office of Advocacy contends that,
for RFA purposes, small incumbent LECs are not dominant in
their field of operation because any such dominance is not
``national'' in scope.139 We have therefore included small
incumbent local exchange carriers in this RFA analysis,
although we emphasize that this RFA action has no effect on
Commission analyses and determinations in other, non-RFA
contexts. Neither the Commission nor the SBA has developed a
small business size standard specifically for incumbent local
exchange services. The appropriate size standard under SBA
rules is for the category Wired Telecommunications Carriers.
Under that size standard, such a business is small if it has
1,500 or fewer employees.140 According to Commission
data,141 1,337 carriers have reported that they are engaged
in the provision of incumbent local exchange services. Of
these 1,337 carriers, an estimated 1,032 have 1,500 or fewer
employees and 305 have more than 1,500 employees.
Consequently, the Commission estimates that most providers of
incumbent local exchange service are small businesses that
may be affected by our proposed rules.
72. Competitive Local Exchange Carriers (Competitive
LECs), Competitive Access Providers (CAPs), ``Shared-Tenant
Service Providers,'' and ``Other Local Service Providers.''
Neither the Commission nor the SBA has developed a small
business size standard specifically for these service
providers. The appropriate size standard under SBA rules is
for the category Wired Telecommunications Carriers. Under
that size standard, such a business is small if it has 1,500
or fewer employees.142 According to Commission data,143 609
carriers have reported that they are engaged in the provision
of either competitive access provider services or competitive
local exchange carrier services. Of these 609 carriers, an
estimated 458 have 1,500 or fewer employees and 151 have more
than 1,500 employees. In addition, 16 carriers have reported
that they are ``Shared-Tenant Service Providers,'' and all 16
are estimated to have 1.500 or fewer employees. In addition,
35 carriers have reported that they are ``Other Local Service
Providers.'' Of the 35, an estimated 34 have 1,500 or fewer
employees and one has more than 1,500 employees.
Consequently, the Commission estimates that most providers of
competitive local exchange service, competitive access
providers, ``Shared-Tenant Service Providers,'' and ``Other
Local Service Providers'' are small entities that may be
affected by our proposed rules.
73. Satellite Telecommunications and Other
Telecommunications. The Commission has not developed a small
business size standard specifically for providers of
international service. The appropriate size standards under
SBA rules are for the two broad categories of Satellite
Telecommunications and Other Telecommunications. Under both
categories, such a business is small if it has $12.5 or less
in average annual receipts.144 For the first category of
Satellite Telecommunications, Census Bureau data for 1997
show that there were a total of 324 firms that operated for
the entire year.145 Of this total, 273 firms had annual
receipts of under $10 million, and an additional twenty-four
firms had receipts of $10 million to $24,999,999. Thus, the
majority of Satellite Telecommunications firms can be
considered small.
74. The second category - Other Telecommunications -
includes ``establishments primarily engaged in ... providing
satellite terminal stations and associated facilities
operationally connected with one or more terrestrial
communications systems and capable of transmitting
telecommunications to or receiving telecommunications from
satellite systems.''146 According to Census Bureau data for
1997, there were 439 firms in this category that operated for
the entire year.147 Of this total, 424 firms had annual
receipts of $5 million to $9,999,999 and an additional 6
firms had annual receipts of $10 million to $24,999,990.
Thus, under this second size standard, the majority of firms
can be considered small.
VI.D. Description of Projected Reporting, Recordkeeping,
and Other Compliance Requirements
75. There are potential reporting or recordkeeping
requirements proposed in this NPRM, particularly with regard
to state and local EAS participation and participation by
digital broadcasters. The proposals set forth in the NPRM
are intended to enhance the performance of the EAS while
reducing regulatory burdens wherever possible.
VI.E. Steps Taken to Minimize Significant Economic
Impact on Small Entities, and Significant Alternatives
Considered
76. The RFA requires an agency to describe any
significant alternatives that it has considered in reaching
its proposed approach, which may include the following four
alternatives: (1) the establishment of differing compliance
or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance
or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards;
and (4) an exemption from coverage of the rule, or any part
thereof, for small entities.
77. In setting forth the proposals contained in this
NPRM, we have attempted to minimize the burdens on all
entities.148 We seek comment on the impact of our proposals
on small entities and on any possible alternatives that would
minimize the impact on small entities.
VI.F. Federal Rules that Duplicate, Overlap, or Conflict
with the Proposed Rules
78. None.
STATEMENT OF
CHAIRMAN MICHAEL K. POWELL
Re: Review of the Emergency Alert System, Notice of
Proposed Rulemaking
For over a half century, the United States has had in place
a national warning system utilizing, in part, our Nation's
broadcast outlets. From the CONELRAD, established in 1951 by
President Truman during the Korean War to its replacement, the
Emergency Broadcast System, established in 1963 by President
Kennedy to the modern day Emergency Alert System (EAS), our
government has sought to employ our country's media outlets as a
mechanism for warning the American public of an emergency.
