Articles Posted in Emergency Alert System

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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:

  • Broadcasters Fined for Late-Filed Issues/Programs Lists
  • Cable Sports Network Receives Proposed Fine of $20,000 for EAS Violation
  • FCC Enters Consent Decrees with Wireless Providers for Engaging in Prohibited Communications During Spectrum Auction

FCC Proposes Stiff Fines for Two TV Stations With Late-Filed Issues/Programs Lists

The FCC fined a Louisiana and a Georgia television station for failing to timely upload quarterly Issues/Programs Lists to their Public Inspection Files. Both stations recently applied for renewal of their licenses, and an FCC staff review of the stations’ Public Inspection Files revealed that one station uploaded 16 Lists late and the other uploaded 21 Lists late.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires every commercial television licensee to place in its online Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the online Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter.

In addition to the lists having been filed late, the FCC noted that most of the lists were actually filed over a year late. The Commission therefore concluded that each broadcaster had willfully and repeatedly violated Section 73.3526 of the FCC’s Rules. Section 312(f)(1) of the Communications Act defines “willful” as “the conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law, and “repeated” as applying where an act occurs more than once or, if an act is continuous, for more than one day. Though each broadcaster indicated that the Lists were uploaded late due to station staffing issues or their staff’s lack of familiarity with the Public File rule, the FCC noted that employee acts such as clerical errors in failing to file required forms do not excuse a violation.

In determining the amount of a proposed fine, the FCC may adjust its base fine amount for such a violation upward or downward based upon the nature, circumstances, extent, and gravity of the violation, in addition to the licensee’s degree of culpability and any history of prior offenses. Section 1.80(b)(10) of the Commission’s rules establishes a base fine of $10,000 for Public Inspection File violations.

In both instances, the FCC determined that the amount should be adjusted upward due to the large number of late-filed lists. The broadcaster that filed 16 Lists late faces a $15,000 proposed fine, while the broadcaster that filed 21 Lists late faces a $20,000 fine. However, in neither case did the FCC find that the violation would constitute a “serious violation” or pattern of abuse preventing renewal of the stations’ licenses. Barring other issues arising, the FCC indicated that both license renewal applications would be granted in separate Commission actions upon conclusion of the stations’ respective forfeiture proceedings.

FCC Proposes $20,000 Fine Against Cable Sports Network for Violating EAS Rule

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to a cable sports network for violating the Commission’s Emergency Alert System (EAS) rules. Specifically, Section 11.45 of the Commission’s Rules prohibits the transmission of false or deceptive EAS tones.

The EAS is a nationwide public warning system designed to alert the public in case of emergencies, such as severe weather warnings or AMBER alerts. In order to maintain the effectiveness of such emergency alerts, EAS tones may only be aired for specific uses, such as actual emergencies, authorized tests, and qualified public service announcements (PSAs). Section 11.45 strictly prohibits airing the EAS tones, or simulations thereof, except in connection with of one of those permitted uses.

In October 2020, the FCC became aware that a cable network had transmitted during a program EAS tones that were not connected to an emergency, authorized test, or qualified PSA. The Commission’s Enforcement Bureau sent a Letter of Inquiry to the network seeking information regarding the inclusion of EAS tones in the program. The network responded, admitting that it aired the tones in the context of a television show depicting a weather event. While there was no actual emergency occurring at the time, the network noted that the show featured a dramatic retelling of an actual weather event. The network also explained that the tones lasted less than two seconds and did not include keying tones, so they could not have triggered any automated EAS relay equipment.

Rejecting this explanation, the FCC found that the network willfully violated Section 11.45 of the Commission’s Rules, stating that whether the EAS rule was violated does not turn on the length of time the tones were aired, nor whether EAS data was embedded within the tones. The FCC also noted that while it has issued its base fine of $8,000 for past violations of the EAS rule, it may upwardly adjust the fine for violations that are particularly egregious, intentional, repeated, cause substantial harm, or generate substantial economic gain for the violator.

