[Federal Register Volume 69, Number 69 (Friday, April 9, 2004)]
[Proposed Rules]
[Pages 18857-18859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8049]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 11

[EB Docket No. 04-51; FCC 04-46]


Amendment of the Commission's Rules Regarding the Emergency Alert 
System

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes revisions to the Commission's rules 
regarding the Emergency Alert System (EAS) and seeks comment on these 
proposed revisions to the Commission's rules, some of which were set 
forth in a petition for rulemaking filed by the Wireless Cable 
Association International, Inc. (WCA). The proposed revisions are 
intended to reduce burdens on EAS participants and improve the overall 
performance of the EAS.

DATES: Comments are due May 10, 2004, and reply comments are due May 
24, 2004.

ADDRESSES: Send comments and reply comments to the Office of the 
Secretary, Federal Communications Commission, 445 12th Street, SW., 
Room TW-A325, Washington, DC 20554. See SUPPLEMENTARY INFORMATION for 
further filing instructions.

FOR FURTHER INFORMATION CONTACT: Bonnie Gay, Enforcement Bureau, Office 
of Homeland Security, at (202) 418-1228, or via the Internet at 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), in EB Docket No. 04-51, FCC 04-46, 
adopted March 4, 2004, and released March 12, 2004. The complete text 
of this NPRM is available for inspection and copying during normal 
business hours in the FCC Reference Information Center, 445 12th 
Street, SW., Room CY-A257, Washington, DC 20554. This document may also 
be purchased from the Commission's duplicating contractor, Qualex 
International, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail 
[email protected]. It is also available on the Commission's Web site at 
http://www.fcc.gov.
    Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS) or by filing paper copies. All filings should 
refer to EB Docket No. 04-51. Comments filed through the ECFS can be 
sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Only one copy of an electronic submission must be 
filed. In completing the transmittal screen, commenters should include 
their full name, postal service mailing address, and the applicable 
docket number, which in this instance is EB Docket No. 04-51. Parties 
may also submit an electronic comment by Internet e-mail. To get filing 
instruction for e-mail comments, commenters should send an e-mail to 
[email protected], and should include the following words in the 
regarding line of the message: ``get form.'' A sample form and directions will be sent in 
reply.
    Parties who choose to file by paper must file an original and four 
copies of each filing. Filings can be sent by hand or messenger 
delivery, by commercial overnight courier, or by first-class or 
overnight U.S. Postal Service mail (although the Commission continues 
to experience delays in receiving U.S. Postal Service mail).
    For hand deliveries, the Commission contractor, Natek, Inc., will 
receive hand-delivered or messenger-delivered paper filings for the 
Commission Secretary at 236 Massachusetts Avenue, NE., Suite 110, 
Washington, DC 2002. The filing hours at this location are 8 a.m. to 7 
p.m. All hand deliveries must be held together with rubber bands or 
fasteners. Any envelopes must be disposed of before entering the 
building.
    Commercial overnight mail (other than U.S. Postal Service Express 
Mail and Priority Mail) must be sent to 9300 East Hampton Drive, 
Capitol Heights, MD 20743. U.S. Postal Service first-class mail, 
Express Mail, and Priority Mail should be addressed to 445 12th Street, 
SW., Washington, DC 20554. All filings

[[Page 18858]]

must be addressed to the Commission Secretary, Office of the Secretary, 
Federal Communications Commission.
    Comments and reply comments must include a short and concise 
summary of the substantive arguments raised in the pleading. Comments 
and reply comments must also comply with 47 CFR 1.48 and all other 
applicable sections of the Commission's rules. The Commission directs 
all interested parties to include the name of the filing party and the 
date of the filing on each page of their comments and reply comments. 
All parties are encouraged to utilize a table of contents, regardless 
of the length of their submission. The Commission also strongly 
encourages that parties track the organization set forth in this NPRM 
in order to facilitate the Commission's internal review process.