A lot has changed since 1951. As the primary role of EAS
remains a national public warning system, increasingly state and
local jurisdictions have used its capabilities to notify their
citizens of local emergencies, including natural weather
disasters and in saving the lives of many abducted children
through the Amber Alert. In addition, EAS has grown from its
predecessor's birth on AM radio to FM radio, broadcast television
and wireline and wireless cable systems. Of course, the threats
to our homeland have also changed dramatically over the last
fifty years. As the world around us has changed, however, the
import of the EAS as a tool for reaching our citizenry during
time of need remains high.
We are proud to adopt this Notice today, as a result, in
part, of the recommendations of the Media Security and
Reliability Council and the Partnership for Public Warning and in
coordination with our partners at the Department of Homeland
Security and its component, FEMA and the Department of Commerce
and its component, the National Oceanic and Atmospheric
Administration's National Weather Service.
This proceeding will provide one of many vehicles by which
we collectively explore the most effective mechanism for warning
the American public of an emergency and the role of EAS as we
move further into our digital future. I commend my colleagues
here at the Commission and our partners at DHS, FEMA, DoC and
NOAA for their dedication to making our homeland a safer place
for our citizens.
STATEMENT OF
COMMISSIONER KATHLEEN Q. ABERNATHY
Re: Review of the Emergency Alert System, Notice of
Proposed Rulemaking
It is essential that the American public has access to
emergency information in times of crisis. The Emergency Alert
System (``EAS'') provides a means for the President and national,
state and local authorities to directly relay emergency
information to the public regarding such matters as national
security and preparedness, natural disasters, and missing
children alerts. As new communications technologies develop and
become integrated into our society, it is important that we adapt
our rules to ensure that the purposes of the EAS are being
fulfilled. Today, we take an important step toward improving
this critical public safety tool by seeking comment on how we can
keep up with the changing times, technologies, and security
issues.
Additionally, I am very pleased that this NPRM recognizes
the Commission's continued commitment to ensuring that persons
with disabilities and speakers of other languages have equal
access to public warnings. It is critical that we keep these
communities in mind, and recognize the particular benefits that
digital and other technologies may provide, as we move forward to
improve our emergency alert system.
I look forward to working with DHS, FEMA, NOAA, and NWS to
create a system that effectively and efficiently utilizes modern
technology to successfully keep the American public apprised of
vital safety information.
STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Review of the Emergency Alert System, Notice of
Proposed Rulemaking
September 11 and events in this country since have
highlighted the need for a warning system which affords national
as well as state and local authorities the capability to provide
emergency communications and information to the American public.
The EAS serves as our primary alert system today for everything
from weather emergencies to Amber alerts to save abducted
children.
The Commission asked its Media Security and Reliability
Council to examine the best means to reach the broadest possible
population with emergency and public safety information. We also
benefited in our deliberations from the analysis and
recommendations of the Partnership for Public Warning, a public-
private partnership whose goal is to increase emergency
preparedness. These groups addressed shortcomings in the current
EAS, including, among others, the need to upgrade the system and
enhance its use for providing state and local, as well as
national, emergency information. They considered the important
goal of finding ways to integrate diverse technologies so people
can receive information in myriad ways. And these expert
committees concluded that while improvements to the EAS are
needed, it remains integral to our national warning system.
I appreciate my colleagues' willingness to accelerate action
on these recommendations through an NPRM rather than a start-
from-scratch Notice of Inquiry. The issues on which we seek
comment, in addition to the ones I've already mentioned, include
bringing our warning system into the digital era, ensuring the
security of the EAS, and addressing how best to provide emergency
information to all segments of our population, including those
with disabilities and those whose primary language is not
English. We unfortunately do not have the luxury of time in
these efforts. I vote for this item with the understanding that
we will work aggressively in partnership with other government
agencies, industry, and all stakeholders to promote a
comprehensive national public warning capability.
STATEMENT OF
COMMISSIONER KEVIN J. MARTIN
Re: Review of the Emergency Alert System, Notice of
Proposed Rulemaking
The importance of our ability to quickly and effectively
inform the public of an emergency cannot be understated. Whether
the issue is a terrorist attack or impending weather disaster,
our success in this endeavor can mean the difference between life
and death. Currently, we rely almost exclusively on the
Emergency Alert System to disseminate warnings to the public.
EAS therefore serves a critical purpose, yet it applies only to
analog broadcast and cable television and its use is, in many
instances, merely voluntary. We need either to update this
system or to replace it with a more comprehensive and effective
digital warning mechanism.
I strongly support initiation of this rulemaking to
determine the best solution to ensure that all Americans can
receive emergency information. I am pleased at the coordination
that has taken place to date with the Department of Homeland
Security and the Department of Commerce, and I look forward to
working with these partners as well as our colleagues at the
state and local level to develop the best system to protect the
American people.
STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Review of the Emergency Alert System, Notice of
Proposed Rulemaking
I am pleased we launch this review of our nation's
increasingly outdated Emergency Alert System. We must move
quickly to act on this rulemaking and further protect the lives
of all Americans.
Our task is not easy, but we cannot afford to wait. The
public warning capability of communications technologies should
be among the highest priorities of this agency. This will take
hard work and continued coordination with the Department of
Homeland Security and our other partners.
