Articles Posted in Emergency Alert System

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Just two months after assessing nearly $2 million in fines to cable operators for airing ads for the movie Olympus Has Fallen containing false EAS tones, the FCC today granted an 18-month extension of its 2013 waiver allowing the Federal Emergency Management Agency to continue to use false emergency tones in Public Service Announcements.

In this case, the tone being used is not the “broadcast” EAS tone, but the Wireless Emergency Alert (WEA) tone transmitted to cell phones and other wireless devices in an emergency. In the words of the FCC, “[t]he WEA Attention Signal is a loud, attention-grabbing, two-tone audio signal that uses frequencies and sounds identical to the
distinctive and familiar attention signal used by the EAS.”

According to the FCC’s waiver extension order, the FEMA PSAs are a reaction to the public being “startled or annoyed” when hearing the WEA tone for the first time, and then seeking to turn off all future alerts. The PSAs are aimed at teaching the public how WEA works and how their mobile devices will behave when receiving a WEA alert.

Given these facts, on May 31, 2013, the FCC granted an unprecedented waiver of the prohibition on airing false emergency tones to permit FEMA PSAs containing the WEA tone to be aired. However, that waiver was limited to one year. Since that year is about up, FEMA recently sought an extension, and by today’s order, the FCC has extended the waiver for an additional 18 months.

While FEMA indicates that it believes the announcements have been a success, it continues to receive negative media coverage and individual complaints about the WEA alerts. As a result, it wishes to continue distributing the PSAs for airing and needed today’s waiver to accomplish that.

Of course, while FEMA is the party that sought the waiver, it is broadcasters and cable operators that are typically found liable when a false emergency tone airs. Both of those groups should therefore be concerned that the FCC did not grant an unconditional waiver, but instead extended the waiver only to announcements that “mak[e] it clear that the WEA Attention Signals are being used in the context of the PSA and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program.” As a result, the FCC warned that “leading off a PSA with a WEA Attention Signal, without warning, may be an effective attention-getting device, but it would violate the conditions of this waiver because of the effect that it could have on the listening or viewing public.”

Broadcasters and cable operators will therefore need to screen all FEMA PSAs containing an emergency tone to ensure it is a WEA (and not an EAS) tone, and that the PSA meets the FCC’s waiver conditions and therefore does not pose a risk of confusing the public as to whether an emergency is actually occurring. In other words, if FEMA runs afoul of this requirement in a future PSA, it is the broadcasters and cable operators airing it who will be facing the emergency.

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Back in March, the FCC’s Public Safety and Homeland Safety Bureau (PSHSB) issued a Public Notice seeking to update the record on a 2005 Petition for Immediate Interim Relief regarding proposals to make fundamental changes to the FCC’s EAS Rules with respect to requiring broadcast stations to air multilingual EAS alerts. Yesterday, the PSHSB released a Public Notice extending the comment deadlines in the proceeding. Comments are now due by May 28, 2014 and replies are due by June 12, 2014.

The March Public Notice seeks comments on a number of issues, but the most-discussed issue is the Petitioner’s proposal to have the FCC adopt a so-called “designated hitter” requirement for multilingual EAS.

The Public Notice quotes the Petitioner in describing the proposal:

Such a plan could be modeled after the current EAS structure that could include a “designated hitter” approach to identify which stations would step in to broadcast multilingual information if the original non-English speaking station was knocked off air in the wake of a disaster. Broadcasters should work with one another and the state and/or local government to prepare an emergency communications plan that contemplates reasonable circumstances that may come to pass in the wake of an emergency. The plan should include a way to serve all portions of the population, regardless of the language they speak at home. One market plan might spell out the procedures by which non-English broadcasters can get physical access to another station’s facilities to alert the non-English speaking community – e.g. where to pick up the key to the station, who has access to the microphones, how often multilingual information will be aired, and what constitutes best efforts to contact the non-English broadcasters during and after an emergency if personnel are unable to travel to the designated hitter station.

The March Public Notice asked for comment on a number of questions related to this proposal. The Commission also acknowledged in the March Public Notice that broadcasters have raised concerns that a multilingual EAS requirement using the designated hitter approach would require them to hire additional personnel capable of translating emergency alert information into one or more additional languages.