In this instance, the FCC noted the seriousness of the matter given the potential to undermine the integrity of the EAS system when the tones are used outside of true emergencies or tests. The Commission also considered other factors, such as the number of times the false EAS tone was transmitted, the length of time over which the violations occurred, the audience reach (nationwide), and the extent of the public safety impact. Finally, the FCC noted that the network had previously been fined for violating the same rule.

Given the nationwide scope of the audience, the serious public safety implications, and the prior history of EAS violations, the FCC concluded that an upward adjustment was warranted, proposing a total fine of $20,000. The company has 30 days from release of the NAL to pay the fine or file a written statement seeking reduction or cancellation of the proposed fine.

FCC Fines Wireless Providers for Violating Rules Against Communicating Bidding Strategies During FCC Spectrum Auction

Two Internet service providers recently agreed to enter into consent decrees with the FCC for engaging in prohibited communications regarding their bids and bidding strategies with other FCC Auction 105 participants.

Section 1.2105(c)(1) of the Commission’s Rules forbids FCC auction applicants from conveying certain information to other auction applicants during the “quiet period.” This “quiet period” begins on the deadline for filing a short-form application to participate in the auction and ends on the deadline for winning bidders to submit downpayments. The rule applies to any communication by an applicant regarding its own, or any other applicant’s, bids or bidding strategies.

While an applicant may state that it has applied to participate in a spectrum auction, a public statement by a party that it does not intend to place bids (or that it intends to stop bidding) can violate Section 1.2105(c)(1).

Additionally, Section 1.2105(c)(4) requires applicants to disclose to the FCC if it makes or receives a communication that appears to violate section 1.2105(c). Applicants must disclose potential violations in writing to the Commission immediately, and no later than five business days after the communication occurred.

In one case, a company official expressed to a Wireless Internet Service Providers Association members email group his company’s intent to cease participating in the auction. This email group included other auction participants, at least one of whom timely reported the communication to the FCC as required by Section 1.2105(c)(4).  The company itself self-reported the disclosure, and ultimately elected to enter into a consent decree with the FCC to resolve the matter.  While the consent decree did not include an admission of guilt, the company did agree to institute a training and compliance program, file annual compliance reports with the FCC for the next three years, and pay a civil penalty of $30,000.

In a separate matter, an officer of another potential bidder posted a statement to a Facebook group saying that the company did not intend to place any bids in the auction. Another auction participant saw and timely reported the communication to the FCC, but in this case, the potential bidder that posted the message did not self-report the communication to the FCC.

When the FCC commenced an investigation, the potential bidder elected to enter into a consent decree with the Commission to conclude the matter.  In this case, however, the consent decree included an admission that the party violated Section 1.2105(c)(4) by not reporting the prohibited communication. Along with committing to a training and compliance program, and submitting annual compliance reports to the FCC for the next three years, the potential bidder agreed to pay a civil penalty of $50,000 to conclude the investigation.

A PDF version of this article can be found at FCC Enforcement ~ August 2021.

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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:

  • Rhode Island LPFM Station Issued $15,000 Fine for Underwriting Violations
  • In Reversal, FCC Rescinds Grant of Construction Permit for Portland FM Translator Over Interference Concerns
  • Unauthorized Operations and EAS Violation Result in Proposed $25,000 Fine for Florida LPFM Station

 Rhode Island LPFM Station’s Underwriting Violations Cost $15,000

The FCC’s Enforcement Bureau entered into a Consent Decree with the licensee of a Rhode Island low power FM (LPFM) station to resolve an investigation into violations of the FCC’s underwriting laws and other rules governing the ownership of LPFM stations.

The underwriting laws aim to preserve the unique nature of the commercial-free, local programming LPFM stations provide to the public, and in turn these stations benefit from access to spectrum and fewer regulatory requirements.  To accomplish this, Section 399B of the Communications Act of 1934 and Section 73.503(d) of the FCC’s Rules prohibit such stations from broadcasting promotional announcements on behalf of for-profit entities in exchange for compensation.  The FCC’s rules also place ownership restrictions on LPFM stations, prohibiting (1) a party from holding an attributable interest in another broadcast station; (2) a transfer of control of an LPFM station without first obtaining FCC approval; and (3) a transfer or assignment of an LPFM license within three years from the date of issue.