The Cold-War era EAS system is an imperfect system for our
modern society, but for the near term it remains one of the best
options we have to deliver emergency messages to as many people
as possible as quickly as possible. The Media Security and
Reliability Council and the Partnership for Public Warning have
suggested ways to improve EAS. The Commission must now buckle
down and do what it is we are asking state and local officials to
do - assess vulnerabilities, create a plan for better service,
and review and update that plan as communications technologies
evolve.
The American public expects broadcasters to deliver timely
local and national emergency and public safety information. For
example, the FCC's broadcast localism hearing in Rapid City,
South Dakota, proved how vitally important disaster warnings are
for rural areas of the country. The County's Emergency
Management Director testified about the cooperation and
collaboration among public safety officials and all local
broadcasters that resulted from a devastating flood and led to a
voluntary initiative to improve public safety warnings in the
county. But not all broadcasters and state and local governments
have taken this step.
We should use our oversight of the broadcast and other
communications industries to ensure more consistency at the state
and local level. With the transition of television and radio to
digital broadcasting, we have an opportunity to improve upon the
EAS system to communicate emergency and public safety information
in even more targeted and innovative ways. We can design a
system to better serve all stakeholders, including the disability
community and the nation's many non-English speakers.
But we must act quickly. In conjunction with our other
federal partners, the American public counts on us to ensure a
public warning system second to none. It is imperative that we
quickly put ideas into action and lead our country to an even
higher level of security.
_________________________
1 See Amendment of Part 11 of the Commission's Rules Regarding
the Emergency Alert System, Report and Order, 17 FCC Rcd 4055
(2002) (2002 Report and Order); Amendment of Part 11 of the
Commission's Rules Regarding the Emergency Alert System, Notice
of Proposed Rulemaking, 16 FCC Rcd 7255 (2001); Amendment of Part
73, Subpart G, of the Commission's Rules Regarding the Emergency
Broadcast System, Second Further Notice of Proposed Rulemaking,
13 FCC Rcd 6353 (1998); Amendment of Part 73, Subpart G, of the
Commission's Rules Regarding the Emergency Broadcast System,
Third Report and Order, 14 FCC Rcd 1273 (1998); Amendment of Part
73, Subpart G, of the Commission's Rules Regarding the Emergency
Broadcast System, Second Report and Order, 12 FCC Rcd 15503
(1997) (Second Report and Order); Amendment of Part 73, Subpart
G, of the Commission's Rules Regarding the Emergency Broadcast
System, Report and Order and Further Notice of Proposed
Rulemaking, 10 FCC Rcd 1786 (1994) (First Report and Order),
reconsideration granted in part, denied in part, 10 FCC Rcd 11494
(1995) (Memorandum Opinion and Order); Amendment of Part 73,
Subpart G, of the Commission's Rules Regarding the Emergency
Broadcast System, Notice of Proposed Rulemaking and Further
Notice of Proposed Rulemaking, 7 FCC Rcd 6903 (1992); Amendment
of Part 73, Subpart G, of the Commission's Rules Regarding the
Emergency Broadcast System, Notice of Inquiry and Notice of
Proposed Rulemaking, 6 FCC Rcd 6739 (1991); Inquiry into Possible
Technical Improvements in the Emergency Broadcasting System,
Notice of Inquiry, 6 FCC Rcd 4264 (1991).
2 47 C.F.R. § 11.44.
3 47 C.F.R. § 11.1.
4 See, e.g., NOAA News Release, Homeland Security Uses NOAA All-
Hazards Network For Alerts And Warnings (June 17, 2004); CEA News
Release, CEA Welcomes DHS and NOAA Public Alert Memorandum of
Agreement (June 17, 2004); see also Pennsylvania Emergency Alert
System State EAS Plan (2004).
5 Providing for Emergency Control Over Certain Government and
Non-Government Stations Engaged in Radio Communication or Radio
Transmission of Energy, Exec. Order No. 10,312, 51 Fed. Reg.
14,769 (1951).
6 Assigning Emergency Preparedness Functions to the Federal
Communications Commission, Exec. Order No. 11,092, 63 Fed. Reg.
2216 (1963).
7 See Amendment of Section 73.906 of the Commission's Rules to
Substitute a Two-Tone Attention Signal for the Carrier-Break and
1,000 HZ Signal Presently in Use, Order, 49 FCC 2d 1160 (1974).
By transmitting the frequencies 853Hz and 960Hz simultaneously,
the new EBS equipment produced an audio/analog two-tone alerting
signal which was broadcast by stations on the main audio channel.
This two-tone signal served the dual purpose of getting the
listener's attention and activating other EBS equipment in the
surrounding area. The EBS station operator then listened to the
audio message coming out of the speaker of the decoder/receiver
to determine the reason the EBS signal had been transmitted, and
acted accordingly. The EBS initially focused on the distribution
of national level emergency information, however, in 1976, the
Commission, FEMA, and the NWS endorsed the use of the two?tone
EBS audio signal during state and local emergencies. See State
and Local Emergency Broadcasting System (EBS) Memorandum of
Understanding Among the Federal Emergency Management Agency
(FEMA), Federal Communications Commission (FCC), and the National
Oceanic and Atmospheric Administration (NOAA), (June 28, 1976).
