CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

This morning’s Federal Register contained a notice that the FCC is asking OMB for full three-year approval of the Commission’s electronic reporting system for the Nationwide EAS Test.  As we reported last week, because of an apparent SNAFU at the Commission, the on-line reporting system didn’t get over to OMB in time for the standard three-year Paperwork Reduction Act approval process; accordingly, the FCC sought emergency approval, which OMB issued. Such emergency approvals are good for only six months, more than enough to get everybody through the November 9 test this year.

But the Commission apparently hopes to be using its on-line reporting system in the coming years – who wouldn’t? – so it had to go back to OMB. That’s what it’s done, according to this morning’s Federal Register notice, which assures the reader that the latest filing doesn’t change anything from the previous, emergency, filing: (a) “[t]here are no changes in any of the reporting and/or recordkeeping requirements” from what OMB has already aurthorized; and (b) “[t]here is no change to the Commission’s previous burden estimates.”

Hold on there. As to changes in the reporting requirements, the FCC has already revised its on-line report form in a couple of respects. Arguably minor respects, to be sure, but changes nonetheless. Wouldn’t it be a good idea to tip OMB off to those changes now, as long as you’re going back to OMB for a non-emergency review?

And about those “burden estimates”. Let’s look at the record. Back in September (according to the Federal Register), the FCC advised OMB that the “estimated time per response” for completing the on-line Nationwide EAS Test report was (and we’re not kidding here): “.034-20 hours”. According to today’s notice, that number has shrunk dramatically to a mere “.0229776 hours”.

Take a minute to wrap your mind around those numbers. According to the first estimate, the FCC was figuring that it would take a responder somewhere between 2.04 minutes and 20 hours to get the report completed and filed. That’s probably a safe range – maybe a bit extreme on both ends, but certainly most folks should be able to get the job done somewhere between two minutes and 20 hours. But according to today’s estimate, we’re all looking at a time commitment of just under 90 seconds (i.e., 1.378 minutes). Isn’t that a tad ambitious?

Of course, the more of these Paperwork Reduction Act estimates we see, the more we become convinced that they have no meaning. Take today’s notice: “.0229776 hours”? Where did that number come from? Seven digits to the right of the decimal point? C’mon. That’s particularly aggravating since anyone who has tried to complete the report should know that, even with all the coordinates and FRNs and facility ID numbers and other necessary information readily at hand, it’s probably going to take longer than 90 seconds to file a single report. 

Want another example of the FCC’s dubious numbers? According to both the September notice and this morning’s, the FCC says that the “Number of Respondents” using the on-line EAS report form will be 3,569,028.  Can we all agree that it’s seriously unlikely that there will be 3.5 million people, or stations, or reporting entities, filing EAS reports?

We have previously remarked on the FCC’s bizarre estimates in its Paperwork Reduction Act submissions. This latest batch does nothing to shore up our confidence in them – or in the Paperwork Reduction Act process as a whole.

Mandatory Cellphone Information The electronic reporting option also requires that the reporting licensee provide a cellphone number (in addition to a “phone” number) for the identified contact person. At least one person has asked what to do if the contact doesn’t have a company-issued cellphone. There is no answer for that question. The Commission, in its infinite wisdom, has apparently set up the form based on the assumption that everybody has a cellphone, so the notion that somebody might not just does not compute. Note that the form does not necessarily require entry of a company cellphone number. That is, if the contact person has a personal cellphone, that number could be entered. However, the same questioner also expressed reluctance to cough up a personal cell number because of privacy considerations – the number would, after all, be going into a database run by an agency of the federal government. The answer there is simple, if perhaps not all that comforting: the Commission has supposedly set up its database to assure the confidentiality of the submitted information. Whether you choose to believe that answer or place any confidence in it is your business.

[Blogger Observation #3 – See comments below on electronic vs. paper filing.]

HD Radio Multicast/FM Translators   Radio and TV stations providing multiple digital streams are required by the Commission’s rules to transmit EAS messages on all streams. However, since all streams are being transmitted from a single transmitter covered by a single license, we believe that only one EAS report would be required for all streams, including the main. Note that FM translators simply rebroadcasting the signal of some other station are not required to participate in the EAS.