Between May 2016 and January 2020, the FCC received a series of complaints concerning announcements broadcast by the station.  Specifically, the complaints alleged that the station had broadcast commercial advertisements, and questioned the station’s compliance with the ownership limitations for LPFM stations.  The Enforcement Bureau followed up by issuing multiple letters of inquiry to the broadcaster seeking information regarding the underwriting practices and ownership structure of the station.  In response, the broadcaster admitted that, over a 16-month period, it received compensation for at least 17 announcements aired on behalf of for-profit entities.  The station also acknowledged that one of its board members held an attributable interest in another radio station, and that a transfer of control effectuating a complete change in board membership took place on March 21, 2016, roughly one year after the FCC issued the station license, and without prior FCC approval.  In fact, the required FCC transfer application was not filed until March 14, 2019.

To resolve the investigation, the license holder entered into a Consent Decree with the Enforcement Bureau under which it must pay a $15,000 civil penalty and implement a five-year compliance plan to prevent future violations.

Upon Further Review: FCC Rescinds Oregon FM Translator Construction Permit Grant Over Predicted Interference

In a recent Memorandum Opinion and Order, the FCC reversed the prior grant of a construction permit to the licensee of a Portland, Oregon FM translator station due to concerns over predicted interference to listeners of a local radio station.

Under Section 74.1204(f) of the FCC’s Rules, the Commission will reject applications for FM translator stations if the proposed operation would cause interference to an existing broadcast station.  To prove such interference, a station opposing grant of such an application must provide “convincing evidence” of the impact of the proposed operation on its listeners.  This evidence includes the name and address of affected listeners, certifications or similar evidence from those listeners that they listen to the existing radio station at their address, evidence that such listener’s address is within the 60 dBu contour of the proposed FM translator, and evidence demonstrating that grant of the authorization will result in interference to the listener’s reception of the existing station at that address.  Additionally, the FCC’s rules (which have since been amended to require online public notices) required at the time that applicants seeking authorization to construct an FM translator station publish public notice of the application in the local newspaper to provide the public with an opportunity to participate in the proceeding.

Continue reading →

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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:

  • Radio Skit Gone Wrong Draws $20,000 Proposed Fine for False Emergency Alert
  • Wireless Microphones Operating on Unauthorized Frequencies Generate Hefty Proposed Fine
  • FCC Issues Citation to Convenience Store Over Errant Surveillance Equipment

No Laughing Matter: Emergency Alert Parody Leads to Proposed $20,000 Fine Against New York FM Station

The FCC recently issued a Notice of Apparent Liability for Forfeiture proposing a $20,000 fine against a New York radio station for airing a false emergency alert.  As we have written in the past, the FCC strictly enforces its rules against airing false Emergency Alert System (“EAS”) tones, arguing that false alerts undermine public confidence in the alert system.

The EAS system is a public warning system utilizing broadcast stations, cable systems, satellite providers, and other video programming systems to permit the President to rapidly communicate with the public during an emergency.  Federal, state and local authorities also use the EAS system to deliver localized emergency information.  The FCC’s rules expressly forbid airing EAS codes, the EAS Attention Signal (the jarring long beep), or a recording or simulation of these tones in any circumstance other than in an actual emergency, during an authorized test, or as part of an authorized public service announcement.  Besides desensitizing the public to alerts in cases of real emergencies, the data embedded in the codes can trigger false activations of emergency alerts on other stations.

On October 3, 2018, FEMA, in coordination with the FCC, conducted a nationwide test of the EAS and Wireless Emergency Alert (“WEA”) systems.  Shortly afterwards, the FCC received a complaint that a New York FM station transmitted an EAS tone during an on-air skit lampooning the scheduled test.  The FCC issued a Letter of Inquiry to the station, demanding a recording of the program and sworn statements regarding whether the tone was, in fact, improperly transmitted.

In response, the station confirmed that it aired the EAS Attention Signal as part of a skit produced by a station employee.  When reviewing the skit before airing, the station spotted an improper EAS header code in it, and told the employee to delete it.  However, the employee merely replaced the header code with a one-second portion of the EAS Attention Signal.  The station then approved and aired the program.