8 Cable Television Consumer Protection and Competition Act of
1992, Pub. L. No. 102-385, § 16(b), 106 Stat. 1460, 1490 (1992).
Section 624(g) provides that "each cable operator shall comply
with such standards as the Commission shall prescribe to ensure
that viewers of video programming on cable systems are afforded
the same emergency information as is afforded by the emergency
broadcasting system pursuant to Commission regulations ...." 47
U.S.C. § 544(g).
9 See First Report and Order, 10 FCC Rcd at 1786; see also Cable
Television Consumer Protection and Competition Act of 1992, Pub.
L. No. 102-385, § 16(b), 106 Stat. 1460, 1490 (1992).
10 See Second Report and Order, 12 FCC Rcd at 15503. For
purposes of the EAS rules, a ``wireless cable system'' is a
collection of Multipoint Distribution Service, Multichannel
Multipoint Distribution Service or Instructional Television Fixed
Service channels used to provide video programming and other one-
way and two-way communications services to subscribers. The
channels may be licensed to or leased by wireless cable system
operators. See 47 C.F.R. § 11.11(c)(1). Hereafter, use of the
term ``cable systems'' and ``cable operators'' includes wired and
wireless cable systems unless specifically stated otherwise. As
part of its ongoing efforts to promote the deployment of wireless
broadband services, the Commission recently adopted revisions
that transform the rules governing MDS/MMDS (renamed the
"Broadband Radio Service") and ITFS to provide greater
flexibility and a more functional band plan for licensees. See
Amendment 1, 21, 73, 74 and 101 of the Commission's Rules to
Facilitate the Provision of Fixed and Mobile Broadband Access,
Educational and Other Advanced Services in the 2150-2162 and
2500-2690 MHz Bands, WT Docket No. 03-66, Report and Order and
Further Notice of Proposed Rulemaking, FCC 04-135 (rel. July 29,
2004).
11 See State and Local Emergency Broadcasting System (EBS)
Memorandum of Understanding Among the Federal Emergency
Management Agency (FEMA), Federal Communications Commission
(FCC), and the National Oceanic and Atmospheric Administration
(NOAA) (Approved by National Industry Advisory Committee (NIAC)
on April 21, 1982). Note that NIAC was chartered in 1963 to
advise and assist the Commission in executing its emergency
preparedness responsibilities. See supra note 6.
12 The 1984 Executive Order addressed the assignment of national
security and emergency preparedness functions relating to
telecommunications, specifically stating that the Director of
FEMA shall ``[d]evelop, upon request and to the extent consistent
with law and in consonance with regulations promulgated by and
agreement with the Federal Communications Commission, plans and
capabilities for, and provide policy and management oversight of,
the Emergency Broadcast System, and advise and assist private
radio licensees of the Commission in developing emergency
communications plans, procedures and capabilities.'' Assignment
of National Security and Emergency Preparedness
Telecommunications Functions, Exec. Order No. 12,472, 49 Fed.
Reg. 13,471 (1984).
13 In a 1995 Presidential Statement of Requirements, President
William J. Clinton addressed presidential communications with the
general public during periods of national emergency; see
Presidential Communications with the General Public During
Periods of National Emergency, The White House (September 15,
1995)(1995 Presidential Statement of Requirements).
14 47 U.S.C. §§ 151, 154(i) and (o), 303(r), 606.
15 47 U.S.C. § 151.
16 47 U.S.C. § 544(g).
17 Americans with Disabilities Act, (ADA), Pub. L. No. 101-
336,104 Stat. 327 (1990); H.R. Rep. No. 485, Pt. 2, 101st Cong.,
2d Sess. (1990) (House Report).
18 See also Individuals with Disabilities in Emergency
Preparedness, Exec. Order No. 13,347, 69 Fed. Reg. 44,573 (2004).
19 47 C.F.R. § 11.44(a).
20 See 47 C.F.R. § 11.55(a); see also 2002 Report and Order, 17
FCC Rcd at 4057; First Report and Order, 10 FCC Rcd at 1809.
21 Amateur radio operators play an important role in providing
emergency communications, but are not subject to mandatory EAS
obligations. See 47 C.F.R. § 97.1(a).
22 These services are among the evolving digital technologies
that bring advanced services to consumers and make more efficient
use of the available spectrum. DBS service, including the
Direct-to-Home Fixed-Satellite Service (DTH-FSS), provides multi-
channel video programming services to millions of households.
DTV is a type of broadcasting technology that allows broadcasters
to offer television with movie-quality picture and CD-quality
sound, along with a variety of other enhancements that can be
used to transmit large amounts of other data into the home, which
may be accessible by using a computer or television set. DAB
technology utilizes new and efficient audio compression
techniques that reduce the amount of bandwidth required to
transmit a high-quality audio signal. Finally, IBOC systems are
designed to simultaneously broadcast both analog and digital
radio signals on broadcasters' existing AM and FM frequencies
without disrupting existing analog service. See FCC Public
Release, FCC Commences Rulemaking To Consider Terrestrial Digital
Audio Broadcasting (November 1, 1999). We note that on April 20,
2004, the Commission tentatively concluded that IBOC systems are
subject to the same EAS and other emergency broadcast rules as
are AM radio stations. See infra para. 29.
