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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
)
Review of the Emergency Alert ) EB Docket No. 04-296
System )
)
)
)
)
FIRST REPORT AND ORDER
AND
FURTHER NOTICE OF PROPOSED RULEMAKING
Adopted: November 3, 2005 Released: November 10,
2005
Comment Date: [60 days after publication in the Federal
Register]
Reply Comment Date: [90 days after publication in the Federal
Register]
By the Commission: Chairman Martin, and Commissioners Abernathy,
Copps and Adelstein issuing
separate statements.
TABLE OF CONTENTS
Paragraph Number
I.INTRODUCTION 1
II. BACKGROUND
4
1. A.
History of EAS 4
2. B.
The Current EAS 5
3. C.
Recent Events 12
III. DISCUSSION
16
4. A.
General Matters 16
5. B.
Digital Television 19
6. C.
Digital Cable 27
7. D.
Digital Audio Broadcasting 33
8. E.
Satellite Digital Audio Radio Service 40
9. F.
Direct-to-Home Satellite Services 49
10. G.
Administrative Matters 59
11. H.
Conclusion 60
IV. FURTHER NOTICE OF PROPOSED RULEMAKING
61
V.PROCEDURAL MATTERS 82
12. A.
Ex Parte Presentations 82
13. B.
Comment Filing Procedures 83
14. C.
Accessible Formats 84
15. D.
Regulatory Flexibility Analysis 85
16. E.
Paperwork Reduction Act Analysis 87
17. F.
Congressional Review Act 88
VI. ORDERING CLAUSES
89
APPENDIX A - LIST OF COMMENTERS
APPENDIX B - FINAL RULES
APPENDIX C - PENETRATION DATA
APPENDIX D - FINAL REGULATORY FLEXIBILITY ANALYSIS
APPENDIX E - INITIAL REGULATORY FLEXIBILITY ANALYSIS
I. INTRODUCTION
One of the most fundamental and significant statutory mandates of
the Federal Communications Commission (Commission) is the
promotion of safety of life and property through the use of wire
and radio communication.1 For over forty years, the Commission
has sought to satisfy this mandate in large part by requiring
that the American public be provided with an effective and robust
national alert and warning system. Since 1994, this function has
been performed by the Emergency Alert System (EAS), which is
jointly administered by the Commission, the Federal Emergency
Management Agency (FEMA), one of the component agencies of the
Department of Homeland Security (DHS), and the Department of
Commerce and its component, the National Oceanic and Atmospheric
Administration's National Weather Service (NWS).2 Today, we take
steps to advance our important public safety mission by adopting
rules that expand the reach of EAS, as currently constituted, to
cover digital communications technologies that are increasingly
being used by the American public to receive news and
entertainment -- digital television and radio, digital cable,3
and satellite television and radio.4
Consumers have increasingly begun to adopt new digital
technologies as replacements for the analog broadcast and cable
systems that are currently required to implement EAS.
Accordingly, an increasingly large percentage of television
viewers and radio listeners receive their programming from
systems that may have no independent duty to provide EAS, or any
other alert and warning system, to their customers. For example,
as of 2005, almost 25% of TV households subscribed to Direct
Broadcast Satellite (DBS) services,5 yet such satellite services
are under no obligation to participate in EAS. More than 23% of
TV households subscribe to digital cable television services
which are not specifically addressed in the Commission's EAS
rules.6 Further, the number of subscribers in the Satellite
Digital Audio Radio Service (SDARS) -- also known as ``satellite
radio'' -- increased from approximately 140,000 to more than 6
million between June 2002 and June 2005.7 SDARS licensees are
not currently required to participate in EAS. Finally, digital
audio broadcasters using in-band, on-channel (IBOC) technology
and digital television (DTV) broadcasters also reach increasingly
large portions of the American public,8 but currently have no EAS
obligations. Clearly, some level of EAS participation must be
established for these new digital services to ensure that large
portions of the American public are able to receive national
and/or regional public alerts and warnings.
In the Further Notice of Proposed Rulemaking, we seek further
comment on how to amend the EAS rules to ensure that EAS messages
more effectively reach individuals with hearing and vision
disabilities. The Commission is committed to ensuring that
persons with disabilities have equal access to public warnings.
We also seek additional comment on what actions the Commission,
along with our Federal, State and industry partners, should take
to help expedite the development of a robust, state-of-the-art,
digitally-based public alert and warning system.
II. BACKGROUND
II.A. History of EAS
This country has had some type of national warning system in
place since 1951, when President Harry S. Truman created CONELRAD
(Control of Electromagnetic Radiation) in 1951. CONELRAD
provided a means for the President to address the American
people, to provide attack warning, and to supply emergency
information.9 CONELRAD soon became obsolete, however, and in
1963, President John F. Kennedy replaced it with the Emergency
Broadcast System (EBS).10 Our national warning system was
further improved in 1994 when the Commission adopted rules that
replaced EBS with EAS. EAS represented not only a technological
advancement, but also an expansion of the warning system beyond
the traditional broadcast media, to include cable systems. In
1997, the Commission further extended EAS obligations to wireless
cable systems.11
II.B. The Current EAS
Jurisdiction. EAS is a national public warning system that,
together with other emergency notification mechanisms, is part of
an overall public alert and warning system, under the
jurisdiction of FEMA.12 The Commission's authority to regulate
emergency alerts and warnings emanates from sections 1, 4(i) and
(o), 303(r), and 706 of the Communications Act of 1934, as
amended, (Act).13 The Commission, FEMA and NWS together
implement EAS at the federal level.14 In addition, State
Emergency Coordination Committees (SECCs) and Local Emergency
Coordination Committees (LECCs) develop state and local EAS
plans.
The Commission's role includes prescribing rules that establish
technical standards for EAS, procedures for radio and television
broadcast stations and cable systems to follow in the event EAS
is activated, and EAS testing protocols. The President has sole
responsibility for determining when the system will be activated
at the national level,15 and has delegated this authority to the
director of FEMA. FEMA is responsible for implementation of the
national-level activation of EAS, tests, and exercises.
At the state and local level, NWS plays a critical role as the
originator of emergency weather information. NWS broadcasts NWS
forecasts, warnings, watches, and other non-weather-related
hazard information 24 hours a day. Through its All-Hazards
Network, NWS originates approximately 80% of all EAS alerts,
supplying local alerts to broadcast and cable entry points
designated in approved EAS state and local plans. SECCs and
LECCs prepare coordinated emergency communications systems and
develop state and local emergency communications plans and
procedures for EAS and other public alert and warning systems
states may use in combination with EAS.
EAS Structure. Under the Commission's rules, national activation
of EAS for a Presidential message is designed to provide the
President the capability to transmit within ten minutes from any
location at any time, and must take priority over any other
message and preempt other messages in progress.16 Broadcast
stations and cable systems covered by the Commission's EAS rules
must cease their normal broadcasting and transmit such a
Presidential message. Use of EAS for state or local emergency
information is voluntary. Broadcasters and cable systems may
decide individually whether to transmit such messages that
originate at the state or local level.17 The Commission's rules
impose EAS obligations only on analog radio and television
stations, and wired and wireless cable television systems. Other
systems, such as DBS services, DTV, SDARS, and Digital Audio
Broadcasting (DAB) currently have no EAS requirements.
EAS is essentially a hierarchal distribution system.18 At the
request of the President, FEMA has designated 34 radio broadcast
stations as Primary Entry Point (PEP) stations to which it
distributes ``Presidential Level'' messages, the initial message
in the national chain.19 As the entry point for national level
EAS messages, the PEP stations are designated National Primary
(NP). The United States is divided into approximately 550 EAS
local areas, each containing a key EAS source, called the Local
Primary One (LP-1). The LP-1 must monitor two EAS sources,
including its regional PEP station, for Presidential messages,
and serves as the point of contact for local authorities and NWS
officials to activate EAS. Other Local Primary sources are
assigned numbers in the sequence they are to be monitored by
other broadcast stations in the local area (i.e., LP-1, 2, 3,
etc.). Broadcast stations and cable systems below LP-1 must
monitor two EAS sources including their LP-1 station. If a
Presidential message is sent, broadcast stations and cable
systems receiving it are required to air the message in the
format received.20 For non-Presidential messages, these
monitoring stations and cable systems may carry the message at
their discretion, but if they choose to transmit the message they
must comply with the Commission's Part 11 rules governing such
messages.
Although EAS is designed primarily to convey Presidential
messages in times of emergency, most emergencies originate at the
state and local level. State and local emergency operations
managers can also request activation of EAS for state and local
public alert and warning. State-level EAS entry points are
designated as State Primary and State Relay.21 State Primary
Entry Points can be broadcast stations, state emergency operation
centers, or other statewide networks, and can act as sources of
state EAS messages originating from the Governor or a State
Emergency Operations Center. State Relay sources relay state
common emergency messages into local areas.22 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.23
Initiating an EAS message, whether at the national, state, or
local level, requires the broadcaster, cable operator or
emergency administrator to enter certain codes into dedicated EAS
equipment.24 EAS messages enter the EAS system via equipment
that is able both to encode and decode EAS messages, often called
ENDEC units. EAS equipment sends and receives messages using a
precise format referred to as the EAS digital protocol. An
emergency activation of EAS uses a four part message: (1)
preamble and EAS header codes; (2) audio attention signal; (3)
message; and (4) preamble and EAS end of message codes.25 EAS
equipment also provides a method to automatically interrupt
regular programming and is capable of providing warnings in the
primary language that is used by the station or cable system.26
EAS header codes identify the party that originated the emergency
message, the nature of the event or emergency, the location of
the emergency, and the valid time period of the message.
II.C. Recent Events
In our August 2004 Notice of Proposed Rulemaking (EAS NPRM),27 we
acknowledged the tremendous impact that digital technologies are
having on broadcast, cable and satellite news and entertainment
industries, and noted the potential for effective warning offered
by digital media's ability to supply sophisticated services that
can communicate across various platforms. In this context we
asked whether EAS in its present form was the most effective
mechanism for warning the American public of an emergency and, if
not, how EAS can be improved. In response to the EAS NPRM, we
received approximately 160 comments, including comments from
entities from all major communications sectors. Many of these
commenters discussed the state of the art public alert and
warning potential that these sectors now offer.
Further, FEMA and NOAA, the Commission's co-administrators of
EAS, have initiated a series of pilot projects that explore the
use of digital and other cutting edge technologies to create an
Integrated Public Alert and Warning System.28 These pilot
projects involve partnerships and extensive coordination between
government and private industry. For example, the one-year
Digital Emergency Alert System (DEAS) National Capital Region
Pilot demonstrates how the 294 digital public television stations
across the country can act as a wireless network capable of
broadcasting data, or ``datacasting," public alerts and warnings
during times of national crisis.29 Phase one of this pilot
project uses datacasting of DEAS text, voice, and video over
public television stations. Phase two will further develop and
test Common Alerting Protocol (CAP) messages and DEAS-enabled
relays to cell phones, Internet, pagers, electronic bulletin
boards, etc.30 Additionally, FEMA and NOAA are involved in a
Geo?Targeted Alerting System pilot project designed to integrate
real-time weather models and hazardous air flow predictions
providing DHS with the ability to identify specific areas to
which to issue targeted homeland security alerts and warnings
using reverse 911 technologies.31
Both Houses of Congress have indicated that effective public
alert and warning is one of their highest priorities. On
September 7, 2005, a representative from the Commission testified
regarding this subject in connection with Hurricane Katrina
before the United States House of Representatives, Committee on
Energy and Commerce. On July 27, 2005, representatives from the
Commission, FEMA and NOAA presented statements regarding all-
hazards alert systems to the United States Senate, Committee on
Commerce, Science and Transportation, Subcommittee on Disaster
Prevention and Prediction. Additionally, on September 22, 2004,
representatives from the Commission and FEMA and NOAA testified
regarding EAS before the United States House of Representatives,
Select Committee on Homeland Security, Subcommittee on Emergency
Preparedness and Response. Finally, the recently enacted
Intelligence Reform and Terrorism Prevention Act of 200432
includes requirements for a study about the use of
telecommunications networks as part of an all-hazards warning
system.33
Most recently, the White House established The Task Force on
Effective Warnings, constituted under the National Science and
Technology Council. Co-chaired by DHS and NOAA, the task force
includes representatives from DHS, the Department of Commerce,
the Department of Defense, the Department of Interior, the
Department of Transportation, the Department of Agriculture, the
Department of State, the Commission, the Environmental Protection
Agency, the National Aeronautics and Space Administration, plus
other departments, agencies and White House offices. The Task
Force is charged with examining existing and planned disaster
warning communication systems, networks and facilities, and to
make recommendations to ensure effective disaster warning systems
for the nation.
III. DISCUSSION
III.A. General Matters
The examination of EAS that we have begun in this docket, in
combination with the recent government and industry efforts
mentioned above, offers a unique opportunity for us to integrate
effective public alert and warning into the sophisticated
services and features of digital media at an early developmental
stage. We agree with commenters that digital technologies offer
new and more effective possibilities for public warning.34 As
noted above, government and industry are engaged in a series of
efforts, either alone or in concert, to develop a fully
integrated, state of the art, digitally-based public alert and
warning system for the American public. Accordingly, we adopt a
Further Notice of Proposed Rulemaking seeking comment on the
actions the Commission should take to help expedite the
development of such a system.35
Our immediate concern, and the subject of this Order, is to
ensure that increasingly popular digital technologies deliver
some level of basic national or regional warning now, while more
sophisticated alert and warning systems are being developed. It
is an essential element of this agency's mission to ensure that
the American public receives public alerts and warnings. For the
reasons indicated below, we believe that the current EAS is
overall the most effective way to provide such a basic level of
warning as we transition to more sophisticated systems.
Accordingly, we adopt rules today to ensure that DTV, DAB,
digital cable, DBS and SDARS consumers are provided with
effective, basic alert and warning information now, in a manner
that will neither interfere with nor impede the ongoing
development of a fully integrated state of the art warning
system. We seek to facilitate this steady transition to a
digital warning system by extending the EAS obligations of analog
broadcasters and cable systems to these additional digital
communications systems.
We believe that the benefits of requiring DTV, DAB, digital
cable, DBS and SDARS licensees to participate in the current EAS
far outweigh any burdens associated with implementing these
requirements. EAS represents a significant and valuable
investment that provides effective alert and warning during the
time that new, digitally-based public alert and warning systems
are being developed. We agree with those commenters who argue
that EAS should remain an important component of any future alert
and warning system. Further, in most cases, the digital
platforms affected by this Order either have in place the ability
to distribute EAS warnings, or can do so in a reasonable amount
of time and with reasonable cost. Accordingly, based on our
examination of the record in this proceeding, we do not believe
that requiring these digital services to install and use EAS
equipment will impose undue regulatory or financial burdens. As
we have indicated above, we will continue, along with other
agencies and industry, to explore ways in which emergency
information might be made available in a more efficient,
effective, and technologically current fashion.
III.B. Digital Television
Background. Television broadcasting in the United States is in
the midst of a conversion from analog to digital technology.36
The majority of television stations serving all markets in the
United States are already airing DTV37 programming,38 and the
Commission set a target date of December 31, 2006 for the
completion of the DTV transition.39 In the Balanced Budget Act
of 1997, Congress made this target date statutory, providing that
a broadcast license that authorizes analog television service may
not be renewed to authorize such service for a period that
extends beyond December 31, 2006 unless the Commission grants an
extension based on specific criteria enumerated in the statute.40
When the DTV transition is complete, some of the spectrum
currently used for broadcast television will be reclaimed and put
to other uses, notably public safety. The Commission has adopted
standards and rules that address the transition of the nation's
television broadcasters from analog to DTV, which are set forth
in Part 73 of our rules.41 None of these rules, however, have
addressed EAS participation.
