[Federal Register Volume 75, Number 19 (Friday, January 29, 2010)]
[Proposed Rules]
[Pages 4760-4768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1941]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 11
[EB Docket No. 04-296; FCC 10-11]
Review of the Emergency Alert System
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this document, the Commission adopted a document seeking
comment on its proposal to amend the Commission's rules governing the
Emergency Alert System (EAS) rules to provide for national EAS testing
and collection of data from such tests. The purpose of this testing and
data collection is to determine whether the EAS will function as
required should the President issue a national alert.
DATES: Comments are due on or before March 1, 2010 and reply comments
are due on or before March 30, 2010.
ADDRESSES: You may submit comments, identified by EB Docket No. 04-296
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
Mail: 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). All
filings must be addressed to the Commission's Secretary, Office of the
Secretary, Federal Communications Commission.
People with Disabilities: Contact the Commission to
request reasonable accommodations (accessible format documents, sign
language interpreters, CART, etc.) by e-mail: [email protected] or phone:
202-418-0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Lisa Fowlkes, Deputy Bureau Chief,
Public Safety and Homeland Security Bureau, at (202) 418-7452, or by e-
mail at [email protected]. For additional information concerning the
Paperwork Reduction Act information collection requirements contained
in this document, contact Judy Boley Hermann at (202) 418-0214 or send
an e-mail to [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communication Commission's Second Further Notice of Proposed Rulemaking
(Second FNPRM) in EB Docket No. 04-296, FCC 10-11, adopted on January
12, 2010, and released on January 14, 2010. This document is available
to the public at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-11A1.doc.
Initial Paperwork Reduction Act of 1995 Analysis
This document contains proposed information collection
requirements. It will be submitted to the Office of Management and
Budget (OMB) for review under section 3507(d) of the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13, 109 Stat. 163 (1995).
The Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and OMB to comment on the
information collection requirements contained in
[[Page 4761]]
this document, as required by the PRA. Public and agency comments on
the PRA proposed information collection requirements are due March 30,
2010. Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks
specific comment on how it might ``further reduce the information
collection burden for small business concerns with fewer than 25
employees.''
OMB Control Number: 3060-0207.
Title: Emergency Alert System Information Collection.
Form Number: Not applicable.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other for-profit entities; State, Local or
Tribal Governments; Non-profit entities.
Number of Respondents: 3,569,028.
Estimated Time per Response: .034--20 hours.
Frequency of Response: Recordkeeping requirements; reporting
requirements; third party disclosure requirement.
Obligation to Respond: Mandatory.
Total Annual Burden: 82,008 hours.
Total Annual Cost: $3,086,044.
Privacy Impact Assessment: No impact(s).
Nature and Extent of Confidentiality: There is no need for
confidentiality required for this information collection.
Needs and Uses: In the Second FNPRM in EB Docket No. 04-296, FCC
09-10, the Commission proposed a new rule obligating entities required
to participate in EAS (EAS Participants) to gather and submit
information on the operation of their EAS equipment during a national
test of the EAS. Specifically, the Commission proposed requiring that
EAS Participants record and submit to the Commission the following
test-related diagnostic information: (1) Whether they received the
alert message during the designated test; (2) whether they
retransmitted the alert; and (3) if they were not able to receive and/
or transmit the alert, their `best effort' diagnostic analysis
regarding the cause or causes for such failure. The Commission
anticipates asking EAS Participants to provide it with the date/time of
receipt of the EAN message by all stations; and the date/time of
receipt of the EAT message by all stations. The gathering of all of the
foregoing information is covered by an existing OMB authorized
information collection. (OMB Control Number 3060-0207, expiration date
8/31/11). However, EAS participants are presently only required to log
the foregoing information. The Commission's new rule requires EAS
Participants to send this information to its Public Safety and Homeland
Security Bureau. The Commission seeks authorization for this change. In
addition, the Commission also anticipates asking EAS Participants to
provide it with a description of their station identification and level
of designation (PEP, LP-1, etc.); who they were monitoring at the time
of the test, and the make and model number of the EAS equipment that
they utilized. OMB has not yet authorized the collection of this
information.
Synopsis of the Second FNPRM
1. In this Second Further Notice of Proposed Rulemaking, the
Commission proposes to amend its Part 11 rules governing the Emergency
Alert System (EAS) to provide for national testing of the EAS and
collection of data from such tests.