In response, the FCC found that the segment violated its rules, noting that the “use of the Attention Signal in a parody of the first nationwide test of the EAS and WEA is specifically the type of behavior section 11.45 seeks to prevent.”  The FCC also noted that the brief duration of the tone aired was not a defense to a finding of violation.

As a result, the FCC proposed a $20,000 fine.  Although the base fine for airing a false EAS alert is $8,000, the FCC concluded that the circumstances surrounding this case warranted an upward adjustment.  In particular, the FCC stressed the gravity of the situation, noting that the broadcaster aired the false alert on one of the highest-ranking stations in New York City, which itself is the nation’s largest radio market.  Given these facts, the FCC proposed a $20,000 fine.  The station has thirty days to either pay the fine, or present evidence to the FCC justifying reduction or cancellation of it.

A Broad Spectrum of Violations Creates Problems for Wireless Microphone Retailer

In a recently-issued Notice of Apparent Liability for Forfeiture, the FCC proposed a $685,338 fine against a seller of wireless microphones, asserting that the retailer advertised 32 models of noncompliant wireless microphones.

The FCC allocates radiofrequency spectrum for specific uses, with particular attention given to the potential for harmful interference to other users.  The FCC has made certain bands available for use by wireless microphones, with technical rules varying depending on the particular band used.  For manufacturers and retailers, this means their devices must be designed to operate only within the permitted frequency bands.

Under Section 302(b) of the Communications Act, “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to [FCC Rules]”.  Section 74.851(f) of the FCC’s Rules requires devices that emit radiofrequency energy (like wireless microphones) to be approved in accordance with the FCC’s certification procedures before being marketed and sold in the United States.  Such devices are also subject to identification and labeling requirements. Continue reading →

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Earlier today, the FCC released a Notice of Apparent Liability for Forfeiture against CBS for false EAS alerting, which is FCC-speak for “CBS, tell us why we shouldn’t fine you $272,000 for airing a fake EAS alert tone.”  We’ve written on a number of occasions about FCC fines for airing false EAS alert tones (see, for example, here, here and here).  We’ve also written about false EAS alerts that were unintentionally aired, with my personal favorite in that category being EAS Alerts and the Zombie Apocalypse Make Skynet a Reality.  However, fines for airing false EAS tones have become sufficiently common in recent years that we have largely stopped writing about them.

Today’s decision was a bit different, however.  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….” False EAS alerts have typically popped up in commercials as a way of getting jaded viewers’ and listeners’ attention, which makes them challenging to successfully defend.  After all, the advertiser in that scenario is typically counting on the alert tone to draw attention to the ad for reasons entirely unconnected to public safety.  While the advertiser might claim that this prohibition violates its First Amendment rights, that’s not likely a winning argument since commercial speech receives reduced First Amendment protection (which is why, for example, the Federal Trade Commission can prohibit false advertising).

But what happens when the use of the alert tone is not in an ad?  In the case of CBS, the FCC succinctly describes the offending content (which you can also view here) as:

CBS admits that it transmitted the program Young Sheldon on April 12, 2018, which included a “tornado warning sound effect integral to a story line about a family’s visceral reaction to a life‐threatening emergency and how surviving a tornado changed family relationships.”

While the FCC acknowledged that CBS made efforts to ensure the tone was a simulation that did not trigger EAS equipment, the FCC noted that Section 11.45 still prohibits simulations of an EAS tone.  Among other defenses CBS raised in response to the FCC’s assertion that the broadcast violated Section 11.45, it argued that no viewer would be so confused as to think it was a real emergency, and that the broadcast is protected by the First Amendment to boot.  That’s where this case gets interesting.

The FCC is effectively claiming that CBS falsely yelled “fire” in a crowded theater, which is the well-established exception to First Amendment protections.  CBS, on the other hand, is countering that it only yelled “boogeyman”, and that any reasonable viewer isn’t going to panic, because the public knows the difference between real and fictional things.

For students of the First Amendment, the part that first catches the eye is the absolutism of the Commission’s decision.  Only very rarely does the First Amendment permit blanket bans on particular speech in all circumstances.  While you may be prosecuted for yelling “fire” in a crowded theater, you can, for example, say it if you are in command of a firing squad.