23 Robert T. Stafford Disaster Relief and Emergency Assistance
Act (Stafford Act), as amended, 42 U.S.C. § 5121, et. seq. As a
result of the Stafford Act, twenty-seven Federal departments and
agencies signed an agreement concerning Federal response and
assistance to State and local governments when a major disaster
or emergency overwhelms their ability to respond.
24 See National Operations Warning System Operations Manual, FEMA
Manual 1550.2 at 1-2, March 30, 2001,
.
25 NWS broadcasts NWS forecasts, warnings, watches, and other
non-weather related hazard information 24 hours a day. During an
emergency, NWS sends out a special tone that activates any NOAA
Weather Radio, a specialized consumer electronic device, in the
listening area. Using the Specific Area Message Encoding (SAME)
technology, NOAA Weather Radios can be programmed to receive
information specific to a certain area and, if equipped with a
special alarm tone feature, can sound an alert and provide
immediate information. Working with other federal agencies and
EAS, NWS is an all-hazards radio network that broadcasts warnings
and post-event information for all types of hazards, including
weather, natural, technological, and national emergencies. See
. On June 17, 2004,
the Information Analysis and Infrastructure Protection
Directorate of DHS signed an agreement with NOAA to allow DHS to
send critical all-hazard alert and warnings directly through the
NOAA All-Hazard Network. See DHS News Release, Homeland Security
Leverages NOAA All-Hazards Network for Alerts and Warnings (June
17, 2004). Local NWS offices provide NWS alerts and broadcast
non-weather related emergency messages provided to them directly
by local and state government officials. For non-weather
emergencies, the system is activated by the NWS at the request of
local and/or state officials.
26 This number will likely increase due to the agreement between
DHS and NOAA. See id.
27 NWS also operates NOAA Weather Wire Service (NWWS), a
satellite data collection and dissemination system. See
. The purpose of
NWWS is to provide state and federal government, commercial
users, media, and private citizens with timely delivery of
meteorological, hydrological, climatological, and geophysical
information from 141 NWS offices and the U.S. Geological Survey's
national Earthquake Information Center. NWWS delivers severe
weather and storm warnings to users in 10 seconds or less from
the time they are issued. NWWS can be received via C-band
satellite, Ku-band satellite, or over the Internet. All three
options require a personal computer and appropriate software.
NWWS can activate the EAS or provide warning information for non-
EAS broadcast. See A National Strategy for Integrated Public
Warning Policy and Capability, Partnership for Public Warning
Report 2003-01 at 12 (May 16, 2003) (PPW May 2003 Report).
28 The Commission has encouraged the monitoring of NWS
transmissions. See First Report and Order, 10 FCC Rcd at 1810-
11. All EAS decoders are able to directly monitor and decode NWS
SAME codes with the addition of any ordinary weather radio
receiver and off-the-shelf connections to the EAS decoder.
29 47 C.F.R. § 11.31(c).
30 All broadcast stations and cable systems have EAS designations
that describe their functions within EAS. See 47 C.F.R. § 11.18.
31 47 C.F.R. § 11.14.
32 47 C.F.R. §§ 11.21, 11.52(d). The broadcast stations and
cable systems must monitor at least two EAS sources to reduce the
likelihood of a single point of failure preventing an EAS message
from propagating through the system.
33 The State Relay Network is composed of State Relay sources,
leased common carrier communications facilities, or any other
available communication facilities. In addition to EAS
monitoring, satellites, microwave, FM subcarrier, or any other
communications technology may be used to distribute state
emergency messages. See 47 C.F.R. § 11.20.
34 47 C.F.R. § 11.18(d).
35 47 C.F.R. § 11.18(b).
36 47 C.F.R. § 11.31. EAS messages enter the EAS system via
equipment that is able both to encode and decode EAS messages,
often called an ENDEC unit. EAS equipment sends and receives
messages using a precise format referred to as the EAS digital
protocol. An emergency activation of EAS uses a four part
message: (1) preamble and EAS header codes; (2) audio attention
signal; (3) message; and (4) preamble and EAS end of message
codes. See 47 C.F.R. § 11.31(a).
37 47 C.F.R. §§ 11.33(a)(4), 11.51(k)(1), 11.54.
38 47 C.F.R. § 11.31(c).
39 47 C.F.R. § 11.31(a)(3)(i).
40 MSRC was formed following the events of September 11, 2001, to
study, develop, and report on Best Practices designed to ensure
the continued operations and security of media facilities in
times of a national emergency. See FCC News Release, FCC
Announces Creation of Media Security & Reliability Council;
Tribune Company President Dennis Fitzsimons To Be Chairman, (rel.
Mar. 28, 2002).
41 PPW is governed by an elected Board of Trustees representing
local and state governments, private industry and the non-profit
community. Federal agencies participating in PPW include the
Department of Homeland Security, Department of Commerce and the
Federal Communications Commission. See
.