2. The EAS is a national alert and warning system that exists
primarily to enable the President of the United States to issue
warnings to the American public during emergencies. To date, however,
neither the EAS nor its predecessor national alerting systems have been
used to deliver a national Presidential alert. Moreover, while the
Commission's Part 11 rules provide for periodic testing of EAS at the
state and local level, no systematic national test of the EAS has ever
been conducted to determine whether the system would in fact function
as required should the President issue a national alert, and, in their
current form, the Commission's EAS rules do not mandate any such test.
3. In the Second Report and Order in this docket, the Commission
noted that it is vital that the EAS operate as designed. In the Further
Notice of Proposed Rulemaking adopted concurrently with the Second
Report and Order the Commission sought comment on various issues
relating to maintaining the quality of the EAS, including additional
testing. Finally, in the Chairman's recent 30-Day Review on FCC
Preparedness for Major Public Emergencies, the Public Safety and
Homeland Security Bureau noted that concerns had been raised regarding
the frequency and scope of EAS testing. The Bureau recommended that the
three Federal partners responsible for EAS--the Commission, the Federal
Emergency Management Agency (FEMA) and the National Weather Service
(NWS), review the testing regime to see where improvement could be
made.
4. Since the 30-Day Review was conducted, the Commission, FEMA, and
NWS, along with the Executive Office of the President (EOP), have
initiated discussions regarding testing of the EAS at the national
level. The Commission and its Federal partners agree that it is vital
that the EAS work as designed and we share concerns that existing
testing may be insufficient to ensure its effective operation. In light
of this, as described below, the Commission, FEMA, NWS and EOP have
begun planning for a national EAS test, with subsequent tests to occur
thereafter. To facilitate this test program, in this Second Further
Notice of Proposed Rulemaking, the Commission proposes to amend its EAS
rules to specifically provide for national EAS testing and data
collection. The Commission seeks comment on all issues discussed
herein, including whether its proposed rule would effectively ensure
accurate EAS testing at the national level.
I. Background
5. The EAS is a national public warning system that provides the
President with the ability to rapidly and comprehensively communicate
with the American public during a national crisis. The EAS is the
successor to two prior national warning systems: CONELRAD (Control of
Electromagnetic Radiation), established in 1951, and the Emergency
Broadcast System (EBS), established in 1963.
6. The Commission, in conjunction with FEMA and NWS, implements EAS
at the federal level. The respective roles these agencies play are
defined by a 1981 Memorandum of Understanding between FEMA, NWS, and
the Commission; a 1984 Executive Order; a 1995 Presidential Statement
of EAS Requirements; and a 2006 Public Alert and Warning System
Executive Order. As a general matter, the Commission, FEMA, and NWS all
work closely with radio and television broadcasters, cable providers,
and other participants in EAS (EAS Participants) as well as with state,
local, and tribal governments, to ensure the integrity and utility of
EAS.
7. The Commission's EAS regulations are set forth in Part 11 of the
rules, which imposes requirements governing mandatory participation in
the national EAS by all EAS Participants. Part 11
[[Page 4762]]
rules also govern EAS participation at the state and local level,
although currently state and local EAS participation is voluntary.
State Emergency Coordination Committees (SECCs) and Local Emergency
Coordination Committees (LECCs) undertake the development of
operational plans and procedures for implementing state and local EAS
activations. These organizations prepare coordinated emergency
communications plans utilizing the EAS (which may be combined with
other emergency information distribution plans and methodologies).
State and local EAS plans must comply with Part 11 requirements and are
submitted to the Commission for review.
8. Functionally considered, the present-day EAS is a hierarchical
alert message distribution system. Initiating an EAS message, whether
at the national, state, or local level, requires the message initiator
(e.g., FEMA, which initiates EAS alerts at the national level on behalf
of the President) to deliver specially-encoded messages to a broadcast
station-based transmission network that, in turn, delivers the messages
to individual broadcasters, cable operators, and other EAS Participants
who maintain special encoding and decoding equipment that can receive
the message for retransmission to other EAS Participants and to end
users (broadcast listeners and cable and other service subscribers).
Sections 11.32 and 11.33 of the Commission's rules set forth minimum
requirements for these EAS encoders and decoders, respectively, the
functions of which can be combined into a single unit that is commonly
referred to as an Encoder/Decoder.