In the 1994 EAS Report and Order, the Commission encouraged, but
did not require, DTV42 broadcasters to participate in EAS, and
specifically provided for the voluntary participation of DTV
broadcasters.43 In the EAS NPRM, the Commission sought comment
on whether to make participation compulsory.44 The Commission
asked commenters to address the possibility that when television
stations turn off their analog signals as part of the DTV
transition, they could leave a market devoid of an EAS
participating broadcaster.45 The Commission also noted that DTV
broadcasters have the ability to multicast, i.e., to transmit
more than one program stream on their assigned channel.46 We
sought comment on whether DTV broadcasters should be required to
transmit EAS messages on all program streams, or whether they
should be permitted to transmit on only one stream and force tune
receivers to that stream.47
Discussion. Based on the record before us, we find that revising
our EAS rules to apply to DTV broadcasters furthers the public
interest by ensuring that the public - regardless of the form of
technology used - receives emergency information. Accordingly,
we will require DTV broadcasters to comply with our Part 11
rules.48 DTV broadcasters must participate in all national EAS
activations.49 Participation in state and local EAS activations
will remain voluntary, but if DTV broadcasters choose to transmit
state and local EAS messages they must comply with the
Commission's Part 11 rules governing those messages.50
Essentially, DTV providers will now have the same EAS obligations
as analog television broadcasters, including, inter alia, the
obligations to install ENDEC units so that the monitoring and
transmitting functions are available during the times stations
are in operation and transmit EAS test messages.51 These
requirements will be effective on December 31, 2006.
The Commission has recognized that digital broadcasters remain
public trustees of the nation's airwaves and have a
responsibility to serve the public interest.52 We agree with
NAB/MSTV's assertions that extending EAS rules to DTV is a
natural extension of these public interest obligations.53
Participation of DTV broadcasters will enhance the effectiveness
of EAS and ensure that many more people have access to critical
emergency information.54 Given the ongoing transition to DTV,
continued exemption of this service from the requirement to
provide national EAS warnings does not serve the public interest.
As we suggested in the EAS NPRM, if EAS participation remained
voluntary and DTV broadcasters opted not to participate, some
communities could be left without an EAS television broadcast
source. Commenters overwhelmingly support extending EAS rules to
DTV broadcasters and support the Commission's effort to
restructure EAS in a comprehensive digital environment.55 No
commenters oppose extending EAS rules to DTV broadcasters. In
effect, extending EAS to DTV will simply retain the status quo
established in 1994 - television broadcasters will continue to be
required to participate in EAS at the national level.
In addition, we conclude that when a DTV broadcaster participates
in EAS activations, it must provide the EAS message to viewers of
all program streams that the DTV broadcaster provides over a
particular channel.56 All DTV viewers should have access to the
potentially life-saving emergency information contained in EAS
messages. We agree with commenters that argue that EAS messages
should be transmitted on all program streams.57 RERC Wireless
supports requiring DTV broadcasters to transmit EAS messages on
all program streams, contending that EAS messages are too
important to risk missing because a person is tuned to the wrong
channel.58 Ohio EMA agrees that we should require all program
streams to air the EAS message.59
NAB and MSTV contend that DTV broadcasters should be required to
transmit EAS messages only on programming streams intended for
the general public, but they do not explain why EAS information
would not be suitable for all program streams, including those
that are subscription based.60
We conclude that all viewers should be informed of critical
emergency information regardless of which program stream they are
viewing. We see no reason to exempt subscription-based streams,
particularly when we have extended and are extending EAS
obligations to other subscription-based services, including
analog cable systems, digital cable systems, wireless cable
systems, SDARS and DBS. The public interest obligations of DTV
broadcasters to meet the emergency needs of their viewing
audience must extend to carrying EAS alerts on all program
streams.
We recognize that DTV broadcasters may need to resolve technical
issues, such as equipment procurement, installation, and training
in order to comply with the requirements that we establish today.
Accordingly, we afford DTV broadcasters more than a year to
comply with these rules. Moreover, we grant DTV broadcasters the
flexibility to determine the method they will use to distribute
EAS messages to all program streams, as long as all viewers
receive the EAS message on the channel that they are watching.
For example, DTV broadcasters may separately transmit EAS
messages on all program streams or, if the technology is
available, transmit EAS messages on one stream and force tune all
receivers to that stream. We do not mandate force tuning,
however, as recommended by Harris Corporation,61 because most DTV
receivers currently on the market do not have force tuning
capabilities.62 We believe that DTV broadcasters should have the
option to utilize force tuning technologies when feasible, as
long as every viewer receives the same EAS message regardless of
the channel he or she is watching. The extent of the costs or
burdens that this requirement will impose on DTV broadcasters
will vary by station based on several factors, such as wiring
architecture. Because these EAS obligations require equipment
with which broadcasters are familiar and which is largely already
in place at DTV facilities, we believe that the cost and burden
of our requirement will not be so significant as to outweigh the
benefit of providing the American public with critical emergency
information.
III.C. Digital Cable
Background. The Cable Act of 1992 requires cable systems to
provide their subscribers with access to ``the same emergency
information as is afforded by the [E]mergency [B]roadcast
[S]ystem...''63 In 1994, when the Commission replaced the EBS
with EAS, it required cable systems to participate.64 Thus,
cable systems, like broadcasters, are required to carry
Presidential EAS messages, and permitted to transmit state and
local EAS messages on a voluntary basis.65 In 1997, the
Commission extended EAS requirements to wireless cable systems.66
The Commission's EAS requirements do not specifically refer to
digital cable, which was not in widespread use in 1994 when EAS
was implemented. In the EAS NPRM, the Commission sought comment
on whether it should extend EAS obligations to digital media,
including digital cable television.67 In addition, the
Commission raised some technical questions regarding digital
cable service participation in EAS.68
Digital cable offers a number of advantages over analog cable.
For instance, the digital format eliminates unwanted noise and
interference from programming. Further, digital compression
allows more than five times the number of stations to be
delivered via the same bandwidth, on additional channel capacity
that allows digital cable operators to deliver ``near on-demand''
programming by staggering the start times of programs on
different channels.69 Because of these advantages, digital cable
is increasingly deployed with analog cable in the marketplace.
By 2005, more than 23% of TV households subscribed to digital
cable.70
Discussion. We specifically extend the EAS obligations set forth
in Part 11 of our rules to digital cable systems. As noted supra
in footnote 3, for purposes of this Order and our Part 11 rules
only, the term ``digital cable systems" is defined as the portion
of a cable system that delivers channels in digital format to
subscribers.71 Essentially, digital cable systems will now have
the same EAS obligations as analog cable systems. Specifically,
we will require digital cable systems to participate in national
level EAS activations.72 Participation in state and local EAS
activations will continue to be voluntary, but digital cable
systems that choose to participate must comply with the Part 11
rules.73 Like DTV broadcasters, our examination of the record
reveals that digital cable providers are familiar with EAS
equipment and have already installed this equipment.
Accordingly, we believe the burden of equipment purchase,
installation and training is similar to that of DTV broadcasters
and find that the same compliance deadline of December 31, 2006
is appropriate for digital cable providers.
The 1992 Cable Act, as cited above, manifested Congress's belief
``that emergency information should be accessible to all
television viewers, regardless of the distribution medium in
use.''74 Our decision here furthers that statutory goal. We
also find that specifically imposing these requirements on
digital cable systems is in the public interest. Given the
growing deployment of digital cable systems, safety of life and
property will be promoted75 by ensuring that viewers of digital
cable have access to the same potentially life-saving emergency
information as other television viewers. We agree with
commenters like SBE who support expanding EAS to include digital
cable systems.76 SBE agrees that digital cable should be treated
in the same manner as over-the-air broadcast and digital
broadcast signals.77 SBE believes that in order to achieve a
meaningful and working public warning system, short of creating
an entirely new one, emergency, life-saving messages should be
transmitted by all means possible.78 PPW contends that if over-
the-air digital broadcast television is required to participate
in EAS, then digital cable should also be required to
participate.79 As PPW correctly notes, this is in line with the
1992 Cable Act requirement that cable television participate in
the distribution of emergency messages.80 No commenters opposed
extending EAS obligations to digital cable.
We will permit digital cable systems that are participating in
EAS activations to determine the method they will use to
distribute EAS messages to viewers of digital cable channels as
long as all viewers receive the complete EAS message on the
channel that they are watching. For example, digital cable
systems may transmit EAS messages on all digital channels or
transmit EAS messages on a single channel and force tune all
receivers to that channel.81 We note that the Plug-and-Play
agreement82 provides that, to be labeled as ``Digital Cable
Ready,'' a television set must respond to EAS messages that are
transmitted in compliance with the Digital Video Service
Multiplex and Transport System Standard for Cable Television.83
Under the rules we adopt today, digital cable systems with fewer
than 5,000 subscribers must, like analog and wireless cable
systems with fewer than 5,000 subscribers, provide a video
interruption and an audio alert message on all channels and the
EAS message on at least one channel.84
III.D. Digital Audio Broadcasting
Background. In 2002, the Commission permitted terrestrial over-
the-air AM and FM radio stations to begin digital transmissions
on an interim basis using the IBOC technical system developed by
iBiquity Digital Corporation.85 The Commission established
interim requirements in the DAB R&O, including the requirement
that, during interim IBOC operations, radio stations must
broadcast the same main channel program material in both analog
and digital modes.86 In a subsequent Further Notice of Proposed
Rulemaking, we sought comment regarding what amendments to the
Commission's rules would be necessary to facilitate the adoption
of DAB and specifically sought comment on issues related to the
broadcast of emergency information.87
Radio stations using IBOC DAB technology are able to provide
enhanced sound fidelity, improved reception, multiple audio
streams, and new data services to digital-ready radio
receivers.88 This technology makes use of the existing AM and FM
bands (In-Band) by adding digital carriers to a radio station's
analog signal, allowing broadcasters to transmit digitally on
their existing channel assignments (On-Channel) while
simultaneously maintaining their analog service.89 Thus, IBOC
permits the transmission of both analog and digital signals
within the spectral emission mask of a single AM or FM channel,
placing digital information on frequencies immediately adjacent
to the analog signal.90 This technology allows new radios to
receive both digital broadcasts and analog broadcasts from
stations that have not yet converted to digital.91 This system
is designed to blend to analog when digital reception fails.
Radio stations will eventually convert to all-digital modes of
operation. DAB does not require use of additional spectrum and
there is no statutory mandate to convert to a digital format.
In the EAS NPRM, the Commission noted that DAB has the ability to
transmit more than one program stream in its assigned channel, a
practice referred to as multicasting, and that the Commission had
recently reached the tentative conclusion that the EAS rules
should apply to all audio streams broadcast by radio stations
using DAB.92 Because most DAB broadcasters currently use the
digital part of their signal to replicate their analog
programming, we sought comment on whether EAS messages should be
carried on the analog, digital or both program streams. We also
asked how EAS messages should be carried when a digital audio
broadcaster transmits different programs on its digital and
analog streams. Finally, we sought comment regarding whether
IBOC receivers have the ability to be force tuned.
Discussion. We revise our Part 11 EAS rules to apply to DAB
broadcasters.93 We agree with most commenters that we should
extend EAS requirements to DAB providers as a natural extension
of radio broadcasters' public interest obligations.94
Accordingly, we will require DAB broadcasters to air all national
EAS messages.95 Participation in state and local EAS activations
will be voluntary, as it is for analog radio broadcasters.96 If
DAB broadcasters choose to participate in state and local EAS
activations, they must comply with the Commission's Part 11 EAS
rules.97 Essentially, DAB providers will now have the same EAS
obligations as analog radio broadcasters. For the same reasons
we discuss in paragraphs 23-25, we will also require DAB
broadcasters to transmit all EAS messages that they air on all
audio streams.98 Because DAB broadcasters will face similar
burdens of equipment purchase, installation and training as DTV
and digital cable providers, we apply the same date of compliance
that we did for DTV and digital cable. Accordingly, these rules
will be effective December 31, 2006.
As noted in the DAB FNPRM, we believe that fully informing the
public of critical emergency information best serves the public
interest and that this can be accomplished only if broadly
applied.99 The public interest obligations of DAB broadcasters
to meet the emergency needs of their viewing audience must extend
to carrying EAS alerts on all audio streams. Commenters
generally agree that DAB broadcasters should participate in EAS
and that EAS messages should be broadcast on all audio
streams.100 We agree with commenters who argue that EAS
requirements should apply to all audio streams because the goal
of EAS as a public warning system is to reach as many people as
possible with lifesaving information and to do otherwise would
result in the reduced effectiveness of EAS as digital radio
listenership increases.101 All listeners should be informed of
critical emergency information regardless of which audio stream
they are listening to. For the reasons stated in paragraphs 23-
25 with respect to DTV, we see no reason to exempt subscription-
based streams.102 It would not serve the public interest to
exempt DAB broadcasters as they reach increasingly large portions
of the American public from EAS obligations. Additionally,
although there is no deadline to do so, radio stations will
eventually convert to all-digital modes of operation.103
Although AM and FM radio broadcast stations using DAB may need to
update EAS equipment to comply with these rules, particularly
with respect to transmitting EAS messages on all audio streams,
commenters indicate that these updates will neither be complex
nor costly. NAB and MSTV assert that ``EAS functionality will be
fully preserved during the transition to digital radio using the
IBOC technology.''104 National Public Radio has also stated
that, using relatively inexpensive distribution amplifiers and
switching devices, stations should be able to carry EAS or other
emergency information virtually instantaneously via each free
over-the-air program channel.105 As noted above, access to the
emergency information contained in EAS messages is critical.
Based on our examination of the record in this proceeding, we
conclude that the costs of complying with the EAS requirements
that we adopt today are outweighed by the public safety benefits
of ensuring that all listeners receive EAS messages.
Further, as we did above for DTV broadcasters, we afford DAB
broadcasters more than a year to comply with these rules and we
grant DAB broadcasters the flexibility to determine the method
they will use to distribute EAS messages to listeners of all
audio streams as long as all listeners receive the complete and
timely EAS message on the stream that they are listening to.106
SBE agrees that ``whichever method yields the desired results''
is acceptable.107 We believe that these details are best left to
industry to formulate effective methods and standards that fully
integrate new and developing technologies.
III.E. Satellite Digital Audio Radio Service
Background. Governed by Part 25 of our rules, SDARS provides a
wide variety of digital radio programming on a subscription basis
to subscribers throughout the contiguous United States.108 In
1997, the Commission granted SDARS licenses at auction to two
entities: Sirius Satellite Radio, Inc. (Sirius) (formerly,
Satellite CD Radio, Inc.)109 and XM Radio Inc. (XM) (formerly,
American Mobile Radio Corporation).110 Most SDARS programming is
created in the licensees' central headquarters in New York City
(Sirius) and Washington, D.C. (XM), but SDARS licensees also re-
transmit the programming of third-party content providers.