42 Partnership for Public Warning, The Emergency Alert System
(EAS): An Assessment, Partnership for Public Warning, 30
(February 2004) (PPW 2004 EAS Assessment); see also Media
Security and Reliability Council Comprehensive Best Practices
Recommendations, Media Security and Reliability Council, 11-12
(March 2004) (MSRC March 2004 Best Practices Recommendations).
43 PPW 2004 EAS Assessment at 28.
44 Id. at 4, 30.
45 Id. at 5.
46 MSRC March 2004 Best Practices Recommendations at 11.
47 Id. at 11; PPW 2004 EAS Assessment at 32.
48 See supra paras. 9-12.
49 See, e.g., MSRC EAS Survey Results, MSRC Government Media
Subcommittee (May 23, 2003) (MSRC
EAS Survey); see also Randy J. Stine, Saving Lives or Wrecking
Radio?, Radio World (April 7, 2004).
50 MSRC EAS Survey at 42.
51 Broadcast Localism, Notice of Inquiry, MB Docket No. 04-233,
FCC 04-129, para. 28 (July 1, 2004) (Localism NOI). We will
incorporate comments on EAS filed in the Broadcast Localism
proceeding into the record of this proceeding. The Commission's
Localism Task Force has also discussed EAS and emergency
notification issues in its recent localism hearings in Monterey,
California, and Rapid City, South Dakota. See FCC News Release,
FCC's Localism Task Force Announces Panelists and Final Agenda
for Public Hearing on Broadcast Localism in Monterey, California,
July 21, 2004 (rel. July 20, 2004); FCC News Release, FCC's
Localism Task Force Announces Panelists and Final Agenda for
Public Hearing on Broadcast Localism in Rapid City, South Dakota,
May 26, 2004 (rel. May 24, 2004). For more information about the
Localism Task Force, see the Commission's website at
.
52 47 C.F.R. § 11.21. Commission rules require only that, once
created, state and local plans be reviewed and approved by the
Director, Office of Homeland Security, Enforcement Bureau, prior
to implementation to ensure that they are consistent with
national plans, Commission regulations, and EAS operation. See
id.
53 PPW 2004 EAS Assessment at 30.
54 E.g., see generally MSRC EAS Survey.
55 Comments can address methods by which emergency managers
address particular PEP problems. For example, Michigan was
granted a FEMA Hazard Mitigation Grant in 2002 to help solve EAS
relay problems and developed a hybrid Internet/satellite relay
system in 2003. See MSRC EAS Survey at 72.
56 Id.
57 In an article arguing that this should be done, the author
noted that redundant wired and wireless links are not that
expensive to implement and maintain between 911 centers and
electronic media outlets in population centers. See Guy Wire,
Overhauling EAS, Radio World (February 24, 2004).
58 47 C.F.R. § 11.31(e)-(f).
59 Id.
60 Id.
61 See generally First Report and Order.
62 See Localism NOI, FCC 04-129 at para. 29 (citing Public
Interest Obligations of TV Broadcast Licensees, Notice of
Inquiry, 14 FCC Rcd 21633, 21642 (1999)).
63 Id.
64 See Digital Audio Broadcasting Systems and their Impact on the
Terrestrial Radio Broadcast Service, MM Docket No. 99-325,
Further Notice of Proposed Rulemaking and Notice of Inquiry, 19
FCC Rcd 7505, 7519 (2004).
65 We note in this regard that the Association of Public
Television Stations (APTS) has initiated a ``Datacasting''
project whereby EAS and other emergency notifications can be
carried on the digital television bit stream. See Jeffrey Davis
et al., Public Digital Television: Improving Homeland Security,
The Association of Public Television Stations, 4, June 2003 <
http://www.apts.org/html/homeland/hswhitepaper.pdf>.
66 ``Force tuning'' technology allows a cable operator to switch
subscribers from any programmed channel to a specific system
channel that will carry EAS messages.
67 First Report and Order, 10 FCC Rcd at 1796, 1799.
68 Id. at 1799-1800.
69 PPW 2004 EAS Assessment at 22 (citing Radio Advertising Bureau
statistics).
70 Id. at 21 (citing Arbitron 2001 Radio Today).
71 Id. at 21 (citing Nielsen Media Research, 2000 Report on
Television).
72 Although EAS decoders can be built into a variety of
electronic devices that would enable them to receive EAS alerts
and activate devices even when they are not turned on, relatively
few companies are producing such devices. See PPW 2004 EAS
Assessment at 30. Further, although NWS signals are accessible
to 95 percent of the American population in the fifty states,
Puerto Rico, the Virgin Islands, Guam, and the Mariana Islands, a
recent national survey of 1,000 people concluded that, depending
on the region of the country, only between eight and 13 percent
of United States households have NWS receivers and less than half
of those receivers are portable. See PPW May 2003 Report at 14-
15 (citing eBrain.Consumer Research for the Consumer Electronics
Association, 2002).
73 See Dabctom Technologies, Inc., Petition for Rulemaking to
Establish Disaster Alert By Telephone System, Order, 17 FCC Rcd
11452 (2002).