9. The national EAS delivery/transmission system is commonly
referred to as a ``daisy chain.'' At its initial level, it consists of
various FEMA-designated radio broadcast stations--known as Primary
Entry Point (PEP) stations--which are tasked with receiving and
transmitting ``Presidential Level'' messages initiated by FEMA. As the
entry point for national level EAS messages, these PEP stations are
designated ``National Primary'' (NP). At the next level (i.e., below
the PEP stations), designated ``State Primary'' stations monitor
specifically-designated PEP stations and re-transmit the Presidential-
level alert, as well as state-level EAS messages originating from the
Governor or a State Emergency Operations Center (EOC). At the level
below the State Primary stations, Local Primary stations monitor the
State Primary and PEP stations and are monitored, in turn, by all other
EAS Participants (radio and television broadcasters, cable TV service
providers, etc.). At present, the United States is divided into
approximately 550 EAS local areas, each of which contains at least two
Local Primary stations, designated ``Local Primary One'' (LP1), ``Local
Primary Two'' (LP2), and so on. The LP stations must monitor at least
two EAS sources for Presidential messages (including State Primary
stations and in some cases a regional PEP station), and also can serve
as the point of contact for state and local authorities and NWS to
activate the EAS for localized events such as severe weather alerts.
All other EAS Participants are designated Participating National (PN)
stations and must monitor at least two EAS sources, including an LP1
and an LP2 station as specified in the state's EAS plan.
10. The White House, through FEMA, initiates a presidential-level
EAS alert by transmission of a coded message sequence, which includes
an Emergency Action Notification (EAN) event code. Immediately upon
receipt of an EAN message, EAS Participants must begin monitoring two
EAS sources, discontinue normal programming, follow the transmission
procedures in the appropriate section of the EAS Operating Handbook,
and undertake various other requirements, until receipt of an Emergency
Action Termination (EAT) message. Essentially, receipt of an EAN is
designed to ``seize'' broadcast transmission equipment for the
transmission of a presidential message. The equipment is not freed for
resumption of regular broadcasting until the EAT is received.
11. State and local emergency operations managers also can request
activation of the EAS by utilizing state-designated EAS entry points,
such as the State Primary stations or State Relay stations. State Relay
sources relay state-common emergency messages to local areas. Local
Primary sources are responsible for coordinating the carriage of common
emergency messages from sources such as the NWS or local emergency
management offices as specified in EAS local area plans. State
transmission systems vary from state to state, but can include ``daisy
chain'' links between broadcast and other terrestrial communications
facilities as well as satellite-based facilities.
12. As noted above, although the EAS (and its EBS and CONELRAD
predecessor warning systems) were designed primarily to carry a
national warning issued by the President, no such warning has ever been
issued. In fact, the great majority of EAS alerts issued to date have
been localized weather-related alerts originated by the NWS.
II. Discussion
A. Present EAS Vulnerabilities
13. Because of its daisy chain structure, the EAS is potentially
vulnerable to ``single point of failure'' problems, i.e., where failure
of a participating station results in system-wide failure for all
points below that station on the daisy chain. The Commission was made
aware of one such failure during an inadvertent issuance of a national
alert during a testing operation conducted by FEMA. In June 2007, FEMA
was testing a new satellite warning system in Illinois and FEMA
contractors inadvertently triggered a national-level EAS alert. This
event caused some confusion to broadcasters and other communications in
the Ohio valley and beyond before the test/alert was terminated by a
combination of EAS Participant intervention and equipment failure. It
was subsequently discovered that some EAS Participant equipment simply
did not pass on the alert. The Commission has also received numerous
anecdotal reports from EAS Participants and state and local emergency
managers of problems with state and local level alert delivery
architectures, as well as reports indicating problems with PEP station
readiness as tested by FEMA.
14. As noted above, the EAS is administered and tested by multiple
agencies at multiple levels of its operations, and this too may lead to
vulnerabilities in functioning or gaps in nationwide coverage. For
example, EAS PEP station operation and maintenance is the
responsibility of FEMA, which tests the PEP stations but typically does
not test other stations. The NWS tests its own National Weather Radio
(NWR) facilities independently or as integrated with state and local
level emergency alert delivery architectures, but again, its focus is
solely on the proper operation of NWS/NWR facilities as those
facilities interact with state and local EAS architectures. State EOC
facilities are maintained and tested by their respective state
officials. Thus, none of these entities have been responsible for
``top-to-bottom'' national testing of EAS.
15. Finally the Commission notes that the Government Accountability
Office has recently testified before Congress on ``long-standing
weaknesses'' that limit the reliability of the national-level EAS relay
system. GAO specifically cited lack of redundancy, gaps in coverage, a
lack of testing and training, and limitations on how alerts are
[[Page 4763]]
disseminated to the public. This too heightens our concern regarding
potential EAS vulnerabilities.