State Plans Out of Date At least a couple of folks expressed frustration at their inability to get up-to-date information about their state plan. If a state plan hasn’t been updated lately and the available contact information for responsible state officials doesn’t work, there’s not much that can be done. The FCC provides contact information for state officials as well as Internet addresses for some state plans. But even a quick glance down the FCC’s list indicates that some info (e.g., cellphones, email addresses) is missing for lots of the listed officials. And some of the state plans that are accessible date back more than a decade. Folks located in states lacking current contact information or plans should probably contact their state broadcast association for assistance. 

Can’t Receive Primary Entry Point Station One writer was worried because he is uncertain of his station’s ability to receive a useable signal from the PEP station to which his station is assigned. Section 11.52(d)(1) of the EAS rules provides that

If the required EAS sources cannot be received, alternate arrangements or a waiver may be obtained by written request to the FCC's EAS office. In an emergency, a waiver may be issued over the telephone with a follow up letter to confirm temporary or permanent reassignment.

So if you’re in this situation, you may want to check with the FCC’s EAS office right away.

Electronic vs. Paper? Back in February, when the FCC committed to the Nationwide EAS Test, it required all participants to submit reports on their experience in the Test. That makes sense – why run the test if you have no way of assessing how well the system performed? But in its February order, the Commission did not lay out how those reports were to be submitted. The implication was that, by default, they would be filed on paper – but the Commission held out the promise of a more convenient electronic reporting system that would supposedly make life easier for everybody.   That system was repeatedly characterized as a voluntary alternative to the on-line system that was supposed to be unveiled “shortly”, according to the February, 2011 order.

The Commission fell short on that scheduling, however. The on-line reporting system was not unveiled until October 26, a scant two weeks before the Nationwide Test. Since the system does not appear to have been vetted and test-driven by broadcasters before that unveiling, it’s probably not surprising that some bugs – er, we mean idiosyncrasies – might turn up as the 15,000 or so stations start the input process. If the Commission really did expect its electronic reporting system to be 100% problem-free right out of the box, it was probably unrealistic.

In any event, the Commission now seems to be promoting the e-reporting system as preferable to paper – and, indeed, the Commission never did get around to providing a paper “form”, or even a template, for paper submissions. All it did was provide a list of information that would have to be reported. That list – which appears in Paragraph 54 of the February, 2011 order – identifies the following data that is to be recorded and reported:

• whether they received the alert message during the designated test;
• whether they retransmitted the alert;
• if they were not able to receive and/or transmit the alert, their ‘best effort’ diagnostic analysis regarding the cause(s) for such failure;
• a description of their station identification and level of designation (PEP, LP-1, etc.);
• the date/time of receipt of the EAN message by all stations; the date/time of PEP station acknowledgement of receipt of the EAN message to FOC;
• the date/time of initiation of actual broadcast of the Presidential message;
• the date/time of receipt of the EAT message by all stations;
• who they were monitoring at the time of the test, and the make and model number of the EAS equipment that they utilized.

(Also, check out Paragraphs 62-65 of the February, 2011 order for a restatement of the required data.)  Note that this list does not include some of the information required by the electronic form – contact person info (with or without cellphone), transmitter coordinates, etc. Also, while the electronic approach requires a separate form for each separate station, there is no similar restriction on the paper version. (Given the overall lack of specific direction provided by the Commission with respect to the paper option, a reasonable reader might even conclude that there aren’t any practical “restrictions” at all.) That is, it would appear that licensees filing on paper are free to organize their submissions as they wish, as long as they submit the required information. (Note that Section 11.61(a)(3)(iv) – the reporting rule adopted last February – specifies only that “[t]est results as required by the Commission shall be logged by all EAS Participants and shall be provided to the Commission’s Public Safety and Homeland Security Bureau within forty five (45) days following the test.” Not much detail there, either.)

