Upcoming Deadlines

By Daniel Brown on Posted in Deadlines, FCC, Media

With the new year around the corner, it is that time of year when we start to fill out upcoming deadlines in our new calendars! Below find a list of the approaching broadcast deadlines to keep an eye on.

January 10, 2023

Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, listings of each station’s most significant treatment of community issues during the fourth quarter of 2022 (October, November, December) must be placed in the station’s OPIF. The lists should include brief narratives describing the issues covered and the programs which provided the coverage, with information concerning the time, date, duration, and title of each program with a brief description of the program. The issues may be either local or national, so long as they are of concern to the local community.

Foreign Government-Provided Programming Disclosures – In the event that a station, pursuant to the sale of a block of time, aired any programming provided by a foreign governmental entity during the prior quarter, copies of the required disclosures and records relating to the programming must be posted in the OPIF.

Records of Third-Party Fundraising Efforts – Any noncommercial educational broadcast station that interrupts regular programming to conduct fundraising activities on behalf of a third-party non-profit organization must post records of such activities during the prior quarter in the station’s OPIF.

Class A Television Stations Continuing Eligibility Documentation – The Commission requires that all Class A Television Stations maintain in their online public inspection files documentation sufficient to demonstrate that the station is continuing to meet the eligibility requirements of broadcasting at least 18 hours per day and broadcasting an average of at least three hours per week of locally produced programming.  While the Commission has given no guidance as to what this documentation must include or when it must be added to the public file, we believe that a quarterly certification which states that the station continues to broadcast at least 18 hours per day, that it broadcasts on average at least three hours per week of locally produced programming, and lists the titles of such locally produced programs should be sufficient.

January 30, 2023

Children’s Television Programming Reports – Each commercial TV and Class A television station must electronically file its annual Children’s Television Programming Report, on FCC Form 2100 Schedule H, to report on programming aired by the station and other efforts in 2022 that were specifically designed to serve the educational and informational needs of children.

Commercial Compliance Certifications – Each commercial TV and Class A television station must also post to its OPIF a certification (or certifications) of compliance during 2022 with the statutory limits on commercial time during children’s programming. The certification(s) should cover both the primary programming stream and all subchannels aired by the station.

February 1, 2023

Television License Renewal Applications Due – Applications for renewal of license for television stations located in New Jersey and New York must be filed in LMS.  These applications must be accompanied by Schedule 396, the Broadcast EEO Program Report, also filed in LMS, regardless of the number of full-time employees.  Under the current public notice rules, television stations (including LPTV stations that originate programming) filing renewal applications must begin broadcasts of their post-filing announcements concerning their license renewal applications between the date the application is accepted for filing and five business days thereafter and must continue for a period of four weeks.  Once complete, TV stations must post a certification of broadcast, with a copy of the announcement’s text, to the Online Public Inspection File (OPIF) within seven days.  LPTV stations that do not originate programming and TV translators must post renewal notice texts on an acceptable website (station, licensee, parent or as otherwise described by the FCC), linked under the title FCC Applications, within five business days after the date on which the FCC issues PN of the acceptance of the renewal application and must remain posted for 30 days.

EEO Public File Reports – All radio and television station employment units with five or more full-time employees and located in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must place EEO Public File Reports in their OPIFs. For all stations with websites, the report must be posted there as well.  Per announced FCC policy, the reporting period may end ten days before the report is due, and the reporting period for the next year will begin on the following day.

 

EAS Test Reporting System Filing Deadline

By Daniel Brown on Posted in Broadcast, EAS, FCC

The FCC advised December 15 that parties subject to the Emergency Alert System (EAS) rules (radio and television stations, wired and wireless cable television systems, digital broadcast systems, digital television broadcast stations, Satellite Digital Audio Radio Service, digital cable and digital audio broadcasting systems, and wireline video systems) must submit their annual Form One filings for calendar year 2022 in the online EAS Test Reporting System (ETRS) by no later than February 28, 2023.