B. Limitations of the Commission's EAS Testing Rules
16. Currently, the Commission's Part 11 rules provide for mandatory
weekly and monthly tests at the state and local level. The rules also
provide for ``[p]eriodic [n]ational [t]ests'' and ``special tests.'' at
the state or local level. See 47 CFR 11.61(a)(3) and (4). Section
11.61(a) further states that in addition to the EAS testing at regular
intervals prescribed by the rules ``additional tests may be performed
anytime.'' However, Part 11 does not contain comparable rules for
testing of EAS at the national level.
17. While the current rules give the Commission broad authority
over EAS testing, the rules generally focus on testing of components of
the system rather than the system as a whole. Sections 11.61(a)(1) and
(a)(2) specify in detail the requirements for mandatory weekly and
monthly EAS tests that are conducted at the state and local level.
However, these tests are designed to ascertain whether the EAS
equipment belonging to individual EAS Participants is functioning
properly; they do not test whether the national EAS infrastructure as a
whole works well or at all. Similarly, while the rules authorize
``additional tests'' and ``special tests,'' these typically are carried
out at the state or local level, and are usually designed to test for
readiness during specific warning situations, for example, child
abduction cases covered by so-called Amber Alerts.
18. The current Part 11 rules also require EAS participants to
record data from EAS tests, but the data collected is limited in scope.
Specifically, the rules require EAS Participants to log the dates/times
that EAN and EAT messages are received, and to determine and log the
cause of any failures in the reception of the required monthly and
weekly tests. However, this data is not sufficient to provide an
assessment of whether the EAS is capable of functioning nationally.
19. Section 11.61(a)(3) of the rules is entitled ``Periodic
National Tests,'' indicating that national EAS testing was at least
contemplated when the rules were adopted. This rule, however, merely
states that NP/PEP stations shall participate in such tests ``as
appropriate,'' but does not elaborate upon who would conduct such
tests, how they would be conducted, or how often. In any case, as noted
above, no national test has ever been conducted, under this provision
or otherwise.
C. Next Generation EAS Concerns
20. The 2006 Presidential Executive Order requires provision of
``as many communications pathways as practicable'' to reach the
American people during crises. In this regard, the development of
additional ``next generation'' alert distribution systems is already
under way. FEMA is presently working to upgrade the existing EAS
through its Integrated Public Alert and Warnings System (IPAWS),
envisioned as a network of alert systems utilizing common or
complementary delivery architectures. FEMA envisions IPAWS as
supporting both the current EAS architecture and so-called ``Next
Generation'' EAS.
21. The Commission is also involved in the transition to Next
Generation EAS, which will utilize state-of-the-art technologies and
Common Alerting Protocol (CAP) to increase the amount and quality of
alert and other emergency information delivered to the public. CAP is a
standard alert message format that specifies data fields to facilitate
data sharing across different distribution systems. In its May 2007 EAS
Second Report and Order, the Commission adopted a requirement that all
EAS Participants be able to accept CAP-formatted EAS messages no later
than 180 days after FEMA publicly adopts a CAP standard. This
requirement applies to EAS Participants regardless of whether they are
utilizing existing EAS or Next Generation EAS. The Second Report and
Order also required EAS Participants to adopt Next Generation EAS
delivery systems no later than 180 days after FEMA publicly releases
standards for those systems.
22. While significant efforts are being made to transition to Next
Generation EAS, testing of the existing EAS remains important because
it is likely that the existing EAS will continue to function as a
critical alerting system for the foreseeable future. Moreover, while we
expect that FEMA's adoption of CAP as part of IPAWS will spur the
development of Next Generation EAS, there is at yet no established
timetable for the development of next generation systems that will
completely replace the existing EAS architecture, either at the federal
or the state and local levels. Thus, we expect that FEMA will rely on
the existing EAS daisy chain structure for at least the initial stages
of IPAWS development and implementation. The various states and
localities also appear to be at different stages in their ability to
adopt and utilize CAP-based EAS architecture. As a result, our ability
to systematically test the existing EAS architecture is important to
support Next Generation EAS--at least in its initial stages of
deployment--as well as to ensure the continued effectiveness of the
current EAS.
