Articles Posted in Emergency Alert System

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

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

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

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

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

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

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

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

The EAS tone differs from police sirens in two important ways. First, the airing of the EAS tone or a simulation of the tone where no emergency or authorized EAS test exists is flatly prohibited by Section §11.45 of the FCC’s Rules (“No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.”). It could also potentially violate Section 73.1217, the FCC’s prohibition on broadcast hoaxes.

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

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

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

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

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November 2008
Topics include:

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

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March 2008
Topics include:

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

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Obligation to Provide Emergency Information to Persons with Hearing Disabilities

August 2007
Mindful of Hurricane Dean, and with three months left in this year’s hurricane season, it is imperative that television station broadcasters ensure they have adequate policies in place and reliable procedures tested to insure that persons with hearing disabilities have timely access to the emergency information that such stations have provided aurally in their programming.

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