The Federal Emergency Management Agency (“FEMA”) previously announced that it would not conduct a nationwide EAS test in 2022 and it has not scheduled a nationwide EAS test for 2023.  Nonetheless, in a provision buried in the rules related to the nationwide test, the FCC’s rules require EAS participants to annually review and update their identifying information for each station (e.g., transmitter location, EAS monitoring assignments, and make and model of EAS gear). Because FEMA has not conducted and does not plan to conduct a nationwide EAS test in the remainder of 2022, the FCC had not set a deadline for broadcasters to file Form One in calendar year 2022, as the FCC has stated was required.  The ETRS system is expected to open on January 3, 2023.  This timing should be welcome news for EAS Participants, as it provides some breathing room over Christmas.

The filings also will fall shortly after the close of the comment cycle in the pending rule making proceeding which is examining the operational readiness of the EAS system (PS Docket No. 15-94) and will provide further information to be considered in that proceeding.

For those out of the loop, ETRS is an online filing system by which EAS Participants submit information regarding their performance on nationwide tests of the EAS that the Federal Emergency Management Agency (FEMA) and the Commission conduct regularly to assess the reliability and effectiveness of the nation’s alert and warning infrastructure.

Please make sure to confirm that all information submitted to ETRS is accurate as well as to correct any past filing errors.  The FCC plans to open ETRS for Form One filings on January 3, 2023.  Further details will be released in future Public Notice, so please remain on the lookout into the New Year.

If you have any questions or would like assistance preparing your Form One filing, please contact a Fletcher, Heald & Hildreth attorney and we would be glad to help.

Federal Election Commission Adopts New Online Political Ad Disclaimer Proposal

By Sara Hinkle on Posted in FCC, Media, Political Ads

On December 1, 2022, the Federal Election Commission (“FEC”) adopted a proposal to extend its disclaimer rules to certain types of digital advertising appearing on digital platforms in addition to websites.

Before these new FEC rules become effective, they must be transmitted to the heads of both the House of Representatives and the Senate for a 30-day review period.  Comments on a Supplemental Further Notice will be due 30 days after it is published in the Federal Register.

FEC Disclaimer Basics

With limited exceptions for small items and impracticability, political ad sponsorship disclaimers currently must accompany “public communications” that: (1) are made by a political committee; (2) expressly advocate the election or defeat of a clearly identified federal candidate; or (3) solicit a campaign contribution.

In addition to public communications by political committees, disclaimers must be included on all political committee websites that are available to the general public and in e-mails when a political committee sends “500 [or more] substantially similar” e-mails.

According to the current FEC rules, a “disclaimer” is a statement that identifies the group or individual that paid for a political ad and, where applicable, whether the communication was authorized by a candidate.

Internet-Related Updates

“Public Communication” Definition Update

The FEC’s rules have long defined “public communication” to include a broadcast, cable, or satellite communication, as well as newspaper, magazine, billboard, mass mailing, phone bank, and internet communications placed for a fee on another person’s website.

The updated rules now propose to define “public communication” to include “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” These rules were updated to apply to new forms of online public political advertising.

While the previous iteration of the definition encompassed banners, videos (whether streaming or broadcast), pop-up ads, directed search results, and social networking software, the new definition now encompasses ads that do not appear on websites.  For example, a political ad paid for by a candidate’s committee may be posted on a social media application by an influencer.  However, the FEC noted that this revised definition did not extend “to all future technology,” as some commenters recommended.

Updated Disclosure Requirements

Further, communications placed for a fee on another person’s website, digital device, application, or advertising platform (i.e., “internet public communications”) must also include a disclaimer that complies with specific regulations regarding size, text, graphics, color contrast, and video/audio components, which are similar to those imposed upon print and broadcast media.

The disclaimer requirement applies to any person that pays to place an internet public communication (i.e., the payor)—regardless of whether that person originally created, produced, or distributed the communication—and to any communication that meets the definition of an “internet public communication.”

The FEC clarified that “individuals who share someone else’s speech without paying to distribute it will not be affected by this revision,” and that internet disclaimer provisions do not impose the “stand-by-your-ad” requirements applicable to radio and TV ads.

Generally, disclaimers must be viewable without the recipient of the communication needing to take any additional action, such as clicking on additional links or opening pop-up windows.  However, if a full disclaimer cannot be included or would occupy more than 25% of the communication due to character or space constraints that are “intrinsic to the online advertising product or medium,” an adapted disclaimer may be provided.

An “adapted disclaimer” is a clear statement that:

  • States that the internet public communication is paid for;
  • Identifies the payor using their full name or a commonly understood identifying abbreviation or acronym; and
  • Includes a visible or audible element indicating that a person may read, observe, or listen to a full disclaimer after doing a certain action, such as going to a website.