D. Multi-Agency Planning for a National EAS Test
23. As noted above, concerns regarding the frequency and scope EAS
testing raised in our recent 30-day review of emergency preparedness
have led the Commission and its Federal partners to begin planning a
program for annual EAS testing at the national level. Specifically, the
Commission, FEMA, NWS, and EOP have formed a working group that is
planning an initial national test of the Presidential-level EAS. As
planned, this test will involve nationwide transmission of the EAN and
associated messages and codes within the EAS. The purpose of the test
is to assess for the first time the readiness and effectiveness of the
EAS from top-to-bottom, i.e., from origination of an alert by the
President and transmission through the entire EAS daisy chain, to
reception by the American public. Following the conduct and evaluation
of the initial national test, it is contemplated that the Commission
and its Federal partners will continue to test EAS nationally.
E. Proposed Rule
24. Given the potential vulnerabilities of EAS in the absence of
national testing, the above-described multi-agency initiative to begin
a national test program, and the lack of specific provisions in our
Part 11 rules relating to national tests, the Commission proposes to
amend its Part 11 rules to expressly require all EAS Participants to
participate in national testing and to provide test results to the
Commission. Specifically, it proposes to amend section 11.61(a)(3) of
our rules to read as follows:
National Tests. All EAS Participants shall participate in
national tests as scheduled by the Commission in consultation with
the Federal Emergency Management Agency (FEMA). Such tests will
consist of the delivery by FEMA to PEP/NP stations of a coded EAS
message, including EAS header codes, Attention Signal, Test Script,
and EOM code. The coded message shall utilize EAS test codes as
designated by the Commission's rules or such other EAS codes as the
agencies conducting the test deem appropriate. A national test shall
replace the required monthly test for all EAS Participants in the
month in which it occurs. Notice shall be provided to EAS
Participants by the Commission at least two months prior to the
conduct of any such national test. Test results as required by the
Commission shall be logged by all EAS Participants and shall be
provided to the Commission's Public
[[Page 4764]]
Safety and Homeland Security Bureau within thirty (30) days
following the test.
25. The Commission seeks comment on the specific language of its
proposed rule and its sufficiency to ensure an adequate framework for
the conduct of national tests implemented by this agency in
collaboration with FEMA and our other Federal partners. It also seeks
comment on whether the specific rule that we propose is, on balance,
the best way to implement national testing of the EAS, or whether
different provisions should be adopted.
26. The Commission also proposes implementing the national test on
a yearly basis. It seeks specific comment on this proposal. The
Commission believes that regular testing of the EAS is necessary to
ensure that it can function properly during emergencies. The Commission
also believe that testing the EAS nationally at least once a year may
be necessary to produce reliable results regarding the on-going
operational readiness of the EAS. On the other hand, the Commission
does not propose to require national testing more frequently than once
a year, because it is concerned that more frequent testing could cause
unnecessary disruption of regular broadcasting and other service
transmission to the public. The Commission also wishes to minimize
attendant costs. It seeks comment on this analysis.
27. The Commission does not propose to specify a set time each year
for the national EAS test to occur. The Commission believes that
avoiding a set date will yield more realistic data about EAS
reliability and performance, and will discourage complacency. On the
other hand, the Commission believes it is essential to provide
sufficient notice of such tests to EAS Participants so that they can
prepare for the test and alert the public that a national-level EAS
test is pending. The Commission believes that two months notice
provides enough preparation time for EAS Participants. The Commission
seeks comment on the sufficiency of a two-month notice period.
28. The Commission envisions that national EAS testing will involve
many of the same test elements that are already included in required
monthly EAS testing at the state and local levels (e.g., EAS header
codes, Attention Signal, Test Script and EOM code). Accordingly, the
Commission proposes that the annual national test would replace the
required monthly test for the month in which it occurs. The Commission
sees no benefit to requiring EAS Participants to give up further
broadcast time for a redundant test.
29. In connection with national testing, the Commission proposes
requiring that EAS Participants record and submit to it the following
test-related diagnostic information for each alert received from each
message source monitored at the time of the national test: (1) Whether
they received the alert message during the designated test; (2) whether
they retransmitted the alert; and (3) if they were not able to receive
and/or transmit the alert, their `best effort' diagnostic analysis
regarding the cause or causes for such failure. The Commission also
anticipates asking EAS Participants to provide it with a description of
their station identification and level of designation (PEP, LP-1,
etc.); the date/time of receipt of the EAN message by all stations; the
date/time of PEP station acknowledgement of receipt of the EAN message
to FOC; the date/time of initiation of actual broadcast of the
Presidential message; the date/time of receipt of the EAT message by
all stations; who they were monitoring at the time of the test; and the
make and model number of the EAS equipment that they utilized.
