“Only” a test? Maybe so, but it’s a first-of-its-kind NATIONAL test.

If all goes as planned, sometime later this year it’s at least theoretically possible that we may hear the President himself reach out to all of us through the Emergency Alert System (EAS) for the very first time. Which is odd, because for nearly two decades the EAS has been available (as was its predecessor, the Emergency Broadcast System, for still more decades) to enable the President to do just that. Even so, the nationwide capability of the EAS has never been formally tested (with or without the participation of the Commander-in-Chief). But now, as part of its overall review of the EAS, the Commission has adopted a Third Report and Order (3rd R&O) which will, among other changes, lead to the first-ever national test of the EAS.

Weekly and monthly EAS tests and EAS activations at the state and local level have for years been SOP for EAS participants, “EAS participants” being a broad universe including broadcasters, cable operators, direct broadcast satellite operators and others. But there has never been a national test (much less an actual nationwide activation, thank goodness) of the EAS. About a year ago, acknowledging the need for “top-to-bottom” national testing of EAS to ensure that the system would in fact work should the necessity arise, the Commission issued a notice of proposed rulemaking (NPRM) looking to establish practices for nationwide testing. The 3rd R&O is the result.

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.