The fact that the Commission has not been more specific about the paper option could afford reporting stations an opportunity to craft their own paper reporting forms that might be more efficient to prepare – from the reporter’s standpoint – than the electronic form. That’s ironic, of course, because the FCC clearly anticipated that an electronic system would be preferable to all concerned. Had the Commission come up with its e-reporting system sooner, and had it made the system widely available for testing by the affected community (i.e., broadcasters and cable operators) months ago, that might have been the case. Bugs could have been worked out, questions could have been resolved, apparent problems could have been avoided. For whatever reason, the Commission chose not to go that route. It has itself to blame if the reporting results fall short of its expectations.

We previewed the reporting forms in our post yesterday. No real surprises there. EAS participants may log on as of today to complete and submit “Form 1”, which asks for some basic identifying information. Forms 2 and 3 aren’t accessible yet (although we have previously posted screen grabs of the forms as submitted by the FCC to OMB, and they are described in the FCC’s on-line instructions for electronic reporting of the Nationwide EAS Test results). According to the FCC’s instructions, Form 2 is to be completed and submitted on November 9, and Form 3 is to be submitted between November 10 and December 24.

All you multi-station owners might want to get cracking on filling out Form 1 – a separate form will be required for each separate station participating in the EAS test. (Cable owners will have to file a separate form for each headend.)

While the website instructions are silent about filing these reports on paper (as opposed to the electronic alternative available on-line), the Commission’s Handbook indicates that the information may be submitted on paper. However, it doesn’t appear that the Commission has prepared any particular form for that purpose, so presumably anyone choosing that option would simply type out the information required by the three on-line forms and send it in by December 27. 

(Yes, we see that the on-line instructions call for submission by December 24, while the Handbook says December 27. We’re guessing that that’s because December 24 – technically the 45th day after the Test and, therefore, the deadline for submissions – falls on a Saturday this year, so the filing deadline rolls over to the next regular business day, which will be December 27 because December 26 is a Federal holiday.)

Why anyone would file on paper is far from clear – but if you do opt for the old school approach, be alert to the fact that you have to file an original and one copy with the FCC Secretary’s office in D.C. Also, each page should be marked, at the top, “CONFIDENTIAL – NOT FOR PUBLIC INSPECTION”.

The nitty gritty of what the FCC wants reported is no surprise. As listed in its February 3, 2011 Third Report and Order, the Feds want EAS participants to report:

• whether they received the alert message during the designated test;
• whether they retransmitted the alert;
• if they were not able to receive and/or transmit the alert, their ‘best effort’ diagnostic analysis regarding the cause(s) for such failure;
• a description of their station identification and level of designation (PEP, LP-1, etc.);
• the date/time of receipt of the EAN message by all stations; the date/time of PEP station acknowledgement of receipt of the EAN message to FOC;
• the date/time of initiation of actual broadcast of the Presidential message;
• the date/time of receipt of the EAT message by all stations;
• who they were monitoring at the time of the test, and the make and model number of the EAS equipment that they utilized.

The Commission also anticipated that broadcast stations would provide their station call letters, license identification number, geographic coordinates, EAS assignment (LP, NP, etc), EAS monitoring assignment, as well as a 24/7 emergency contact for the EAS Participant . In the Commission’s view, all of this information is readily available to each participant, so it shouldn’t impose much of a burden to log and report it.

But how is it to be reported? As originally proposed, the Commission merely indicated that it wanted the data to be submitted, but laid out no particular form or format. Presumably they were thinking of some kind of paper filing – totally retro. In finally adopting that somewhat vague approach, though, the FCC acknowledged the desirability of electronic filing and indicated that e-filing would be preferred. As noted above, they were going to get the details on the e-filing option out “shortly”.

That hasn’t happened yet. But we at CommLawBlog have managed to track down some screen grabs of what the FCC has in mind for electronic reporting relative to the nationwide EAS test. We hasten to note that these have not (at least as of noon on October 25) been officially released by the Commission. But they’re the samples that the FCC shipped over to the Office of Management and Budget for its approval back in September – and that OMB approved on October 14 – so we’re pretty sure that this is what the FCC contemplates. When (and whether) the FCC itself will let the rest of us in on its plans remains to be seen.