30. The Commission proposes to require that this information be
provided to it no more than thirty (30) days following the test date.
It also anticipates making this information publicly available. The
Commission foresees two related benefits from this data collection and
its public release. First, it will provide the Commission and our
Federal partners with necessary diagnostic information to assist our
analysis of the readiness of the EAS. Second, it will provide state and
local authorities with useful diagnostic information related to their
evaluation of the system's regional and local performance. The
Commission seeks comment on this proposal. Are there any concerns with
making this data publicly available? Should the Commission instead
limit availability to, for example, only its Federal partners and/or
authorized personnel of state, tribal and local government emergency
management agencies?
31. The Commission also notes that it plans to coordinate with FEMA
on a regular basis in the implementation of the national test. FEMA is
the agency responsible for transmission of a presidential-level alert
to the PEP stations, and for the implementation and maintenance of PEP
stations. Moreover, FEMA is integrating EAS into IPAWS. Although the
Commission believes it is unnecessary to specifically state in its
proposed rule that it will coordinate with FEMA on a regular basis, it
seeks comment on whether this should in fact be written into the rule.
32. Finally, it has been brought to the Commission's attention that
different ENDEC manufacturers may have programmed their devices to
receive and transmit EANs in different ways, which may affect the
ability of some ENDECs to properly relay an EAN. In its 2008 Closed
Circuit Test Report, the Primary Entry Point Administrative Council
noted that many ENDECs process EAN messages by ignoring a FIPS, i.e.,
location codes for national level messages on the assumption that a
national message is intended for the entire nation. Accordingly, they
transmit the message whether or not an EAN contains a FIPS code. At
least one ENDEC manufacturer, however, has devices which require a FIPS
code match. Thus in order to properly forward an EAN, the devices must
receive a message that contains an appropriate FIPS code as authorized
by Commission rules. As a result, there is some concern that such
devices may not properly transmit an EAN message nationwide. The
Commission seeks comment on this situation. Could the difference in how
these ENDECs are programmed result in breaks in the ``EAS chain''?
Could this impact the relay of an EAN test message during a national
EAS test? If so, how? The Commission also seeks comment on what actions
it should take to address this problem prior to a national test. Should
the Commission, for example, adopt a requirement that all ENDECs relay
an EAN message irrespective of any FIPS code? What would be the cost of
implementing such a requirement prior to a national test?
Alternatively, are there non-regulatory actions the Commission should
take? Should the Commission designate a national-level FIPS code and,
if so, what would the impact on the ENDEC manufacturers be?
III. Conclusion
33. The EAS is intended to provide a reliable mechanism for the
President to communicate with the country during emergencies. Yet the
EAS has never been tested nationally in a systematic way, i.e., by use
of a test methodology that can identify system flaws and failures
comprehensively and on a nationwide basis. The Commission believes that
development of such a test methodology is critically important to
ensuring that the EAS works as intended, now and in the future. The
Commission solicits comment on all issues, analysis, and proposals set
out in this Notice, including our proposed rule. The Commission intends
to move quickly to adopt any and all necessary
[[Page 4765]]
rule changes to ensure that it and other federal, state, local, and
non-governmental EAS stakeholders have the necessary diagnostic tools
to evaluate EAS performance and readiness nationwide.
IV. Procedural Matters
A. Ex Parte Presentations
34. This matter 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.
B. Comment Filing Procedures
35. Pursuant to sections 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. All filings related to this Second Further Notice of Proposed
Rulemaking should refer to EB Docket No. 04-296. Comments may be filed
using: (1) The Commission's Electronic Comment Filing System (ECFS),
(2) the Federal Government's eRulemaking Portal, or (3) by filing paper
copies. See Electronic Filing of Documents in Rulemaking Proceedings,
63 FR 24121 (1998).
36. Electronic Filers: Comments may be filed electronically using
the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the
Federal eRulemaking Portal: http://www.regulations.gov. Filers should
follow the instructions provided on the Web site for submitting
comments.
37. For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Parties may also submit
an electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to [email protected], and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
38. Paper Filers: Parties who choose to file by paper must file an
original and four copies of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
39. 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 we continue to experience delays in
receiving U.S. Postal Service mail). All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
40. Effective December 28, 2009, all hand-delivered or messenger-
delivered paper filings for the Commission's Secretary must be
delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325,
Washington, DC 20554. 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. Please Note: The Commission's former filing location at 236
Massachusetts Avenue, NE., is permanently closed.