Given that there is a nine year record in this proceeding and that any multilingual EAS requirements will have wide-ranging implications, those wishing to file comments in the proceeding now have some additional time to make that happen.

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There was quite a stir today when the FCC, despite being closed for a snow day, issued a Notice of Apparent Liability proposing very large fines against Viacom ($1,120,000), NBCUniversal ($530,000), and ESPN ($280,000) for transmitting false EAS alert tones. According to the FCC, all three aired an ad for the movie Olympus Has Fallen that contained a false EAS alert tone, with Viacom airing it 108 times on seven of its cable networks, NBCUniversal airing it 38 times on seven of its cable networks, and ESPN airing it 13 times on three of its cable networks.

The size of the fines certainly drew some attention. Probably not helping the situation was the ad’s inclusion of the onscreen text “THIS IS NOT A TEST” and “THIS IS NOT A DRILL” while sounding the EAS tone. The FCC launched the investigation after receiving complaints from the public.

All three entities raised a variety of arguments that were uniformly rejected by the FCC, including that “they had inadequate notice of the requirements and applicability of the rules with respect to EAS violations.” What particularly caught my eye, however, was that all three indicated the ad had cleared an internal review before airing, and in each case, those handling the internal review were apparently unaware of Section 325 of the Communications Act (prohibiting transmission of a “false or fraudulent signal of distress”) and Section 11.45 of the FCC’s Rules, which states that “No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.”

Back in 2010, I wrote a post titled EAS False Alerts in Radio Ads and Other Reasons to Panic that discussed the evolution of the FCC’s concerns about false emergency tones in media, which originally centered on sirens, then on Emergency Broadcast System tones, and now on the Emergency Alert System’s digital squeals. Two months later, I found myself writing about it again (The Phantom Menace: Return of the EAS False Alerts) when a TV ad for the movie Skyline was distributed for airing with a false EAS tone included in it.

That was the beginning of what has since become a clear trend. Those initial posts warned broadcasters and cable programmers to avoid airing specific ads with false EAS tones, but were not connected to any adverse action by the FCC. After three years of EAS tone tranquility, the issue reemerged in 2013 when hackers managed to commandeer via Internet the EAS equipment of some Michigan and Montana TV stations to send out false EAS alert warnings of a zombie attack. The result was a rapid public notice from the FCC instructing EAS participants to change their EAS passwords and ensure their firewalls are functioning (covered in my posts FCC Urges IMMEDIATE Action to Prevent Further Fake EAS Alerts and EAS Alerts and the Zombie Apocalypse Make Skynet a Reality), but no fines.

From there we moved in a strange direction when the Federal Emergency Management Agency distributed a public service announcement seeking to educate the public about the Emergency Alert System, but used an EAS tone to get that message across. Because it did not involve an actual emergency nor a test of the EAS system, the PSA violated the FCC’s rule against false EAS tones and broadcasters had no choice but to decline to air it. The matter was resolved when the FCC quickly rushed through a one-year waiver permitting the FEMA ad to be aired (Stations Find Out When Airing a Fake EAS Tone Is Okay).

Late last year, however, the evolution of the FCC’s treatment of false EAS alerts turned dark (FCC Reaches Tipping Point on False EAS Alerts) when the FCC issued the first financial penalties for false EAS alerts. The FCC proposed a $25,000 fine for Turner Broadcasting and entered into a $39,000 consent decree with a Kentucky radio station for airing false EAS alert tones. The FCC indicated at the time that other investigations were ongoing, and more fines might be on the way.

We didn’t have to wait long, as just two months later, the FCC upped the ante, proposing a fine of $200,000 against Turner Broadcasting for again airing false EAS alert tones, this time on its Adult Swim network. The size of the fine was startling, and according to the FCC, was based upon the nationwide reach of the false EAS tone ad, as well as the fact that Turner had indicated in connection with its earlier $25,000 fine that it had put in place mechanisms to prevent such an event from happening again. When it did happen again, the FCC didn’t hesitate to assess the $200,000 fine.

Today’s order, issued less than two months after the last Turner decision, ups the ante once again, proposing fines of such size that only some of the FCC’s larger indecency fines compare. The FCC is clearly sending a signal that it takes false EAS tones very seriously, and the fact that the ads containing the EAS tones were produced by an independent third party didn’t let the programmers off the hook. In other words, it doesn’t matter how or why the ads got on the air; the mere fact that they aired is sufficient to create liability.