The FCC’s treatment of the EAS tone as sacrosanct admittedly makes it difficult for a drama to realistically depict an emergency and people’s reaction to it.  Whenever a particular type of content is forbidden in all circumstances except where the government specifically authorizes it, First Amendment issues inevitably arise.

In today’s decision, the FCC presented three reasons to justify the blanket prohibition.  These would be to “(1) prevent consumer confusion at the moment of a broadcast of the Tones, (2) prevent the inadvertent technical triggering of additional EAS warnings, and (3) prevent the accretion of non-emergency uses of the Tones that will dull consumers’ attentiveness to the public-safety import of the sounds.”  While the FCC had to concede that CBS’s efforts to modify the tone had been successful in preventing the triggering of additional EAS warnings, it was not convinced that consumer confusion could not have occurred, and was certainly concerned about the public getting alert fatigue.

But it’s not really the fact that the FCC rejected CBS’s arguments that is of interest to broadcasters, but how it was done.  First, the Commission noted the now archaic (but admittedly not yet overruled) court precedent that content on broadcast stations receives a lower level of First Amendment protection than all other media.  Whether that still makes sense in the modern era, the FCC’s argument creates the very real possibility that false EAS alert tones could be forbidden on broadcast TV, where the legal standard of First Amendment review is “intermediate scrutiny”, but be constitutionally protected on cable TV, where restrictions on content must meet the far tighter “strict scrutiny” standard.  Since EAS alerts are also transmitted by cable systems, however, the risk of public confusion and alert fatigue is the same on cable as it is on broadcast TV.  That raises the question of how strong the government’s interest in prohibiting false EAS alert tone simulations on broadcast TV can be if those same false alert tones might be constitutionally protected on cable TV programs.

Seeing that trap, the FCC tried to avoid it by arguing that even though First Amendment protections are reduced for CBS as a broadcaster, it doesn’t matter, because the government’s interest in preventing public confusion and alert fatigue is so compelling as to survive strict scrutiny under the First Amendment, allowing the rule to also be enforced against cable TV providers.

Public safety can certainly be a compelling government interest.  However, to survive strict scrutiny, a regulation must also be “narrowly tailored” to further the government’s compelling interest, and be the “least restrictive means” for doing so.  A blanket government ban on using even a simulation of the EAS tone would probably have a tough time surviving strict scrutiny under the First Amendment, but if the FCC could argue to a court that there is something uniquely valuable about the public hearing the tone only when there is an actual emergency, a court might well agree.

But that’s where the FCC may have undercut its own argument.  In July 2018, the FCC modified its rules to allow the airing of “the EAS Attention Signal and a simulation of the EAS codes as provided by FEMA” where they are used in EAS Public Service Announcements provided by “federal, state, and local government entities or non-governmental organizations, to raise public awareness about emergency alerting.”  To avoid confusion, such messages must state that the tone is being presented in the context of a PSA for the purpose of educating the public about EAS.

It would be challenging for the FCC to successfully argue in court that a single use of a simulated EAS tone creates listener fatigue when it has just authorized unlimited use of the actual tone in PSAs.  Similarly, the FCC weakened its argument that any non-emergency use of the tone inevitably leads to public confusion, when, by requiring the PSAs to contain a disclaimer letting the public know it is not an emergency, the FCC concedes that it is possible to present the tone (or a simulation thereof) in a manner that does not confuse the public.

That would seem to make it a a finding of fact as to whether a particular use of a simulated tone is likely to cause public confusion versus public education, and to be candid, a dramatic representation of a family reacting to an EAS tone probably conveys the importance of the tone far better than a PSA that most viewers will fast-forward past (or miss while getting a sandwich).  Admittedly, that is a slippery slope, but First Amendment analysis perpetually lives on that slope.

Regardless of how a court might balance these competing interests, the real irony of the whole affair is that Young Sheldon is set in Texas circa 1989-90.  The Emergency Alert System was not activated until 1997, meaning that a realistic portrayal of a tornado watch in 1990 would have featured the much different twin-frequency monotone Attention Signal of the earlier Emergency Broadcast System.  What’s the irony, you say?  The FCC’s restrictions on using the EBS tone outside of an emergency were eliminated twenty years ago.  Young Sheldon could have been both historically accurate and FCC-compliant had it just used the EBS tone instead.