Content is currently transmitted exclusively on a nationwide
basis.111 SDARS licensees have recently begun providing
metropolitan area traffic and weather updates on a round-the-
clock basis by means of dedicated channels,112 but all
subscribers receive each of these channels on a nationwide basis.
For example, both SDARS licensees have a dedicated channel
providing traffic and weather reports for Philadelphia, which can
be tuned into not only by subscribers in the Philadelphia area,
but also by all other subscribers throughout the contiguous
United States.
In the 1994 EAS First Report and Order, the Commission encouraged
digital broadcasters to participate in the EAS system.113 SDARS,
however, is not a broadcast service, and is not currently
required to participate in EAS. In the EAS NPRM, the Commission
sought comment on whether we should adopt rules extending EAS
obligations to other digital networks, such as SDARS.114 We also
sought comment on whether SDARS licensees' national distribution
structures affect their ability to discharge EAS obligations
effectively.115
Both providers have already implemented some form of emergency
alerts in their programming. XM, in addition to providing
regional and local emergency information over its traffic and
weather channels,116 has a channel dedicated exclusively to
public safety and emergency alerts.117 XM indicates that this
alert channel is committed to providing critical, updated
information before, during, and after natural disasters, weather
emergencies, and other hazardous incidents.118 To ensure that
critical emergency information is received and transmitted
quickly on its traffic and weather channels and the channel
dedicated to emergency alerts, XM states that its personnel
monitor a variety of sources 24 hours a day including FEMA, the
U.S. Department of Health and Human Services, NWS, and state and
local public safety organizations.119 Sirius currently has a
voiceover alert capability that interrupts programming to
transmit a voice message ``instruct[ing] listeners that an
emergency exists and that they should tune to one of Sirius' news
program channels for further details.''120 Sirius used this
voiceover alert capability during the Northeast Blackout in
August 2003.121
Discussion. We amend Part 11 of our rules to require that all
SDARS licensees participate in EAS. The new rules will require
SDARS licensees to transmit national level EAS messages on all
channels.122 Both XM and Sirius have stated that, once received,
they are currently capable of transmitting national EAS messages
on every channel.123 We will require that SDARS licensees
receive national EAS messages through an ENDEC unit, the same
manner as currently required of broadcasters and cable systems,
from which they must directly monitor at least two sources,
including one PEP station, or must directly monitor FEMA.124
This should not be difficult to accomplish as XM currently
already monitors EAS alerts from an LP-1 station through an ENDEC
unit located at its Washington, D.C. headquarters.125 We
strongly encourage SDARS licensees to have the ability to receive
EAS alerts from state and local emergency managers and the
ability to disseminate state and local EAS warnings on local
traffic and weather channels that the SDARS licensees provide.126
We will require SDARS licensees to inform their customers of the
channels that will and will not be capable of supplying state and
local EAS messages.127 Finally, we will require SDARS licensees
to test their ability to receive and distribute EAS messages in
the same manner required of other EAS participants in section
11.61 of our rules and to keep records of all tests.128 Although
XM states that it is committed to testing its EAS equipment, it
suggests that our rules should require it to conduct tests only
on its XM Emergency Channel.129 Although we commend XM for its
commitment to test its EAS equipment, we disagree with its view
regarding testing requirements. The EAS testing regime is
designed to test not only the EAS participant's ability to
receive the message from the source it monitors, but also the
ability of the participant to disseminate an alert to its entire
audience. SDARS licensees should monitor a state or local
primary source to participate in testing. Because SDARS
licensees will face burdens of equipment purchase, installation
and/or training similar to those of DTV and DAB broadcasters and
digital cable providers, these new rules will also take effect
December 31, 2006.130
We believe that requiring SDARS licensees to transmit national
EAS messages will serve the public interest because the current
rules do not guarantee that the substantial and increasing number
of people who subscribe to SDARS would receive EAS alerts on
their SDARS receivers. There are currently over six million
SDARS subscribers and this number continues to grow.131 SDARS is
an expanding service, with providers creating partnerships with
wireless telephone providers, automobile manufacturers and major
media companies.132 Thus, extending national EAS obligations to
SDARS will promote the safety of the large and growing number of
Americans who are subscribing to this service. We disagree with
commenters who claim that voluntary participation in national EAS
activations by SDARS licensees would be sufficient.133 Failure
to mandate SDARS participation in national EAS activations could
potentially leave a substantial number of Americans without
access to critical information in the event of a national
emergency. We agree with commenters who assert that the
extension of EAS obligations to SDARS licensees is an important
addition to the EAS system.134 As noted above, both XM and
Sirius have stated that, once received, they are currently
capable of transmitting national EAS messages on every
channel.135 Moreover, we leave it to the SDARS licensees to
design their distribution systems to comply with the EAS rules,
as we share the concern of commenters that detailed EAS
requirements would limit innovation in the area of developing new
ways to provide EAS alerts.136
In addition, like broadcasters and cable providers, SDARS
licensees will not be obligated to transmit state and local
alerts. We note, as mentioned above, that SDARS licensees are
currently providing some channels containing regional or local
traffic and weather information. Because of the nature of this
programming, and the likelihood that the audience is located or
interested in a particular city or region, we strongly encourage
SDARS licensees to develop and implement a distribution system
that includes the ability to receive relevant state and local EAS
warnings and the ability to transmit those warnings on channels
that provide regional and local traffic and weather information.
Most emergencies originate at the state and local level and the
current EAS includes an interface for state and local emergency
managers that allows them to originate and relay state and local
EAS messages through radio and television broadcast stations,
analog cable systems and wireless cable systems. Unlike
broadcast stations and cable systems, however, the SDARS
licensees produce and control their programming from facilities,
primarily in Washington, D.C. and New York City, that are not
necessarily located in the area for which the traffic and weather
is being reported and are not located such that an ENDEC unit or
units could be used to receive regional or local alerts relevant
to every state or local area within the SDARS licensees' service
areas. Accordingly, while we strongly encourage SDARS licensees
to develop and implement the ability to receive relevant state
and local EAS warnings, we do not believe it is appropriate at
this time to mandate that SDARS licensees have such ability.
We recognize 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.137 Currently, both SDARS licensees have implemented
methods of monitoring regional and local alerts to provide
warnings on their various regional traffic and weather channels
and we commend their regional and local public safety efforts.138
Commenters alluded to the idea of a centralized system to which
state and local officials could release emergency alerts as being
a feasible solution for satellite licensees to receive regional
EAS alerts.139 Alternatively, the SDARS licensees also suggested
that they could explore transmitting state and local alerts if
they were contacted directly by state and local emergency
authorities.140 We will allow SDARS licensees that choose to
implement the ability to receive state and local EAS warnings to
develop the methods by which they can receive state and local EAS
messages.
The dissemination of state and local emergency messages by SDARS
based on the listener's location is likely to be challenging as
well. Unlike a national EAS message, transmission of a state or
local emergency message to appropriate receivers is complicated
by the fact that SDARS cannot and does not currently transmit
content regionally.141 Thus, transmission of local emergency
information on all channels, which would reach all affected
listeners, would also reach - and inconvenience - millions of
unaffected listeners nationwide as well. If listeners are
deluged with too many emergency messages, most of which are
inapplicable to them, then emergency messages may well lose their
impact. For this reason, we encourage SDARS licensees that
choose to implement the ability to receive and transmit state and
local EAS warnings to develop additional ways of distributing EAS
messages to the appropriate listeners, regardless of the channel
they are listening to. We note that both SDARS licensees
suggested distributing state and local EAS messages over their
existing traffic and weather channels,142 and as indicated above,
both currently provide some emergency information and alerts to
subscribers over these regional content channels.143 Finally, we
require SDARS licensees to inform their customers of the channels
that will and will not supply state and local EAS messages. This
information should be provided on the SDARS licensee's website
and also distributed in writing to customers at least annually.
To alert listeners to an emergency announcement that may interest
them, Sirius also suggested exploring the possibility of pre-
empting the text box that normally contains the channel name and
current programming, to announce the state or region and type of
alert, and the channel number transmitting detailed
information.144 We strongly encourage such developments, and the
use of the SDARS and DAB text box to display entire EAS messages,
which we hope to see included in any next generation public alert
and warning system.
III.F. Direct-to-Home Satellite Services
Background. Pursuant to section 303(v) of the Act, the
Commission has jurisdiction to regulate direct-to-home (DTH)
satellite services.145 DTH satellite services include DBS146 and
Home Satellite Dish (HSD) services.147 Under our current Part 11
rules, DBS providers and HSD providers are not required to
participate in EAS, but may participate on a voluntary basis.148
The Commission has encouraged such participation.149 For
purposes of this Order, DBS providers include the entities set
forth in section 25.701(a) of our rules.150 Accordingly, DBS
providers include: (1) entities licensed to operate satellites in
the 12.2 to 12.7 GHz DBS frequency bands; (2) entities licensed
to operate satellites in the Ku band fixed satellite service
(FSS) and that sell or lease capacity to a video programming
distributor that offers service directly to consumers providing a
sufficient number of channels so that four percent of the total
applicable programming channels yields a set aside of at least
one channel of non commercial programming pursuant to section
25.701(e) of the Commission's rules, or (3) non U.S. licensed
satellite operators in the Ku band that offer video programming
directly to consumers in the United States pursuant to an earth
station license issued under part 25 of this title and that offer
a sufficient number of channels to consumers so that four percent
of the total applicable programming channels yields a set aside
of one channel of non commercial programming pursuant to section
25.701(e) of the Commission's rules.151 This definition ensures
that the EAS rules apply to the vast majority of existing DTH
satellite services, particularly those for which viewers may have
expectations as to available warnings based on experience with
broadcast television services. The use of this definition will
make the EAS obligations applicable to DTH-FSS licensees,
including those who provide capacity to video programming
distributors.152
HSD providers originally supplied satellite television; however,
today, DBS providers serve most satellite television
consumers.153 Over the past 5 years, the number of DBS
subscribers has steadily increased from almost 13 million in June
2000 to over 27 million in June 2005.154 During the same time
period, the number of HSD subscribers has steadily decreased from
almost 1.5 million to fewer than 150,000.155 DTH satellite
service provides multi-channel video programming and now reaches
almost 25% of U.S. households with a television.156 DTH
satellite providers receive programming from national
programmers, such as HBO, ESPN, and CNN, and from local channels,
such as the broadcast affiliates in a particular area, and then
transmit these programs to customers' receivers. Because of this
pass-through system, a satellite television customer receives EAS
messages only if he receives the local broadcast stations as part
of his programming package, and those stations carry the EAS
message.
In the EAS NPRM, the Commission sought comment on: (1) whether
we should adopt rules extending EAS obligations to DBS (2)
whether it serves the public interest to continue to exempt such
satellite services that reach increasingly larger numbers of
Americans from any requirement to provide public warning; and (3)
what burdens extending the EAS obligations would place on such
services and whether the benefits outweigh the burdens.157
We also sought comment on technical issues involved with
requiring DBS providers to comply with our EAS rules. For
example, we asked how an EAS signal would be fed to a DBS
operator, noting that, while it could be sent over fiber to their
Local Receive Facility (LRF) where they offer local-into-local
service,158 they would not have an LRF where they do not provide
local-into-local service.159 Further, we noted that if an EAS
alert needed to be sent to an area on the border of a Designated
Market Area (DMA) where a DBS provider only provided local-into-
local service in one DMA, satellite customers in the unserved DMA
would not receive the signal.160 We also sought comment on how
DBS operators would conduct testing.161 Finally, to the extent
that software updates are needed in set top boxes and legacy
boxes that have already been deployed, we sought comment on what
an appropriate implementation time frame would be.162
Discussion. In order to ensure that DBS subscribers receive an
EAS message from the President in the event of a national
emergency, we modify our EAS rules to require DBS providers to
participate in national EAS activations by discontinuing regular
programming and providing the national EAS message to viewers of
all channels.163 Accordingly, DBS providers will be required to
comply with our Part 11 EAS rules. DBS providers must install
equipment capable of encoding and decoding the EAS protocol and
generating and detecting all EAS codes.164 DBS providers may
install this equipment at the location most convenient to their
system designs. In addition to ensuring that EAS equipment
complies with our rules, providers must also monitor two EAS
sources upon receipt of an emergency action notification and
ensure that their EAS monitoring equipment is operational.165
Finally, as explained in more detail below, we will require DBS
licensees to test their ability to receive and distribute EAS
messages.166
Although DBS providers note that mandatory participation in EAS
activations would be costly and technologically difficult,167
SBCA asserts that DBS operators could participate in national EAS
activations in some way if they are given sufficient development
time to address technical and operational difficulties and invest
in new hardware and software.168 DIRECTV states that it could
develop the systems and procedure necessary to deliver national
EAS messages to its subscribers and that it is prepared to commit
the assets necessary to do so.169 We conclude that extending
national level EAS requirements to DBS providers serves the
public interest by ensuring that the significant portion of the
American public that are DBS subscribers have access to this
critical emergency information. We believe that the public
safety benefit that would result from imposing a public alert and
warning obligation on DBS providers far outweighs the burdens to
such providers from implementing these new requirements. The
majority of commenters agree that EAS requirements should be
extended to include DBS services.170 We strongly disagree with
those few commenters that stated that requiring DBS providers to
deliver EAS alerts would provide no more than a marginal benefit
over the status quo.171 Of all the services discussed in this
order, DBS has by far the largest share of customers. There are
currently more than 27 million DBS subscribers and that number
continues to increase.172 We applaud the innovative service that
DBS providers deliver to their customers, but note that it is
essential that these customers have access to the same type of
emergency information that they have come to expect from
traditional media sources. The Presidential EAS message must be
accessible to all television viewers, regardless of the
distribution medium.173
Although participation in state and local EAS activations remains
voluntary, we will require DBS providers to pass through all EAS
messages aired on local channels to subscribers receiving those
channels.174 Therefore, subscribers viewing local channels
through DBS services will receive all EAS messages transmitted
over those local channels.175 Additionally, we conclude that DBS
providers must be capable of receiving (from state and local
emergency managers) and distributing state and local EAS messages
or they must disclose their inability to do on their website and
in writing to their customers at least annually.176 As noted
above, most emergencies originate at the state and local level
and the current EAS system includes an interface for state and
local emergency managers, providing a way to access the system
and originate and relay EAS messages. We encourage DBS licensees
to design their systems to include this capability and,
specifically, to design their converter boxes to be capable of
receiving the appropriate regional, state and local EAS messages.
Any future Public Alert and Warning System will likely include
EAS and may require DBS licensees to increase participation in
regional, state and local EAS activations.
We acknowledge the concern that DBS providers have expressed
regarding technical and operational difficulties they expect to
encounter if they are required to provide national, state and
local EAS messages.177 We acknowledge that there are technical
issues that will need to be resolved in order for DBS licensees
to make the necessary changes to their systems.178 We wish to
give maximum flexibility to DBS providers. Accordingly, we will
permit DBS providers to determine the method they will use to
distribute EAS messages to viewers, as long as all viewers
receive national EAS messages regardless of the channel that they
are watching.179 We agree with SBCA that, with respect to
broadcast television channels carried for local markets, DBS
providers can simply pass that channel through with the embedded
national, state or local EAS message.180 Because of the
complexity associated with ensuring that national alert messages
will be transmitted on all channels that do not originate at
local broadcast stations, we are providing DBS providers more
time to comply with these rules. DBS providers will need to
modify their satellite uplink facilities at multiple locations.