The content of the required disclaimer will depend on who authorized and paid for the advertisement:

  • If a candidate, an authorized committee of a candidate, or an agent of either, pays for and authorizes the communication, then the disclaimer must state that the communication “has been paid for by the authorized political committee.”
  • If a public communication is paid for by someone else, but is authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must state who paid for the communication and that it is authorized by the candidate, authorized committee of the candidate, or an agent of either.
  • If the communication is not authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must “clearly state the full name and permanent street address, telephone number, or [web] address of the person who paid for the communication,” and that the communication is not authorized by any candidate or candidate’s committee.

If you have any questions about these new political ad disclosure rules, please contact your friendly Fletcher, Heald & Hildreth attorney.

Next Phase-in of Audio Description Rules Begins January 1, 2023

By Jackie Fisher on Posted in Deadlines, FCC, Media

The Federal Communications Commission released a reminder that as of January 1, 2023, the audio description rules adopted in the Commission’s 2020 Audio Description Order will go into effect in the following designated market areas (“DMAs”):

  • Madison
  • Waco-Temple-Bryan
  • Harlingen-Welasco-Brownsville-McAllen
  • Paducah-Cape Girardeau-Harrisburg
  • Colorado Springs-Pueblo
  • Shreveport
  • Syracuse
  • Champaign and Springfield-Decatur
  • Savannah
  • Cedar Rapids-Waterloo-Iowa City and Dubuque

The Audio Description Order expanded the number of DMAs required to install equipment for audio description. Audio description provides better accessibility of programming to blind and visually impaired people by inserting narrated descriptions of a program’s visual elements in breaks in a show’s dialogue.

As part of its reminder, the FCC reiterated that programmers can request accessible formats such as Braille, large print, electronic files, and audio format from the FCC by emailing fcc504@fcc.gov or calling the Consumer and Governmental Affairs Bureau at (202) 418-0530.

For more information, programmers can review the FCC’s page on audio descriptions. If you have questions about these rules and what they mean for your station, contact your FHH attorney.

FHH Files Mandamus in Depp v. Heard Case

By Brianna Perrone and Thomas Urban on Posted in Litigation

On August 8, 2022, Fletcher, Heald & Hildreth filed a petition with the Court of Appeals of Virginia for a writ of mandamus directed to the Circuit Court of Fairfax County, Virginia to compel Judge Penney S. Azcarate to release copies of transcripts relating to the Depp v. Heard case or to compel the Fairfax County Circuit Court Clerk, John Frey, to furnish copies of the transcripts.  The Court of Appeals concluded that mandamus does lie for the Clerk of Fairfax County Circuit Court but does not as to the circuit court judge.

The two main contentions that the Court of Appeals had to consider were 1) whether the Court of Appeals had jurisdiction to issue a writ of mandamus in this matter; and 2) whether furnishing copies of the transcript was a ministerial or discretionary duty.  In its Decision, the Virginia Court of Appeals held that it has original jurisdiction to issue writs of mandamus, prohibition, and habeas corpus in cases in which it would have appellate jurisdiction.  In civil matters, the Court of Appeals has appellate jurisdiction over “any final judgment, order, or decree of a circuit court in a civil matter” except as provided in subsection B of § 17.1-406.  Accordingly, in what appears to be a case of first impression, the Court of Appeals found that it does have jurisdiction to issue a writ of mandamus in this civil case.

As for the second issue, the Court of Appeals noted that “Mandamus is an extraordinary remedy that may be used to compel performance of a purely ministerial duty, but it does not lie to compel the performance of a discretionary duty.” A ministerial act, the Virginia Supreme Court has explained, is “one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.” By contrast, “when the act to be performed involves the exercise of judgment or discretion on the part of the court judge, it becomes a judicial act and mandamus will not lie.”

Clerk Frey argued that the statutory language “[n]o person shall be permitted to use the clerk’s office for the purpose of making copies of records in such manner, or to such extent, as will, in the determination of the clerk, interfere with the business of the office or with its reasonable use by the general public” makes his duty discretionary.   The Court of Appeals rejected this assertion, pointing out that the Virginia Supreme Court held in 2001 that this section of the statute applied to the means by which the clerk allowed the petitioner to access the record but does not extend to a complete denial of the right to access the record.