So what lesson should broadcasters and cable networks take away from this? Well, the all too obvious one is to do whatever it takes to prevent false EAS tones from making it on air. However, an equally useful lesson is to make sure that your contracts with advertisers require the advertiser to warrant that the spots provided will comply with all laws and to indemnify the broadcaster or network if that turns out not to be the case. That won’t save you from a big FCC fine and a black mark on your FCC record, but it will at least require the advertiser to compensate you for the damages you suffered in airing the ad and defending yourself. Unfortunately, many advertising contracts are not particularly well drafted (and some are just a handshake), which can expose you to a variety of liabilities like this unnecessarily.

It is therefore wise to have both your ad contracts and your advertising guidelines carefully reviewed by counsel experienced in this area of the law. Vigilant review of ads submitted for airing is an excellent first line of defense, but as demonstrated in today’s decision, it won’t do much good if the individuals reviewing the ads don’t know what to look for.

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Over the years, I’ve written numerous times about the FCC’s adverse reaction to advertisers seeking to make their ads more attention-getting through inclusion of an Emergency Alert System tone. The most recent was this past November, when the FCC proposed a $25,000 fine against Turner Broadcasting System, Inc. for an EAS tone-laden Conan promo, and announced a $39,000 consent decree with a Kentucky TV station for a local sports apparel store ad containing an EAS alert tone.

I titled the post FCC Reaches Tipping Point on False EAS Alerts, and noted at the end of it that

ominously, today’s FCC Enforcement Advisory notes that “[o]ther investigations remain ongoing, and the Bureau will take further enforcement action if warranted.” Given today’s actions by the FCC, everyone whose job it is to review ad content before it airs is having a very bad day.

Today, the FCC fulfilled that prophecy, proposing an additional $200,000 fine against Turner Broadcasting System, Inc. for distributing another ad containing EAS tones. According to the FCC, Turner’s Adult Swim Network aired ads produced by Sony Music Group promoting an album by rap artist A$AP Rocky and the album’s availability at Best Buy stores. While the ad did not contain any digital data from an EAS tone, it did simulate the EAS audio tone itself. The ad aired seven times over the network’s East Coast feed, and then was repeated seven more times in the West Coast feed three hours later.

The FCC’s decision is “spirited” (at least by FCC standards), managing to convey a fair degree of exasperation, principally because of Turner’s prior violation and the fact that

In response to those [earlier] complaints, which also emphasized the potential impact on public safety of the transmission of such material, Turner represented to the Commission that it had changed certain of its internal review practices. Nevertheless, another Turner-owned channel, less than one year later, transmitted the A$AP Rocky/Best Buy advertisement 14 times over a six day period, which also contained simulations of the EAS codes. Thus, despite its experience with the problem of misusing EAS codes and Attention Signals, Turner continued to violate Section 11.45 of the Commission’s rules and Section 325(a) of the Act, indicating a higher degree of culpability in this instance. Therefore, based on the number of transmissions at issue, the amount of time over which the transmissions took place, the nationwide scope of Adult Swim Network’s audience reach, Turner’s degree of culpability, Turner’s ability to pay, and the serious public safety implications of the violations, as well as the other factors as outlined in the Commission’s Forfeiture Policy Statement, we find that a forfeiture of two hundred thousand dollars ($200,000) is appropriate.

Beyond the unprecedented size of the fine for such a violation, today’s decision is also notable because, unlike the self-inflicted wound of putting an EAS tone in a program promo, this case involved a spot produced by a third party. While the FCC has appeared in the past to have had at least some sympathy where a problem in a third-party ad “slipped through”, the FCC’s sympathy seems to be exhausted at this point. Having said that, it is worth noting that the FCC went after the program network rather than the individual cable and satellite systems that actually transmitted the spots to the public. Cable and satellite providers can take at least some solace in that.

While the nationwide audience and prior violation may have made the size of this fine somewhat unique, it is safe to say that the FCC has reached the point that it is unlikely to find a false EAS tone, no matter the circumstances, to be an excusable “oops” on the part of a program distributor. While the FCC might once have been willing to just admonish a violator and save the fines for repeat offenders, it appears that there will no longer be any free bites at the false EAS tone apple, and that each bite will be appreciably more expensive than the last.

