[Federal Register Volume 72, Number 212 (Friday, November 2, 2007)]
[Rules and Regulations]
[Pages 62123-62135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21137]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 11

[EB Docket No. 04-296; FCC 07-109]


Review of the Emergency Alert System

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) amends its rules in order to ensure the efficient, rapid, 
and secure transmission of Emergency Alert System (EAS) alerts in a 
variety of formats (including text, audio, and video) and via different 
means (broadcast, cable, satellite, and other networks), increasing the 
reliability, security, and efficacy of the nation's EAS network.

DATES: The effective date is December 3, 2007.

FOR FURTHER INFORMATION CONTACT: Thomas Beers, Policy Division, Public 
Safety and Homeland Security Bureau, (202) 418-1170, or TTY (202) 418-
7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order (Order) in EB Docket No. 04-296, FCC 07-109, adopted 
May 31, 2007, and released July 12, 2007. The complete text of this 
document is available for inspection and copying during normal business 
hours in the FCC Reference Information Center, Room CY-A257, 445 12th 
Street, SW., Washington, DC 20554. This document may also be obtained 
from the Commission's duplicating contractor, Best Copy and Printing, 
Inc., in person at 445 12th Street, SW., Room CY-B402, Washington, DC 
20554, via telephone at (202) 488-5300, via facsimile at (202) 488-
5563, or via e-mail at [email protected]. Alternative formats (computer 
diskette, large print, audio cassette, and Braille) are available to 
persons with disabilities by sending an e-mail to [email protected] or 
calling the Consumer and Governmental Affairs Bureau at (202) 418-0530, 
TTY (202) 418-0432. This document is also available on the Commission's 
Web site at http://www.fcc.gov.

Synopsis of the Order

Next Generation EAS

    1. In the Order, we reaffirm the obligations of today's EAS 
Participants to maintain existing EAS and establish the framework for 
the nation's Next Generation EAS. This Next Generation EAS will include 
new and innovative technologies and distribution systems that will 
provide increased redundancy and resiliency for the delivery of 
emergency alerts. We also take steps to ensure that the upgraded EAS 
will meet the needs of all Americans, including persons with hearing 
and vision disabilities and those who do not speak English. Finally, we 
will continue to harness the benefits of existing EAS while the Next 
Generation EAS is developed and deployed. The combination of the 
existing and Next Generation EAS systems will ensure the continuity of 
EAS while the Next Generation EAS is being implemented, and ensure that 
EAS alerts reach the largest number of affected people by multiple 
communications paths as quickly as possible.
    2. Below, we describe the four cornerstones of the Next Generation 
EAS: (1) Maintaining the existing EAS network; (2) utilizing a common 
messaging protocol, CAP, to be implemented by all EAS Participants 
following its adoption by FEMA; (3) incorporating new authentication 
and security requirements; and (4) fostering the deployment of new, 
redundant EAS delivery systems, including satellite, Internet, and 
wireline networks.

Maintaining Existing EAS

    3. Although a Presidential alert has never been sent over the EAS, 
the current EAS network has been used for state, local, and weather-
related emergencies. We recognize that in certain emergency situations, 
battery-powered AM or FM receivers may be the primary source of 
emergency information for the general public. Broadcast and cable 
personnel are familiar with current EAS equipment and are trained in 
its use. In addition, it would be inadvisable to require immediate use 
of a new system until that system is fully in place and its reliability 
tested. We therefore do not agree with those commenters who argue that 
the existing EAS should be wholly abandoned or replaced at this time.
    4. Instead, we conclude that broadcast, cable and other current EAS 
Participants should maintain the existing EAS, particularly since 
alternative delivery mechanisms, although potentially more robust, have 
yet to be deployed. We recognize, however, that EAS currently uses a 
station-relay message dissemination process that lacks the flexibility 
and redundancy of certain evolving digital communications systems. 
Consequently, we also require these current EAS Participants to upgrade 
their networks to the Next Generation EAS, as discussed below, while 
maintaining existing EAS.
    5. NOAA Weather Radio. In addition, we disagree with those 
commenters who suggest that NWR should replace the existing EAS. We 
believe, however, that the NWR system should continue to be closely 
integrated with EAS. NWR is one of the principal sources of alert 
information, and is likely to continue to be the primary originator of 
weather-based alerts. We also recognize that voluntary efforts, 
including CEA's Public AlertTM Certification and Logo 
Program launched in April 2004, further enhance the value and potential 
of this proven emergency-alert delivery system. The record demonstrates 
that redundant alert-delivery systems will enhance the overall reach, 
efficacy, and reliability of the EAS as a whole. NWR provides an 
alternative source of emergency alerts, and we expect that it will 
continue to be an important component of EAS and the overall national 
public alert and warning system. We nevertheless caution EAS 
Participants that retransmit NWR alerts to ensure that such 
retransmission is consistent with our EAS rules and associated 
protocols.

Common Alerting Protocol (CAP) for EAS

    6. In the Further NPRM, the Commission sought comment on the 
widespread assertion in the record that a common messaging protocol 
should be adopted to permit a digitally-based alert or warning to be 
distributed simultaneously over multiple platforms. The Commission 
noted that the Partnership for Public Warning had endorsed the OASIS 
Common Alerting Protocol (CAP) for this purpose and that many public 
and private organizations responsible for alerts believed that CAP 
offered the most practical means of quickly creating an effective 
interface between emergency managers and multiple emergency alert 
distribution platforms. Accordingly, the Commission asked whether CAP 
should be adopted as the common messaging protocol for any future 
digital alert system, and particularly for EAS alerts. The Commission 
also asked whether CAP would allow simultaneous distribution to radio, 
television, and wireless media such as mobile telephones and personal 
digital assistants (PDAs), and how it would ensure uniformity of alerts 
across

[[Page 62124]]

multiple platforms. Currently, the EAS and the NWS utilize the SAME 
protocol, which introduces special digital codes at the beginning and 
end of messages. SAME provides information concerning the originator of 
the alert, the event type, the areas affected, the duration of the 
alert, the time the alert was issued, and the station's call sign. SAME 
originally was developed to be transmitted over a radio medium with 
relatively simple devices receiving the message. For the most part, it 
performs well for the existing EAS and NWR but does not fully utilize 
the capabilities inherent in digital transmission.
    7. The need for a more robust and flexible protocol that can take 
full advantage of digital technology has long been recognized. In 2000, 
the U.S. National Science and Technology Council issued its report, 
Effective Disaster Warnings, concluding that a ``standard method should 
be developed to collect and relay instantaneously and automatically all 
types of hazard warnings and reports locally, regionally, and 
nationally for input into a wide variety of dissemination systems.'' In 
2001, more than 130 emergency managers and technologists initiated 
development of a common alert message standard. In 2003, this work 
became a part of the OASIS standards process of the Emergency 
Management Technical Committee. A year later, the Emergency Management 
Technical Committee released CAP version 1.0, which was revised in 2005 
as CAP v. 1.1.
    8. CAP is an open, interoperable standard that incorporates a 
language developed and widely used for web documents. Its standardized 
alert message format--based on the World Wide Web Consortium's 
(``W3C's'') Extensible Markup Language (``XML'')--is a text-based 
format that facilitates data sharing across different distribution 
systems. As noted by various commenters, the agreed-upon XML format of 
CAP can be accepted by a wide variety of devices or systems. The format 
also permits links to voice, audio or data files, images, and 
multilingual translations of the alert, and to links providing further 
information.
    9. The CAP standard specifies what fields an alert message can 
contain and what information can be included in the particular fields. 
A CAP alert provides fields such as message type, scope, incident, 
event information, event certainty, sender, geographic scope, and the 
time when an alert becomes effective and expires. Because CAP has 
standardized alert elements, commenters assert it will facilitate 
accurate and meaningful message creation and decrease the potential for 
operator error. CAP also facilitates interoperability between devices, 
an attribute essential to establishing an EAS that can operate over 
multiple platforms.
    10. Commenters who addressed the issue generally support the use of 
CAP as a means for standardizing emergency messages; and no parties 
indicated that CAP-based messages could not be readily accepted and 
processed by all EAS Participants. The USGS notes its own experience 
using CAP, and argues that CAP is an effective content standard that 
can be applied at interfaces between senders, transmitters, and 
receivers of alerts covering many of the common natural and man-made 
hazard situations. USGS concludes that CAP should be mandatory for the 
EAS. NASCIO also recognizes the flexibility of CAP, noting that any EAS 
initiator can take information from a CAP-based message and translate 
it into any other standard for distribution over a particular channel, 
network, or technology. CAP also is supported by individuals with 
hearing and sight disabilities, because it enables equivalent, multiple 
text and audio messages to be sent concerning the same event to a 
variety of devices that are accessible to such individuals.
    11. We note that CAP also supports capabilities for a digital 
signature to authenticate the sender and validate the integrity of the 
text, and an encryption field that enables the encryption of the CAP 
message. An EAS initiator may encrypt, address, and otherwise secure a 
CAP alert, thus in part addressing security concerns that arise due to 
CAP's open text format. Further, CAP uniquely identifies each specific 
alert. Finally, CAP has been implemented by several government agencies 
including the USGS, NOAA NWS, and the Oregon Amber Alert Program. CAP 
also has been implemented in the Disaster Management Interoperability 
Services. Several governmental agencies, including FEMA and NOAA 
HAZCOLLECT, are testing CAP, and other agencies, such as the Center for 
Disease Control and the Virginia Department of Transportation, have 
endorsed it. We note that the U.S. Department of Defense and the U.S. 
Department of the Interior both voted for the adoption of CAP-V1.1.
    12. We conclude that all EAS Participants will be required to 
accept alerts and warnings in the CAP format should that protocol be 
adopted by FEMA. This requirement applies to an EAS Participant 
regardless of whether the participant is utilizing existing EAS or the 
Next Generation EAS established in the Order. Although this requirement 
requires action by FEMA, we find that adopting it now furthers the 
prompt development of a state-of-the-art, next-generation national EAS. 
Significantly, many EAS Participants currently are implementing other 
revisions to their EAS systems, and they can incorporate CAP into these 
revisions. Specifically, should FEMA adopt CAP as the common alerting 
protocol for EAS alerts, EAS Participants must accept CAP-based alerts 
180 days after the date that FEMA publishes the applicable technical 
standards for such CAP alerts. Because most commenters urge the 
Commission to adopt the CAP format, we find that EAS Participants are 
already aware that CAP will likely be adopted, and we believe that 180 
days will give them adequate time to prepare to receive CAP alerts. EAS 
Participants have been on notice since November 10, 2005, when the 
FNPRM was issued, that the EAS delivery standards might change. Thus, 
we find that 180 days will give EAS participants a reasonable period of 
time in which to implement changes that they should have been expecting 
for over 18 months since the FNPRM was issued. We further find that 180 
days is reasonable in light of the significant public interest, to 
protect life and property, in implementing next generation EAS systems 
as soon as possible. We also note that EAS Participants will have the 
time period between the release of the Order and FEMA action for 
preparation.