Further, the Court of Appeals determined that mandamus does lie with the clerk because of the duties for circuit court clerks set out in Code § 17.1-208.  In particular, the Code states that “[r]equests for copies of nonconfidential court records maintained in individual case files shall be made to the clerk of the circuit court.” (emphasis added).  The court reasoned that this section of the Code delegates a duty to the clerk and “[i]n the context where a duty is delegated, the use of the term ‘shall’ means that the availability of discretion is absent.” Overall, the court found that mandamus is the appropriate remedy for the clerk since the non-discretionary responsibility lies solely with him under Code § 17.1-208.

The court resolved that mandamus did not apply to Judge Azcarate because the role of a judge is discretionary.  Rule 1:3 states in relevant part, “When a reporter takes down any proceeding in a court, any person interested is entitled to obtain a transcript of the proceedings or any part thereof upon terms and conditions to be fixed in each case by the judge.” From this language, the court found that the role of a judge is discretionary and therefore a writ of mandamus cannot compel a judge to provide consent to release copies of a trial transcript.

Therefore, Fletcher, Heald & Hildreth was able to open to the public the courthouse files to allow access to records and transcripts of court hearings and trials in Virginia.

For more information about Fletcher Heald’s litigation practice, please contact the firm.

If You Offer Internet Service, Your Speech is Now Highly Regulated by the FCC

By Jamie Troup on Posted in FCC, First Amendment, Internet

In an order released on November 17, 2022, the FCC dictates in detail the specific words that an Internet service provider must use when communicating with its customers.  The FCC has adopted new rules requiring specific information (referred to as the broadband consumer label) to be displayed at the point of sale when offering mass-market retail Internet access service by wire or radio.  Internet service providers must display unique identifiers for each of their Internet service plans that must consist of their FCC Registration Number followed by 15 alphanumeric characters.  A provider’s broadband consumer label must include the information on the FCC’s label template (see page 6 of the FCC order).  Any customization of the label is prohibited.

Smaller providers will have one year to come into compliance with the new rules after Federal Register publication of OMB’s approval.  A small Internet service provider is one with 100,000 or fewer subscriber lines.  Larger providers have six months to display the broadband consumer labels.

The actual label must appear on the providers primary advertising web page that identifies the available Internet service plans.  The FCC’s order prohibits just an icon or link to the label from a provider’s main website.  The label must also be easily accessible on the consumer’s online account page.

The FCC order requires labels to be accessible to people with disabilities using current accessibility technologies.  Labels must also be displayed in English and any other language used by the provider to advertise or market its Internet service.

Internet service providers must retain and archive for 2 years the labels for all Internet service plans that are no longer available for purchase.  Data to support the accuracy of the old label, such as speed and latency, must also be retained for 2 years.  The archived labels must be provided to existing customers upon request within 30 days.

The information included in the label must also be provided separately in a machine- readable format. The information must be made available in a spreadsheet file format such as .cvs on a provider’s website via a dedicate URL that contains all of a provider’s labels.

The FCC contends that these label requirements do not burden free speech in violation of the First Amendment.  The FCC describes its new rules as disclosure requirements rather than a speech ban that restricts the conveyance of accurate commercial speech.  According to the FCC’s order, the label requirements are not more extensive than necessary to assist customers in purchasing a broadband Internet access service.

Enterprise service offerings and special access services are not subject to the new label requirements.  However, participants in the Connect America Fund, E-rate or Rural Health Care programs must display the broadband consumer labels even though they may define their services as “enterprise” services provided to schools, libraries, and health care providers.

The new label requirements do not apply to airlines, private end user networks such as universities and libraries, coffee shops, bookstores, and other premises where patrons access the Internet, so long as the premises operator does not offer a mass-market retail Internet access service.

In addition to the order adopting the new label rules, the FCC also issued a Further Notice of Proposed Rulemaking seeking comments on whether the FCC should impose additional requirements for broadband consumer labels.  In that rulemaking proceeding, the FCC will consider whether it should require additional pricing information on labels, more speed and latency metrics, service reliability measurements, cybersecurity practices, mandatory foreign languages, and making the labels interactive.  The deadline for filing comments regarding additional label requirements will be 30 days after Federal Register publication.