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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:

  • Big-4 Network, Among Others, Settles With FCC Over Emergency Alert Tone Violations
  • Despite Self-Disclosure, Sponsorship ID Violations Land $233,000 Proposed Fine
  • Topeka TV Licensee Enters Into Consent Decree Over Late-Filed KidVid Reports

False Alarm: FCC Enters Into Multiple Consent Decrees Over Emergency Alert Tone Violations

In a single day last week, the FCC announced four separate Consent Decrees in response to unauthorized uses of the Emergency Alert System (“EAS”) tone across various media outlets.  The parent companies of a Big-4 broadcast network and two cable channels, as well as the licensee of two southern California FM stations, each agreed to significant payments to settle investigations into violations of the FCC’s EAS rules.  According to the Consent Decrees, unauthorized emergency tones have reached hundreds of millions of Americans in the past two years alone.

The Emergency Alert System is a nationwide warning system operated by the FCC and the Federal Emergency Management Agency that allows authorized public agencies to alert the public about urgent situations, including natural disasters and other incidents that require immediate attention.  Once the system is activated, television and radio broadcasters, cable television operators, and other EAS “participants” begin transmitting emergency messages with distinct attention tones.  These tones consist of coded signals that are embedded with information about the emergency and are capable of activating emergency equipment.  Wireless Emergency Alerts (“WEA”), which deliver messages to the public via mobile phones and other wireless devices, also use attention signals.

Emergency tones may not be transmitted except in cases of: (1) actual emergencies; (2) official tests of the emergency system; and (3) authorized public service announcements.  In an accompanying Enforcement Advisory published on the same day as the Consent Decrees, the FCC’s Enforcement Bureau noted that wrongful use of the tones can result in false activations of the EAS, as well as “alert fatigue,” in which “the public becomes desensitized to the alerts, leading people to ignore potentially life-saving warnings and information.”

For the Big-4 network, it all started with a joke.  Around the time of last year’s nationwide EAS test, a late-night network talk show parodied the test in a sketch that incorporated emergency tones.  According to the Consent Decree, the network’s programming reaches almost all US television households through hundreds of local television affiliates, as well as through the network’s owned and operated stations.  Shortly after the episode aired, the company removed the offending portions of the program from its website and other streaming sites and did not rebroadcast the episode.  Despite these remedial actions, the damage was already done; in response to the Enforcement Bureau’s investigation, the network’s parent company agreed to pay a $395,000 “civil penalty.”

The parent companies of two major cable channels entered into similar agreements.  In one instance from this past year, an episode of a popular show set in a zombie-infested post-apocalyptic world used simulated EAS tones on multiple occasions over the course of an hour.  That episode was transmitted on eight separate occasions over a two-month period.  According to the Consent Decree, within weeks of the episode’s debut, the Enforcement Bureau reached out to the network regarding the unauthorized uses of the tone and, after a brief investigation, the network’s parent company agreed to pay $104,000 to resolve the matter. Continue reading →

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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:

  • Investigation Into Undisclosed Radio Station Owner With a History of Felonies Leads to Hearing Designation Order
  • FCC Settles With Alaskan Broadcaster After Disastrous Station Inspection
  • FCC Reinstates Licenses for Tennessee and Alabama Radio Stations, Then Immediately Threatens to Revoke Them

Continue reading →

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Last week, the Federal Emergency Management Agency (FEMA) formally notified the FCC that FEMA has scheduled the next nationwide test of the Emergency Alert System (EAS) for August 7, 2019 at 2:20 p.m. FEMA states that this year’s test will differ from the nationwide tests that have been conducted over the past several years in that it will be issued through the National Public Warning System, composed of FEMA-designated Primary Entry Point facilities, to test the readiness of the EAS to function in the absence of Internet connectivity.