DBS providers will also need to develop and implement
technologies within each of several dozen different satellite
transponder data streams. DIRECTV estimates that such efforts
will likely require approximately 18 months to implement
fully.181 Accordingly, these rules will take effect May 31,
2007.182 We encourage DBS providers that have the capability to
participate in EAS activations to do so as soon as possible.
We will require DBS licensees to test their ability to receive
and distribute EAS messages in a manner similar to that required
of other EAS participants in section 11.61 of our rules and to
keep records of all tests.183 DBS licensees should monitor a
state or local primary source to participate in testing. The
majority of commenters agree that DBS providers should conduct
testing.184 We recognize that requiring a DBS provider to
conduct its weekly and monthly test on all channels
simultaneously may pose problems. Accordingly, we will require
that DBS providers conduct EAS tests each month on at least 10%
of the total channels they provide.185 For purposes of this
calculation, the total number of channels should not include
those channels that the DBS provider passes through with the
embedded national, state or local EAS message.186 The channels
tested should vary each month, and over the course of a year all
channels should be tested.187 DBS providers must log receipt of
weekly tests in their records.188 Requiring that only 10% of
channels be tested each month and that weekly tests must only be
logged in records should reduce the burdens associated with EAS
testing for DBS providers. Any remaining burdens are outweighed
by the public interest benefits of testing which ensures that DBS
providers are able to receive and transmit EAS messages. These
testing requirements are no more onerous to DBS providers than
those required of any other EAS participant. Due to the
potential technical difficulties and costs associated with
transmission of weekly tests, in the attached Further Notice of
Proposed Rulemaking, we seek comment regarding weekly test
transmission requirements for DBS providers.
Although we encourage participation by HSD providers, we will not
require their participation in EAS, because: (1) there were only
approximately 145,000 HSD users in June 2005 and that number
continues to decrease189 and (2) as HSD users receive programming
directly from programmers, it would be very burdensome for HSD
providers to distribute EAS messages to subscribers.190
III.G. Administrative Matters
The Commission receives numerous questions about and requests for
clarification and corrections of our EAS rules. We find that
several minor administrative changes to our EAS rules are in
order. Accordingly, we amend our EAS rules to delete all
reference to the ``FCC EAS mailing list'' which we no longer
maintain.191 EAS information may now be obtained from our web
site. www.fcc.gov/eb/eas. and from the general FCC information
number 1888-CALLFCC. Further, we amend section 11.41 to change
"Operating Handbook" to "EAS Operating Handbook."192 In section
11.52(b) of our rules, we change the reference to 11.51(j)(2) to
11.51(m)(2).193 Section 11.53(c) provides that, prior to
commencing operations, broadcast stations must determine whether
the EAS has been activated by monitoring the assigned EAS
sources.194 In order to clarify how EAS monitoring assignments
are determined, we amend this section to add the following to the
end of section 11.53(c): ``as specified in their State or Local
plan.''195 Finally, because section 76.305 no longer exists, the
reference to that section in 11.54(b)(13) is changed to the
correct reference: section 76.1711.196
III.H. Conclusion
We expand the reach of EAS, as currently constituted, to ensure
that more Americans are able to receive national and/or regional
public alerts and warnings. Digital technologies are rapidly
becoming the norm for communications technologies and public
alert and warning must keep pace with this digital revolution.
Government and industry are engaged in the early stages of
efforts to develop a fully integrated, state of the art,
digitally-based public alert and warning system for the American
public. Increasingly popular digital technologies must have the
ability to deliver some level of basic national or regional
warning now, during the time that more sophisticated alert and
warning systems are being developed. Further, we amend our EAS
rules to ensure that persons with disabilities have equal access
to public warnings.
IV. FURTHER NOTICE OF PROPOSED RULEMAKING
In the Order we adopt today, we realize the immediate objective
of ensuring that the large and growing segments of the population
who rely on digital radio and television technologies are not
left without access to alerts in the event of an emergency.
While the current EAS performs a critical function, we believe it
could be improved. In this Further Notice of Proposed Rulemaking
(FNPRM), we seek specific comments on what actions the Commission
should take to help expedite the development of a more
comprehensive system.
An accurate, wide-reaching public alert and warning system is
critical to the public safety and a vital part of the
Commission's core mission to promote the safety of life and
property through a robust communications system. We should have
a system that enables officials at the national, state and local
levels to reach affected citizens in the most effective and
efficient manner possible. It should have built-in redundancy
features and use a variety of communications media so that
officials can reach large numbers of people simultaneously.
Today's order is our first step to ensure that digital media is
capable of receiving and disseminating EAS messages. We note
that, in response to the EAS NPRM, commenters identified a number
of approaches to digital alert and warning. We seek further
comment on these approaches and ask what the Commission can do to
facilitate the development of a more effective, comprehensive
digital public alert and warning system. Specifically, what is
the appropriate role for the Commission among the various
government and industry entities that are involved in the
creation of this system? We also seek comment on the
Commission's statutory authority to regulate such a system. If a
new system is adopted, should compliance be mandatory or
voluntary? Should different communications technology - radio,
television, wireline, wireless - be treated differently?
As noted in the Order that accompanies this FNRPM, government and
industry have taken significant steps to develop a next-
generation alert and warning system. Digital media have the
potential to deliver a wholly new level of alert and warning
capabilities, far beyond the capabilities of today's EAS. Text
crawls and audio feeds can be replaced with full audio and video
alert, information such as evacuation routes can be embedded in
messages to the public, messages can be targeted to specialized
audiences such as first responders and health care providers, and
coordinated warnings can be sent over multiple platforms
simultaneously.
The comments filed in response to the EAS NPRM reveal a multitude
of technical approaches to a digital alert and warning system,
from specific approaches to individual technologies to broad
approaches to architecture and protocol design. Below we include
a representative sample of issues for parties to address. The
issues we include are representative, and do not constitute an
exclusive list. Parties can - and should - comment on any next
generation issues. In their comments, parties should consider
what role the Commission should play in facilitating choice among
these options. Are some more workable than others? Are some
unworkable, either intrinsically or because they would not fit
well in a system that must accommodate multiple communications
platforms?
System architecture/message distribution. Some commenters argue
that the current distribution system is flawed, and that EAS
messages should be distributed directly to media outlets.197 We
seek comment on this assertion. Would such point-to-multi-point
distribution deliver alerts more quickly to the public? Would it
do so more efficiently? Many commenters, such as WTOP/WXTR,
propose that a satellite-based system be used.198 Would such a
system be effective? Should it be deployed in addition to199 or
instead of the current system? APTS proposes that the PBS
satellite system offers a model for distribution of national or
state and local alerts.200 We seek comment on the APTS proposal.
We note that the PBS satellite system is an integral part of
FEMA's Digital Emergency Alert System (DEAS) National Capital
Region Pilot, and we expect to incorporate the results of that
pilot into our record. We also seek comment on other
distribution models. For example, given its inherent robustness,
we believe the Internet should serve an important role in
distribution of alerts and warnings.
Common protocols. The National Center for Missing & Exploited
Children (NCMEC) argues that emergency alerts should flow rapidly
and simultaneously through all available information conduits to
first responders and the public.201 Should such a ubiquitous
distribution be a goal of a digitally-based alert system? Most
commenters agree that in order for a digitally-based alert and
warning system to be distributed simultaneously over multiple
platforms, a common messaging protocol must be adopted.202 We
seek comment on this assertion. SWN Communications, Inc.
contends that the Common Alerting Protocol (CAP), endorsed by the
PPW and many public and private organizations responsible for
alerts, offers the most practical means of quickly creating an
effective interface between the emergency manager and multiple
emergency alert and notification systems to significantly improve
national alert and warning capability.203 Should CAP be adopted
as the common messaging protocol for any future digitally-based
alert system? Should we require the adoption of CAP for EAS
alerts? If CAP were to be adopted, would it allow simultaneous
distribution to radio, television, and wireless media such as
mobile telephones and PDAs? How would CAP be used to ensure
uniformity of alerts across such multiple platforms? For
example, if the White House were to issue a national message how
would CAP accommodate an audio message with a shorter, text-based
message appropriate for a PDA screen?
Issues specific to particular technologies. We also seek comment
on issues in the comments that relate to specific technologies.
For example, we seek comment on assertions by Echostar, Sirius
and XM that DTH and SDARS providers should not be required to
deliver state and local messages.204 As we note in today's
Order, because most EAS alerts are local, the ability to deliver
a state or local message is an essential element of an effective
alert and warning system. We seek comment on how technologies
like DTH and SDARS, which are designed to receive and deliver
national programming, could deliver local alerts. For example,
should DTH providers design the capability into their
transmission systems and their next generation digital set top
boxes to deliver state and local EAS alerts to only the
appropriate state and local audiences? We also seek comment on
technical solutions that would allow SDARS providers to
efficiently deliver state and local alerts and ask whether we
should require all digital radio services (whether SDARS or DAB)
to broadcast warnings over the digital displays on receivers.
Finally, we seek comment on whether the Commission should adopt
weekly test transmission requirements for DBS providers and, if
so, what those requirements should be.
Wireless products are becoming an equal to television and radio
as an avenue to reach the American public quickly and
efficiently. We note the participation of the wireless industry
in FEMA's current IPAWS pilot projects, which are discussed
below. What further steps should the Commission take to
facilitate wireless provision of alert and warning? Should the
Commission require wireless carriers to provide alerts and
warnings? We note that many commenters in the underlying
proceeding have advocated a point-to-multi-point, or cell
broadcast approach to wireless alert and warning.205 In
addition, commenters have identified technologies that enable
wireless handsets to receive EAS alerts.206 We seek comment on
these and other approaches to wireless alert and warning.
Parties should address whether each approach permits use of a
common messaging protocol. Finally, we seek comment on whether
each approach would require customers to return and replace their
current handsets and, if so, whether any financial impact of
handset return would offset the public benefit of providing
wireless alert and warning? Parties should address economic as
well as technical issues in their comments.
Finally, traditional telephone companies recently have indicated
that they plan to compete with cable television service providers
and DTV broadcasters in bringing high definition digital content
to customers' homes through fiber optic connections.207 Under
these circumstances, should telephone companies have public alert
and warning responsibilities similar to those of the other news
and entertainment providers covered in this docket? Are there
particular attributes of wireline technology that would make it
easier to deliver alert and warning to the public? Are there
attributes that do not lend themselves to the provision of alert
and warning? Are there policy considerations the Commission
should consider regarding requiring telephone companies that
provide content also to provide alert and warning?
Government Efforts To Develop Digital Warning System. The
Congressional Research Service (CRS) published a report titled,
``Emergency Communications: The Emergency Alert System (EAS) and
All-Hazard Warnings.''208 In the report, CRS noted many of the
same government efforts to develop a digital warning system as
discussed in the EAS NPRM, about which comments were filed in the
record. Specifically, CRS discussed the ongoing pilot projects
of FEMA, the Information Analysis and Infrastructure Protection
directorate at DHS, and the Association of Public Television
Stations (APTS) to develop an Integrated Public Alert and Warning
System (IPAWS). CRS notes the project's current testing of
digital media - including digital TV - to send emergency alert
data over telephone, cable, wireless devices, broadcast media and
other networks. What role should the Commission play with
respect to these FEMA efforts?
Performance Standards. Will performance standards be necessary
to ensure that the American public receives public alert and
warning in an accurate and timely fashion? Should the Commission
have a role in the development of such standards? Once
developed, should the Commission have a role in the enforcement
of such standards? Elements of proposed standards could be the
length of time it takes to get a particular message, and the
accuracy of the message. Will standards be necessary to ensure
the accuracy and timeliness of messages delivered across multiple
platforms? To ensure that standards are maintained, should the
Commission adopt reporting obligations for providers of alert and
warning? Alternatively, are current requirements, based on
regular testing of equipment, sufficient? Are there other ways
for the Commission to monitor implementation of its EAS rules
without imposing reporting requirements? For example, could
testing be monitored by third parties to ensure compliance? If
the Commission adopts additional reporting requirements, what are
the appropriate deadlines for such progress reports? Under what
authority could the Commission take such actions?
Coordination with State and Local Governments. We recognize the
historic and important role of states and localities in public
safety matters, and the essential role that state and local
governments play in delivering alert and warning. Recent
experience also demonstrates the devastating impact that natural
disasters can have on the health and safety of a substantial
number of people in a particular state or region. For this
reason, it may serve the public interest to give state governors
the ability to utilize EAS facilities in order to disseminate
potentially life-saving information under such circumstances.
Accordingly, we seek comment on whether our rules should be
amended to require EAS participants to transmit EAS messages
issued by the governor(s) of the state(s) in which they provide
service. We further ask whether, if such a requirement were
adopted, we should also adopt an additional originator code for
state governors in section 11.31(d) of our rules. We also seek
comment on how we can best work with the states to help implement
the EAS rules we adopt today as well as to develop the next
generation of alert and warning systems. In particular, we note
that there is a vital connection between state and local alert
and warning and Federal efforts to mitigate disasters. In the
EAS NPRM, we noted the importance of state and local EAS plans
and sought comment on several issues related to these EAS plans,
including whether periodic updating and review of these plans
should be required and, if so, how often.209 We now also seek
comment on whether our rules should be revised to require that
states notify the Commission of any changes in EAS participants'
state EAS Local Area and/or EAS designation (PEP, LP1, LP2, SR,
LR, etc.) within thirty days of such change. In the absence of
any such change, should we require a yearly confirmation that all
state EAS Local Area and EAS designations remain the same?
Accessibility to Persons with Disabilities. We also seek comment
regarding how we may, consistent with the Order we adopt today,
make EAS alerts more accessible to people with disabilities. The
Commission is committed to ensuring that persons with
disabilities have equal access to public warnings and are
considered in emergency preparedness planning. In the United
States, there are approximately 30.8 million adults with some
level of hearing loss and approximately 19.1 million adults with
vision trouble - that is 15% and 9.3% of the total U.S. adult
population, respectively.210 It is critical that we ensure that
these large segments of our population have full access to EAS
messages.
In the EAS NPRM, the Commission sought comment on whether there
are disparities in or conflicts between the EAS rules and those
contained in section 79.2 that should be reconciled or combined
and the manner in which such disparities or conflicts could be
resolved in subsequent rules.211 Currently, our Part 11 rules
require EAS participants to provide all EAS warnings that they
transmit in both aural and visual formats.212 The visual EAS
message transmitted by television stations, cable systems and
wireless cable systems must include the elements of the EAS
header code, specifically, the originator, event, location and
the valid time period of the EAS message.213 In addition, an EAS
attention signal must precede the emergency message.214
Section 79.2 of our rules requires video programming
distributors215 to make the audio portion of emergency
information accessible to persons with hearing disabilities using
closed captioning or other methods of visual presentation.216
Video programming distributors must also 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.217 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.218
Many commenters to the EAS NPRM argued that one of the major
shortcomings of EAS is the lack of the same specific information
in the visual, text display of the EAS message as that present in
the EAS audio feed generated by the source of the message.219
SBE states that this discrepancy is because the visual portion of
the EAS message is derived from the header code of the message,
rather than from the audio feed.220 We seek comment as to
whether EAS television crawls lack specificity due to the
``disconnect'' between the generic information contained in the
digital header codes and the information contained in the audio
portion of the EAS message.
