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 initial deadline had been set back (in non-date-specific terms) in 2007, when the Commission adopted new EAS rules, including the CAP reception requirement. The FCC specified back then that the CAP reception requirement would become effective 180 days after FEMA’s adoption of CAP, whenever that might occur. Late last year, FEMA announced that it planned to adopt a version of CAP as early as the third quarter of 2010. In anticipation of FEMA adoption, the FCC asked (in March, 2010) for comments on how the FCC’s rules might need to be revised to accommodate any FEMA-adopted CAP requirements. In response, pretty much everybody and his little brother told the Commission that 180 days wouldn’t be enough time. As summarized by the Commission, the commenters said that

a 180-day cycle does not comport with vendors’ and EAS Participants’ budgeting schedules and, moreover, is insufficient given the relatively small number of manufacturing companies versus the large number of EAS Participants, the need for customer testing and approval (which alone may take more than 180 days), insufficient guidance regarding whether the FCC would require certification of CAP-compliant equipment, FEMA’s recently announced conformance testing of such equipment, uncertainty regarding encoder/decoder reactions to an EAN (the national alert event code), and a lack of provision for unforeseen events.

And shortly after FEMA finally announced its own new standards in September, an impressive impressive array of broadcast and cable interests (including, among others, the NAB, the NCTA, 46 state broadcast associations, NPR, PBS) expressly petitioned for a six-month (or more) extension of the 180-day deadline for essentially the same reasons.

So it’s passing strange that the Commission is bothering to claim that it is now acting “on its own motion”, given the fact that the likely inadequacy of the initial deadline had been raised by multiple parties very early on. But be that as it may, the fact is that implementation of the CAP reception requirement has now been put off until September 30, 2011.

Note that, in its order, the Commission acknowledges that it still has some work of its own to do here: it plans to issue a notice of proposed rulemaking involving a “comprehensive review of the impact of CAP” on the EAS. That, obviously, could have an impact on issues relating to compliance with the CAP reception requirement. And while the Commission, maintaining that good stiff bureaucratic upper lip, advises that it doesn’t contemplate any further waivers of the CAP rules beyond September 30, 2011, it still hedges by assuring one and all that it reserves the right to further extend the deadline if it feels like it.

Happy Thanksgiving.

(Still unsure what that CAP thing is? CAP is “an open, interoperable, data interchange format for collecting and distributing all-hazard safety notifications and emergency warnings to multiple information networks, public safety alerting systems, and personal communications devices.”  It’s part of the federal government’s deployment of the Integrated Public Alert and Warning System (IPAWS), the goal of which is to allow governmental officials (FEMA, the National Weather Service, State Governors, etc.) to get the word out to the public about emergency situations as efficiently and comprehensively as possible through as many communications devices as possible (think radio, TV, cellphone, text, computer, etc.) The CAP system will also enable alerts specifically formatted for people with disabilities and non-English speakers.)

In any event, the PSHSB initiated its informal proceeding in March because it couldn’t start revising its own rules until FEMA set the ball in play by formally adopting CAP technical standards.  

Well, the ball is in play, so be on the look-out for some fast action on the Commission’s end.

FEMA got the ball rolling with its September 30 announcement of the adoption of a new CAP standard. This gives all EAS participants until March 29, 2011, to become prepared to accept CAP-based EAS alerts. FEMA’s September 30 announcement indicates the FEMA has adopted the Organization for the Advancement of Structured Information Standards (OASIS) Common Alerting Protocol (CAP) v1.2 Standard (OASIS CAP Standard v1.2). It also alludes to a CAP to EAS Implementation Guide that might shed some light on things.

As CAP is designed to cross all technical boundaries, everyone from broadcasters to cellular phone operators to MVPD providers should be on the lookout for a fast-tracked (in light of the ticking clock) Notice of Proposed Rule Making (NPRM).

Some issues we might expect the NPRM to consider:

• Whether the FCC should eliminate locally delivered test scripts for EAN (Emergency Action Notification), EAS, and the EAS Handbook
• Whether national activation with the EOM code should be eliminated
• Whether to update broadcast EAS rules
• Who should be responsible for translating alerts into multiple languages
• Whether a nationwide training program should be instituted for crafting and implementing EAS messages
• Should the “selective override” issue for cable operators be revisited

And an obvious practical question looming over all this will be whether the 180-day deadline should be extended to give affected players – including, but not limited to, the FCC itself – a bit more time in which to get their act together. It is far from clear, for example, that equipment manufacturers will be able to (a) get their gear modified to conform to whatever new standards the FCC may adopt, and then (b) get the FCC to bless the modified gear, and then (c) get it out in the marketplace before the current deadline, now less than 180 days away. And once that equipment is available in the market, broadcasters, MVPDs, cellphone companies, etc., etc. will all have to buy and install it. Whether that process can be completed before March 29, 2011, is far from clear.

Unlike many of the FCC’s efforts in the traditional silo model, the new EAS systems are intended to cross technological boundaries and, thus, impact everyone from broadcasters to cellular phone operators to MVPD providers. Commercial television broadcasters are already required (by the 2006 WARN Act) to incorporate CAP-enabled EAS equipment as part of their digital transition (a requirement the FCC later clarified extended to digital NCE TV stations).  There is at present no similar obligation for radio stations, but it’s reasonable to assume that a requirement is in the works.  We encourage radio operators in particular to participate in the molding of new EAS rules: since it seems an odds-on mortal lock that radio operators will be looking at significant changes in their EAS obligations, it only makes sense that they should be involved in the planning of those changes as early in the process as possible. Cellular providers participating in the Commercial Mobile Alert System (CMAS) likewise should embrace the opportunity to shape rules which have never before been applicable to the industry.

The PSHSB invitation for comments casts a very wide net. Essentially, it asks for any and all suggestions about how any aspect of the EAS rules might be modified in connection with the shift to a CAP-based alerting approach. Interestingly, the PSHSB is not a formal notice of proposed rulemaking (NPRM) (even though a fine print reference in the Federal Register version might suggest otherwise). That’s because the Commission is not now in a position to make any concrete proposals about its own rules – and won’t be in such a position until FEMA gets the ball rolling by formally adopting CAP standards. Once FEMA’s standards are in place, the FCC (and other agencies) will have to hustle to overhaul their systems to assure that they can interact and interconnect with the CAP system. That’s when we can expect to see an extensive and detailed NPRM.

And when that happens, we can expect the rulemaking to be expedited to the max. The new CAP-friendly EAS system is targeted to be in place – with all industry participants able to accept CAP-based alerts –  within 180 days of the formal publication of FEMA’s CAP technical standards. And for the FCC – an agency not known for its ability to make quick decisions – the 180-day deadline can be expected to be a challenge, especially since the precise starting date won’t be known until FEMA gets around to publishing its standards. But since FEMA has indicated that that could happen sometime from July-September, the FCC can at least start pulling together some preliminary thoughts now. And that’s the process the PSHSB invitation is designed to get rolling.

Comments are due May 17, 2010; reply comments are due June 14, 2010. Please contact us if you would like assistance in submitting comments.