Continue reading →

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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:

  • Oregon LPFM Station Warned Over Emergency Alert System Violations
  • Pennsylvania Man Accused of Interfering With Local Fire Department Operations
  • Earth Station Transmission Problems Lead to Warning Against Florida Wireless Licensee

This is Not a Test: Low Power FM Station Warned Over Emergency Alert Violations

The FCC’s Enforcement Bureau presented a Notice of Violation (“NOV”) to the licensee of a Portland, Oregon low-power FM radio station for a number of violations relating to the Emergency Alert System. The licensee is a local cultural community center that broadcasts Russian-language programming to the area’s Eastern European community.

The Emergency Alert System (“EAS”) is a nationwide warning system that allows authorized state and national public agencies to alert the public about urgent situations, including natural disasters and other incidents that require immediate attention.  The EAS is jointly operated by the FCC, the Federal Emergency Management Agency, and the National Oceanographic Atmospheric Administration.  Local radio stations make up a vital component of the system by monitoring authorized sources for alerts and rapidly relaying these emergency messages.  Such stations are referred to as “EAS participants.”  Each state is responsible for creating a state EAS plan, which includes designating in-state stations that other stations must constantly monitor for alerts.

Section 11.15 of the FCC’s Rules requires that a copy of the EAS Operating Handbook be located “at normal duty stations or EAS equipment locations when an operator is required to be on duty.”  Section 11 of the Rules also requires EAS participants to monitor two sources, which are specified in each state’s respective EAS plan.

In February 2019, Enforcement Bureau agents inspected the Portland station and discovered two violations of the EAS Rules.  According to the NOV, the station was unable to produce its copy of the EAS Operating Handbook.  The agents also discovered a monitoring error.  The most recent Oregon State Emergency Alert Plan required the station to monitor two specific Portland area FM stations.  During the inspection, the agents found the LPFM station had instead been monitoring a different station.

The licensee has 20 days to respond to the NOV.  In its response, it must provide: (1) an explanation of each violation; (2) a description of the licensee’s corrective actions; and (3) a timeline for completion of these actions.  The FCC will then consider the licensee’s responses and all relevant information to determine what, if any, enforcement action it will take against the licensee for the violations.

State Your Emergency: FCC Accuses Pennsylvania Man of Interfering With Safety Services

In a Notice of Unlicensed Operation and Notification of Harmful Interference (“Notice”), the FCC accused a man of using a two-way radio to cause harmful interference to a local emergency services operation by making unauthorized transmissions on a frequency reserved for public safety.

As we discussed last year, Chairman Pai has noted that protecting public safety and emergency response communications is of the utmost importance.  The Enforcement Bureau has recently responded aggressively to interference complaints from first responders and emergency service departments, including issuing multi-thousand dollar fines.

Section 301 of the Communications Act prohibits the transmission of radio signals without prior FCC authorization.  Section 90.20 of the Rules establishes the requirements for obtaining authorization to use public safety frequencies.  The FCC reserves certain bands for first responders as “public safety spectrum.” Unauthorized transmissions on such bands can pose a threat to first responders and the general public by interfering with local emergency service operations, including police, EMS, or in this case, the fire department.

The Enforcement Bureau began its investigation after being contacted by an eastern Pennsylvania county’s Emergency Management Association.  According to the complaint, harmful interference and unauthorized transmissions were occurring on 155.190 MHz, a frequency used for local fire department communications.  The Enforcement Bureau identified a local individual as the source of the interfering transmissions.

According to the Notice, the individual admitted to operating a VHF-UHF two-way radio at 155.190 MHz, despite not being authorized to operate on that frequency.

The individual was given 10 days to respond to the Notice.  In his response, the individual must explain the steps he is taking to avoid operating on unauthorized frequencies and causing harmful interference.  It will then be up to the FCC to determine whether further enforcement action, including fines or other sanctions, is appropriate. Continue reading →

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The Federal Emergency Management Agency (FEMA), in coordination with the FCC, announced this morning that the National Emergency Alert System (EAS) and Wireless Emergency Alerts (WEA) tests scheduled for this Thursday, September 20, have been postponed due to “ongoing response efforts to Hurricane Florence.”