SBE argues that one solution to this problem would be the
addition, by the EAS message originator, of textual information
within the EAS message containing the same information as the
audio message. We agree and encourage EAS message originators
such as FEMA and state emergency operations centers to provide
EAS messages in audio and visual format to make EAS messages
fully accessible to individuals with hearing and visual
disabilities. Video programming distributors could then provide
detailed aural and text EAS messages merely by providing the EAS
message in the format received.
Absent such action by EAS message originators, we seek comment on
whether individuals with hearing and vision disabilities may be
subject to inconsistent aural and visual information in EAS
alerts. We also seek comment on whether we should revise our EAS
rules to require all video programming distributors subject to
the Commission's Part 11 rules to provide the same information in
both the visual and aural versions of all EAS messages, instead
of only the header code information that EAS participants now
provide visually or the critical details of the emergency
information as required by section 79.2.221 Should parties
subject to the Commission's EAS rules be required to make an
audio EAS message accessible to those with hearing disabilities
by using a transcription of the audio message through the use of
closed captioning or other methods of visual presentation, such
as open captioning, crawls, or scrolls, that appear on the
screen?222 SBE argues that in order to provide a visual message
identical to the audio feed, providers would have to transcribe
the feed accurately and in real time into a character generator,
something for which very few television stations and cable
companies have the resources.223 We seek comment on SBE's
assertions. Should parties subject to the Commission's EAS rules
be required to provide an audio feed that duplicates any text
portion of an EAS alert? To the extent that an EAS message
contains other visual elements, should parties subject to the
Commission's EAS rules be required to describe such visual
portions? Will these obligations impose different technical or
financial burdens on the various media that must comply with the
Commission's EAS rules?224 Parties should discuss in detail any
relevant technical or financial issues.
We also seek comment on how any next-generation, digitally-based
alert and warning system can be developed in a manner that
assures that persons with disabilities will be given equal access
to alert and warning as other Americans. Further, we seek
comment on how we can incorporate the Commission's existing
disability access rules into the development of a more
comprehensive EAS? For example, the Commission's rules set forth
operational and technical standards for telecommunications relay
services (TRS), a nationwide system which permits persons with
hearing and speech disabilities to have access to the telephone
system. Can a digitally-based alert and warning system take
advantage of this system? Further, we seek comment on whether
the development of such a state-of-the-art alert and warning
system would affect the obligations imposed by the Commission's
rules that implement section 255 of the Act, which requires
telecommunications manufacturers and service providers to make
their products and services accessible to people with
disabilities? To what extent can revisions in the Commission's
closed captioning rules be made to enhance the dissemination of
emergency information? Commenters should comment on these and
other issues relevant to how can we take account of those with
disabilities as we develop a next generation EAS. Are there any
additional steps that the Commission can take to ensure that
people with disabilities are considered during the design process
of such a system? For example, should the Commission adopt
requirements that may be factored into the design process and, if
so, what type of requirements?
Multilingual EAS Messages. Sections 11.54(b)(7) and 11.55(c)(4)
of the Commission's rules provide that EAS announcements may be
made in the same language as the primary language of the
station.225 In the EAS NPRM, the Commission sought comment on
whether current methods of providing alerts and warnings to non-
English speaking persons are adequate and, if not, what
additional provisions are necessary and what costs would be
associated with implementing such provisions.226 On September
22, 2005, the Independent Spanish Broadcasters Association, the
Office of Communication of the United Church of Christ, Inc., and
the Minority Media and Telecommunications Council filed a
Petition for Immediate Relief with the Commission proposing
changes to the Commission's EAS rules to require stations to air
EAS messages in other languages in addition to English.227 We
seek comment on the issues raised in the petition and, for this
purpose, we incorporate the petition as well as the other
pleadings filed in response to the petition into the record of
this proceeding.228 For example, we seek comment on how this
proposal would be implemented. We also seek comment on any other
proposals regarding how to best alert non-English speakers.
Until we address these issues, we encourage that multilingual
emergency information be provided in areas where a significant
proportion of the population has its primary fluency in languages
other than English.
V. PROCEDURAL MATTERS
V.A. Ex Parte Presentations
This matter shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules.229
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.230 Other requirements pertaining to oral and written
presentations are set forth in section 1.1206(b) of the
Commission's rules.
V.B. Comment Filing Procedures
Pursuant to sections 1.415 and 1.419 of the Commission's rules,
47 C.F.R �� 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 Order and the
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).
n 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 website for submitting
comments.
n 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 ecfs@fcc.gov, and include the following words
in the body of the message, ``get form.'' A sample
form and directions will be sent in response.
n 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.
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.
n The Commission's contractor will receive hand-delivered
or messenger-delivered paper filings for the
Commission's Secretary at 236 Massachusetts Avenue,
NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8:00 a.m. to 7:00 p.m. All
hand deliveries must be held together with rubber bands
or fasteners. Any envelopes must be disposed of before
entering the building.
n 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.
n U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW,
Washington DC 20554.
V.C. Accessible Formats
To request materials in accessible formats for people with
disabilities (braille, large print, electronic files, audio
format), send an e-mail to fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(TTY).
V.D. Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, see 5
U.S.C. � 604, the Commission has prepared a Final Regulatory
Flexibility Analysis (FRFA) of the possible significant economic
impact on small entities of the policies and rules addressed in
this document. The FRFA is set forth in Appendix D.
As required by the Regulatory Flexibility Act of 1980, see 5
U.S.C. � 603, the Commission has prepared an Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic
impact on small entities of the policies and rules addressed in
this document. The IRFA is set forth in Appendix E. Written
public comments are requested on the IRFA. These comments must
be filed in accordance with the same filing deadlines as comments
filed in response to this Further Notice of Proposed Rulemaking
as set forth in paragraph 83, and have a separate and distinct
heading designating them as responses to the IRFA.
V.E. Paperwork Reduction Act Analysis
This First 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. OMB, the general public, and other Federal
agencies are invited to comment on the new and modified
information collection requirements contained in this proceeding.
In addition, we note that pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. �
3506(c)(4), we previously sought specific comment on how the
Commission might ``further reduce the information collection
burden for small business concerns with fewer than 25
employees.'' In this present document, we have assessed the
effects of expanding the reach of EAS to cover DTV, DAB, digital
cable, DBS and SDARS providers, and find that this imposes
minimal regulation on small entities to the extent consistent
with our goal of advancing our public safety mission.
V.F. Congressional Review Act
The Commission will send a copy of this 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).
VI. ORDERING CLAUSES
Accordingly, IT IS ORDERED that pursuant to sections 1, 4(i),
4(o), 303(r), 403, 624(g) and 706 of the Communications Act of
1934, as amended, 47 U.S.C. �� 151, 154(i) and (o), 303(r), 403,
554(g), and 606, the Report and Order in EB Docket No. 04-296 IS
ADOPTED, and that Part 11 of the Commission's Rules, 47 C.F.R.
Part 11, is amended as set forth in Appendix B. The Order shall
become effective 30 days after publication in the Federal
Register. The rules set forth in Appendix B shall become
effective for digital television broadcasters, digital audio
broadcasters, digital cable systems and SDARS licensees on
December 31, 2006, and for DBS providers on May 31, 2007, except
that new or modified information collection requirements
contained in Appendix B will not become effective prior to OMB
approval.
IT IS FURTHER ORDERED that pursuant to sections 1, 4(i), 4(o),
303(r), 403, 624(g) and 706 of the Communications Act of 1934, as
amended, 47 U.S.C. �� 151, 154(i) and (o), 303(r), 403, 554(g),
and 606, the Further Notice of Proposed Rulemaking in EB Docket
No. 04-296 IS ADOPTED.
IT IS FURTHER ORDERED that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, SHALL
SEND a copy of this First Report and Order and Further Notice of
Proposed Rulemaking, including the Final Regulatory Flexibility
Analysis and the Initial Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX A
LIST OF COMMENTERS
Comments in EB Docket No. 04-296
Commenters
Abbreviation
Abbott, Adrienne
Abbott
Alaska Broadcasters Association and the State Emergency
Communications Committee ABA/ASECC
Alert Systems, Inc. Alert
Systems
Alpena, MI, City of
Alpena
American Cable Association
ACA
American Foundation for the Blind
AFB
American Teleservices Association
ATA
Ann Arbor, MI, City of
Ann Arbor
Association of Public Television Stations
APTS
Auburn and Northborough, Massachusetts, Towns of
Auburn-Northborough
Brookstone, Melissa and Jennifer
Brookstone
California Broadcasters Association
CBA
Capitol Broadcasting Company, Inc.
CBC
Carlsbad, CA, City of
Carlsbad
Cellular Emergency Alert Service Association
CEASA
Cellular Telecommunications & Internet Association
CTIA
Charleston County, SC
Charleston
Charter Communications, Inc.
Charter
Consumer Electronics Association
CEA
Contra Costa County Community Warning System
Contra Costa County
Corr Wireless Communications, LLC
Corr
Cox Broadcasting, Inc.
Cox
Croghan, Bill
Croghan
Deeds, Douglas Deeds
Developers ? Sage Alerting Systems ENDEC, Gerald LeBow and Harold
Price Developers
Digital Alert Systems, LLC
DAS
Dodds, Betty J.
Dodds
Elk Grove Village Elk
Grove
Entergy Nuclear Northeast, Michael J. Slobodien
Entergy
Estlack, Larry A.
Estlack
Fontana, CA, City of
Fontana
Georgetown University
Georgetown
Global Marketing Solutions, Inc.
Global
Harris Corporation
Harris
Hearst-Argyle Television, Inc.
Hearst-Argyle
Howard-Thurst, Paul
Howard-Thurst
Intergovernmental Advisory Committee (Jenny Hansen), FCC
IAC
Intrado, Inc.
Intrado
Iowa City, Iowa, City of
Iowa City
Jefferson Pilot Communications Company
Jefferson-Pilot
Liberty Corporation
Liberty
LogicaCMG plc
LogicaCMG
Lowell, Massachusetts, City of
Lowell
Maine State Emergency Communications Committee
Maine SECC
Marquette, MI, City of
Marquette
McDonough, Robert
McDonough
Midland Radio Corporation
Midland
Municipalities and Municipal Organizations
Municipalities
Named State Broadcasters Associations
Named SBA
National Association of Broadcasters
NAB
National Association of Broadcasters and Association for Maximum
Service TV, Inc. NAB/MSTV
National Association of Broadcasters/Florida Association of
Broadcasters NAB/FAB
National Association of State Chief Information Officers
NASCIO
National Cable & Telecommunications Association
NCTA
National Center for Missing & Exploited Children
NCMEC
New Hampshire SECC, Edward W. Brouder, Jr., Chairman,
NH SECC
Newell, Thomas A., Facilities Engineer
Newell
North Carolina Association of Broadcasters
NCAB
North Carolina State Emergency Communications Committee
NC SECC
Ohio Association of Broadcasters
OAS
Ohio Emergency Management Agency
Ohio EMA
Osenkowsky, Thomas G.
Osenkowsky
Pappas Telecasting Companies
Pappas
Partnership for Public Warning
PPW
Primary Entry Point Advisory Committee, Inc.
PEPAC
Putkovich, Kenneth
Putkovich
RadioShack Corporation
RadioShack
Rau, Dan Rau
Rehabilitation Engineering Research Center on Mobile Wireless
Technologies RERC Wireless
Rehabilitation Engineering Research Center on Telecommunications
Access RERC
Richards, Tristan, Chair, Maine SECC
Richards
Ruhwiedel, Henry
Ruhwiedel
Rural Cellular Association
RCA
Santa Clara County Emergency Managers Association
Santa Clara EMA
Satellite Broadcasting and Communications Association
SBCA
SatStream Systems Corp, Michael G. Lee
SatStream
Seven Ranges Radio Co., Inc.
Seven Ranges
Sheerin, Peter K.
Sheerin
Simar, Douglas S. Simar
Sirius Satellite Radio, Inc.
Sirius
Society of Broadcast Engineers, Inc.
SBE
Southeastern Michigan Counties and Municipalities (Neil J. Lehto)
SE Michigan Counties
Stewart, Dwight
Stewart
Stussy, D.
Stussy
SWN Communications, Inc. SWN
Telecommunications for the Deaf, Inc. et. al.
TDI
Telecommunications Industry Association
TIA
TFT, Inc. TFT
Timm, Gary E., Chair, Wisconsin SECC
Timm
Torrance, CA, City of
Torrance
Trilithic, Inc.
Trilithic
Verizon
Verizon
Walnut Creek, CA, City of
Walnut Creek
Ward, Dr. Peter L. Dr.
Ward
WTOP-AM, (WTOP-FM) and WXTR-AM
WTOP/WXTR
XM Radio Inc. XM
Yount, Steven Yount
Reply Commenters
Abbreviation
Alert Systems, Inc. Alert
Systems
American Cable Association
ACA
Ann Arbor, MI, City of
Ann Arbor
BellSouth Entertainment, LLC
BellSouth
Cadillac, MI, City of
Cadillac
Cellular Telecommunications and Internet Association
CTIA
Consumer Electronics Association
CEA
Cowan, Terry A. Cowan
Dubuque, Iowa, City of
Dubuque
``ec'', Comments of
``ec''
EchoStar Satellite, LLC
EchoStar
FEMA, Director, Office of Nat'l Security Coordination
FEMA
Hoffman Estates, Illinois, Village of
Hoffman Estates
LogicaCMG plc
LogicaCMG
Mesa, Arizona, City of
Mesa
Municipalities and Municipal Organizations
Municipalities
Named State Broadcasters Associations
Named SBA
National Cable & Telecommunications Association
NCTA
Orange County Local Emergency Communications Committee
Orange County LECC
Oregon State Communications Commission
Oregon SCC
Putkovich, Kenneth
Putkovich
RadioShack Corporation
RadioShack
Ruhwiedel, Henry
Ruhwiedel
Satellite Broadcasting and Communications Association
SBCA
Society of Broadcast Engineers, Inc.
SBE
Southeastern Michigan Counties & Municipalities
SE Michigan Counties
St. Tammany Parish St.
Tammany
TFT, Inc. TFT
T-Mobile USA, Inc. T-
Mobile
XM Radio Inc. XM
Ex Parte Commenters
Abbreviation
3G Americas 3G
Active Data Exchange, Inc.
Active Data
Advanced Television Systems
ATS
Alert Systems, Inc. Alert
Systems
American Cable Association
ACA
Azos AI, LLC Azos
Bautista, Greg
Bautista
Bekey, Ivan Bekey
Cellular Emergency Alert Systems Association
CEASA
Cellular Emergency Alert Systems Association International (Mark
Wood) CEASA International
Cellular Telecommunications & Internet Association
CTIA
Consumer Electronics Association
CEA
Consumers Union 10/20/05 ex parte filing Consumers Union
Cook, Katherine Cook
Digital Alert Systems, LLC
DAS
DIRECTV, Inc.
DIRECTV
FCC, Office of Homeland Security, regarding Digital Television
DTV ex parte
FCC, Office of Homeland Security, regarding DTH Satellite
Services Satellite DTH ex parte
Gehlhar, Mhairi
Gehlhar
Global Marketing Solutions, Inc.
Global
Hines, Kinsey Hines
Independent Spanish Broadcasters Association,
MMTC
Office of Communications of United Church of Christ, Inc., and
Minority Media and Telecommunications Council
INTELSAT INTELSAT
Kluttz, Andrew
Kluttz
Labanow, David J.