Need help with your broadband consumer labels or want to file comments to the Further Notice of Proposed Rulemaking?  Contact your friendly Fletcher, Heald & Hildreth attorney to get started today!

FCC Seeks to Fill Challenging Gap in STIR/SHAKEN Robocall Defenses

By Brianna Perrone and Tony Lee on Posted in FCC, Telecommunications

The FCC Launches Formal Review of How to Bring Non-IP Phone Networks into Caller ID Authentication Ecosystem to Protect Consumers

On October 27, 2022, the FCC released a Notice of Inquiry which launches a formal review to consider ways to improve the accuracy of robocall blocking and consumer warning tools for phone networks that are not IP-based.  In light of the record developed in response to the Commission’s May 2022 Report and Order and Notice of Proposed Rulemaking, the Notice of Inquiry seeks comment on industry progress toward developing a caller ID authentication framework for non-IP networks, and the impact this technology has on the problem of illegal robocalls.  The Commission also seeks input on alternative technological or policy solutions to enable caller ID authentication over non-IP networks including the two standards developed by the Alliance for Telecommunications Industry Solutions (ATIS) discussed below.

In 2019, Congress recognized the scope of the problem posed by illegal robocalls and caller ID spoofing and passed the TRACED Act.  Among other provisions, the TRACED Act directed the FCC to require voice service providers to implement caller ID authentication technology.  Last year, the FCC attempted to curb this practice by requiring that carriers nationwide authenticate all calls using a technology called STIR/SHAKEN.  STIR/SHAKEN caller ID authentication combats illegally spoofed robocalls by allowing voice service providers to verify that the caller ID information transmitted with a call matches the caller’s number.  When this network technology is present, consumers can trust that when the phone rings the caller is who they say they are.

While STIR/SHAKEN has proven effective on networks that rely on Internet Protocol (“IP”) technology, it does not work in the same way on older parts of the public situated telephone networks that use traditional copper lines.  For STIR/SHAKEN to work, voice service providers attach encrypted digital certificates on messages as they pass from network to network.  Non-IP networks cannot add or maintain this digital information on calls; thus, any call generated by or passing through a non-IP network does not carry with it any STIR/SHAKEN verification information, including information that an originating voice service provider knows about the caller and its relationship to the phone number it is using along with the call itself.  Even if both the calling party and the terminating party use carriers that have adopted IP technology, the authentication data associated with a call is lost if it passes through a non-IP interconnection point or the network of an intermediate provider employing non-IP technology.

Voice service providers using non-IP network technologies must comply with one of two Commission regulations.  Either they must upgrade their entire network to IP and adopt STIR/SHAKEN, or they must get involved (directly or through a representative) in industry initiatives to create a non-IP caller ID identification solution.  ATIS established the Non-IP Call Authentication Task Force in May 2020 to create solutions for non-IP networks.  For the exchange of authenticated caller ID data on non-IP networks, this Task Force published two standards in August 2021: ATIS-1000095, extending STIR/SHAKEN over TDM (time-division multiplexing – commonly used on older copper-based networks), which the Task Force updated with a second version released in August 2022, and ATIS-1000096, Signature-based Handling of Asserted information using toKENs (SHAKEN): Out-of-Band PASSporT Transmission Involving TDM Networks.

The non-IP networks are the most significant remaining gap in implementing the STIR/SHAKEN framework over all phone networks.  Last year, the Commission required most voice service providers to have implemented STIR/SHAKEN and start using it on their IP-based networks.  The only remaining extensions granted are for facilities-based small voice service providers, which have until June 30, 2023, to implement these provisions.  The FCC’s action is a move that closes critical loopholes in the STIR/SHAKEN call authentication regime and brings the FCC one step closer to national implementation of STIR/SHAKEN caller ID authentication.

The FCC is seeking comments on, among other things, (1) whether the FCC should require implementation of one or both standards set by the Non-IP Call Authentication Task Force, (2) the prevalence of non-IP network technology across the entire voice network, and (3) the extent to which non-IP Network Technology contributes to the problem of illegal robocalls.

Comments are due December 12, 2022, and Replies are due January 11, 2023.

Want to file comments to the Notice of Inquiry?  Contact your friendly Fletcher, Heald & Hildreth attorney to get started today!

