In response to non-request for waiver, Public Safety and Homeland Security Bureau waives rules that may not need to be waived.
Broadcasters may be asked (many apparently already have been asked) by the Federal Emergency Management Agency (FEMA) to broadcast some PSA’s relating to the (relatively) new Wireless Emergency Alert (WEA) system. While some broadcasters have reacted to that request with understandable – and legitimate – reluctance, the FCC’s Public Safety and Homeland Security Bureau has now assured us that the PSA’s are OK for broadcast. . . as long as certain conditions are met.
The bottom line here is relatively simple; getting there, though, requires a surprising amount of explanation.
For years, FEMA and the FCC and others have been working to improve the overall ability of government officials to alert the citizenry to emergency situations. Broadcasters have observed one aspect of that effort in the overhaul of the Emergency Alert System. On the non-broadcast side, the FCC established the WEA system, through which the guv’mint can send geographically-targeted emergency messages direct to individuals’ mobile devices. The WEA has already been triggered in a wide range of situations – hurricanes, tornadoes, terrorist threats, missing persons, etc. – and has, according to the FCC, “proven to be a valuable tool”.
So what’s the problem?
When the WEA system is triggered, it sends out an “Attention Signal” to all mobile devices serviced by carriers participating in the system. That signal apparently sounds an awful lot like the standard two-tone EAS signal familiar to the broadcast audience. In addition, the signal is accompanied by a unique “vibration cadence” (we don’t know exactly what that feels like, but it’s probably worth checking out on a number of levels). The goal, obviously, is to get the attention of the person with the mobile device.
The good news is that the attention signal apparently works because it gets the user’s attention. The bad news is that a lot of users apparently don’t want their attention to be gotten. FEMA reports that “many people are startled or annoyed when hearing the WEA attention signal for the first time” and, worse yet, many have inquired about “opting-out” of the WEA system.
What’s an agency to do?
The answer is obvious: Prepare a bunch of PSA’s to convince the (supposedly) “confused” and (certainly) “annoyed” Great Unwashed that, rather than opting out, they should embrace the WEA Attention Signal. And how better to do that than to include the Attention Signal itself within the PSA?
Experienced broadcasters will see where this is going.
It is well-established – in Section 11.45 of the rules – that broadcasters are not supposed to broadcast EAS tones except in times of true emergency (or in connection with routine EAS tests). (Rationale: The FCC does not want to “dissipate[ ]” the “attention grabbing value” of the alert.) But there is no corresponding prohibition against broadcasting WEA Attention Signals. The closest rule on that score is Section 10.520, which says nothing at all about broadcasting. Still, because WEA signals so closely resemble EAS tones, a number of broadcasters presumably didn’t want to take the chance that the WEA signal might be mistaken for the EAS tones, leading to forfeiture notices and other unpleasantness. So they told FEMA “thanks but no thanks” when asked to air the FEMA PSA’s that included the WEA signals. The utility of the PSA component of FEMA’s effort to win public buy-in for the WEA system was thus threatened.
Since the problem appeared to arise from the FCC’s rules, FEMA wrote to the Bureau, asking for its “support in allaying the concerns . . . about playing a PSA that includes” the Attention Signal.
The Bureau, happy to play ball with FEMA, has agreed essentially to waive whatever rules might need to be waived to encourage the broadcast of the PSA’s.
The result is an interesting exercise in bureaucratic contortionism. Consider these elements: First, FEMA’s letter did not include any explicit request for any waivers; rather it just asked for the Bureau’s support. Second, the lack of a waiver request makes sense because there is no regulatory prohibition against the broadcast of WEA Attention Signals, so no waiver was technically necessary. Third, the Bureau’s goal here appears to be to convince broadcasters that they can and should ignore the instinct that screams “Danger – Likely Rule Violation Dead Ahead”, an instinct you’d think the FCC would want to encourage. And fourth, FEMA (with the Bureau’s help) is trying to convince people that they really shouldn’t be annoyed or confused when their mobile devices suddenly start to emit annoying and confusing signals.
The bottom line? An artful paragraph in which, on its own motion, the Bureau has granted
a limited waiver of Sections 11.45 and 10.520 of the Commission’s rules, for a period of one year from the release date of this Order, to allow the broadcast or transmission of the WEA Attention Signal in PSAs produced as part of FEMA’s WEA public education campaign. In doing so, we recommend that FEMA take steps to ensure that such PSAs clearly state that they are part of FEMA’s public education campaign.
The Bureau also cautioned that, in order to be permissible, FEMA’s PSA’s should not “predictably lead the public into concluding that an actual alert is being transmitted”. Example? “[L]eading off a PSA with a WEA Attention Signal, without warning.” The Bureau concedes that that could be “an effective attention-getting device”, but it’s nevertheless verboten because of the “predictable effect it could have” on the audience.
As silly as this bureaucratic dance might seem, the government’s heart is in the right place here. With mounting meteorological devastation across the country, not to mention potentially catastrophic accidents (e.g., three major railroad incidents in less than two weeks) and the constant threat of terrorism, the government’s ability to notify citizens of imminent danger is a matter of some legitimate urgency. That being the case, though, you might have thought that FEMA and the FCC would have worked out such details as public promotion of its WEA program before launching the program.