41. 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.
42. U.S. Postal Service first-class, Express, and Priority mail
should be addressed to 445 12th Street, SW., Washington, DC 20554.
C. Accessible Formats
43. To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an e-mail to [email protected] or call the Consumer & Governmental
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).
V. Initial Regulatory Flexibility Analysis
44. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this present Initial
Regulatory Flexibility Analysis (IRFA) of the possible significant
economic impact on a substantial number of small entities by the
policies and rules proposed in this Second Further Notice of Proposed
Rulemaking (Second Further Notice). Written public comments are
requested on this IRFA. Comments must be identified as responses to the
IRFA and must be filed by the deadlines for comments on the Second
Further Notice provided in Section IV of the item. The Commission will
send a copy of the Second Further Notice, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration (SBA).
In addition, the Second Further Notice and IRFA (or summaries thereof)
will be published in the Federal Register.
Need for, and Objectives of, the Proposed Rules
45. Today's Second Further Notice seeks to ensure that the
Commission's emergency alert services (``EAS'') rules better protect
the life and property of all Americans. To further serve this goal, the
Further Notice invites additional comment on a proposed rule to
implement national testing of the Emergency Alert System (EAS) through
use of a coded EAS message which will replace a required monthly test,
and requiring logging and provision to the Commission of test-related
diagnostic information within 30 days of the test.
Legal Basis
46. Authority for the actions proposed in this Second Further
Notice may be found in sections 1, 4(i), 4(o), 303(r), 403, 624(g) and
706 of the Communications Act of 1934, as amended (Act), 47 U.S.C. 151,
154(i), 154(j), 154(o), 303(r), 544(g) and 606.
Description and Estimate of the Number of Small Entities to Which Rules
Will Apply
47. 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 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'').
48. 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
[[Page 4766]]
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.
49. Television Broadcasting. The SBA has developed a small business
size standard for television broadcasting, which consists of all such
firms having $14 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.
50. 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 $7 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.
51. Wired Telecommunications Carriers. The 2007 North American
Industry Classification System (``NAICS'') defines ``Wired
Telecommunications Carriers'' as follows: ``This industry comprises
establishments primarily engaged in operating and/or providing access
to transmission facilities and infrastructure that they own and/or
lease for the transmission of voice, data, text, sound, and video using
wired telecommunications networks. Transmission facilities may be based
on a single technology or a combination of technologies. Establishments
in this industry use the wired telecommunications network facilities
that they operate to provide a variety of services, such as wired
telephony services, including VoIP services; wired (cable) audio and
video programming distribution; and wired broadband Internet services.
By exception, establishments providing satellite television
distribution services using facilities and infrastructure that they
operate are included in this industry.'' The SBA has developed a small
business size standard for wireline firms within the broad economic
census category, ``Wired Telecommunications Carriers.'' Under this
category, the SBA deems a wireline business to be small if it has 1,500
or fewer employees. Census Bureau data for 2002 show that there were
2,432 firms in this category that operated for the entire year. Of this
total, 2,395 firms had employment of 999 or fewer employees, and 37
firms had employment of 1,000 employees or more. Thus, under this
category and associated small business size standard, the majority of
firms can be considered small.
52. Wired Telecommunications Carriers--Cable and Other Program
Distribution. This category includes, among others, cable operators,
direct broadcast satellite (``DBS'') services, home satellite dish
(``HSD'') services, satellite master antenna television (``SMATV'')
systems, and open video systems (``OVS''). The data we have available
as a basis for estimating the number of such entities were gathered
under a superseded SBA small business size standard formerly titled
Cable and Other Program Distribution. The former Cable and Other
Program Distribution category is now included in the category of Wired
Telecommunications Carriers, the majority of which, as discussed above,
can be considered small. According to Census Bureau data for 2002,
there were a total of 1,191 firms in this previous category that
operated for the entire year. Of this total, 1,087 firms had annual
receipts of under $10 million, and 43 firms had receipts of $10 million
or more but less than $25 million. Thus, we believe that a substantial
number of entities included in the former Cable and Other Program
Distribution category may have been categorized as small entities under
the now superseded SBA small business size standard for Cable and Other
Program Distribution. With respect to OVS, the Commission has approved
approximately 120 OVS certifications with some OVS operators now
providing service. Broadband service providers (BSPs) are currently the
only significant holders of OVS certifications or local OVS franchises,
even though OVS is one of four statutorily-recognized options for local
exchange carriers (LECs) to offer video programming services. As of
June 2006, BSPs served approximately 1.4 million subscribers,
representing 1.46 percent of all MVPD households. Among BSPs, however,
those operating under the OVS framework are in the minority. The
Commission does not have financial information regarding the entities
authorized to provide OVS, some of which may not yet be operational. We
thus believe that at least some of the OVS operators may qualify as
small entities.