Labanow
LogicaCMG Global Telecoms
LogicaCMG
Luna, Hector Eden Luna
Named State Broadcasters Associations
Named SBA
National Association of Broadcasters
NAB
National Association of Telecommunications Officers and Advisors
NATOA
Nextel Communications, Inc.
Nextel
Nortel
Nortel
PanAmSat PanAmSat
RadioShack Corporation
RadioShack
Robbins, Bert
Robbins
Ruhwiedel, Henry
Ruhwiedel
Rural Cellular Association
RCA
Schacter, Janice
Schacter
SES American SES
American
Sirius Satellite Radio, Inc.
Sirius
Trilithic, Inc.
Trilithic
USA Mobility, Inc. USA
Mobility
Ward, Dr. Peter L. Dr.
Ward
Wiley Rein & Fielding, LLP
Wiley Rein
XM Radio Inc. XM
APPENDIX B
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 C.F.R. 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 � 11.1 to read as follows:
��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, 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.
3. Amend � 11.11 by revising paragraphs (a), (b) and (e)
to read as follows:
��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 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; wireless cable systems which may consist of
Broadband Radio Service (BRS), or Educational Broadband
Service (EBS) stations; DBS services, as defined in 47 C.F.R.
� 25.701(a) (including certain Ku-band Fixed-Satellite Service
Direct to Home providers); SDARS, as defined in 47 C.F.R.
��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. These
rules in this Part are effective on December 31, 2006 for DTV,
DAB, digital cable and SDARS providers, and on May 31, 2007
for DBS providers. At a minimum EAS Participants must use a
common EAS protocol, as defined in �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 AM & FM Digital TV DTV FM
Class D\1\ LPTV \2\ LPFM \3\ Class A TV\4\
Requirement AM & FM
----------------------------------------------------------------------
------------------------------------------
Two-tone encoder \5\ \6\ Y 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
---------------------------------
------------------------------------------
B. EAS Equipment Requirement
>=5,000 but < 10,000
>=10,000 subscribers
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
--------------------------------------
--
B. EAS Equipment Requirement >= 5,000 < 5,000
subscribers subscribers
----------------------------------------------------------------------
--
EAS decoder.................... Y 10/1/02.......... Y 10/1/02
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 � 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
[A. Digital 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 December 31,
2006, or comply with the following EAS requirements. All other digital
cable systems must comply with B.]
----------------------------------------------------------------------
------------------------------------------
System size and effective
dates
----------------------------------------------------------------------
------------------------------------------
B. EAS Equipment Requirement >=5,000 subscribers
<5,000 subscribers
----------------------------------------------------------------------
------------------------------------------
Two-tone signal from storage device Y 12/31/06 Y
12/31/06
\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 all Y 12/31/06 N
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 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 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.
(b) Analog class D non-commercial educational FM stations as
defined in � 73.506, digital class D non-commercial educational
FM stations, analog LPFM stations as defined in �� 73.811 and
73.853, digital LPFM stations, analog LPTV stations as defined
in � 74.701(f), and digital LPTV stations as defined in
��74.701(k) are not required to comply with � 11.32. Analog and
digital LPTV stations that operate as television broadcast
translator stations, as defined in ��74.701(b) of this chapter,
are not required to comply with the requirements of this part.
FM broadcast booster stations as defined in � 74.1201(f) of this
chapter and FM translator stations as defined in � 74.1201(a) of
this chapter which entirely rebroadcast the programming of other
local FM broadcast stations are not required to comply with the
requirements of this part. International broadcast stations as
defined in � 73.701 of this chapter are not required to comply
with the requirements of this part. Analog and digital
broadcast stations that operate as satellites or repeaters of a
hub station (or common studio or control point if there is no
hub station) and rebroadcast 100% of the programming of the hub
station (or common studio or control point) may satisfy the
requirements of this part through the use of a single set of EAS
equipment at the hub station (or common studio or control point)
which complies with �� 11.32 and 11.33.
* * * * *
(e) Organizations using other communications systems or
technologies such as low earth orbit satellite systems, paging,
computer networks, etc. may join the EAS on a voluntary basis by
contacting the FCC. Organizations that choose to voluntarily
participate must comply with the requirements of this part.
4. Revise ��11.13 to read as follows:
� �11.13 Emergency Action Notification (EAN) and Emergency
Action Termination (EAT).
(a) The Emergency Action Notification (EAN) is the notice to all
EAS Participants and to the general public that the EAS has been
activated for a national emergency.
(b) The Emergency Action Termination (EAT) is the notice to all
EAS Participants and to the general public that the EAN has
terminated.
5. Revise � 11.15 to read as follows:
��11.15��EAS Operating Handbook.
The EAS Operating Handbook states in summary form the actions to
be taken by personnel at EAS Participant facilities upon receipt
of an EAN, an EAT, tests, or State and Local Area alerts. It is
issued by the FCC and contains instructions for the above
situations. A copy of the Handbook must be located at normal
duty positions or EAS equipment locations when an operator is
required to be on duty and be immediately available to staff
responsible for authenticating messages and initiating actions.
6. Revise � 11.19 to read as follows:
��11.19��EAS Non-participating National Authorization Letter.
This authorization letter is issued by the FCC to EAS
Participants that have elected not to participate in the national
level EAS. It states that the EAS Participant has agreed to go
off the air or discontinue programming on all channels during a
national level EAS message. For licensees this authorization
will remain in effect through the period of the initial license
and subsequent renewals from the time of issuance unless returned
by the holder or suspended, modified, or withdrawn by the
Commission.
7. Revise � 11.21 introductory text and paragraph (a) to
read as follows:
��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 Director, Office of
Homeland Security, Enforcement 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 during a State emergency using the EAS.
* * * * *
8. Amend � 11.31 by revising the format code for LLLLLLLL
in paragraph (c), revising paragraph (d), and revising
the footnotes in paragraphs (e) and (f) to read as
follows:
��11.31��EAS protocol.
* * * * *
(c) * * *
LLLLLLLL�This is the identification of the EAS Participant, NWS
office, etc., transmitting or retransmitting the message. These
codes will be automatically affixed to all outgoing messages by
the EAS encoder.
* * * * *
(d) The only originator codes are:
----------------------------------------------------------------
Originator ORG Code
----------------------------------------------------------------
EAS Participant............................... EAS
Civil authorities............................. CIV
National Weather Service...................... WXR
Primary Entry Point System.................... PEP
----------------------------------------------------------------
(e) * * *
\1\ Effective May 16, 2002, analog radio and television
broadcast stations, analog cable systems and wireless cable
systems may upgrade their existing EAS equipment to add these
event codes on a voluntary basis until the equipment is replaced.
All models of EAS equipment manufactured after August 1, 2003
must be capable of receiving and transmitting these event codes.
EAS Participants that install or replace their EAS equipment
after February 1, 2004 must install equipment that is capable of
receiving and transmitting these event codes.
(f) * * *
\1\ Effective May 16, 2002, analog radio and television
broadcast stations, analog cable systems and wireless cable
systems may upgrade their existing EAS equipment to add these
marine area location codes on a voluntary basis until the
equipment is replaced. All models of EAS equipment manufactured
after August 1, 2003, must be capable of receiving and
transmitting these marine area location codes. EAS Participants
that install or replace their EAS equipment after February 1,
2004, must install equipment that is capable of receiving and
transmitting these location codes.
9. Amend � 11.33 by revising paragraphs (a)(4) and (b)
introductory text to read as follows:
��11.33��EAS Decoder.
(a) * * *
(4) Display and logging. A visual message shall be developed
from any valid header codes for tests and national activations
and any preselected header codes received. The message shall
include the Originator, Event, Location, the valid time period of
the message and the local time the message was transmitted. The
message shall be in the primary language of the EAS Participant
and be fully displayed on the decoder and readable in normal
light and darkness. All existing and new models of EAS decoders
manufactured after August 1, 2003 must provide a means to permit
the selective display and logging of EAS messages containing
header codes for state and local EAS events. Effective May 16,
2002, analog radio and television broadcast stations, analog
cable systems and wireless cable systems may upgrade their
decoders on an optional basis to include a selective display and
logging capability for EAS messages containing header codes for
state and local events. EAS Participants that install or replace
their decoders after February 1, 2004 must install decoders that
provide a means to permit the selective display and logging of
EAS messages containing header codes for state and local EAS
events.
* * * * *
(b) Attention Signal. EAS Decoders shall have detection and
activation circuitry that will demute a receiver upon detection
of the two audio tones of 853 Hz and 960 Hz. To prevent false
responses, decoders designed to use the two tones for receiver
demuting shall comply with the following:
* * * * *
10. Amend � 11.34 by revising paragraph (e) to read as
follows:
��11.34��Acceptability of the equipment.
* * * * *
(e) Waiver requests of the Certification requirements for EAS
Encoders or EAS Decoders which are constructed for use by an EAS
Participant, but are not offered for sale will be considered on
an individual basis in accordance with part 1, subpart G, of this
chapter.
* * * * *
11. Revise � 11.35 to read as follows:
��11.35��Equipment operational readiness.
(a) EAS Participants are responsible for ensuring that EAS
Encoders, EAS Decoders and Attention Signal generating and
receiving equipment used as part of the EAS are installed so that
the monitoring and transmitting functions are available during
the times the stations and systems are in operation.
Additionally, EAS Participants must determine the cause of any
failure to receive the required tests or activations specified in
��11.61(a)(1) and (a)(2). Appropriate entries indicating reasons
why any tests were not received must be made in the broadcast
station log as specified in ���73.1820 and 73.1840 of this
chapter for all broadcast streams and cable system records as
specified in ���76.1700, 76.1708, and 76.1711 of this chapter.
All other EAS Participants must also keep records indicating
reasons why any tests were not received and these records must be
retained for two years, maintained at the EAS Participant's
headquarters, and made available for public inspection upon
reasonable request.
(b) If the EAS Encoder or EAS Decoder becomes defective, the EAS
Participant may operate without the defective equipment pending
its repair or replacement for 60 days without further FCC
authority. Entries shall be made in the broadcast station log,
cable system records, and records of other EAS Participants, as
specified in part (a) of this rule, showing the date and time the
equipment was removed and restored to service. For personnel
training purposes, the required monthly test script must still be
transmitted even though the equipment for generating the EAS
message codes, Attention Signal and EOM code is not functioning.
(c) If repair or replacement of defective equipment is not
completed within 60 days, an informal request shall be submitted
to the District Director of the FCC field office serving the area
in which the EAS Participant is located, or in the case of DBS
and SDARS providers to the District Director of the FCC field
office serving the area where their headquarters is located, for
additional time to repair the defective equipment. This request
must explain what steps have been taken to repair or replace the
defective equipment, the alternative procedures being used while
the defective equipment is out of service, and when the defective
equipment will be repaired or replaced.
12. Revise � 11.41 to read as follows:
��11.41��Participation in EAS.
(a) All EAS Participants specified in ��11.11 are categorized as
Participating National (PN) sources unless authorized by the FCC
to be Non-Participating (NN) sources.
(b) An EAS Participant may submit a written request to the FCC
asking to be an NN source. The FCC may then issue a Non-
participating National Authorization letter. NN sources must go
off the air during a national EAS activation after transmitting
specified information.
(1) An EAS Participant that is an NN source under � 11.18(f)
that wants to become a PN source in the national level EAS must
submit a written request to the FCC.
(2) NN sources may voluntarily participate in the State and
Local Area EAS. Participation is at the discretion of EAS
Participant management and should comply with State and Local
Area EAS Plans.
(c) All sources, including NN, must have immediate access to an
EAS Operating Handbook.
13. Amend � 11.42 by revising paragraphs (a)(1), (a)(2),
(b), and (c) to read as follows:
��11.42��Participation by communications common carriers.
(a) * * *
(1) An originating source from the nearest service area to a
selected Test Center and then to the EAS Participant for the
duration of the emergency, provided an Emergency Action
Notification is issued by the White House and the originating
source has a local channel from the originating point to the
nearest service area.
(2) An independent broadcast station to the radio and television
broadcast networks and any other EAS Participant provided the
station has in service a local channel from the station's studio
or transmitter directly to the broadcast source.
(b) Upon receipt of the Emergency Action Termination, the common
carriers shall disconnect the originating source and the
participating independent stations and restore the networks and
other EAS Participants to their original configurations.
(c) During a National level EAS Test, common carriers which have
facilities in place may, without charge, connect an originating
source from the nearest exchange to a selected Test Center and
then to any EAS Participant. Independent stations will not be
connected during the test unless authorized by the FCC. Upon
test termination, EAS Participants shall be restored to their
original configurations.
* * * * *
14. Amend � 11.44 by revising paragraph (d) to read as
follows:
��11.44��EAS message priorities.
* * * * *
(d) During a national emergency, the facilities of all EAS
Participants must be reserved exclusively for distribution of
Presidential Messages. NIC messages received from national
networks which are not broadcast at the time of original
transmission must be recorded locally by LP sources for
transmission at the earliest opportunity consistent with the
message priorities in paragraph (b) of this section.
15. Revise � 11.46 to read as follows:
��11.46��EAS public service announcements.
EAS Participants may use Public Service Announcements or obtain
commercial sponsors for announcements, infomercials, or programs
explaining the EAS to the public. Such announcements and
programs may not be a part of alerts or tests, and may not
simulate or attempt to copy alert tones or codes.
16. Revise � 11.47 to read as follows:
��11.47��Optional use of other communications methods and
systems.
(a) Analog and digital broadcast stations may additionally
transmit EAS messages through other communications means. For
example, on a voluntary basis, FM stations may use subcarriers to
transmit the EAS codes including 57 kHz using the RBDS standard
produced by the National Radio Systems Committee (NRSC) and
television stations may use subsidiary communications services.
(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 Office of Homeland Security, Enforcement
Bureau, or their State Emergency Communications Committee for
information and guidance.
17. Revise � 11.51 to read as follows:
��11.51��EAS code and Attention Signal Transmission requirements.
(a) Analog and digital broadcast stations must transmit, either
automatically or manually, national level EAS messages and
required tests by sending the EAS header codes, Attention Signal,
emergency message and End of Message (EOM) codes using the EAS
Protocol. The Attention Signal must precede any emergency audio
message. After January 1, 1998, the shortened Attention Signal
may only be used as an audio alert signal and the EAS codes will
become the minimum signaling requirement for National level
messages and tests.
(b) When relaying EAS messages, EAS Participants may transmit
only the EAS header codes and the EOM code without the Attention
Signal and emergency message for State and local emergencies.
Pauses in video programming before EAS message transmission
should not cause television receivers to mute EAS audio messages.
No Attention Signal is required for EAS messages that do not
contain audio programming, such as a Required Weekly Test.
(c) By the effective dates provided in ��11.11(a), all analog
and digital radio and television stations shall transmit EAS
messages in the main audio channel. Effective December 31, 2006,
all DAB stations shall also transmit EAS messages on all audio
streams. Effective December 31, 2006, all DTV broadcast stations
shall also transmit EAS messages on all program streams.
(d) By the effective dates provided in ��11.11(a), analog and
digital television broadcast stations shall transmit a visual
message containing the Originator, Event, Location and the valid
time period of an EAS message. If the message is a video crawl,
it shall be displayed at the top of the television screen or
where it will not interfere with other visual messages.