Instead, the tests will be conducted on the previously announced backup date of October 3.  The Wireless Emergency Alerts test will commence at 2:18 p.m. EDT and the EAS test will commence at 2:20 p.m. EDT on that date.  FEMA has indicated that the purpose of the tests is to “assess the operational readiness of the infrastructure for distribution of a national message and determine whether improvements are needed.”

As we previously discussed on CommLawCenter, in preparation for the national test, all EAS Participants were required to file their Form 1 with the FCC by August 27, 2018.  They were then to file their Form 2 (day of test data) on September 20, 2018, with the final test report to be filed on Form 3 by November 5, 2018.

The Form 2 (and likely the Form 3) deadline will now shift to align with the new October 3 test date.  As of the publication of this post, the FCC had not yet announced new filing deadlines, but the Form 2 will likely be due on October 3, 2018, and since the FCC’s Rules require that EAS Participants “are required to file detailed post-test data 45 days following a nationwide EAS test,” the Form 3 deadline will most likely move to November 19, 2018.  Those are just predictions, however, and broadcasters and other EAS Participants should watch for a formal announcement from the FCC with the new filing deadlines.

[Editor’s Note: Subsequent to publication, the FCC did in fact release a Public Notice confirming the October 3 deadline for Form 2, and the November 19 deadline for Form 3.]

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The FCC and FEMA have established September 20, 2018 as the date for the next nationwide test of the Emergency Alert System (EAS).  The nationwide test is designed to study the effectiveness of the EAS and to monitor the performance of EAS participants.  The Wireless Emergency Alert (WEA) system will be tested immediately prior to the test of the EAS.  The FCC and FEMA have designated October 3, 2018 as the back-up date should circumstances prevent testing on September 20.

While the test itself is a month away, all EAS participants must file their Form One with the FCC by August 27, 2018 in preparation for the test.  To make this filing, EAS participants must log in to the EAS Test Reporting System using an FCC Username Account.  Those filers who do not already have an account can register for one in the FCC’s updated CORES system.  Once a username account is set up, it will need to be associated with a licensee’s FCC Registration Number (FRN) before the user can draft or file forms for that licensee’s station(s).  Many filers struggled to successfully register in past years, but those who participated in the annual test in 2017 should already be registered.

Form One requests information about a station’s transmitter location, EAS equipment, and the stations it is assigned to monitor.  For most EAS participants, this information will prefill from last year’s Form One (so be particularly careful reviewing it if your monitoring assignments, equipment, or something else has changed since last year).  Stations will also see an instruction to file a separate Form One for each encoder, decoder or combination unit.  Most broadcasters will likely have a combination unit and therefore only need to file a single Form One.  However, there may be situations where multiple filings are needed, for example where a cluster of co-owned radio stations share a studio but have to employ separate encoders and decoders to deal with stations in the group having different monitoring assignments.

As in the past, after the test is completed, participants must report the results of the test by filing Form Two, which requests abbreviated “day of test” data, and then Form Three, which collects more detailed data about the station’s performance.

Filing Deadlines:

  • Form One must be filed on or before August 27, 2018.
  • Form Two (“day of test” data) must be filed by 11:59 PM (EDT) on September 20, 2018.
  • Form Three must be filed on or before November 5, 2018.

Additional Requirements

To prepare for the test, the FCC recommends that EAS participants review the EAS Operating Handbook and be sure that it is available at normal duty positions or EAS equipment locations, and is otherwise readily accessible to employees responsible for managing EAS actions.

Participants should also use this time to ensure their facilities are in a state of “operational readiness.”  Operators should confirm that their EAS equipment has any necessary software and firmware upgrades and that it is capable of receiving the various test codes.  If not automatic, operators must also manually set their EAS equipment to the “official time” as established by the National Institute of Standards and Technology.  Each of these issues has been a significant cause of stations being unable to receive or transmit past tests.

Finally, the person filing for each station should verify that they have the right username, password, and licensee FRN in advance of the filing deadline.  Experience from the the past two national tests revealed that many stations were caught off guard not by the test itself, but by their inability to access the ETRS to make required filings, often because of confusion surrounding how to log in.

Summer break notwithstanding, this is one test that broadcasters should study for ahead of time.