Authentication and Security

    13. In the 2004 NPRM, the Commission noted that security and 
encryption were not the primary design criteria when EAS was developed 
and initially implemented, and that emergency managers were becoming 
more aware of potential vulnerabilities within the system. The 
Commission expressed concern that the EAS may be subject to 
unauthorized access, and that a legitimate EAS signal could be subject 
to hacking or jamming. Although ENDECs currently have the capability 
for password protection, it is up to each EAS Participant to implement 
the safeguard, and there is no means to monitor the extent to which EAS 
Participants employ passwords. Additionally, when facilities are 
operating unattended, no one is available on-site to intervene should 
unauthorized use occur. Accordingly, the Commission sought comment on 
how to improve the security of EAS distribution methods, information, 
and equipment and how to ensure the security of any public warning 
system. It also sought comment on the authentication and verification 
of EAS

[[Page 62125]]

alerts. Cox agrees with the FCC that there are legitimate concerns 
regarding the security of the EAS, and contends that any attacks on EAS 
or unauthorized use could be devastating. As such, Cox urges the 
adoption of methods to keep the system secure from intentionally false 
control or sabotage. Radio stations WTOP(AM), WTOP-FM, and WXTR(AM) 
(WTOP) contend the security of EAS distribution channels is crucial to 
the system working properly. WTOP suggests that the security of 
emergency and test messages can be improved by switching to a system 
which encrypts messages and guarantees secure delivery with password 
protection and confirmation of delivery. NAB urges the FCC to 
coordinate with FEMA and equipment manufacturers to look for technical 
solutions for ensuring the security of EAS. Contra Costa states that 
digital technology, particularly the use of the CAP protocol, can 
protect and verify the security of public warning communication links, 
and can enable the consistent and comprehensive monitoring of all kinds 
and levels of warning activity nationwide. Contra Costa states just as 
the Internet Protocols enable various kinds of computers to work 
together, CAP can provide the basis for a secure ``warning internet'' 
that can leverage all our warning assets to achieve more than any 
single system can alone.
    14. We agree with commenters that all EAS Participants should 
authenticate the source of, and validate the contents of, EAS alerts. 
As discussed above, CAP has the capability to allow those who initiate 
and retransmit EAS alerts to encrypt, authenticate, and validate EAS 
alerts. We believe that EAS Participants that configure their networks 
to receive CAP-formatted messages will be able to satisfactorily 
authenticate and validate EAS alerts in consultation with FEMA. 
Accordingly, should FEMA adopt CAP as the common alerting protocol for 
EAS alerts, all EAS Participants must configure their systems to 
incorporate CAP security functions within 180 days after FEMA publishes 
the standards for authentication and validation of CAP-formatted 
alerts. We expect EAS Participants to cooperate with FEMA in its 
efforts to develop policies, plans, and procedures that meet FEMA's 
requirements for the new delivery systems and CAP protocol adopted by 
FEMA.

Next Generation Distribution Systems

    15. Recent experience demonstrates that natural disasters and 
terrorist incidents can adversely impact terrestrial telecommunications 
infrastructure. To achieve the Commission's goals of enhancing the 
redundancy, reliability and security of EAS, we enable the use of 
diverse EAS distribution platforms. Our actions today also will ensure 
that the Secretary of Homeland Security can implement the President's 
directive to provide ``as many communications pathways as practicable'' 
to reach the American people during crises.
    16. The development of alternative distribution systems is already 
underway. For example, we note that the Association of Public 
Television Stations (``APTS'') has proposed a hybrid, satellite/DTV 
broadcast system that was an integral part of FEMA's Digital Emergency 
Alert System (DEAS) National Capital Region Pilot. On July 12, 2006, 
FEMA and APTS announced the successful completion of Phase II of the 
DEAS pilot, and that the new DEAS would be operational in the Gulf 
Coast and Atlantic regions by the end of 2006, and will be deployed 
nationally by the end of 2007.
    17. We agree with commenters that satellite-based alert 
distribution could be a valuable complement to the existing EAS 
station-relay distribution method. The vast coverage area of satellite 
signal footprints would allow immediate alerting of substantial 
portions of the country with appropriate equipment. Satellite systems 
also are generally immune from natural disasters and therefore may 
provide critical redundancy in the event that terrestrial wireline or 
wireless infrastructure is compromised. We also agree with commenters 
that Internet-based systems may enhance the resiliency of the EAS 
distribution network. The Internet is a robust, packet-switched network 
with intelligent routing, and is designed to provide alternative routes 
to reach almost all users. Moreover, the Internet is ubiquitous and can 
enhance the geographic reach of EAS. The open design of the Internet 
also means that EAS applications can be designed to meet the specific 
needs of EAS without limitation by the network.
    18. We conclude that the distribution architecture of the existing 
EAS should be enhanced. The record underscores that EAS could be 
improved by authorizing the delivery of alerts through the existing EAS 
coupled with new redundant, distribution systems for EAS. We conclude, 
however, that FEMA is best positioned to determine the types of 
additional EAS systems that should be accommodated by EAS Participants. 
We expect that EAS Participants will collaborate closely with FEMA and 
other governmental entities to fully implement such requirements. 
Accordingly, should FEMA announce technical standards for any Next 
Generation EAS alert delivery system, EAS Participants must configure 
their networks to receive CAP-formatted alerts delivered pursuant to 
such delivery system, whether wireline, Internet, satellite or other, 
within 180 days after the date that FEMA announces the technical 
standards for such Next Generation EAS alert delivery.

CAP and Next Generation EAS: Better Serving the Needs of Persons With 
Disabilities and Non-English Speakers

    19. Serving the needs of persons with disabilities. President 
Bush's Executive Order mandates that the Secretary of Homeland Security 
``include in the public alert and warning system the capability to 
alert and warn all Americans, including those with disabilities and 
those without an understanding of the English language.'' We believe 
that CAP could provide an important tool for helping to accomplish this 
goal.
    20. CAP should facilitate the provision of functionally equivalent 
EAS alerts and warnings to persons with disabilities. Using CAP, the 
original format of warning messages could be converted into various 
formats, including text, video, and audio. Critical information 
graphically portrayed, scrolled, or crawled on the screen also could be 
accompanied by an audio description. Persons with hearing disabilities 
would be able to read the entire emergency message instead of a brief 
summary. Audio and visual formats are both important and could contain 
the same information. Moreover, a CAP-formatted message could be 
converted to synthesized speech, as is done by NWS weather alerts, for 
visually impaired persons. Accordingly, in the Order, we promote the 
delivery of audio, video, and text messages to persons with 
disabilities by requiring EAS Participants to accept CAP-formatted 
alerts and warnings, should CAP be adopted by FEMA.
    21. While CAP is promising, however, it may not be the whole answer 
for making EAS alerts accessible to persons with disabilities, and it 
does not address the broader question of making emergency and public 
safety information available to persons with disabilities. For example, 
Section 79.2 of the Commission's rules requires video programming 
distributors to make the audio portion of emergency information 
accessible to persons with hearing disabilities using closed captioning 
or other methods of visual presentation. Video programming