(e) Analog class D non-commercial educational FM stations as
defined in � 73.506 of this chapter, digital class D non-
commercial educational FM stations, analog Low Power FM (LPFM)
stations as defined in �� 73.811 and 73.853 of this chapter,
digital LPFM stations, analog low power TV (LPTV) stations as
defined in � 74.701(f) of this chapter, and digital LPTV stations
as defined in ��74.701(k) of this chapter are not required to
have equipment capable of generating the EAS codes and Attention
Signal specified in � 11.31.
(f) Analog and digital broadcast station equipment generating
the EAS codes and the Attention Signal shall modulate a broadcast
station transmitter so that the signal broadcast to other EAS
Participants alerts them that the EAS is being activated or
tested at the National, State or Local Area level. The minimum
level of modulation for EAS codes, measured at peak modulation
levels using the internal calibration output required in
�11.32(a)(4), shall modulate the transmitter at the maximum
possible level, but in no case less than 50% of full channel
modulation limits. Measured at peak modulation levels, each of
the Attention Signal tones shall be calibrated separately to
modulate the transmitter at no less than 40%. These two
calibrated modulation levels shall have values that are within 1
dB of each other.
(g) Analog cable systems and digital cable systems with fewer
than 5,000 subscribers per headend 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:
(1) Must install, operate, and maintain equipment capable of
generating the EAS codes. The modulation levels for the EAS
codes and Attention Signal for analog cable systems shall comply
with the aural signal requirements in ��76.605 of this chapter,
(2) Must provide a video interruption and an audio alert message
on all channels. The audio alert message must state which
channel is carrying the EAS video and audio message,
(3) Shall transmit a visual EAS message on at least one channel.
The message shall contain the Originator, Event, Location, and
the valid time period of the EAS message. If the visual message
is a video crawl, it shall be displayed at the top of the
subscriber's television screen or where it will not interfere
with other visual messages.
(4) May elect not to interrupt EAS messages from broadcast
stations based upon a written agreement between all concerned.
Further, analog cable systems, digital cable systems, and
wireless cable systems may elect not to interrupt the programming
of a broadcast station carrying news or weather related emergency
information with state and local EAS messages based on a written
agreement between all parties.
(5) Wireless cable systems and digital cable systems with a
requirement to carry the audio and video EAS message on at least
one channel and a requirement to provide video interrupt and an
audio alert message on all other channels stating which channel
is carrying the audio and video EAS message, may comply by using
a means on all programmed channels that automatically tunes the
subscriber's set-top box to a pre-designated channel which
carries the required audio and video EAS messages.
(h) Analog cable 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
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:
(1) Must install, operate, and maintain equipment capable of
generating the EAS codes. The modulation levels for the EAS
codes and Attention Signal for analog cable systems shall comply
with the aural signal requirements in ��76.605 of this chapter.
This will provide sufficient signal levels to operate subscriber
television and radio receivers equipped with EAS decoders and to
audibly alert subscribers. Wireless cable systems and digital
cable systems shall also provide sufficient signal levels to
operate subscriber television and radio receivers equipped with
EAS decoders and to audibly alert subscribers.
(2) Shall transmit the EAS audio message required in paragraph
(a) of this section on all downstream channels.
(3) Shall transmit the EAS visual message on all downstream
channels. The visual message shall contain the Originator,
Event, Location and the valid time period of the EAS message.
These are elements of the EAS header code and are described in �
11.31. If the visual message is a video crawl, it shall be
displayed at the top of the subscriber's television screen or
where it will not interfere with other visual messages.
(4) May elect not to interrupt EAS messages from broadcast
stations based upon a written agreement between all concerned.
Further, analog cable systems, digital cable systems, and
wireless cable systems may elect not to interrupt the programming
of a broadcast station carrying news or weather related emergency
information with state and local EAS messages based on a written
agreement between all parties.
(5) Wireless cable systems and digital cable systems with a
requirement to carry the audio and video EAS message on all
downstream channels may comply by using a means on all programmed
channels that automatically tunes the subscriber's set-top box to
a pre-designated channel which carries the required audio and
video EAS messages.
(i) Effective December 31, 2006, SDARS licensees shall transmit
national audio EAS messages on all channels in the same order
specified in paragraph (a) of this section.
(1) SDARS licensees must install, operate, and maintain
equipment capable of generating the EAS codes.
(2) SDARS licensees may determine the distribution methods they
will use to comply with this requirement.
(j) Effective May 31, 2007, DBS providers shall transmit
national audio and visual EAS messages on all channels in the
same order specified in paragraph (a) of this section.
(1) DBS providers must install, operate, and maintain equipment
capable of generating the EAS codes.
(2) The visual message shall contain the Originator, Event,
Location and the valid time period of the EAS message. These are
elements of the EAS header code and are described in ��11.31. If
the visual message is a video crawl, it shall be displayed at the
top of the subscriber's television screen or where it will not
interfere with other visual messages.
(3) DBS providers may determine the distribution methods they
will use to comply with this requirement. Such methods may
include distributing the EAS message on all channels, using a
means to automatically tune the subscriber's set-top box to a
pre-designated channel which carries the required audio and video
EAS messages, and/or passing through the EAS message provided by
programmers and/or local channels (where applicable).
(k) If manual interrupt is used as authorized in paragraph (m)
of this section, EAS Encoders must be located so that EAS
Participant staff, at normal duty locations, can initiate the EAS
code and Attention Signal transmission.
(l) EAS Participants that are co-owned and co-located with a
combined studio or control facility, (such as an AM and FM
licensed to the same entity and at the same location or a cable
headend serving more than one system) may provide the EAS
transmitting requirements contained in this section for the
combined stations or systems with one EAS Encoder. The
requirements of ��11.32 must be met by the combined facility.
(m) EAS Participants are required to transmit all received EAS
messages in which the header code contains the Event codes for
Emergency Action Notification (EAN), Emergency Action Termination
(EAT), and Required Monthly Test (RMT), and when the accompanying
location codes include their State or State/county. These EAS
messages shall be retransmitted unchanged except for the
LLLLLLLL-code which identifies the EAS Participant retransmitting
the message. See ��11.31(c). If an EAS source originates an EAS
message with the Event codes in this paragraph, it must include
the location codes for the State and counties in its service
area. When transmitting the required weekly test, EAS
Participants shall use the event code RWT. The location codes
are the state and county for the broadcast station city of
license or system community or city. Other location codes may be
included upon approval of station or system management. EAS
messages may be transmitted automatically or manually.
(1) Automatic interrupt of programming and transmission of EAS
messages are required when facilities are unattended. Automatic
transmissions must include a permanent record that contains at a
minimum the following information: Originator, Event, Location
and valid time period of the message. The decoder performs the
functions necessary to determine which EAS messages are
automatically transmitted by the encoder.
(2) Manual interrupt of programming and transmission of EAS
messages may be used. EAS messages with the EAN Event code must
be transmitted immediately and Monthly EAS test messages within
60 minutes. All actions must be logged and include the minimum
information required for EAS video messages.
(n) EAS Participants may employ a minimum delay feature, not to
exceed 15 minutes, for automatic interruption of EAS codes.
However, this may not be used for the EAN event which must be
transmitted immediately. The delay time for an RMT message may
not exceed 60 minutes.
(o) Either manual or automatic operation of EAS equipment may be
used by EAS Participants that use remote control. If manual
operation is used, an EAS decoder must be located at the remote
control location and it must directly monitor the signals of the
two assigned EAS sources. If direct monitoring of the assigned
EAS sources is not possible at the remote location, automatic
operation is required. If automatic operation is used, the
remote control location may be used to override the transmission
of an EAS alert. EAS Participants may change back and forth
between automatic and manual operation.
18. Revise � 11.52 to read as follows:
��11.52��EAS code and Attention Signal Monitoring requirements.
(a) EAS Participants must be capable of receiving the Attention
Signal required by ��11.32(a)(9) and emergency messages of other
broadcast stations during their hours of operation. EAS
Participants must install and operate during their hours of
operation, equipment capable of receiving and decoding, either
automatically or manually, the EAS header codes, emergency
messages and EOM code. EAS Participants must comply with these
requirements by the dates set forth in ��11.11.
NOTE TO PARAGRAPH (a): The two-tone Attention Signal will not be
used to actuate two-tone decoders but will be used as an aural
alert signal.
(b) If manual interrupt is used as authorized in ��11.51(m)(2),
decoders must be located so that operators at their normal duty
stations can be alerted immediately when EAS messages are
received.
(c) EAS Participants that are co-owned and co-located with a
combined studio or control facility (such as an AM and FM
licensed to the same entity and at the same location or a cable
headend serving more than one system) may comply with the EAS
monitoring requirements contained in this section for the
combined station or system with one EAS Decoder. The
requirements of ��11.33 must be met by the combined facility.
(d) EAS Participants must monitor two EAS sources. The
monitoring assignments of each broadcast station and cable system
and wireless cable system are specified in the State EAS Plan and
FCC Mapbook. They are developed in accordance with FCC
monitoring priorities.
(1) If the required EAS sources cannot be received, alternate
arrangements or a waiver may be obtained by written request to
the FCC's EAS office. In an emergency, a waiver may be issued
over the telephone with a follow up letter to confirm temporary
or permanent reassignment.
(2) The management of EAS Participants shall determine which
header codes will automatically interrupt their programming for
State and Local Area emergency situations affecting their
audiences.
(e) EAS Participants are required to interrupt normal
programming either automatically or manually when they receive an
EAS message in which the header code contains the Event codes for
Emergency Action Notification (EAN), Emergency Action Termination
(EAT), and Required Monthly Test (RMT) for their State or
State/county location.
(1) Automatic interrupt of programming is required when
facilities are unattended. Automatic operation must provide a
permanent record of the EAS message that contains at a minimum
the following information: Originator, Event, Location and valid
time period of the message.
(2) Manual interrupt of programming and transmission of EAS
messages may be used. EAS messages with the EAN Event code must
be transmitted immediately and Monthly EAS test messages within
60 minutes. All actions must be logged and recorded as specified
in ���11.35(a) and 11.54(b)(13). Decoders must be programmed for
the EAN and EAT Event header codes for National level emergencies
and the RMT and RWT Event header codes for required monthly and
weekly tests, with the appropriate accompanying State and
State/county location codes.
19. Amend � 11.53 by revising paragraphs (a) and (c) to
read as follows:
��11.53��Dissemination of Emergency Action Notification.
* * * * *
(a) National Level. The EAN is issued by the White House. The
EAN message is sent from a government origination point to
broadcast stations and other entities participating in the PEP
system. It is then disseminated via EAS Participants.
* * * * *
(c) Analog and digital broadcast stations must, prior to
commencing routine operation or originating any emissions under
program test, equipment test, experimental, or other
authorizations, determine whether the EAS has been activated by
monitoring the assigned EAS sources as specified in their State
or Local plan.
20. Amend � 11.54 by revising paragraphs (b), (c), (d) and
(e) to read as follows:
��11.54��EAS operation during a National Level emergency.
* * * * *
(b) Immediately upon receipt of an EAN message, EAS Participants
must:
(1) Monitor the two EAS sources assigned in the State or Local
Area plan or FCC Mapbook for any further instructions. SDARS
licensees and DBS providers may choose their two EAS sources, one
of which must be a PEP station.
(2) Discontinue normal programming and follow the transmission
procedures in the appropriate section of the EAS Operating
Handbook. Announcements may be made in the same language as the
primary language of the EAS Participant.
(i) Key EAS sources (National Primary (NP), Local Primary (LP),
State Primary (SP), State Relay (SR) and Participating National
(PN) sources) follow the transmission procedures and make the
announcements in the National Level Instructions of the EAS
Operating Handbook.
(ii) Non-participating National (NN) sources follow the
transmission procedures and make the sign-off announcement in the
EAS Operating Handbook's National Level Instructions section for
NN sources. After the sign-off announcement, NN sources are
required to remove their carriers or services from the air and
monitor for the Emergency Action Termination message. NN sources
using automatic interrupt under � 11.51(m)(1), must transmit the
header codes, Attention Signal, sign-off announcement and EOM
code after receiving the appropriate EAS header codes for a
national emergency.
(3) After completing the above transmission procedures, key EAS
and Participating National sources must transmit a common
emergency message until receipt of the Emergency Action
Termination Message. Message priorities are specified in �
11.44. If LP or SR sources of a Local Area cannot provide an
emergency message feed, any source in the Local Area may elect to
provide a message feed. This should be done in an organized
manner as designated in State and Local Area EAS Plans.
(4) The Standby Script shall be used until emergency messages
are available. The text of the Standby Script is in the EAS
Operating Handbook's section for Participating sources.
(5) Analog and digital TV broadcast stations shall display an
appropriate EAS slide and then transmit all EAS announcements
visually and aurally as specified in ���11.51(a) through (e) and
73.1250(h) of this chapter.
(6) Analog cable systems, digital cable systems, and wireless
cable systems shall transmit all EAS announcements visually and
aurally as specified in ��11.51(g) and (h).
(7) DBS providers shall transmit all EAS announcements visually
and aurally as specified in ��11.51(j).
(8) Announcements may be made in the same language as the
primary language of the EAS participant.
(9) Analog and digital broadcast stations may transmit their
call letters and analog cable systems, digital cable systems and
wireless cable systems may transmit the names of the communities
they serve during an EAS activation. State and Local Area
identifications must be given as provided in State and Local Area
EAS plans.
(10) All analog and digital broadcast stations and analog cable
systems, digital cable systems and wireless cable systems
operating and identified with a particular EAS Local Area must
transmit a common national emergency message until receipt of the
Emergency Action Termination.
(11) Analog and digital broadcast stations, except those holding
an EAS Non-participating National Authorization letter, are
exempt from complying with �� 73.62 and 73.1560 of this chapter
(operating power maintenance) while operating under this part.
(12) National Primary (NP) sources must operate under the
procedures in the National Control Point Procedures.
(13) The time of receipt of the EAN and Emergency Action
Termination messages shall be entered by analog and digital
broadcast stations in their logs (as specified in ���73.1820 and
73.1840 of this chapter), by analog and digital cable systems in
their records (as specified in ��76.1711 of this chapter), by
subject wireless cable systems in their records (as specified in
��21.304 of this chapter), and by all other EAS Participants in
their records as specified in ��11.35(a).
(c) Upon receipt of an Emergency Action Termination Message, EAS
Participants must follow the termination procedures in the EAS
Operating Handbook.
(d) EAS Participants originating emergency communications under
this section shall be considered to have conferred rebroadcast
authority, as required by section 325(a) of the Communications
Act of 1934, 47 U.S.C. ��325(a), to other EAS Participants.
(e) During a national level EAS emergency, EAS Participants may
transmit in lieu of the EAS audio feed an audio feed of the
President's voice message from an alternative source, such as a
broadcast network audio feed.
21. Amend � 11.55 by revising paragraphs (a), (c)
introductory text, (c)(4) and (c)(7) to read as follows:
��11.55��EAS operation during a State or Local Area emergency.
(a) The EAS may be activated at the State and Local Area levels
by EAS Participants at their discretion for day-to-day emergency
situations posing a threat to life and property. 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.
(1) DBS providers shall pass through all EAS messages aired on
local television broadcast stations carried by DBS providers
under the Commission's broadcast signal carriage rules to
subscribers receiving those channels.
(2) SDARS licensees and DBS providers may participate in EAS at
the state and local level and make their systems capable of
receiving and transmitting state and local level EAS messages on
all channels. If an SDARS licensee or DBS provider is not
capable of receiving and transmitting state and local EAS message
on all channels, it must inform its subscribers, on its website
and in writing on an annual basis, of which channels are and are
not capable of supplying state and local messages.