More Emergency Alert System Proposed Changes and Reporting Requirements

By Anne Goodwin Crump on Posted in Deadlines, FCC, Media

To accompany its recently adopted modifications to the requirements for the Emergency Alert System (“EAS”), the Federal Communications Commission (“FCC”) has issued a Notice of Proposed Rulemaking (“NPRM”) to address the FCC’s ongoing concerns about operational readiness and the security of the EAS system from being acted or otherwise misused by bad actors.

Comments on these proposals are due on December 23, 2022, and reply comments are due by January 23, 2023.

In particular, the FCC is concerned that many stations are operating EAS equipment that does not have the latest software installed and is also troubled by the number of stations that do not have operational EAS equipment on any given day.  In its latest NPRM, the Commission has questioned whether the current requirement that EAS equipment be repaired within 60 days is sufficient, and whether it should require notifications of malfunctioning equipment.

Aside from its worries about operational readiness of the EAS system, the FCC is also seriously concerned about the potential for bad actors to gain access to an EAS participant’s EAS equipment or associated infrastructure either to transmit a false alert or to interfere with transmission or reception of a legitimate alert.  FCC rules currently require that EAS participants notify the FCC by e-mail within 24 hours of any discovery that a false alert has been transmitted to the public.  It is now proposing to require that EAS participants also notify the FCC of any unauthorized access to either a participant’s EAS equipment or any part of the communications infrastructure, such as a firewall or Virtual Private Network.  The proposal is that such notification would be made through the Network Outage Reporting System (“NORS”) within 72 hours.

In order to further address the issue of tampering with the EAS system, the FCC has further proposed to require EAS participants to certify annually that they have created, updated, and implemented a cybersecurity risk management plan.  The NPRM is seeking input as to the specifics of such a requirement and how it should ensure that annual certifications reflect actual plans to address cybersecurity risks.  As a part of that, the NPRM has proposed that any negligence in security practices that results in a false alert would itself be a violation of the FCC’s rules.

Should you have any questions concerning this matter, or if you would like assistance in filing comments, please do not hesitate to contact us.

Emergency Alert System Required Changes

By Anne Goodwin Crump on Posted in Deadlines, FCC, Media, Unlicensed Operations and Emerging Technologies

The Federal Communications Commission (“FCC”) recently adopted modifications to the requirements for the Emergency Alert System (“EAS”), and the new rules will go into effect on December 12, 2022.  Fortunately, however, EAS participants, which include most radio and television stations, have one year, until December 12, 2023, in which to make the necessary changes to their EAS equipment in order to comply with the new rules.  The FCC believes that the rule modifications will result in both greater use of IP-based Common Alerting Protocol (“CAP”) format alerts and more understandable and informative messages.

The first change is to require all EAS participants, upon receiving a legacy state or local EAS alert message, to check before broadcasting the alert to determine whether a CAP-formatted EAS message is available.  If so, the EAS participant must transmit the CAP version of the alert rather than the legacy EAS version.  EAS participants will be familiar with the existing system whereby alerts are relayed from primary stations to secondary stations throughout the EAS network.  Additionally, messages also are relayed in the CAP format over FEMA’s internet-based platform known as the Integrated Public Alert and Warning System (“IPAWS”) and are received by periodically checking an internet-connected server in a process known as “polling.”

These messages have the ability to convey a bit more information than the relatively brief voice announcements relayed by the current system, including multilanguage information, picture or video files, and URL’s where the public can obtain additional information.  A further advantage for the deaf or hard of hearing is that a CAP-formatted alert can display all of the text provided by the alert originator without the limitations of the current alerts.  Further, should the alert originator send a CAP-format alert without an audio message, the EAS participant usually is able to generate an audio message by using text-to-speech software installed in its EAS equipment so that the blind and vision-impaired can receive the message.

In order to force more use of CAP-format alerts, the new EAS rule requires that participants must delay re-transmitting an alert for at least 10 seconds after receiving the header codes to either allow time for the CAP version to appear and, if not, to poll the IPAWS feed to either find the CAP version or confirm that no matching CAP version of the message is available.  As noted above, if the CAP alert does appear or is found, it is that version which must be re-transmitted.  The FCC understands that the brief wait for CAP will create slight delay in getting the alert information out to the public but believes that the superior quality of the information, as well as improved availability to the disabled, makes the delay worthwhile.  The FCC also that any receipt and retransmission of alerts will take a bit of time, which it theorizes is at least ten seconds, though results from prior national EAS tests do not necessarily support this idea in full.