[[Page 62126]]

distributors also must ensure that emergency information provided in 
the video portion of a regularly scheduled newscast, or a newscast that 
interrupts regular programming, is accessible to persons with visual 
disabilities through aural description in the main audio, such as open 
video description. Emergency information is defined as information 
about a current emergency that is intended to further the protection of 
life, health, safety, and property, i.e. critical details regarding the 
emergency and how to respond to the emergency.
    22. We are issuing a Further Notice of Proposed Rulemaking to re-
examine the best way to make EAS and other emergency information 
accessible to persons with disabilities. We will invite comment on: (1) 
Presentation of the audio feed in text format, and vice-versa; (2) 
making emergency information available to various devices commonly used 
by persons with disabilities; and (3) providing emergency messages in 
multiple formats to meet the needs of persons with disabilities.
    23. Serving non-English Speakers. We also affirm our commitment 
that non-English speakers should have access to EAS alerts as soon as 
the simultaneous transmission of multilingual messages is practicable. 
We believe that the first step toward more effectively serving non-
English speakers, consistent with the Secretary of Homeland Security's 
responsibility to enable alerting of ``those without an understanding 
of the English language'' is to require the use of CAP, conditional on 
its adoption by FEMA. Requiring EAS Participants to be able to receive 
CAP-formatted alerts will facilitate more accurate and detailed 
multilingual alerts. At the same time, we also expect that EAS 
participants will simultaneously transmit multilingual CAP-formatted 
messages by EAS Participants as soon as such transmission is 
practicable. For example, this could happen either as a result of the 
development of comprehensive, nation-wide Next Generation EAS under 
FEMA's auspices, or pursuant to the earlier development of CAP-based 
transmission systems at the state level per coordination between state 
planners and FEMA. This requirement will ensure that the initiator of 
any EAS alert has the technological capability to deliver 
simultaneously messages in English and any other language determined to 
be appropriate for a given alert.
    24. The rules we adopt provide the groundwork for transmission of 
multilingual EAS alerts and warnings. CAP, however, may not be a 
complete answer for making EAS alerts available to non-English 
speakers, and is not a comprehensive solution for making general 
emergency and public safety information available to non-English 
speakers. Indeed, we believe that Petitioners' request is broader than 
the formal EAS structure and raises important questions about the 
availability of emergency information to the non-English speaking 
audience. We initiate today a Further Notice to seek additional comment 
on these proposals. Although we hope that the stakeholders will work 
together, under our auspices, to reach a resolution prior to the 
conclusion of our proceeding on these issues, we are prepared to issue 
an order addressing these issues within six months.
    25. In order to begin focusing on these issues quickly, we direct 
the Public Safety and Homeland Security Bureau to convene a discussion 
(or a series of discussions) at the Commission among stakeholders as 
soon as possible, and to place a report describing the results in the 
public docket within 30 days of release of the Order.

Expanding the Base of EAS Participants

    26. Wireline Video Participation in EAS. We agree with commenters 
that Wireline Video Providers should be considered Participants under 
our EAS rules. The EAS plays a critical role in providing vital public 
safety information. The long-term resilience of the EAS could be 
significantly increased by careful implementation that could better 
accommodate, and even harness, the innate flexibility of IP-based 
networks that can route around damaged nodes. Moreover, a viewer's 
reasonable expectation regarding the availability of alerts over 
television programming is identical, whether the programming is over-
the-air broadcasting, cable, DBS, or a new wireline video service. By 
adopting a technologically neutral EAS obligation today, the Commission 
is enabling these emerging service providers to integrate EAS at an 
early developmental stage.
    27. Under section 624(g) of the Act and the Commission's EAS 
regulations, providers of ``cable systems'' must participate in EAS. 
Section 624(g) of the Act provides that ``each cable operator shall 
comply with such standards as the Commission shall prescribe to ensure 
that viewers of video programming on cable systems are afforded the 
same emergency information as is afforded by the emergency broadcasting 
system pursuant to Commission regulations in subpart G of part 73, 
title 47, Code of Federal Regulations.'' The Commission imposed EAS 
regulations on cable operators pursuant to this mandate in 1994, 
concluding that cable ``is invaluable in the dissemination of 
information during emergencies.'' The term ``cable operator'' means a 
person ``who provides cable service over a cable system,'' including 
``a facility of a common carrier which is subject, in whole or in part, 
to the provisions of title II of this Act * * * to the extent such 
facility is used in the transmission of video programming directly to 
subscribers, unless the extent of such use is solely to provide 
interactive on-demand services.'' Thus, section 624(g) expressly 
authorizes the imposition of EAS requirements on Wireline Video 
Providers to the extent that they qualify as ``cable operators'' under 
the Act.
    28. To the extent that Wireline Video Providers do not qualify as 
``cable operators'' under the Act, we require that they participate in 
EAS pursuant to our Title I ancillary jurisdiction and in connection 
with our specific responsibilities under sections 624(g) and 706. As a 
general matter, the Commission has discretion to use ancillary 
jurisdiction when the Commission has Title I subject matter 
jurisdiction over the service and the assertion of jurisdiction is 
``reasonably ancillary to the effective performance of [its] various 
responsibilities.'' Wireline Video Providers fall within the scope of 
the Commission's jurisdiction because they provide ``interstate * * * 
communication by wire.'' At least some of their services involve 
transmission across state lines, meeting the definition of ``interstate 
communication,'' and they are ``wire communication,'' which is 
``transmission of * * * pictures * * * and sounds * * * by aid of wire, 
cable, or other like connection.'' Thus, the Commission has subject 
matter jurisdiction over these services. We also find that imposing an 
EAS requirement is reasonably ancillary to the effective performance of 
our responsibilities. Wireline Video Providers' participation in the 
EAS will advance the animating purpose of section 624(g) by ensuring 
that their video subscribers have access to the same emergency 
information as broadcast and cable television viewers. Indeed, we 
believe that their EAS participation is necessary to preserve and 
advance the goals of section 624(g), as Wireline Video Providers offer 
competitive alternatives to the video programming available through 
broadcast and cable television, and are likely to reach increasingly 
large portions of the American public as they deploy their services. 
Moreover, requiring Wireline Video Providers to participate in EAS also 
will further our core public safety mission under Title I,

[[Page 62127]]

which requires us to take steps to ``promot[e] safety of life and 
property,'' and section 706, and is consistent with prior Commission 
actions. Accordingly, we conclude that we have ancillary jurisdiction 
to require even those Wireline Video Providers that may not be cable 
operators under the Act to participate in EAS.
    29. As a policy matter, we believe that the reasonable expectations 
of viewers should guide our efforts to encourage the development of a 
more comprehensive EAS system. We reaffirm that our long-term goal is 
to incorporate as many communications technologies as possible into a 
comprehensive, flexible, and redundant system to deliver EAS alerts 
quickly to the largest number of consumers.
    30. Wireline Video Providers should be subject to the same EAS 
requirements as providers of Digital Cable Systems. We therefore amend 
our EAS rules to specifically include Wireline Video Providers. 
Wireline Video Providers are EAS Participants, however, only to the 
extent they provide video services; our EAS rules do not impose 
mandatory EAS obligations on wireline telephone companies providing 
traditional landline telephone services at this time.

Wireless Participation in EAS

    31. Because the WARN Act directs the Commission to initiate a 
rulemaking regarding the establishment of an alerting system for 
commercial mobile service (CMS) providers that voluntarily elect to 
transmit emergency alerts, and the schedule set by the WARN Act 
precludes initiation of such rulemaking until a later date, we do not 
address commercial wireless carrier participation in EAS in the Order.