Why has the FCC taken so long to deal with the e-filing option that was, as of eight-nine months ago, supposed to be made available “shortly”? It appears that somebody at the FCC may have overlooked the need to get OMB approval for the e-filing form. That need arises from (wait for it) the Paperwork Reduction Act (PRA). As we all know by now, the PRA process involves an initial 60-day comment period at the FCC, followed by a 30-day comment period at OMB. The problem is that the FCC didn’t start the initial 60-day comment period relative to the electronic reporting option until August 23. Let’s see – 30 days hath . . . oops, the initial 60-day period would have taken until October 22, and the remaining 30-day period would end up weeks after the November 9 nationwide test.

The Commission apparently focused on this chronological problem in mid-September, at which point it hustled down to OMB with a request for “emergency processing” in order to get the new e-filing system in place by “mid-October”. OMB complied with that request and managed to get its approval out the door on October 14. Why we haven’t heard anything from the Commission on this in the meantime is a mystery.

In any event, this minor snafu relative to the reporting aspect of the nationwide EAS test will almost certainly not alter the schedule for the test. November 9 is still the date, and all EAS participants should be prepared to join in and, afterwards, let the Commission know how it all went down.

And while we’re on the subject of EAS generally, here’s a CommLawBlog shout-out for FEMA’s “Emergency Alert System Best Practices Guide (Version 1.0)”, released a couple of weeks ago. This is the guide that FEMA has been compiling with input from a wide range of folks, including multiple state broadcasting associations. (Back in August and September we reported on a couple of FEMA’s “virtual roundtables” which were used to develop the guide.) Although still a work in progress – FEMA stresses that it will be updated “frequently”; FEMA also encourages input from all sectors of the “EAS Community” – it’s well worth down-loading and reviewing. It provides a reasonably comprehensive overview of the EAS process and the practical considerations that each EAS participant should focus on to be sure that its own EAS system, including both equipment and personnel, is properly set up and ready to roll. With the nationwide EAS test just around the corner, now would be a good time to check this out.

One problem in moving the process forward, however, has been the fact that the Federal Emergency Management Agency (FEMA) is also an integral player in the process. In fact, FEMA is the agency with primary responsibility for developing the CAP standards. So the FCC had to hold off on telling its regulatees what to do until FEMA had announced those standards. FEMA took care of that step in September, 2010, starting a 180-day count-down to implementation of the standard on the FCC side.

But that count-down got extended another 180 days – to September 30, 2011 – to accommodate equipment vendors and EAS participants, all of whom need time to gear up to produce the necessary equipment, obtain it, install it, test it, etc. The extension also gave the Commission extra time to revise its own EAS rules to address the transition from previous EAS standards to CAP.

The 3rdFNPRM reflects the Commission’s latest effort to take care of its end of the project. And a big project it is. After all, while moving multiple industries to a CAP-based system is the ultimate goal, the Commission must still work to maintain the existing system in the meantime. And that’s what the Commission is working on now. The plan is to retain the existing EAS while overlaying CAP messaging through RSS feeds and Internet Protocol technology.

To achieve that goal, the Commission has issued the 3rdFNPRM, a 74-page (not including appendices, which add another 50 or so pages) thicket of questions, questions and more questions. All EAS participants should take a look at it, but be forewarned: it’s not easy reading and, in the end, it’s not clear how much input any of us will really have in the final result. 

The Commission is looking for comment on the necessary steps that it must take to overlay CAP messages with the current EAS system while trying to move away from the out-dated technology that underlies that system in favor of more modern alert technologies (e.g., RSS feeds). Also on the docket: standards for CAP-compatible EAS equipment and the extent to which any need to certify that equipment could affect the Commission’s timetable for requiring compliance. 

The Commission is also looking for input regarding the possible use of intermediary devices by EAS Participants that would receive the CAP messaging and translate the message into the format currently used by legacy EAS equipment. These intermediary devices may offer a more cost-effective approach for EAS participants to come into compliance while the Commission and FEMA are considering a more comprehensive overhaul to EAS.