These requirements are not applicable, however, to required weekly tests, to national tests of the EAS, or in the event of an actual national emergency message, something which has never happened.  The process also will not apply at this time to weather-related alerts issued by the National Weather Service (“NWS”) because the NWS does not distribute alerts in the CAP format over IPAWS due to concerns about issuing duplicative messages for the same event.  The FCC is hopeful that the NWS will overcome its concerns and will begin issuing CAP alerts, at which time the new rules will apply to them.  Additionally, the new process does apply to required monthly tests.

The second major change is with regard to the event codes and originator code primarily used for national alert messages and nationwide EAS tests.  Specifically, the FCC is changing the text for the EAN event code from “Emergency Action Notification” to “National Emergency Message,” is changing the text for the NPT event code from “National Periodic Test” to “Nationwide Test of the Emergency Alert System,” and is changing the text for the PEP originator code from “Primary Entry Code System” to “United States Government.”  The thought is that this language will be clearer and will reduce the potential for consumer confusion and alerting fatigue.  Of course, one wonders just how much public interest there is in improving test notices for a system used once a year and an alerting system that has not been used – ever.  Still, in order to be consistent, the texts of the messages issued for national alerts and nationwide tests as well.

Thus, the old message, “The Primary Entry Point system has issued an Emergency Action Notification….” has been changed to “The United States Government has issued a National Emergency Message…,” and the test message, “The Primary Entry Point system has issued a Nationwide Periodic Test,” has been changed to “The United States Government has issued a Nationwide Test of the Emergency Alert System….”  Likewise, the visual crawl for EAS-based nationwide test alerts transmitted in legacy format has been slightly modified.  Obviously, the visual crawl requirement applies primarily to television stations, but radio stations also are required to use the new text in making announcements.  While the text is prescribed, it may be translated to languages other than English.

The good news is that, as noted above, stations have one year in which to come into compliance with the new requirements.  Further, it is anticipated that the changes related to event and originator codes can be accomplished through an EAS equipment software change.  Likewise, EAS equipment manufacturers have indicated that they either have made or can make automated IPAWS polling features available on EAS devices in the coming year.  In something of a leap of logic, the FCC concluded that because a one-year implementation period has worked in the past, it will work again for the new changes.  It also has determined that that costs, which it estimates to be no more than $5 million for all participants, is outweighed by the benefits of improved clarity and availability of alerts.  Part of that conclusion is based on the ability simply to download software changes, which should be able to be done in conjunction with general software upgrades.

Should you have any questions concerning this matter, please do not hesitate to contact us.

FCC Publishes Draft of National Broadband Map: Challenge Process Officially Begins

By Sara Hinkle on Posted in FCC, Internet, Telecommunications, Wireless

On November 18th, the FCC published a draft of the long-awaited updated National Broadband Map.  This version of the map shows the availability of fixed and mobile broadband as reported by internet service providers (“ISPs”) as of June 30, 2022.  This map endeavors to improve upon the FCC’s broadband data collection via Form 477, which Chairwoman Rosenworcel has argued is inaccurate and outdated.  The Commission published a General Fact Sheet with the map as well.

  • The online map allows users to search for broadband availability based on an address, the provider of the service, or a specific area (e., state, county, census area, Tribal area, or congressional district).
  • It also provides an option for users to download data directly in CSV, shape file, or GeoPackage form.

The next step for improving this data is for state, local, and Tribal governments, consumers, service providers, and other entities to file challenges or corrections to the data on the map.  The FCC released a Public Notice and a Challenge Fact Sheet in conjunction with the online map specifying procedures for challenges.

  • Parties can report missing or incorrect information about the locations of available fixed broadband reported in the map.
  • Similarly, parties can challenge the availability of mobile broadband reported in the map by using on-the-ground speed test data based on the FCC’s Speed Test app.
  • Lastly, parties can report inaccuracies in the map about, for example, the type of service or availability of a provider in an area.

If you have any questions about the National Broadband Map, filing a challenge, or responding to a challenge, please contact your friendly Fletcher Heald attorney.

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