State Level and Geographically Targeted EAS Alerts

    32. Receipt of State-Level Messages We believe that voluntary 
participation by cable and broadcast EAS Participants in accommodating 
state and local level alerting in the existing EAS has been generally 
successful. Nevertheless, we conclude there are compelling policy 
reasons to order EAS Participants to receive CAP-formatted EAS alerts 
activated by state governors or their designees. First, we again note 
that EAS use to date has been overwhelmingly related to weather and 
state and local alerts. We also believe that states will be more 
inclined to deploy the necessary resources to upgrade to Next 
Generation EAS, including the ability to simultaneously transmit 
multiple and differentiated CAP-formatted messages, if the states have 
a particular--and FCC-enforceable--stake in the EAS during state and 
local emergencies. We conclude, therefore, that all EAS Participants 
within a state are required to be prepared to receive state-level 
messages delivered to the participant by the state's governor (or the 
governor's designee) within 180 days from the date FEMA adopts CAP, so 
long as such delivery is explicitly described in a state EAS plan that 
is submitted to and approved by the Commission. In addition, we believe 
that other public officials may, in appropriate circumstances, activate 
EAS alerts. We seek comment in the attached Further NPRM about which 
officials should be permitted to activate EAS alerts and under what 
circumstances.
    33. We recognize that requiring EAS Participants to receive 
emergency alerts directly from state political subdivisions, such as 
counties and cities, could be unduly complex and costly and would 
create the potential for some alerts to reach those who may not be 
affected by a particular emergency. Accordingly, we will only require 
EAS Participants to receive CAP-formatted EAS messages delivered to 
them by a state governor (or the governor's designee), or by FEMA (or 
its designee) on behalf of a state. We find that requiring EAS 
Participants to receive CAP-formatted EAS messages delivered by a state 
governor of any state in which they provide service falls within the 
scope of our Title I subject matter jurisdiction as well as our public 
interest authority to grant licenses for radio communication under 
Title III of the Act. ``[P]romoting safety of life and property through 
the use of wire and radio communication'' is a core mission of the FCC 
under Title I, Title III authorizes the FCC to grant radio licenses in 
the public interest, and the Commission is authorized to ``make such 
rules and regulations * * * as may be necessary in the execution of its 
functions,'' and to ``[m]ake such rules and regulations * * * not 
inconsistent with law, as may be necessary to carry out the provisions 
of this Act * * *.'' Developing and maintaining an effective, reliable, 
integrated, flexible, and comprehensive EAS system is a fundamental and 
longstanding FCC mission under the Communications Act.
    34. Requiring EAS Participants to receive state-level alerts 
delivered pursuant to, and upon adoption by FEMA of CAP advances the 
Commission's policy objectives and serves the public interest by 
ensuring the ability of state governors to disseminate emergency 
information via EAS facilities. State governments play an essential 
role in providing emergency information to the public. The Commission's 
EAS regulations always have accounted for the importance of state-level 
alerts, but we now conclude that mandating receipt of state-level EAS 
messages will further our core public safety mission.
    35. Exercising ancillary jurisdiction to require EAS participants 
to receive messages delivered to them by a state governor also furthers 
other statutory goals. Section 615 requires the Commission to 
``encourage and support efforts by States to deploy comprehensive end-
to-end emergency communications infrastructure and programs,'' while 
section 706 grants specific, communications-related powers to the 
President in time of war or national emergency. In such event, the 
President may, for example, take control of, or suspend or amend the 
rules and regulations applicable to, any or all cable and radio and 
television broadcast stations within the Commission's jurisdiction. 
Commission authority to regulate participation by cable systems in the 
emergency alerting process stems primarily from section 624(g) of the 
Act. That provision requires the Commission to ensure that cable 
viewers are afforded the same access to emergency communications as 
broadcast viewers and listeners. Additionally, the Americans with 
Disabilities Act strives to make all facets of our society fully 
accessible to individuals with disabilities. Finally, in light of the 
President's 2006 Executive Order, which directs the Commission to adopt 
rules to ensure that communications systems have the capacity to 
transmit alerts and warnings to the public as part of the public alert 
and warning system, we note that our action today is consistent with 
that Presidential directive as well as with emergency preparedness 
goals expressed by Congress in other statutes.
    36. Accordingly, we reject as without merit NAB's argument that the 
Commission lacks authority to mandate participation in state-level EAS 
alerts. NAB points out that section 706 concerns Presidential 
communications, and the executive orders delegating authority to the 
FCC pursuant to section 706 largely concern the development of a 
national-level communications capability to serve Presidential needs, 
rather than state or local needs. Section 706 is not the only source of 
FCC authority to impose EAS requirements, however. The Commission's 
core public safety mission under Title I is not limited to national 
emergencies, nor is our Title III authority to grant radio licenses in 
the public interest so limited. Indeed, the Executive Order broadly 
affirms that ``[i]t is the policy of

[[Page 62128]]

the United States to have an effective, reliable, integrated, flexible, 
and comprehensive system to alert and warn the American people * * *, 
taking appropriate account of * * * all levels of government in our 
Federal system * * *.'' We could not ensure a ``comprehensive'' system 
without taking state governments into account. The FCC's past reliance 
on voluntary state-level EAS participation reflects a policy judgment, 
rather than a lack of authority, as NAB suggests.
    37. NAB also argues that the Commission cannot rely on section 1 
because requiring state-level EAS participation implicates programming 
content. The only support that NAB offers for this argument is the D.C. 
Circuit's statement in Motion Picture Ass'n of America, Inc. v. FCC 
that ``[o]ne of the reasons why section 1 has not been construed to 
allow the FCC to regulate programming content is because such 
regulations invariably raise First Amendment issues.'' NAB's reliance 
on this statement is misplaced. In the MPAA decision, the Commission 
was relying on Title I alone to regulate programming content in the 
face of a statutory provision regarding video descriptions that the 
court interpreted as limiting FCC authority. Here, in contrast, we rely 
on Title III as well as Title I to mandate the carriage of emergency 
information. Requiring the carriage of emergency information also is a 
longstanding function of the Commission. NAB fails to explain how 
requiring state-level EAS participation implicates programming content 
in a manner different from the longstanding requirement of national-
level EAS participation, which NAB does not challenge.
    38. In addition to the source of our legal authority to require 
participation in state-level EAS, we also must consider the facilities 
and architecture of the various EAS Participants in determining how 
best to implement a state-level EAS requirement. We note that the 
existing EAS network architecture is based on a broadcast model of 
localized receipt and distribution by radio, television, and cable 
service providers using ENDEC units situated throughout their service 
areas. We recognize that certain other EAS Participants may have 
organized their service infrastructure on a national, not regional, 
basis. For example, the Commission recognized in the First Report and 
Order that SDARS ``is by nature a national service and that as a result 
the development of methods to ensure receipt of state and local alerts 
by SDARS licensees is likely to be challenging.'' Requiring these 
carriers to establish monitoring capability in every state where they 
do business could prove to be unduly burdensome. Satellite carriers, in 
particular, have expressed a need for a single receive point for EAS 
alerts that would complement their organizational structure.
    39. We do not require SDARs and DBS providers to accommodate state-
level alerts given the national nature of their broadcast area. We note 
that SDARS and DBS cannot accommodate state-level alerts at present and 
might not be able to do so even after the full implementation of Next 
Generation EAS. In the United States, there are two licensed SDARS 
operators: Sirius Satellite Radio, Inc. (``Sirius'') and XM Radio, Inc. 
(``XM''). Both licensees transmit their programming via satellite 
directly to subscribers' receivers on a nationwide basis. In the First 
Report and Order, the Commission required the SDARS licensees to 
transmit national level EAS messages on all channels on their systems. 
In the Further NPRM, the Commission sought comment on how technologies 
like SDARS, which are designed to receive and deliver national 
programming, could deliver state and local alerts. Although some 
potential, developing functionalities may enable SDARS to support geo-
targeting, such as state-level alerts, in the future, XM expressed 
concerns that its current system cannot support geographical targeting 
of even state-level alerts to affected subscribers. XM states that 
there are two impediments for SDARS to transmit state or local alerts--
a satellite radio provider does not have an ENDEC unit located in every 
area where a local alert might originate, and a satellite radio 
provider's programming reaches subscribers nationwide. Because SDARS 
providers face technical difficulties in distributing even state-level 
alerts to their subscribers, we will not at this time require SDARS to 
provide geographically-targeted alerts, including state-level alerts.
    40. Likewise, DBS satellite service providers, such as EchoStar 
(Dish Network) and DIRECTV, transmit video programming on a nationwide 
basis to subscribers over a wide area. DIRECTV and PanAmSat state that 
currently DBS systems cannot distribute state and local alerts without 
interrupting programming across a wide area. DIRECTV also states that 
its system currently does not have the capability to receive, sort, and 
disseminate state and local EAS messages only to the subscribers in the 
affected areas. Because DBS providers also face technical difficulties 
in distributing alerts to portions of their subscribers, we will not at 
this time require DBS to provide geographically-targeted alerts, 
including state-level alerts.

Geographically Targeted Alerts at Less Than State-Level

    41. Although we are limiting the requirement that EAS Participants 
receive state level messages to messages received from state governors 
(or their designees) pursuant to CAP, we do not seek to restrict state 
use of the EAS network to only emergency messages that require 
statewide distribution. A governor could, for example, determine that 
certain emergencies warrant use of the EAS network to deliver a 
geographically-targeted alert to particular regions. Employing CAP will 
facilitate such geo-targeting, at least in connection with some 
technologies. Accordingly, we also require EAS Participants to deliver 
emergency alerts to areas smaller than a state. In order to transmit 
such targeted alerts, however, EAS Participants must be provided with 
CAP-formatted messages containing appropriate codes. Further, EAS 
Participants may comply with this requirement by utilizing geographic-
specific alerts such as subscripts utilizing localized information. 
Expanding our state-level alert transmission requirement to include 
geographically targeted alerts will afford each state governor the 
ability to determine the types and geographic scope of emergency alerts 
provided to residents via the EAS network, in coordination with the 
ability of EAS Participants in his or her state to accommodate such 
alerts. Importantly, however, in adopting this requirement, we note 
that terrestrial broadcasters may not presently have the technical 
ability to restrict delivery of a targeted alert solely to the affected 
portion of their service area. This type of restriction is not 
necessary in order to comply with the requirements established in this 
Order.