Perhaps the most important question posed by the Commission in the 3rd FNPRM is whether a further extension of the CAP implementation deadline is necessary. Given the depth and breadth of questions asked by the Commission in the 3rd FNPRM, we think it’s pretty obvious that the Commission itself still has a fair amount of homework to do – and the FCC is therefore not ready to tell EAS participants that they must comply with yet-to-be-developed rules. The Commission seems to acknowledge this, and asks specifically whether an extension of the current deadline is warranted – possibly to a date following announcement of FCC certification of CAP-compliant equipment. NOTE: the deadline for such compliance is still September 30, 2011, at least for the time being. If you think that that deadline should be extended, you should feel free to let the FCC know in response to the 3rd FNPRM.

And speaking of comments in response to the 3rd FNPM, heads up: the deadline for those comments has just been announced. Comments are due no later than July 20, 2011; replies are due by August 4.

The 3rd R&O requires all EAS participants to participate in national EAS tests as scheduled by the FCC in consultation with the Federal Emergency Management Agency (FEMA) on an annual basis. It also requires all participants to submit test-related data to the FCC’s Public Safety and Homeland Security Bureau (PSHSB) within 45 days following a national EAS test. (Note: The rule included as Appendix B to the 3rd R&O specifies a 30-day filing period, as does the language of Paragraph 54. But elsewhere – e.g., Paragraph 68 – the 3rd R&O makes clear that the Commission was persuaded to increase that to 45 days.  We predict an erratum on this point will be issued reasonably soon.) The test data will be treated as presumptively confidential, although they may be shared on a confidential basis with certain other Federal agencies and state governmental emergency management agencies.

On the technical side, the new rules specify that the first national EAS test will use the Emergency Alert Notification (EAN) code, i.e., the live event code for nationwide Presidential alerts. Going forward, the annual national test will replace the monthly and weekly EAS tests in the month and week in which it is held. The PSHSB will be responsible (in consultation with FEMA and others interested in EAS) for developing administrative procedures for national EAS tests – including location codes and pre-test outreach – but in any event it will provide at least two months’ public notice prior to any national test.

This proceeding has its genesis in a report prepared by PSHSB in September, 2009, shortly after Chairman Genachowski took over the agency’s reins.  The report recommended that the three Federal partners responsible for EAS – the FCC, FEMA, and the National Weather Service (NWS) – review the EAS testing regime to see where improvements could be made. The three agencies, along with the Executive Office of the President (EOP), ultimately formed a working group to plan for initial testing of the EAS at the national level. That collaboration led to the first ever live code EAN test of the EAS’s Presidential alert and warning capabilities in Alaska on January 6, 2010. 

The Alaska test, which was conducted by the FCC, FEMA, the State of Alaska emergency preparedness officials, and the Alaska Broadcasters Association (ABA), revealed a number of technical weaknesses at various levels throughout the national alert system. This is not surprising, since the system had never been tested before – indeed, the purpose of the Alaska exercise was to identify, and correct, potential problems before any real need to activate the system might arise. A second live code EAN test was held in Alaska on January 26, 2011, and the weaknesses were largely remedied. (To avoid, or at least minimize, any widespread War-of-theWorlds style panic, both of the Alaska tests were preceded by extensive public outreach campaigns facilitated by the ABA.)

The new rules for national tests impose significant reporting requirements not present in the current state and local EAS testing regime. In particular, for each message source monitored at the time of a national test, EAS participants will be required to record and submit to the FCC the following information:

• whether they received the alert message during the designated test;
• whether they retransmitted the alert;
• if they were not able to receive and/or transmit the alert, their “best effort” diagnostic analysis regarding the cause(s) for such failure;
• a description of their station identification and level of designation (PEP, LP-1, etc.);
• the date and time of:
  • receipt of the EAN message by all stations;
  • PEP station acknowledgement of receipt of the EAN message to FOC;
  • initiation of actual broadcast of the Presidential message;
  • receipt of the EAT message by all stations; and
• who they were monitoring at the time of the test, and the make and model number of the EAS equipment that they utilized.

All EAS participants will be required to file the above-described test data with the FCC within either 30 or 45 days of the test (as indicated above, the 3rd R&O contradicts itself on this point – but we’re betting the correct answer turns out to be 45 days). For now the filing must be submitted on paper, although the Commission expects to implement an optional electronic reporting system soon.