74 CAP has also been endorsed by organizations such as the
Partnership for Public Warning, the ComCARE Alliance, and the
National Emergency Management Association's Preparedness
Committee.
75 For example, CAP incorporates geospatial elements based on
Open GIS Consortium recommendations to permit flexible but
precise geographic targeting of alerts; provides for associating
digital images and other binary information with alerts; and
supports various mechanisms for ensuring message authenticity,
integrity and confidentiality where necessary. See CAP 1.0 -
Fact Sheet (March 1, 2004) .
76 For more information about CAP see and
.
77 MSRC March 2004 Best Practices Recommendations at 11.
78 See Individuals with Disabilities in Emergency Preparedness,
Exec. Order (ordering that federal agencies shall also encourage
State, local, and tribal governments to consider persons with
disabilities in emergency preparedness planning, providing
technical assistance, as appropriate, and facilitate cooperation
among the branches of government and private organizations and
individuals in the implementation of emergency preparedness plans
that address the needs of persons with disabilities.).
79 1997 US Department of Commerce, CENBR 97-5.
80 Id.
81 See 47 C.F.R. §§ 73.1250, 79.1, 79.2, 79.3; see also Reminder
to Video Programming Distributors of Obligation to Make Emergency
Information Accessible to Persons with Hearing or Vision
Disabilities, Public Notice, DA 03-2361 (rel. July 18, 2003).
Emergency information is defined as any information that is
intended to further the protection of life, health, safety, or
property, including information about hazardous weather
situations, dangerous community situations such as the discharge
of toxic gases or civil disorders, evacuation orders, school
closings, or relief assistance. 47 C.F.R. § 79.2(a)(2).
82 The Commission has adopted technical standards for the display
of closed captioning on DTV receivers and rules that require
manufacturers of DTV receivers and DTV set-top converters to
include DTV closed captioning display functionality in their DTV
devices shipped in interstate commerce or manufactured in the
United States on or after July 1, 2002. Closed Captioning
Requirements for Digital Television Receivers, Closed Captioning
and Video Description of Video Programming, Implementation of
Section 305 of the Telecommunications Act of 1996, Video
Programming Accessibility, Report and Order, 15 FCC Rcd 16788,
16790 (2000).
83 Emergency information that is provided in the video portion of
a regularly scheduled newscast or a newscast that interrupts
regular programming must be made accessible through the oral
description of the emergency information in the main audio, such
as open video description. If the emergency information is being
provided in the video portion of programming that is not a
regularly scheduled newscast or a newscast that interrupts
regular programming (e.g., the programmer provides the emergency
information through crawling or scrolling during regular
programming), this information must be accompanied by an aural
tone. This tone is to alert persons with vision disabilities
that the video programming distributor is providing emergency
information, and to alert such persons to tune to another source,
such as a radio, for more information. 47 C.F.R. § 79.2(b)(1).
84 47 C.F.R. § 79.2(b)(3).
85 47 C.F.R. §§ 11.54(b)(7), 11.55(c)(4).
86 See PPW 2004 EAS Assessment at 26-27.
87 Id.
88 Id.
89 See generally 2002 Report and Order.
90 There is also a National Periodic Test event code and National
Primary sources must participate in Periodic National Tests as
appropriate. See 47 C.F.R. §§ 11.31(e), 11.61(a)(3).
91 See 47 C.F.R. § 11.61.
92 MSRC EAS Survey at 20.
93 Id. at 10.
94 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, CI Docket No. 95-6, Report and Order, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
95 47 C.F.R. § 1.80.
96 See Amendment of Section 1.80(b) of the Rules, Order, FCC 04-
139 (rel. June 18, 2004) (increasing the statutory forfeiture
maximum to reflect inflation, effective September 7, 2004).
.
97 See Electronic Filing of Documents in Rulemaking Proceedings,
13 FCC Rcd 11322, 11326 (1998).
98 See 47 C.F.R. § 1.48.
99 47 C.F.R. §§ 1.200, et seq.
100 See 47 C.F.R. § 1.1206(b)(2).
101See 5 U.S.C. § 603(a). In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.
102 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 - 612, has
been amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110
Stat. 857 (1996).
103 See 5 U.S.C. § 603(a).
104 Id.
105 5 U.S.C. §§ 603(b)(3), 604(a)(3).
106 Id. § 601(6).
107 Id. § 601(3) (incorporating by reference the definition of
``small business concern'' in 15 U.S.C. § 632). Pursuant to the
RFA, the statutory definition of a small business applies
``unless an agency, after consultation with the Office of
Advocacy of the Small Business Administration and after
opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities
of the agency and publishes such definition(s) in the Federal
Register.'' 5 U.S.C. § 601(3).
108 Small Business Act, 15 U.S.C. § 632 (1996).
109 5 U.S.C. § 601(4).
110 Id.
111 13 C.F.R. § 121.201, NAICS code 515120.
112 OMB, North American Industry Classification System: United
States, 1997, at 509 (1997). This category description
continues, ``These establishments operate television broadcasting
studios and facilities for the programming and transmission of
programs to the public. These establishments also produce or
transmit visual programming to affiliated broadcast television
stations, which in turn broadcast the programs to the public on a
predetermined schedule. Programming may originate in their own
studios, from an affiliated network, or from external sources.''