Coordination With State and Local Governments

    42. For nearly half a century, the Commission has encouraged state 
and local participation in the EAS (and its predecessor, the EBS), and 
we take additional steps in the Order that will ensure the effective 
and efficient participation by states and local jurisdictions in the 
EAS. We note that the SECCs, industry participants, and state and local 
officials have worked closely with Commission staff to ensure the 
efficacy of the EAS, resulting in EAS plans for all 50 states. The 
Commission has reviewed and approved EAS plans for a number of states, 
and continues to

[[Page 62129]]

have a cooperative, highly effective relationship with the SECCs.
    43. As a result of the actions we take today to ensure that state 
governors have a robust and reliable EAS network at their disposal, 
states will likely need to revise their EAS plans to specify how and 
what types of EAS alerts they will transmit to EAS Participants. Such 
information will enable the Commission, FEMA, affected EAS 
Participants, and other interested parties to ensure that these plans 
are implemented successfully. While we do not dictate specific plan 
revisions other than those set forth herein for implementing mandatory 
state-level alerts, we encourage states to include information 
regarding redundant distribution of EAS alerts. Since state EAS plans 
will be required to contain information concerning our new requirement 
that EAS Participants must distribute EAS alerts delivered by state 
governors, plans should specify how the governor's CAP-formatted EAS 
messages will be transmitted to all EAS Participants who provide 
services in the state. We also encourage states to submit an electronic 
data file specifying monitoring assignments and the paths for the 
Emergency Action Notification (EAN) from the NP to each station in 
their plans. We believe that such an electronic submission would 
facilitate the Commission's revision of the EAS ``Map Book'' required 
under the EAS rules. We also urge states to provide detailed 
information identifying the monitored and monitoring broadcast 
stations.
    44. In order to ensure that the Commission has sufficient notice of 
revised EAS plans, we will require state and local entities to file 
modified plans with the Commission at least 90 days before the 
effective date of any revision to their EAS plans or their EAS 
designations. In addition, we will require state and local entities to 
annually confirm their plans and designations.
    45. We also agree with commenters and the specific recommendation 
of the Independent Panel that the Commission should proactively provide 
EAS training to interested parties. We agree with Contra Costa that 
education to public safety and citizens is critical in making any type 
of infrastructure successful. We also believe that the Alaska 
Broadcasters Association and the State Emergency Communications 
Committee (Joint Parties) in our EAS proceeding are correct in 
recommending that training be provided for emergency managers as well 
as subject broadcasters, cable systems and other media operators. We 
take particular note of the argument of the Ohio Association of 
Broadcasters that proper training (and retraining) is a critical 
component of EAS, and supports training programs at the local level. 
OAB believes the Federal government also should be responsible for 
providing guidance to ensure that an appropriate minimum level of 
training of emergency management personnel is provided. According to 
OAB, a national training standard would ensure that training of persons 
who administer and activate EAS is uniform throughout local 
communities, states, and among federal, state and local government 
agencies. Accordingly, we hereby instruct the Commission's Public 
Safety and Homeland Security Bureau to coordinate with FEMA on the 
appropriate requirements for and resources to conduct EAS training 
programs to ensure states and other interested parties can implement 
the Next Generation EAS.

Assessing EAS Operation

    46. In the Further Notice, we asked whether performance standards 
are necessary to ensure that Next Generation technologies deliver 
alerts to the American public in a timely and accurate fashion. We 
noted that proposed standards could include the length of time it takes 
to receive a message and the accuracy of the message.
    47. It is vital that the EAS operates as designed in an emergency. 
We intend to examine several potential mechanisms to ensure that is the 
case. In the Further Notice of Proposed Rulemaking, we seek comment on 
several options, including: (1) Additional testing; (2) station 
certification of compliance; and (3) assessments of EAS performance 
after an alert has been triggered. We will revisit the issue of 
performance standards if it appears that they are warranted.

I. Procedural Matters

A. Paperwork Reduction Act Analysis

    48. This Second Report and Order contains new and modified 
information collection requirements subject to the Paperwork Reduction 
Act of 1995 (``PRA''), Public Law 104-13. It will be submitted to the 
Office of Management and Budget (``OMB'') for review under section 
3507(d) of the PRA.

B. Congressional Review Act

    49. The Commission will send a copy of this Second Report and Order 
in a report to be sent to Congress and the Government Accountability 
Office pursuant to the Congressional Review Act (``CRA''), see 5 U.S.C. 
801(a)(1)(A).

II. Final Regulatory Flexibility Analysis

    50. As required by the Regulatory Flexibility Act (``RFA''), an 
Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in 
the Further Notice of Proposed Rulemaking in EB Docket 04-296 (``First 
Report and Order and FNPRM''). The Commission sought written public 
comment on the proposals in the EAS NPRM, including comment on the 
IRFA. This Final Regulatory Flexibility Analysis (``FRFA'') conforms to 
the RFA.

Need for, and Objectives of, the Rules

    51. The Second Report and Order adopts rules that set the framework 
for a Next Generation EAS. In the Order, we take the following actions 
to establish service requirements for a Next Generation EAS, and 
establish schedules by which industry segments must transition to the 
new system: (1) Require EAS Participants to configure their systems to 
accept EAS alerts formatted in the Common Alerting Protocol (``CAP'') 
format no later than 180 days after FEMA announces the technical 
standards and requirements for CAP-formatted messages; (2) require EAS 
Participants to configure their systems to authenticate and validate 
EAS alerts formatted in the CAP format no later than 180 days after 
FEMA announces the standards for authentication and validation of CAP-
formatted messages; (3) require EAS Participants to receive and 
transmit state-level messages delivered to the Participant by the 
state's governor (or the governor's designee) within 180 days from the 
date FEMA adopts CAP, so long as such delivery is explicitly described 
in a state EAS plan that is submitted to and approved by the 
Commission; (4) require wireline common carriers that provide video 
programming service to receive and distribute EAS messages; and (5) 
delegate authority to the Chief, Public Safety and Homeland Security 
Bureau to perform actions that will facilitate proper implementation of 
our rules and resolution of issues as set forth herein.

Summary of Significant Issues Raised by Public Comments in Response to 
the IRFA

    52. There were no comments filed that specifically addressed the 
IRFA.

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

    53. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of, the number of small entities that may 
be affected by the rules adopted herein. The RFA

[[Page 62130]]