This new reporting requirement raises the very real potential problem of self-incrimination. The reports could easily disclose if an EAS participant’s equipment is not functioning properly, or if the participant has failed to comply with the operational EAS requirements – and such disclosures could lead to forfeitures. Many commenters urged the FCC, in effect, to look the other way with respect to any rule violations that might be revealed in reports filed in connection with the national test. In response, the Commission declined to make any specific commitments. Instead, it said that, for the first national test, it “intend[s] to exercise [its] discretion . . . to promote compliance and encourage EAS participants to benefit from the educational process, identify problems, and implement corrective measures.”

That’s not much comfort, especially in view of the fact that the Commission acknowledges (in a footnote) that the reports will be considered to be “voluntary disclosures” for enforcement purposes, garnering less harsh treatment. The good news here? The Commission may elect not to come down as hard as it might on violations that show up in the required disclosures. The bad news? The fact that the Commission may come down at all on such violations.  Plus, the Commission expressly cautions that such lenient treatment might not be applied to violations that are repeated, egregious or not promptly remedied. Our experience indicates that the FCC is more interested in fostering compliance and “getting it right” – but the Commission is clearly not promising that it won’t wield its enforcement authority.

The 3rd R&O provides a wake-up call to all EAS participants. NOW is the time for each participant to assess its readiness for the first national EAS test. Remember that any shortcomings in your EAS operation are likely to surface in the mandatory reports following the first national test, and the Commission has given no assurance that such shortcomings will not be penalized.   It’s probably better to get ahead of the curve now than to sit back and take your chances down the line.

Note: The national EAS test will proceed independently of the implementation of the Common Alerting Protocol (CAP) rules and the deadline for installation of CAP-compliant equipment.

The Commission has issued a Notice of Proposed Rule Making, proposing to conduct a national test once a year.  Stations would be given at least two months’ advance warning that the test was coming but would not be told the exact time and date.  Every EAS participant would be expected to air the test, to log it, and to provide the test results to the FCC know within 30 days.  If the test was not received or retransmitted, a station would have to find out what went wrong, fix it, and tell the FCC about it.

Comments on this proposal will be due 30 days after the NPRM is published in the Federal Register. Check back here for updates on the filing deadline.

Presumably the national test will be set up so that listeners and viewers will be amply warned that it is only a test, thereby avoiding (at least in theory) a “War of the Worlds”-like panic. (For you young ‘uns, the “War of the Worlds” refers to a 1938 radio dramatization of the H.G. Wells science fiction classic,  produced by Orson Welles’ Mercury Theatre on the Air.  It caused widespread panic among listeners.)  

But will your station be ready, and will its equipment perform?  Wise licensees will check out everything now and make sure that their equipment is shipshape, that no one kicked the plug out of the wall, and that they can receive the required two stations they are supposed to monitor.  One thing in particular to check is whether your encoder/decoder requires a Federal Information Processing Standards (FIPS) location code in order to respond to a message.  That code identifies the geographic area to which an alert applies.  A nationwide message might not have one, and some decoders are known to ignore messages with no FIPS Code.

Digital radio and TV stations should make sure that the alert is retransmitted on each of their audio or video streams.  We do not know now the format in which stations will have to report to the FCC, but we would not be surprised if the FCC’s website suffers from a simultaneous reporting requirement for over 10,000 stations the way it has teetered in the face of other simultaneous mass filings dictated by arguably ill-chosen FCC deadlines.

The FCC’s Enforcement Bureau might view these national tests as an opportunity to ring up their cash register at the expense of stations which drop the ball.  

Of course, the national test is just a proposal at this point. But the FCC appears convinced already that it’s a good idea, and it’s hard to imagine that there will be much public sentiment against greater national security. So it’s a pretty good bet that the national test proposal will become a national test reality in due course – probably not before next year at the earliest, but you never can tell. In any event, before the Commission adopts the national test, it would be a good idea for all broadcasters to check out their EAS gear now, and help protect our country, to say nothing of their wallets.