Synopsis of the Notice of Proposed Rulemaking

    1. In this NPRM, the Commission proposes revisions to part 11 of 
the Commission's rules regarding the EAS and seeks comment on these 
proposed revisions to part 11 of the Commission's rules, some of which 
were set forth in a petition for rulemaking filed by the WCA.
    2. The Commission's EAS rules are designed to ensure that 
individual TV viewers, including viewers of wireless cable TV systems, 
receive all EAS alerts, no matter what channel the viewer may be 
watching. Section 11.11(a) of the Commission's rules requires wireless 
cable providers serving more than 5,000 subscribers to install special 
equipment sufficient to display the audio and video EAS message on 
every channel in their systems. Systems serving fewer than 5,000 
subscribers are required to display the audio and video EAS message 
only on one channel, but must provide a video interrupt and an audio 
alert on every channel. Under the WCA proposal, a wireless cable 
operator would install EAS equipment for one channel only at the 
headend of the system. In the event of an EAS alert, the system would 
automatically force each subscriber set-top box to tune to the channel 
carrying the EAS alert. WCA argues that ``force tuning'' would allow 
wireless cable providers to deliver EAS alerts to all viewers in a more 
technologically and economically efficient manner. As proposed, the 
rule revision would provide the greatest economic benefit to systems 
with over 5,000 subscribers by obviating the need for special signal 
conversion for all channels, but also would provide a benefit to those 
systems with fewer than 5,000 subscribers.
    3. Under WCA's proposed software based ``force tune'' solution, the 
video/audio output of the EAS equipment will be connected to an encoder 
for a channel selected to carry EAS messages. Upon EAS activation, the 
EAS equipment will send a trigger signal to the system headend which 
then forwards the trigger to the subscriber's set-top box as part of 
the control data included in every multiplexed program stream 
transmitted by the system. The software in the set-top box will 
recognize the trigger and ``force tune'' the set-top box to the 
selected EAS message channel. WCA represents that a reasonable cost 
estimate for this alternative is $46,000.00 or about 2% of the cost of 
channel by channel implementation.
    4. The Commission proposes to amend part 11 of the rules to allow 
wireless cable television systems to comply with the Commission's EAS 
requirements by installing only one set of EAS equipment at the headend 
of their systems. Under this proposed rule revision, wireless cable 
television providers will be able to ``force tune'' all channels in 
their systems to the channel carrying an EAS alert. Small wireless 
cable systems serving fewer than 5,000 subscribers currently are 
required to display audio and video EAS messages on one channel, and 
video interrupt and audio alert on all other channels. The Commission 
seeks comment on how the proposal would affect these systems.
    5. The Commission also proposes to expand WCA's proposal to allow 
``force tuning'' for systems with more than 5,000 subscribers, which 
currently are required to place EAS messages on all program channels. 
The Commission seeks comment on whether it should adopt ``force 
tuning'' for all wireless cable systems, or whether ``force tuning'' 
should be limited to systems of a certain size and, if so, what size 
would be appropriate. The Commission seeks comment on the pros and cons 
of ``force tuning,'' as proposed by WCA and the NPRM, and whether there 
is another approach which is a better alternative, technically and/or 
financially, than the one proposed, or whether compliance with the 
current requirements is most appropriate. Information is requested from 
system operators, industry associations, equipment suppliers and all 
other interested parties.
    6. The Commission notes that it requires certification of EAS 
equipment in accordance with the procedures set forth in subpart J of 
part 2 of the Commission's rules. It appears that the WCA proposal is 
software driven, that it requires the use of approved EAS equipment at 
the headend, and that no changes to approved equipment are required. 
For these reasons, the Commission does not propose new authorization 
standards for equipment used to implement the proposed ``force tune'' 
procedure. Rather, the Commission proposes to require that the 
operators of systems using this ``force tune'' technology develop 
procedures to ensure that the process works and that subscriber 
equipment, such as set-top boxes, does, in fact, tune to the EAS alert/
message channel when instructed to do so by the headend equipment. The 
Commission seeks comment on its proposal not to require new equipment 
authorization. The Commission also requests recommendations as to 
procedures to be followed by operators to ensure that required EAS 
notices are delivered to subscribers. Finally, the Commission invites 
comment on what effects the proposals and issues addressed in this NPRM 
may have on consumer equipment.

Initial Regulatory Flexibility Analysis

    7. With respect to this NPRM, an Initial Regulatory Flexibility 
Analysis (IRFA) is contained in Appendix A. As required by section 603 
of the Regulatory Flexibility Act (RFA), the Commission has prepared an 
IRFA of the possible significant economic impact on small entities by 
the policies and rules proposed in the NPRM. Written public comments 
are requested on the IRFA. Comments must be identified as responses to 
the IRFA and must be filed by the deadlines for comments on the NPRM 
specified in paragraph 9 of the NPRM. The Commission will send a copy 
of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration.

Need for, and Objectives of, the Proposed Rules

    8. In this NPRM, the Commission solicits comment on a petition for 
rulemaking filed by the Wireless Cable Association International, Inc. 
requesting revisions to the part 11 rules governing the Emergency Alert 
System (``EAS''). The requested revisions are intended to reduce 
burdens on EAS participants and improve the overall performance of the 
EAS.