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'').
    54. A small organization is generally ``any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.'' Nationwide, as of 2002, there were 
approximately 1.6 million small organizations. The term ``small 
governmental jurisdiction'' is defined as ``governments of cities, 
towns, townships, villages, school districts, or special districts, 
with a population of less than fifty thousand.'' As of 1997, there were 
approximately 87,453 governmental jurisdictions in the United States. 
This number includes 39,044 county governments, municipalities, and 
townships, of which 37,546 (approximately 96.2 percent) have 
populations of fewer than 50,000, and of which 1,498 have populations 
of 50,000 or more. Thus, we estimate the number of small governmental 
jurisdictions overall to be 84,098 or fewer. Nationwide, there are a 
total of approximately 22.4 million small businesses, according to SBA 
data.
    55. Television Broadcasting. The SBA has developed a small business 
sized standard for television broadcasting, which consists of all such 
firms having $13 million or less in annual receipts. Business concerns 
included in this industry are those ``primarily engaged in broadcasting 
images together with sound.'' According to Commission staff review of 
BIA Publications, Inc. Master Access Television Analyzer Database, as 
of May 16, 2003, about 814 of the 1,220 commercial television stations 
in the United States had revenues of $12 million or less. We note, 
however, that, in assessing whether a business concern qualifies as 
small under the above definition, business (control) affiliations must 
be included. Our estimate, therefore, likely overstates the number of 
small entities that might be affected by our action, because the 
revenue figure on which it is based does not include or aggregate 
revenues from affiliated companies. There are also 2,127 low power 
television stations (``LPTV''). Given the nature of this service, we 
will presume that all LPTV licensees qualify as small entities under 
the SBA size standard.
    56. Radio Stations. The revised rules and policies potentially will 
apply to all AM and commercial FM radio broadcasting licensees and 
potential licensees. The SBA defines a radio broadcasting station that 
has $6.5 million or less in annual receipts as a small business. A 
radio broadcasting station is an establishment primarily engaged in 
broadcasting aural programs by radio to the public. Included in this 
industry are commercial, religious, educational, and other radio 
stations. Radio broadcasting stations which primarily are engaged in 
radio broadcasting and which produce radio program materials are 
similarly included. However, radio stations that are separate 
establishments and are primarily engaged in producing radio program 
material are classified under another NAICS number. According to 
Commission staff review of BIA Publications, Inc. Master Access Radio 
Analyzer Database on March 31, 2005, about 10,840 (95 percent) of 
11,410 commercial radio stations have revenue of $6 million or less. We 
note, however, that many radio stations are affiliated with much larger 
corporations having much higher revenue. Our estimate, therefore, 
likely overstates the number of small entities that might be affected 
by our action.
    57. Cable and Other Program Distribution. The SBA has developed a 
small business size standard for cable and other program distribution, 
which consists of all such firms having $12.5 million or less in annual 
receipts. According to Census Bureau data for 1997, in this category 
there was a total of 1,311 firms that operated for the entire year. Of 
this total, 1,180 firms had annual receipts of under $10 million, and 
an additional 52 firms had receipts of $10 million to $24,999,999. 
Thus, under this size standard, the majority of firms can be considered 
small. In addition, limited preliminary census data for 2002 indicate 
that the total number of cable and other program distribution companies 
increased approximately 46 percent from 1997 to 2002.
    58. Cable System Operators (Rate Regulation Standard). The 
Commission has developed its own small business size standard for cable 
system operators, for purposes of rate regulation. Under the 
Commission's rules, a ``small cable company'' is one serving 400,000 or 
fewer subscribers nationwide. We have estimated that there were 1,065 
cable operators who qualified as small cable system operators at the 
end of 2005. Since then, some of those companies may have grown to 
serve over 400,000 subscribers, and others may have been involved in 
transactions that caused them to be combined with other cable 
operators. Consequently, the Commission estimates that there are now 
fewer than 1,065 small entity cable system operators that may be 
affected by the rules and policies proposed herein.
    59. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, (``Act'') also contains a size 
standard for small cable system operators, which is ``a cable operator 
that, directly or through an affiliate, serves in the aggregate fewer 
than 1 percent of all subscribers in the United States and is not 
affiliated with any entity or entities whose gross annual revenues in 
the aggregate exceed $250,000,000.'' The Commission has determined that 
there are 67,700,000 subscribers in the United States. Therefore, an 
operator serving fewer than 677,000 subscribers shall be deemed a small 
operator, if its annual revenues, when combined with the total annual 
revenues of all its affiliates, do not exceed $250 million in the 
aggregate. Based on available data, the Commission estimates that the 
number of cable operators serving 677,000 subscribers or fewer, totals 
1,065. The Commission neither requests nor collects information on 
whether cable system operators are affiliated with entities whose gross 
annual revenues exceed $250 million, and therefore are unable, at this 
time, to estimate more accurately the number of cable system operators 
that would qualify as small cable operators under the size standard 
contained in the Act.
    60. Multipoint Distribution Systems. The established rules 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, we estimate that 
of the 61 small business MDS auction winners, 48 remain small business 
licensees.
    61. MDS also includes licensees of stations authorized prior to the 
auction. As noted above, the SBA has developed a definition of small 
entities for pay television services, cable and other

[[Page 62131]]

subscription programming, which includes all such companies generating 
$13.5 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, we estimate that there 
are at least 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 adopted herein. In addition, limited 
preliminary census data for 2002 indicate that the total number of 
cable and other program distribution companies increased approximately 
46 percent from 1997 to 2002.
    62. Instructional Television Fixed Service. The established 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, we do 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, we 
tentatively conclude that at least 1,932 are small businesses and may 
be affected by the established rules.
    63. Incumbent Local Exchange Carriers (``LECs''). We have included 
small incumbent LECs in this present IRFA analysis. As noted above, a 
``small business'' under the RFA is one that, inter alia, meets the 
pertinent small business size standard (e.g., a telephone 
communications business having 1,500 or fewer employees), and ``is not 
dominant in its field of operation.'' The SBA's Office of Advocacy 
contends that, for RFA purposes, small incumbent LECs are not dominant 
in their field of operation because any such dominance is not 
``national'' in scope. We have therefore included small incumbent local 
exchange carriers in this RFA analysis, although we emphasize that this 
RFA action has no effect on Commission analyses and determinations in 
other, non-RFA contexts. Neither the Commission nor the SBA has 
developed a small business size standard specifically for incumbent 
local exchange services. The appropriate size standard under SBA rules 
is for the category Wired Telecommunications Carriers. Under that size 
standard, such a business is small if it has 1,500 or fewer employees. 
According to Commission data, 1,303 carriers have reported that they 
are engaged in the provision of incumbent local exchange services. Of 
these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees 
and 283 have more than 1,500 employees. Consequently, the Commission 
estimates that most providers of incumbent local exchange service are 
small businesses that may be affected by our proposed rules.
    64. Competitive (LECs), Competitive Access Providers (CAPs), 
``Shared-Tenant Service Providers,'' and ``Other Local Service 
Providers.'' Neither the Commission nor the SBA has developed a small 
business size standard specifically for these service providers. The 
appropriate size standard under SBA rules is for the category Wired 
Telecommunications Carriers. Under that size standard, such a business 
is small if it has 1,500 or fewer employees. According to Commission 
data, 769 carriers have reported that they are engaged in the provision 
of either competitive access provider services or competitive local 
exchange carrier services. Of these 769 carriers, an estimated 676 have 
1,500 or fewer employees and 93 have more than 1,500 employees. In 
addition, 12 carriers have reported that they are ``Shared-Tenant 
Service Providers,'' and all 12 are estimated to have 1,500 or fewer 
employees. In addition, 39 carriers have reported that they are ``Other 
Local Service Providers.'' Of the 39, an estimated 38 have 1,500 or 
fewer employees and one has more than 1,500 employees. Consequently, 
the Commission estimates that most providers of competitive local 
exchange service, competitive access providers, ``Shared-Tenant Service 
Providers,'' and ``Other Local Service Providers'' are small entities 
that may be affected by our proposed rules.
    65. Satellite Telecommunications and Other Telecommunications. The 
Commission has not developed a small business size standard 
specifically for providers of satellite service. The appropriate size 
standards under SBA rules are for the two broad categories of Satellite 
Telecommunications and Other Telecommunications. Under both categories, 
such a business is small if it has $12.5 million or less in average 
annual receipts. For the first category of Satellite 
Telecommunications, Census Bureau data for 1997 show that there were a 
total of 324 firms that operated for the entire year. Of this total, 
273 firms had annual receipts of under $10 million, and an additional 
twenty-four firms had receipts of $10 million to $24,999,999. Thus, the 
majority of Satellite Telecommunications firms can be considered small.
    66. The second category--Other Telecommunications--includes 
``establishments primarily engaged in * * * providing satellite 
terminal stations and associated facilities operationally connected 
with one or more terrestrial communications systems and capable of 
transmitting telecommunications to or receiving telecommunications from 
satellite systems.'' Of this total, 424 firms had annual receipts of $5 
million to $9,999,999 and an additional 6 firms had annual receipts of 
$10 million to $24,999,990. Thus, under this second size standard, the 
majority of firms can be considered small.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    67. In this Second Report and Order, we have taken steps to advance 
our public safety mission by establishing a framework for the Next 
Generation of EAS and by expanding the base of EAS participants to 
include wireline telephone companies that provide programming in 
competition with broadcast and cable television.

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

    68. The RFA requires an agency to describe any significant 
alternatives that it has considered in developing its approach, which 
may include the following four alternatives (among others): ``(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 and reporting requirements under the rule for such 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 
such small entities.''
    69. The First Report and Order and FNPRM sought comment on a number 
of alternatives to the imposition of EAS obligations on the digital 
communications technologies discussed in this Second Report and Order 
that are increasingly being used by the American public. The Commission 
has considered each of the alternatives and in this Second Report and 
Order imposes minimal regulation on small

[[Page 62132]]

entities to the extent consistent with our goal of advancing our public 
safety mission by adopting rules that expand the reach of EAS. The 
affected service providers have generally expressed their willingness 
to cooperate in a national warning system, and we anticipate that this 
addition of new providers to EAS can be accomplished swiftly and 
smoothly.
    70. The benefits of requiring additional carriers to participate in 
the current EAS far outweigh any burdens associated with implementing 
these requirements. EAS represents a significant and valuable 
investment that is able to provide effective alert and warning during 
the time that new, digitally-based public alert and warning systems are 
being developed. Most commenters contend, and we agree, that the EAS 
should remain an important component of any future alert and warning 
system. Further, in most cases, the digital platforms affected by this 
Second Report and Order either have in place the ability to distribute 
EAS warnings, or can do so in a reasonable amount of time and with 
minimal cost.
    71. Likewise, most commenters agreed that CAP is best-suited to 
deliver Next Generation EAS. By requiring EAS participants to adopt 
CAP, we believe that this will best serve our goal of protecting the 
life and property of all Americans. We acknowledge that compliance with 
the rules adopted in the order may impose cost burdens on small 
entities. However, given the great public interest benefits of the 
rules, we find that the public interest benefits outweigh the economic 
burdens, if any. In the Initial Regulatory Flexibility Analysis, we 
sought comment on these rules and no commenter proposed an alternative 
version that would serve these benefits while lessening the economic 
burdens. Accordingly, we find that we have discharged our duty to 
consider burdens imposed on small entities.
    72. Report to Congress: The Commission will send a copy of the 
Second Report and Order, including this FRFA, in a report to be sent to 
Congress and the Government Accountability Office pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Second Report and Order, including this FRFA, to the Chief 
Counsel for Advocacy of the SBA. A copy of the Second Report and Order 
and FRFA (or summaries thereof) will also be published in the Federal 
Register.