53. 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.
54. 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
[[Page 4767]]
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.
55. Broadband Radio Service (FCC Auction Standard). The established
rules apply to Broadband Radio Service (``BRS,'' formerly known as
Multipoint Distribution Systems, or ``MDS'') operated as part of a
wireless cable system. The Commission has defined ``small entity'' for
purposes of the auction of BRS 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.
56. Wireless Telecommunications Carrier (except satellite). BRS
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 Subscription Programming,
which includes all such companies generating $15 million or less in
annual receipts. This definition includes BRS and thus applies to BRS
licensees that did not participate in the MDS auction. Information
available to us indicates that there are approximately 392 incumbent
BRS 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 BRS 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.
57. Educational Broadband Service. The proposed rules would also
apply to Educational Broadband Service (``EBS,'' formerly known as
Instructional Television Fixed Service or ``ITFS'') facilities operated
as part of a wireless cable system. The SBA definition of small
entities for pay television services, Cable and Other Subscription
Programming also appears to apply to EBS. There are presently 2,032 EBS
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
EBS 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 proposed rules.
58. 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.
59. 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.
60. Satellite 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.
61. Other Telecommunications. This category includes
``establishments primarily engaged in * * * providing
[[Page 4768]]
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
62. There are potential reporting or recordkeeping requirements
proposed in this Second Further Notice. For example, the Commission is
considering whether to adopt reporting obligations for EAS
participants. The proposals set forth in this Second Further Notice are
intended to advance our public safety mission and enhance the
performance of the EAS while reducing regulatory burdens wherever
possible.
Steps Taken to Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
63. 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.''
64. The proposed rules are designed to minimally impact all EAS
participants, including small entities, while at the same time
protecting the lives and property of all Americans, which confers a
direct benefit on small entities. As noted in paragraph 2 above, the
Second Further Notice seeks comment on how the Commission may better
protect the lives and property of Americans. In commenting on this
goal, commenters are invited to propose steps that the Commission may
take to further minimize any significant economic impact on small
entities. When considering proposals made by other parties, commenters
are invited to propose significant alternatives that serve the goals of
these proposals. We expect that the record will develop to demonstrate
any significant alternatives.
65. The Commission will send a copy of this Second Further Notice
of Proposed Rulemaking, including this IRFA, 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).
VI. Ordering Clauses
66. Accordingly, it is ordered that 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, this Second Further Notice of Proposed Rulemaking is adopted.
67. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Second Further Notice of Proposed Rulemaking, including
the Initial Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
68. It is further ordered that pursuant to applicable procedures
set forth in Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments on this Second
Further Notice of Proposed Rulemaking on or before 30 days after
publication in the Federal Register, and interested parties may file
reply comments on or before 60 days after publication in the Federal
Register.
List of Subjects in 47 CFR Part 11
Radio, Television.
Federal Communications Commission.
Alethea Lewis,
Federal Register Liaison.
Proposed Rule
For the reasons set forth in the preamle, FCC proposes to amend 47
CFR part 11 as follows:
PART 11--EMERGENCY ALERT SYSTEM (EAS)
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.
2. Revise Sec. 11.61(a)(3) to read as follows:
Sec. 11.61 Tests of EAS procedures.
(a) * * *
(3) National Tests. All EAS Participants shall participate in
national tests as scheduled by the Commission in consultation with the
Federal Emergency Management Agency (FEMA). Such tests will consist of
the delivery by FEMA to PEP/NP stations of a coded EAS message,
including EAS header codes, Attention Signal, Test Script, and EOM
code. The coded message shall utilize EAS test codes as designated by
the Commission's rules or such other EAS codes as the agencies
conducting the test deem appropriate. A national test shall replace the
required monthly test for all EAS Participants in the month in which it
occurs. Notice shall be provided to EAS Participants by the Commission
at least two months prior to the conduct of any such national test.
Test results as required by the Commission shall be logged by all EAS
Participants and shall be provided to the Commission's Public Safety
and Homeland Security Bureau within thirty (30) days following the
test.
* * * * *
[FR Doc. 2010-1941 Filed 1-28-10; 8:45 am]
BILLING CODE 6712-01-P