Legal Basis

    9. Authority for the actions proposed in this NPRM may be found in 
sections 1, 4(i), 4(j), 4(o), 303(r), 624(g) and 706 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 
154(o), 303(r), 544(g) and 606.

[[Page 18859]]

Description and Estimate of the Number of Small Entities To Which the 
Proposed Rules Will Apply

    10. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that will be 
affected by the proposed rules. The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) Is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (SBA). A small organization is generally ``any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.'' The arts, entertainment, and recreations 
sector had 96,497 small firms.
    11. Multipoint Distribution Systems. The proposed rules would apply 
to Multipoint Distribution Systems (MDS) operated as part of a wireless 
cable system. The Commission has defined ``small entity'' for purposes 
of the auction of MDS frequencies as an entity that, together with its 
affiliates, has average gross annual revenues that are not more than 
$40 million for the preceding three calendar years. This definition of 
small entity in the context of MDS auctions has been approved by the 
SBA. The Commission completed its MDS auction in March 1996 for 
authorizations in 493 basic trading areas. Of 67 winning bidders, 61 
qualified as small entities. At this time, the Commission estimates 
that of the 61 small business MDS auction winners, 48 remain small 
business licensees.
    12. MDS also includes licensees of stations authorized prior to the 
auction. As noted, the SBA has developed a definition of small entities 
for pay television services, Cable and Other Subscription Programming, 
which includes all such companies generating $12.5 million or less in 
annual receipts. This definition includes MDS and thus applies to MDS 
licensees that did not participate in the MDS auction. Information 
available to us indicates that there are approximately 392 incumbent 
MDS licensees that do not generate revenue in excess of $11 million 
annually. Therefore, the Commission finds that there are approximately 
440 (392 pre-auction plus 48 auction licensees) small MDS providers as 
defined by the SBA and the Commission's auction rules which may be 
affected by the rules proposed herein.
    13. Instructional Television Fixed Service. The proposed rules 
would also apply to Instructional Television Fixed Service (ITFS) 
facilities operated as part of a wireless cable system. The SBA 
definition of small entities for pay television services also appears 
to apply to ITFS. There are presently 2,032 ITFS licensees. All but 100 
of these licenses are held by educational institutions. Educational 
institutions are included in the definition of a small business. 
However, the Commission does not collect annual revenue data for ITFS 
licensees, and are not able to ascertain how many of the 100 non-
educational licensees would be categorized as small under the SBA 
definition. Thus, the Commission tentatively concludes that at least 
1,932 ITFS are small businesses and may be affected by the proposed 
rules.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    14. There are no reporting or recordkeeping requirements proposed 
in this NPRM. The proposals set forth in the NPRM are, for the most 
part, intended to enhance the performance of the EAS while reducing the 
burden on digital wireless cable systems. The Commission emphasizes 
that participation in state and local EAS activities remains voluntary 
and that it does not wish to impose additional costs or burdens on 
entities that choose not to participate in state and local area EAS 
plans. The NPRM seeks comment on proposed implementation of new 
equipment capabilities and new policies with regard to method of 
delivery of EAS messages to viewers for all EAS alerts, national, state 
and local. These proposals would lessen cost and operational burdens on 
digital wireless cable system EAS participants.

Steps Taken To Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered

    15. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives: (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    16. In setting forth the proposals contained in this NPRM, the 
Commission has attempted to minimize the burdens on all entities. The 
Commission seeks comment on the impact of its proposals on small 
entities and on any possible alternatives that would minimize the 
impact on small entities.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    17. None.

Ex Parte Rules

    18. These matters shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentations must contain summaries of the substance 
of the presentations and not merely a listing of the subjects 
discussed. More than a one or two sentence description of the views and 
arguments presented is generally required. Other requirements 
pertaining to oral and written presentations are set forth in section 
1.1206(b) of the Commission's rules.

Ordering Clauses

    19. Accordingly, pursuant to the authority contained in sections 1, 
4(i), 4(j), and 4(o), 303(r), 624(g) and 706 of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 154(o), 303(r), 
544(g) and 606, notice is hereby given of the proposals described in 
this Notice of Proposed Rulemaking.
    20. The Reference Information Center, Consumer and Governmental 
Affairs Bureau, shall send a copy of this Notice of Proposed 
Rulemaking, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration in 
accordance with the Regulatory Flexibility Act.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 04-8049 Filed 4-8-04; 8:45 am]
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