III. Ordering Clauses

    73. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 
4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706 and 715 of 
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) 
and (o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, 
that the Second Report and Order in EB Docket No. 04-296 is adopted, 
and that part 11 of the Commission's rules, 47 CFR part 11, is amended. 
The Order shall become effective December 3, 2007, or 60 days after 
Congress's receipt of a Congressional Review Act report, whichever is 
later, except that new or modified information collection requirements 
will not become effective prior to OMB approval.
    74. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Second Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects in 47 CFR Part 11

    Radio, Television.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 11 as follows:

PART 11--EMERGENCY ALERT SYSTEM (EAS)

0
1. The authority citation for part 11 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i) and (o), 303(r), 544(g) and 
606.


0
2. Section 11.1 is revised to read as follows:


Sec.  11.1  Purpose.

    This part contains rules and regulations providing for an Emergency 
Alert System (EAS). The EAS provides the President with the capability 
to provide immediate communications and information to the general 
public at the National, State and Local Area levels during periods of 
national emergency. The rules in this part describe the required 
technical standards and operational procedures of the EAS for analog 
AM, FM, and TV broadcast stations, digital broadcast stations, analog 
cable systems, digital cable systems, wireline video systems, wireless 
cable systems, Direct Broadcast Satellite (DBS) services, Satellite 
Digital Audio Radio Service (SDARS), and other participating entities. 
The EAS may be used to provide the heads of State and local government, 
or their designated representatives, with a means of emergency 
communication with the public in their State or Local Area.

0
3. Add Sec.  11.2 to read as follows:


Sec.  11.2  Definitions.

    The definitions of terms used in part 11 are:
    (a) Primary Entry Point (PEP) System. The PEP system is a 
nationwide network of broadcast stations and other entities connected 
with government activation points. It is used to distribute the EAN, 
EAT, and EAS national test messages and other EAS messages. FEMA has 
designated 34 of the nation's largest radio broadcast stations as PEPs. 
The PEPs are designated to receive the Presidential alert from FEMA and 
distribute it to local stations.
    (b) Local Primary One (LP-1). The LP-1 is a radio station that acts 
as a key EAS monitoring source. Each LP-1 station must monitor its 
regional PEP station and a back-up source for Presidential messages.
    (c) EAS Participants. Entities required under the Commission's 
rules to comply with EAS rules, e.g., analog radio and television 
stations, and wired and wireless cable television systems, DBS, DTV, 
SDARS, digital cable and DAB, and wireline video systems.
    (d) Wireline Video System. The system of a wireline common carrier 
used to provide video programming service.
    (e) Participating National (PN). PN stations are broadcast stations 
that transmit EAS National, state, or local EAS messages to the public.
    (f) National Primary (NP). Stations that are the primary entry 
point for Presidential messages delivered by FEMA. These stations are 
responsible for broadcasting a Presidential alert to the public and to 
State Primary stations within their broadcast range.
    (g) State Primary (SP). Stations that are the entry point for State 
messages, which can originate from the Governor or a designated 
representative.

0
4. Section 11.11 is amended by revising paragraph (a) and (e) to read 
as follows:


Sec.  11.11  The Emergency Alert System (EAS).

    (a) The EAS is composed of analog radio broadcast stations 
including AM, FM, and Low-power FM (LPFM) stations; digital audio 
broadcasting (DAB) stations, including digital AM, FM, and Low-power FM 
stations; analog television broadcast stations including

[[Page 62133]]

Class A television (CA) and Low-power TV (LPTV) stations; digital 
television (DTV) broadcast stations, including digital CA and digital 
LPTV stations; analog cable systems; digital cable systems which are 
defined for purposes of this part only as the portion of a cable system 
that delivers channels in digital format to subscribers at the input of 
a Unidirectional Digital Cable Product or other navigation device; 
wireline video systems; wireless cable systems which may consist of 
Broadband Radio Service (BRS), or Educational Broadband Service (EBS) 
stations; DBS services, as defined in 47 CFR 25.701(a) (including 
certain Ku-band Fixed-Satellite Service Direct to Home providers); 
SDARS, as defined in 47 CFR 25.201; participating broadcast networks, 
cable networks and program suppliers; and other entities and industries 
operating on an organized basis during emergencies at the National, 
State and local levels. These entities are referred to collectively as 
EAS Participants in this part, and are subject to this part, except as 
otherwise provided herein. At a minimum EAS Participants must use a 
common EAS protocol, as defined in Sec.  11.31, to send and receive 
emergency alerts in accordance with the effective dates listed above 
and in the following tables:

                                                          Analog and Digital Broadcast Stations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
  EAS equipment requirement     AM & FM class   Digital AM &         TV             DTV              FM class D \1\            LPTV \2\       LPFM \3\
                                   A TV \4\           FM
--------------------------------------------------------------------------------------------------------------------------------------------------------
Two-tone encoder \5\.........  Y \6\           Y 12/31/06      Y               Y 12/31/06     N              N              N              Y
EAS decoder..................  Y 1/1/97        Y 12/31/06      Y 1/1/97        Y 12/31/06     Y 1/1/97       Y 1/1/97       Y              Y
EAS encoder..................  Y 1/1/97        Y 12/31/06      Y 1/1/97        Y 12/31/06     N              N              N              Y
Audio message................  Y 1/1/97        Y 12/31/06      Y 1/1/97        Y 12/31/06     Y 1/1/97       Y 1/1/97       Y              Y
Video message................  N/A             N/A             Y 1/1/97        Y 12/31/06     N/A            Y 1/1/97       N/A            Y
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Effective December 31, 2006, digital FM Class D stations have the same requirements.
\2\ LPTV stations that operate as television broadcast translator stations are exempt from the requirement to have EAS equipment. Effective December 31,
  2006, digital LPTV stations have the same requirements.
\3\ LPFM stations must install a decoder within one year after the FCC publishes in the Federal Register a public notice indicating that at least one
  decoder has been certified by the FCC. Effective December 31, 2006, digital LPFM stations have the same requirements.
\4\ Effective December 31, 2006, digital Class A TV stations have the same requirements.
\5\ Effective July 1, 1995, the two-tone signal must be 8-25 seconds.
\6\ Effective January 1, 1998, the two-tone signal may only be used to provide audio alerts to audiences before EAS emergency messages and the required
  monthly tests.

Analog Cable Systems

    [A. Analog cable systems serving fewer than 5,000 subscribers from 
a headend must either provide the National level EAS message on all 
programmed channels including the required testing by October 1, 2002, 
or comply with the following EAS requirements. All other analog cable 
systems must comply with B.]

                                         System Size and Effective Dates
----------------------------------------------------------------------------------------------------------------
                                          >=5,000 but < 10,000
     B. EAS equipment requirement             subscribers          >=10,000 subscribers     <5,000  subscribers
----------------------------------------------------------------------------------------------------------------
Two-tone signal from storage device     Y 12/31/98               Y 10/1/02                Y 10/1/02
 \1\.
EAS decoder \3\.......................  Y 12/31/98               Y 10/1/02                Y 10/1/02
EAS encoder \2\.......................  Y 12/31/98               Y 10/1/02                Y 10/1/02
Audio and Video EAS Message on all      Y 12/31/98               Y 10/1/02                N
 channels.
Video interrupt and audio alert         N                        N                        Y 10/1/02
 message on all channels, \3\ Audio
 and Video EAS message on at least one
 channel.
----------------------------------------------------------------------------------------------------------------
\1\ Two-tone signal is only used to provide an audio alert to audience before EAS emergency messages and
  required monthly test. The two-tone signal must be 8-25 seconds in duration.
\2\ Analog cable systems serving <5,000 subscribers are permitted to operate without an EAS encoder if they
  install an FCC-certified decoder.
\3\ The Video interrupt must cause all channels that carry programming to flash for the duration of the EAS
  emergency message. The audio alert must give the channel where the EAS messages are carried and be repeated
  for the duration of the EAS message.
Note: Programmed channels do not include channels used for the transmission of data such as interactive games.

Wireless Cable Systems (BRS/EBS STATIONS)

    [A. Wireless cable systems serving fewer than 5,000 subscribers 
from a single transmission site must either provide the National level 
EAS message on all programmed channels including the required testing 
by October 1, 2002, or comply with the following EAS requirements. All 
other wireless cable systems must comply with B.]