Separate census categories pertain to businesses primarily
engaged in producing programming. See id. at 502-05, North
American Industry Classification System (NAICS) code 512120,
Motion Picture and Video Production; code 512120, Motion Picture
and Video Distribution; code 512191, Teleproduction and Other
Post-Production Services; and code 512199, Other Motion Picture
and Video Industries.
113 ``Concerns are affiliates of each other when one concern
controls or has the power to control the other or a third party
or parties controls or has to power to control both.'' 13 C.F.R.
§ 121.103(a)(1).
114 ``SBA counts the receipts or employees of the concern whose
size is at issue and those of all its domestic concern's size.''
13 C.F.R. § 121.103(a)(4).
115 FCC News Release, ``Broadcast Station Totals as of September
30, 2002'' (Nov. 6, 2002).
116 13 C.F.R. § 121.201, NAICS code 515112.
117 Id.
118 ``Concerns are affiliates of each other when one concern
controls or has the power to control the other, or a third party
or parties controls or has the power to control both.'' 13
C.F.R. § 121.103(a)(1).
119 ``SBA counts the receipts or employees of the concern whose
size is at issue and those of all its domestic and foreign
affiliates, regardless of whether the affiliates are organized
for profit, in determining the concern's size.'' 13 C.F.R. §
121.103(a)(4).
120 13 C.F.R. § 121.201, NAICS code 513220.
121 U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form
of Organization),'' Table 4, NAICS code 513220 (issued Oct.
2000).
122 Id.
123 47 C.F.R. § 21.961(b)(1).
124 See Amendment of Parts 21 and 74 of the Commission's Rules
With Regard to Filing Procedures in the Multipoint Distribution
Service and in the Instructional Television Fixed Service and
Implementation of Section 309(j) of the Communications Act -
Competitive Bidding, MM Docket No. 94-131 and PP Docket No. 93-
253, Report and Order, 10 FCC Rcd 9589 (1995).
125 13 C.F.R. § 121.201, NAICS Code 515210.
126 Id.
127 5 U.S.C. § 601(3).
128 13 CFR § 121.201, NAICS code 517211.
129 13 CFR § 121.201, NAICS code 517212.
130 FCC, Wireline Competition Bureau, Industry Analysis and
Technology Division, Trends in Telephone Service, Table 5.3, (May
2002).
131 FCC, Wireline Competition Bureau, Industry Analysis and
Technology Division, ``Trends in Telephone Service'' at Table
5.3, page 5-5 (August 2003). This source uses data that are
current as of December 31, 2001.
132 See Amendment of Parts 20 and 24 of the Commission's Rules -
Broadband PCS Competitive Bidding and the Commercial Mobile Radio
Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850-
7852, paras. 57-60 (1996); see also 47 C.F.R. § 24.720(b).
133 See Amendment of Parts 20 and 24 of the Commission's Rules -
Broadband PCS Competitive Bidding and the Commercial Mobile Radio
Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7852,
para. 60.
134 See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator,
Small Business Administration, dated December 2, 1998.
135 FCC News, ``Broadband PCS, D, E and F Block Auction Closes,''
No. 71744 (released January 14, 1997).
136 See ``C, D, E, and F Block Broadband PCS Auction Closes,''
Public Notice, 14 FCC Rcd 6688 (WTB 1999).
137 See ``C and F Block Broadband PCS Auction Closes; Winning
Bidders Announced,'' Public Notice, 16 FCC Rcd 2339 (2001).
138 Id. § 632.
139 Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA,
to William E. Kennard, Chairman, FCC (May 27, 1999). The Small
Business Act contains a definition of ``small-business concern,''
which the RFA incorporates into its own definition of ``small
business.'' See 15 U.S.C. § 632(a) (Small Business Act); 5
U.S.C. § 601(3) (RFA). SBA regulations interpret ``small
business concern'' to include the concept of dominance on a
national basis. See 13 C.F.R. § 121.102(b).
140 13 C.F.R. § 121.201, NAICS code 517110.
141 FCC, Wireline Competition Bureau, Industry Analysis and
Technology Division, ``Trends in Telephone Service'' at Table
5.3, Page 5-5 (Aug. 2003) (hereinafter ``Trends in Telephone
Service''). This source uses data that are current as of
December 31, 2001.
142 13 C.F.R. § 121.201, NAICS code 517110.
143 ``Trends in Telephone Service'' at Table 5.3.
144 13 C.F.R. § 121.201, NAICS codes 517410 and 517910.
145 U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, "Establishment and Firm Size (Including Legal Form
of Organization)," Table 4, NAICS code 513340 (issued Oct. 2000).
146 Office of Management and Budget, North American Industry
Classification System, page 513 (1997) (NAICS code 513390,
changed to 517910 in Oct. 2002).
147 U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, "Establishment and Firm Size (Including Legal Form
of Organization)," Table 4, NAICS code 513390 (issued Oct. 2000).
148 See supra para. 45.