Of course, if the FCC is hoping that steadily escalating fines will cause violators to lose their taste for the forbidden fruit of false EAS tones in ads, the question is whether advertisers will also hear that message, or are broadcasters, cable operators and satellite TV providers forever doomed to play a game of whack-a-mole (whack-a-tone?) with third-party ads?

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Over the years, I’ve written a number of times of the FCC’s concern about airing emergency sounds, from the siren blare telling you that Indiana Wants Me, to Emergency Alert System tones promoting the movie Skyline, to an actual EAS alert warning of the Zombie Apocalypse.

Section 11.45 of the FCC’s Rules states that “[n]o person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.” As a result, every time that annoying EAS digital squeal slips onto the airwaves during a commercial rather than in an EAS test, it is guaranteed that the employee charged with screening ads is going to have a very bad day.

Fortunately, most broadcasters and cable operators are well aware of the restriction and go to great lengths to screen out such content. Unfortunately, advertisers and ad agencies are often not so attuned, and given the sheer amount of ad content being aired, an EAS-laden ad will slip through sooner or later.

Aggravating the situation is that while airing the tone from the old Emergency Broadcast System could cause public confusion, the EAS squeal contains digital information that is relayed to other media entities, whose EAS equipment then reads that data and automatically transmits the alert on down the alert chain. The farther the alert travels from the original source (where observant viewers or listeners might have figured out it was just part of a commercial), the greater the likelihood of public confusion and panic.

While the FCC certainly takes EAS false alerts seriously, it has seemed to recognize that the media entity airing the ad is usually as much a victim of the false alert signal as anyone, and as long as prompt action was taken to prevent a recurrence, has not been particularly punitive in its enforcement actions. Its strongest reaction to false EAS alerts up till now has been to issue an Urgent Advisory after the Zombie Apocalypse telling EAS participants to change the default password on their EAS equipment to prevent hackers from commandeering the equipment over the Internet to send out false alerts.

That changed late today, when the FCC issued a News Release and an FCC Enforcement Advisory warning against “False, Fraudulent or Unauthorized Use of the Emergency Alert System Attention Signal and Codes”, along with a Notice of Apparent Liability (NAL) for $25,000 against Turner Broadcasting System, Inc. and a $39,000 consent decree against a Kentucky TV station.

According to the NAL, Turner aired a promo for the Conan show that contained a simulated EAS tone in connection with an appearance by comic actor Jack Black. The FCC was not amused. While the base fine for violating Section 11.45 is $8,000, the FCC found that the seriousness of the violation, particularly given the nationwide transmission of the false alert signal, as well as Turner’s ability to pay, justified increasing the proposed fine to $25,000. While not specifically addressed in the NAL, the fact that Turner produced the promo itself, rather than this being a case of a third party advertiser slipping it past Turner, appears to have drawn the FCC’s ire.

More interesting still is the $39,000 consent decree, where the Kentucky station did not contest that it aired an ad for a sports apparel store that “stops in the middle of the commercial and sounds the exact tone used for the Emergency Alert warnings.” Besides the eye-opening $39,000 payment, the consent decree requires extensive further efforts by the licensee, including implementing a Section 11.45 compliance program for its staff, creating and distributing a compliance manual to its staff, implementing a compliance training program, filing annual compliance reports for the next three years, reporting any future violations to the FCC, and developing and implementing a program to “educate members of the public about the EAS alerts, the limits of public warning capabilities, and appropriate responses to emergency warning messages.” With regard to this last requirement, the educational program must include:

  • Airing 160 public service announcements (80 on the station’s primary channel and 80 on its multicast channel).
  • Interviewing local emergency preparedness officials and including vignettes on emergency awareness topics at least twice a month on the station’s morning program.
  • Expanding the station’s website to include links to local emergency agencies, banner messages with emergency-related information, and video messages from the Federal Emergency Management Agency and local emergency preparedness agencies.
  • Installing an additional SkyCam at its tower site and using “special radio equipment” to communicate with local emergency management officials and which will relay alerts to the station’s master control personnel.
  • Leasing tower space to the local emergency management agency for a “new modernized communications system” linking local agencies and organizations.
  • Using social media and digital technologies to promptly disseminate emergency alerts, including posting information culled from the station’s public service announcements, vignettes, and the local emergency management agency on the station’s Facebook page weekly, and including timely late-breaking news coverage of severe weather conditions and forecasts on the station’s smartphone app.
  • Utilizing specific computer hardware and software to render weather data and maps for use on-air, online, and in mobile applications, as well as to track severe weather events.
  • Periodically reviewing and revising the station’s educational program to improve it and ensure it is current and complete, including conferring with the National Weather Service and state, county and federal emergency preparedness managers and public safety officials.

The consent decree does not indicate how many times the offending ad aired, or if the station produced it, but the severity of the consent decree terms is startling. Also noteworthy is the FCC Enforcement Advisory’s admonition that not just broadcast stations and multichannel video programming distributors are on the hook, but that “[t]he prohibition thus applies to programmers that distribute programming containing a prohibited sound regardless of whether or not they deliver the unlawful signal directly to consumers; it also applies to a person who transmits an unlawful signal even if that person did not create or produce the prohibited programming in the first instance.”

The FCC has therefore decided that it is time to crack down on violations, and ominously, today’s FCC Enforcement Advisory notes that “[o]ther investigations remain ongoing, and the Bureau will take further enforcement action if warranted.” Given today’s actions by the FCC, everyone whose job it is to review ad content before it airs is having a very bad day.

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In what has been a recurring theme at CommLawCenter, I’ve written about the FCC rule prohibiting the airing of Emergency Alert System codes and tones unless there is an actual emergency or EAS test. Despite the rule, the draw of using an EAS tone is apparently irresistible, and we’ve seen it used in movie ads, oil company ads, and even zombie alerts.

Unlike many FCC rules, the ambiguity of which can leave seasoned practitioners arguing over what is or isn’t prohibited, Section 11.45 of the FCC’s Rules has been a model of clarity:

“No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.”

As a result, while advertisers might succumb to the temptation to slip an EAS tone (really, it’s more of a digital squeal) into their ads, the broadcaster’s duty was straightforward–try to catch the ad before it airs, and then let the advertiser know that the ad can’t be run unless it is modified to delete the tone.

Yesterday, however, life suddenly became more complicated for broadcasters when stations began receiving copies of a Public Service Announcement from the Federal Emergency Management Agency seeking to educate the public about the Emergency Alert System using the EAS tone to get that message across. Station operators were understandably confused, thinking that surely FEMA, as a fellow federal agency to the FCC (and an expert on all things related to EAS), wouldn’t be distributing a PSA that included an illegal EAS tone.

That was not, however, a safe assumption. On multiple occasions, federal and state agencies have, for example, distributed ads or PSAs that lack the sponsorship identification announcement required by the FCC, with one of the more famous examples leading to a 2002 FCC decision refusing to grant a waiver of its sponsorship identification rule to allow the White House Office of National Drug Control Policy to run anti-drug ads without disclosing that it was the sponsor.

As stations began to decline to run the PSAs for fear or incurring the FCC’s wrath, the FCC moved quickly (and quietly, I might add) to break from its prior approach, and today released a decision granting an unprecedented one-year waiver of Section 11.45, permitting FEMA spots to use the EAS tone as long as they make “clear that the WEA [Wireless Emergency Alert] Attention Signals are being used in the context of the PSA and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program.” The FCC also “recommend[s] that FEMA take steps to ensure that such PSAs clearly state that they are part of FEMA’s public education campaign.”

The good news today is that the FCC approached the problem head on by granting a waiver rather than trying to “interpret” its rule to somehow not cover the FEMA PSA tones. Such an interpretation would have left broadcasters scratching their heads every time an EAS tone pops up in a future spot, trying to figure out whether that use might also fit into such an exception. The bad news, however, is that broadcasters have now been told that fake EAS tones are sometimes okay, and they need to be watching the FCC’s daily releases to determine if a particular use has suddenly become acceptable. Hopefully, such spots will actually educate the public to better understand the purpose of EAS alerts, as opposed to merely acclimating them to hearing the tone on-air and learning to ignore it.

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

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

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

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

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

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

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

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March 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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