                     System Size and Effective Dates
------------------------------------------------------------------------
                                         >=5,000             <5,000
   B. EAS equipment requirement        subscribers        subscribers
------------------------------------------------------------------------
EAS decoder......................  Y 10/1/02           Y 10/1/02

[[Page 62134]]

 
EAS encoder \1\ \2\..............  Y 10/1/02           Y 10/1/02
Audio and Video EAS Message on     Y 10/1/02           N
 all channels \3\.
Video interrupt and audio alert    N                   Y 10/1/02
 message on all channels; \4\
 Audio and Video EAS message on
 at least one channel.
------------------------------------------------------------------------
\1\ The two-tone signal is used only to provide an audio alert to an
  audience prior to an EAS emergency message or to the Required Monthly
  Test (RMT) under Sec.   11.61(a)(1). The two-tone signal must be 8-25
  seconds in duration.
\2\ Wireless cable systems serving <5,000 subscribers are permitted to
  operate without an EAS encoder if they install an FCC-certified
  decoder.
\3\ All wireless cable systems may comply with this requirement by
  providing a means to switch all programmed channels to a predesignated
  channel that carries the required audio and video EAS messages.
\4\ The Video interrupt must cause all channels that carry programming
  to flash for the duration of the EAS emergency message. The audio
  alert must give the channel where the EAS messages are carried and be
  repeated for the duration of the EAS message.
Note: Programmed channels do not include channels used for the
  transmission of data services such as Internet.

Digital Cable Systems and Wireline Video Systems

    [A. Digital cable systems and Wireline Video Systems serving fewer 
than 5,000 subscribers from a headend must either provide the National 
level EAS message on all programmed channels including the required 
testing by December 31, 2006, or comply with the following EAS 
requirements. All other digital cable systems and Wireline Video 
Systems must comply with B.]

                     System Size and Effective Dates
------------------------------------------------------------------------
                                         >=5,000             <5,000
   B. EAS equipment requirement        subscribers        subscribers
------------------------------------------------------------------------
Two-tone signal from storage       Y 12/31/06          Y 12/31/06
 device \1\.
EAS decoder \3\..................  Y 12/31/06          Y 12/31/06
EAS encoder \2\..................  Y 12/31/06          Y 12/31/06
Audio and Video EAS Message on     Y 12/31/06          N
 all channels \4\.
Video interrupt and audio alert    N                   Y 12/31/06
 message on all channels \3\
 Audio and Video EAS message on
 at least one channel.
------------------------------------------------------------------------
\1\ Two-tone signal is only used to provide an audio alert to audience
  before EAS emergency messages and required monthly test. The two-tone
  signal must be 8-25 seconds in duration.
\2\ Digital cable systems and Wireline Video Systems serving <5,000
  subscribers are permitted to operate without an EAS encoder if they
  install an FCC-certified decoder.
\3\ The Video interrupt must cause all channels that carry programming
  to flash for the duration of the EAS emergency message. The audio
  alert must give the channel where the EAS messages are carried and be
  repeated for the duration of the EAS message.
\4\ All digital cable systems and/Wireline Video Systems may comply with
  this requirement by providing a means to switch all programmed
  channels to a predesignated channel that carries the required audio
  and video EAS messages.
Note: Programmed channels do not include channels used for the
  transmission of data such as interactive games or the transmission of
  data services such as Internet.


                              SDARS and DBS
------------------------------------------------------------------------
    EAS equipment requirement             SDARS               DBS
------------------------------------------------------------------------
Two-tone signal \1\..............  Y 12/31/06          Y 5/31/07
EAS decoder......................  Y 12/31/06          Y 5/31/07
EAS encoder......................  Y 12/31/06          Y 5/31/07
Audio message on all channels \2\  Y 12/31/06          Y 5/31/07
Video message on all channels \2\  N/A                 Y 5/31/07
------------------------------------------------------------------------
\1\ Two-tone signal is only used to provide an audio alert to audience
  before EAS emergency messages and required monthly test. The two-tone
  signal must be 8-25 seconds in duration.
\2\ All SDARS and DBS providers may comply with this requirement by
  providing a means to switch all programmed channels to a predesignated
  channel that carries the required audio and video EAS messages or by
  any other method that ensures that viewers of all channels receive the
  EAS message.

* * * * *
    (e) Other technologies and public service providers, such as low 
earth orbiting satellites, that wish to participate in the EAS may 
contact the FCC's Public Safety and Homeland Security Bureau or their 
State Emergency Communications Committee for information and guidance.

0
5. Section 11.21 is revised to read as follows:


Sec.  11.21  State and Local Area Plans and FCC Mapbook.

    EAS plans contain guidelines which must be followed by EAS 
Participants' personnel, emergency officials, and National Weather 
Service (NWS) personnel to activate the EAS. The plans include the EAS 
header codes and messages that will be transmitted by key EAS sources 
(NP, LP, SP and SR). State and local plans contain unique methods of 
EAS message distribution such as the use of the Radio Broadcast Data 
System (RBDS). The plans must be reviewed and approved by the Chief, 
Public Safety and Homeland Security Bureau, prior to implementation to 
ensure that they are consistent with national plans, FCC regulations, 
and EAS operation.
    (a) The State plan contains procedures for State emergency 
management and other State officials, the NWS, and EAS Participants' 
personnel to transmit emergency information to the public

[[Page 62135]]

during a State emergency using the EAS, including mandatory messages 
initiated by a state governor or his/her designee. The State plan must 
specify how state-level and geographically targeted EAS messages 
initiated by a state governor or his/her designee will be transmitted 
to all EAS Participants who provide services in the state, and must 
include specific and detailed information describing how such messages 
will be aggregated, designated as mandatory, and delivered to EAS 
Participants. State EAS plans should include a data table, in computer 
readable form, clearly showing monitoring assignments and the specific 
primary and backup path for the emergency action notification (``EAN'') 
from the PEP to each station in the plan.
    (b) The Local Area plan contains procedures for local officials or 
the NWS to transmit emergency information to the public during a local 
emergency using the EAS. Local plans may be a part of the State plan. A 
Local Area is a geographical area of contiguous communities or counties 
that may include more than one state.
    (c) The FCC Mapbook is based on the above plans. It organizes all 
broadcast stations and cable systems according to their State, EAS 
Local Area, and EAS designation.

0
6. Section 11.47 is amended by revising paragraph (b) to read as 
follows:


Sec.  11.47  Optional use of other communications methods and systems.

* * * * *
    (b) Other technologies and public service providers, such as low 
earth orbiting satellites, that wish to participate in the EAS may 
contact the FCC's Public Safety and Homeland Security Bureau or their 
State Emergency Communications Committee for information and guidance.


Sec.  11.51  EAS code and Attention Signal Transmission requirements.

0
7. Section 11.51 is amended by revising paragraphs (g) introductory 
text and (h) introductory text to read as follows:
* * * * *
    (g) Analog cable systems and digital cable systems with fewer than 
5,000 subscribers per headend and wireline video systems and wireless 
cable systems with fewer than 5,000 subscribers shall transmit EAS 
audio messages in the same order specified in paragraph (a) of this 
section on at least one channel. The Attention signal may be produced 
from a storage device. Additionally, these analog cable systems, 
digital cable systems, and wireless cable systems:
* * * * *
    (h) Analog cable systems and digital cable systems with 10,000 or 
more subscribers; analog cable and digital cable systems serving 5,000 
or more, but less than 10,000 subscribers per headend; and wireline 
video systems and wireless cable systems with 5,000 or more subscribers 
shall transmit EAS audio messages in the same order specified in 
paragraph (a) of this section. The Attention signal may be produced 
from a storage device. Additionally, these analog cable systems, 
digital cable systems, and wireless cable systems:
* * * * *

0
8. Section 11.55 is amended by revising paragraph (a) introductory text 
to read as follows:


Sec.  11.55  EAS operation during a State or Local Area emergency.

    (a) All EAS Participants within a state (excepting SDARs and DBS 
providers) must receive and transmit state-level and geographically 
targeted EAS messages, as aggregated and delivered by the state 
governor or his/her designee, or by FEMA on behalf of such state 
governor, upon approval by the Commission of an applicable state plan 
providing for delivery of such alerts no sooner than 180 days after 
adoption of CAP by FEMA. Examples of natural emergencies which may 
warrant activation are: Tornadoes, floods, hurricanes, earthquakes, 
heavy snows, icing conditions, widespread fires, etc.
    Man-made emergencies may include: toxic gas leaks or liquid spills, 
widespread power failures, industrial explosions, and civil disorders.
* * * * *

0
9. Add Sec.  11.56 to read as follows:


Sec.  11.56  EAS Participants receive CAP-formatted alerts

    Notwithstanding anything herein to the contrary, all EAS 
Participants must be able to receive CAP-formatted EAS alerts no later 
than 180 days after FEMA publishes the technical standards and 
requirements for such FEMA transmissions.

 [FR Doc. E7-21137 Filed 11-1-07; 8:45 am]
BILLING CODE 6712-01-P