A legal eagle’s eye view of EAS


The FCC has come out with a new report and order, plus a further notice of proposed rulemaking, on the Emergency Alert System. Here with us today is attorney Peter Gutmann of Womble Carlyle Sandridge & Rice PLLC to break it all down for us. As usual, the opinions expressed here are just that – opinions – and should not be used for barber shop arguments, wagering or actual litigation. Peter?

WCS&R EAS report

Upcoming Changes in Emergency Alert System
From: Peter Gutmann

The FCC has issued a Report and Order coupled with a Further Notice of Proposed Rulemaking to implement and explore upgrades to the current Emergency Alert System (EAS).

Prompted in part by Hurricane Katrina experiences and terrorism concerns, the Commission's new rules expand the scope, sophistication and responsiveness of EAS, including providing for a new "Common Alerting Protocol" (CAP), although implementation is to be dependent upon adoption of CAP and other EAS standards by the Federal Emergency Management Agency (FEMA).

The specific rule and policy revisions are in the following areas:

* Maintenance of Existing EAS — Subject to the new upgrades to enhance its effectiveness, the Commission is requiring all current EAS participants (including broadcast stations and cable systems) to retain the existing EAS, since more robust alternative delivery mechanisms are not yet deployed and have not been tested for reliability. Similarly, while the National Oceanic and Atmospheric Administration Weather Radar (NWR) network has generated the vast majority of state and local EAS messages, the Commission believes that it should be integrated with EAS, rather than viewed as a potential replacement.

* CAP — The CAP is to be adopted as the uniform messaging protocol for EAS alerts (in place of the current protocol that inserts special digital codes at the beginning of messages). The CAP standard will specify fields such as message type, scope, incident, event information, event certainty, sender, geographic scope and the effective and expiration times for an alert. In addition to promoting accurate and meaningful message creation while decreasing the potential for operator error, CAP is intended to facilitate interoperability among devices by enabling EAS to operate over multiple platforms and thereby achieve widespread distribution with redundancy. As with many of the other changes specified in the Commission's Report and Order, EAS participants will be required to accept alerts and warnings in the CAP format only 180 days after the date when FEMA publishes the applicable technical standards. The Commission generally notes that the industry has been aware for some time that EAS delivery standards were apt to change and that 180 days will provide a reasonable period for implementation.

* Authentication and Security — Concerned over potential vulnerabilities and unauthorized access within EAS, and particularly during periods when facilities are operating unattended, the Commission expects FEMA to develop policies, plans and procedures to allow those who initiate and retransmit EAS signals to encrypt, authenticate and validate EAS alerts.

* Next-Generation Distribution Systems — Aware that natural disasters and terrorist incidents can disrupt terrestrial communications, the Commission anticipates the use of other EAS distribution platforms. Although the specifics will depend largely upon FEMA, the Commission looks to satellite-based or Internet-based systems to complement the existing station-relay distribution method.

* Expanded Participation — Currently, only wireline video providers that qualify as cable operators are required to participate in EAS. The Commission is extending participation to all other wireline video providers (including such entities as open video systems and telephone companies using optical fiber).

* Non-Federal Alerts — Currently, although only federal alerts are required to be transmitted and received by EAS, all states have approved EAS plans that have been implemented by local stations and cable systems. The Commission notes, though, that while broadcasters routinely provide localized emergency information to the public, none was formally activated by state governors. Consequently, the Commission believes it should go further to encourage and facilitate state use of the EAS network. However, the Commission will only require EAS participants to receive and transmit EAS messages delivered to them by a state governor or the governor's designee or by FEMA on behalf of a state. The Commission will also consider through further rulemaking other local officials who might be authorized to activate EAS. The Commission anticipates that CAP will enable geographic targeting, by which a governor could deliver an alert only to particular regions. The Commission notes, though, that satellite radio and DBS service providers, because of their nationwide footprints, would not be required to accommodate state-level alerts.

* Coordination with State and Local Governments — The Commission notes that all state governments, as well as many local jurisdictions, although not currently required to take part, have elected to participate in EAS to varying degrees. All such participants will be required to file modified EAS plans with the FCC at least 90 days before they are to become effective. The Commission also will require state and local entities to confirm their plans and designations annually.

* Needs of Persons with Disabilities and Non-English Speakers — The Commission looks to CAP as a means of making emergency information available to devices commonly used by persons with disabilities and in multiple formats, including presenting audio feeds as text and vice-versa. The Commission also seeks to determine where and how to provide information to appropriate populations in languages other than English. Both of these matters are the subject of the Further Notice of Proposed Rulemaking.

Again, although the Commission has implemented these changes to its rules, most are to await action by FEMA. At this point, it is unclear the extent to which software patches, equipment upgrades or other expenditures may be required in order for individual broadcast stations, cable systems and other participants to implement these changes.