* * * * *
(c) Immediately upon receipt of a State or Local Area EAS
message, EAS Participants participating in the State or Local
Area EAS must do the following:
* * * * *
(4) EAS Participants participating in the State or Local Area
EAS must discontinue normal programming and follow the procedures
in the State and Local Area plans. Analog and digital television
broadcast stations must comply with � 11.54(b)(5); analog cable
systems, digital cable systems, and wireless cable systems must
comply with � 11.54(b)(6); and DBS providers must comply with
��11.54(b)(7). EAS Participants providing foreign language
programming should comply with ��11.54(b)(8).
* * * * *
(7) The times of the above EAS actions must be entered in the
EAS Participants' records as specified in �� 11.35(a) and
11.54(b)(13).
* * * * *
22. Revise � 11.61 to read as follows:
��11.61��Tests of EAS procedures.
(a) EAS Participants shall conduct tests at regular intervals,
as specified in paragraphs (a)(1) and (a)(2) of this section.
Additional tests may be performed anytime. EAS activations and
special tests may be performed in lieu of required tests as
specified in paragraph (a)(4) of this section. All tests will
conform with the procedures in the EAS Operating Handbook.
(1) Required Monthly Tests of the EAS header codes, Attention
Signal, Test Script and EOM code.
(i) Tests in odd numbered months shall occur between 8:30 a.m.
and local sunset. Tests in even numbered months shall occur
between local sunset and 8:30 a.m. They will originate from
Local or State Primary sources. The time and script content will
be developed by State Emergency Communications Committees in
cooperation with affected EAS Participants. Script content may
be in the primary language of the EAS Participant. These monthly
tests must be transmitted within 60 minutes of receipt by EAS
Participants in an EAS Local Area or State. Analog and digital
class D non-commercial educational FM and analog and digital LPTV
stations are required to transmit only the test script.
(ii) Effective May 31, 2007, DBS providers must comply with this
section by monitoring a state or local primary source to
participate in testing. Tests should be performed on 10% of all
channels monthly (excluding local-into-local channels for which
the monthly transmission tests are passed through by the DBS
provider), with channels tested varying from month to month, so
that over the course of a given year, 100% of all channels are
tested.
(2) Required Weekly Tests:
(i) EAS Header Codes and EOM Codes:
(A) Analog and digital AM, FM, and TV broadcast stations must
conduct tests of the EAS header and EOM codes at least once a
week at random days and times. Effective December 31, 2006, DAB
stations must conduct these tests on all audio streams.
Effective December 31, 2006, DTV stations must conduct these
tests on all program streams.
(B) Analog cable systems and digital cable systems with 5,000 or
more subscribers per headend and wireless cable systems with
5,000 or more subscribers must conduct tests of the EAS Header
and EOM Codes at least once a week at random days and times on
all programmed channels.
(C) Analog cable systems and digital cable systems serving fewer
than 5,000 subscribers per headend and wireless cable systems
with fewer than 5,000 subscribers must conduct tests of the EAS
Header and EOM Codes at least once a week at random days and
times on at least one programmed channel.
(D) SDARS providers must conduct tests of the EAS Header and EOM
codes at least once a week at random days and times on all
channels.
(ii) DBS providers, analog and digital class D non-commercial
educational FM stations, and analog and digital LPTV stations are
not required to transmit this test but must log receipt, as
specified in ���11.35(a) and 11.54(b)(13).
(iii) The EAS weekly test is not required during the week that a
monthly test is conducted.
(iv) EAS Participants are not required to transmit a video
message when transmitting the required weekly test.
(3) Periodic National Tests. National Primary (NP) sources
shall participate in tests as appropriate. The FCC may request a
report of these tests.
(4) EAS activations and special tests. The EAS may be activated
for emergencies or special tests at the State or Local Area level
by an EAS Participant instead of the monthly or weekly tests
required by this section. To substitute for a monthly test,
activation must include transmission of the EAS header codes,
Attention Signal, emergency message and EOM code and comply with
the visual message requirements in � 11.51. To substitute for
the weekly test of the EAS header codes and EOM codes in
paragraph (2)(i) of this section, activation must include
transmission of the EAS header and EOM codes. Analog and digital
television broadcast stations, analog cable systems, digital
cable systems, wireless cable systems, and DBS providers shall
comply with the aural and visual message requirements in � 11.51.
Special EAS tests at the State and Local Area levels may be
conducted on daily basis following procedures in State and Local
Area EAS plans.
(b) Entries shall be made in EAS Participant records, as
specified in �� 11.35(a) and 11.54(b)(13).
APPENDIX C
Penetration Data
This Appendix looks at trends of several different types of
broadcast and subscription media over a five-year period. It
provides quantitative evidence about the consumer adoption of new
digital technologies as replacements for the analog broadcast and
cable systems that are currently required to implement EAS. As a
basis for this evidence, the study relies on 12 annual estimates
of usage metrics for 7 different types of broadcast and
subscription media. Estimates for each metric measuring media
usage were obtained from publicly available sources and documents
filed with the Commission, cited to in this Appendix. This
study, although not exhaustive, uses the most reliable and
detailed estimates publicly available. To provide a consistent
comparison across the usage metrics, we used estimates reported
for June of each year, when possible. In some cases, only year-
end or other quarter estimates were available. Time periods of
estimates are identified in the Sources and Notes to the Usage of
Broadcast and Subscription Media Technologies chart in this
Appendix.
Usage of Broadcast and Subscription Media Technologies
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05P?
(5) DTV Households* 0.08% 0.27% 0.67% 1.50% 3.27% 12.81%
(6) DTV Stations on the Air** 4.42% 7.01% 16.37% 73.44% 83.80% 89.81%
(7) Digital Cable Subscribers* 5.95% 10.67% 15.08% 18.75% 21.12% 23.59%
(8) Radio Listeners*** 47.97% 47.78% 48.79% 48.75% 49.15% 49.35%
(1- DAB Receivers*** 0.00% 0.00% 0.00% 0.00% 0.00% 0.03%
0)
(1- DAB Stations**** 0.00% 0.00% 0.00% 0.54% 1.00% 2.65%
1)
Satellite DARS Subscribers*** 0.00% 0.00% 0.05% 0.27% 0.88% 2.11%
(1- XM Satellite Radio 0.00% 0.00% 0.05% 0.24% 0.72% 1.49%
2) Subscribers***
(1- Sirius Satellite Radio 0.00% 0.00% 0.00% 0.04% 0.16% 0.61%
3) Subscribers***
Direct-to-Home Satellite 14.35% 16.71% 17.96% 19.56% 21.67% 24.98%
Subscribers*
(1- HSD Subscribers* 1.46% 0.98% 0.66% 0.47% 0.31% 0.13%
4)
(1- DBS Subscribers* 12.88% 15.73% 17.30% 19.09% 21.36% 24.85%
5)
� � � � � � � �
* Percentage of TV Households
** Percentage of DTV Stations
Authorized (1,698 total)
*** Percentage of US Population
**- Percentage of All Radio
** Stations
? Preliminary figures for 2005
Sources & Notes:
(1) U.S. Census Bureau, Current Population Survey (Sept. 2005) (estimates are from July of
each year).
(2) U.S. Census Bureau, Population Estimates Program (Jul. 2005) (estimates are from July
of each year), available at http://factfinder.census.gov/servlet/DTTable?_bm=y&-
geo_id=01000US&-ds_name=PEP_2004_EST&-_lang=en&-mt_name=PEP_2004_EST_G2004_T001&-
format=&-CONTEXT=dt. U.S. Census Bureau, Population Division, Interim State
Population Projections, Table A1 (Apr. 21, 2005) (reporting estimate as of July 1,
2005), available at http://www.census.gov/population/projections/SummaryTabA1.pdf.
(3) FCC, Annual Assessment of the Status of Competition in the Market for the Delivery of
Video Programming, MB Docket No. 04-227, Eleventh Annual Report, 20 FCC Rcd 2755,
2869-70, Appendix B, Table B-1 (Feb. 2005) (Eleventh Annual Video Competition Report)
(citing estimates from Nielsen Media Research). NTCA, Industry Overview (citing
Nielsen Media Research projections for Jan. 2006) available at
http://www.ncta.com/Docs/PageContent.cfm?pageID=86.
(4) FCC, Broadcast Station Totals (Index) (includes educational stations), available at
http://www.fcc.gov/mb/audio/totals/index.html.
(5) Consumer Electronics Association (CEA) ex parte, EB Docket 04-296 (filed Sept. 2,
2005) (responding to request for estimated cumulative year-end sales of ATSC tuner-
equipped DTVs and ATSC tuner sales).
(6) FCC, Media Bureau, DTV Stations Authorized To Be On The Air, available at
http://www.fcc.gov/mb/video/files/dtvonairsum.html (numbers on website change because
website is updated on monthly basis to report current status).
(7) NCTA, 2005 Mid-Year Industry Overview, 13 (estimates are from first quarter of each
year) (2005), available at http://www.ncta.com/industry_overview/CableMid-
YearOverview05FINAL.pdf.
(8) Arbitron, Persons Using Radio Report (2005), available at
http://wargod.arbitron.com/scripts/ndb/ndbradio2.asp (reporting estimate of cumulative
persons for summer of each year). Cumulative persons are the total number of
different persons who tune to a radio station during the course of a daypart for at
least five minutes. Id.
(9) FCC, Broadcast Station Totals (Index) (includes educational stations), available at
http://www.fcc.gov/mb/audio/totals/index.html.
(10) iBiquity Digital Corporation estimates (2005).
(11) FCC, Media Bureau, Consolidated DataBase System (CDBS), available at
http://www.fcc.gov/mb/databases/cdbs/.
(12) XM Satellite Radio Inc., 10-Q and 10-K SEC Filings.
(13) Sirius Satellite Radio Inc., 10-Q and 10-K SEC Filings.
(14) Eleventh Annual Video Competition Report, 20 FCC Rcd at 2869-70, Appendix B, Table B-1
(citing estimates from Sky Report, available at http://www.skyreport.com/dth_us.htm,
SBCA Comments (from current docket and previous Annual Video Competition Reports));
Kagan Research, LLC, The DBS Report, 2 (May 27, 2005) (projecting estimate as of year-
end 2005).
(15) Id.
APPENDIX D
FINAL REGULATORY FLEXIBILITY ANALYSIS
1. As required by the Regulatory Flexibility Act of 1980,
as amended (RFA),231 an Initial Regulatory Flexibility Analysis
(IRFA) was incorporated in the Notice of Proposed Rulemaking in
EB Docket 04-296 (EAS NPRM).232 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.
A. Need for, and Objectives of, the Rules
2. Today's Order establishes rules that expand the reach
of the Emergency Alert System (EAS), as currently constituted, to
cover the following digital communications technologies that are
increasingly being used by the American public to receive news
and entertainment - digital television and radio, digital cable,
and satellite television and radio. As noted in the Order, one
of the most fundamental and significant statutory mandates of the
Commission is the promotion of safety of life and property
through the use of wire and radio communication. Clearly, some
level of EAS participation must be established for new digital
services to ensure that large portions of the American public are
able to receive national and/or regional public alerts and
warnings.
3. This Order is a follow-up to the EAS NPRM that was
issued last year. In the EAS NPRM, the Commission solicited
comment on an array of questions and potential rule changes to
contribute to an efficient and technologically current public
alert and warning system. The EAS NPRM also solicited comments
and participation of state and local emergency planning
organizations and all telecommunications industries to develop a
more effective EAS. Today's Order takes initial steps to resolve
the issues raised in the EAS NPRM.
B. Summary of Significant Issues Raised by Public Comments
in Response to the
IRFA
4. There were no comments filed that specifically addressed
the IRFA. Nonetheless, the agency considered the potential
impact of the rules discussed in the IRFA on small entities and
reduced the compliance burden for all small entities (as
discussed in Appendix A of the EAS NPRM) in order to reduce the
economic impact of the rules enacted herein on such entities.
C. Description and Estimate of the Number of Small
Entities to Which Rules Will Apply
5. 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.233 The RFA
generally defines the term ``small entity'' as having the same
meaning as the terms ``small business,'' ``small organization,''
and ``small governmental jurisdiction.''234 In addition, the
term ``small business'' has the same meaning as the term ``small
business concern'' under the Small Business Act.235 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).236
6. A small organization is generally ``any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.''237 Nationwide, as of 2002, there were
approximately 1.6 million small organizations.238 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.''239
As of 1997, there were approximately 87,453 governmental
jurisdictions in the United States.240 This number includes
39,044 county governments, municipalities, and townships, of
which 37,546 (approximately 96.2%) 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.241
7. Television Broadcasting. The SBA has developed a small
business sized standard for television broadcasting, which
consists of all such firms having $12 million or less in annual
receipts.242 Business concerns included in this industry are
those ``primarily engaged in broadcasting images together with
sound.''243 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) affiliations244must be included.245 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).246 Given the nature of this service, we will
presume that all LPTV licensees qualify as small entities under
the SBA size standard.
8. 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 million or less in annual
receipts as a small business.247 A radio broadcasting station is
an establishment primarily engaged in broadcasting aural programs
by radio to the public.248 Included in this industry are
commercial, religious, educational, and other radio stations.249
Radio broadcasting stations which primarily are engaged in radio
broadcasting and which produce radio program materials are
similarly included.250 However, radio stations that are separate
establishments and are primarily engaged in producing radio
program material are classified under another NAICS number.251
According to Commission staff review of BIA Publications, Inc.
Master Access Radio Analyzer Database on March 31, 2005, about
10,840 (95%) 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.
9. 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.252 According to Census
Bureau data for 1997, in this category there was a total of 1,311
firms that operated for the entire year.253 Of this total, 1,180
firms had annual receipts of under $10 million, and an additional
52 firms had receipts of $10 million to $24,999,999.254 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 2002.255
10. 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
fewer than 400,000 subscribers nationwide.256 We have estimated
that there were 1,439 cable operators who qualified as small
cable system operators at the end of 1995.257 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 1,439 small entity cable system operators that may be
affected by the rules and policies proposed herein.
11. 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.''258 The Commission has determined that there are
67,700,000 subscribers in the United States.259 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.260 Based on available data, the
Commission estimates that the number of cable operators serving
677,000 subscribers or fewer, totals 1,450.261 The Commission
neither requests nor collects information on whether cable system
operators are affiliated with entities whose gross annual
revenues exceed $250 million,262 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.
12. 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.263 This definition of small
entity in the context of MDS auctions has been approved by the
SBA.264 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.
13. 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 subscription programming, which includes all such
companies generating $12.5 million or less in annual receipts.265
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
2002.266
14. 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.267 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.268 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.
15. 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.269 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.270
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.
16. 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.''271 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.
D. Description of Projected Reporting, Recordkeeping, and
Other Compliance Requirements
17. In today's Order, we have taken steps to advance our
public safety mission by adopting rules that expand the reach of
EAS, as currently constituted, to cover the following digital
communications technologies: digital television and radio,
digital cable, and satellite television and radio.
18. As indicated above, we have revised our EAS rules to
make them apply to DTV broadcasters. The Order requires that DTV
broadcasters comply with our Part 11 rules.272 Thus, DTV
broadcasters must participate in all national EAS activations.
Participation in state and local EAS activations will remain
voluntary, but if DTV broadcasters choose to transmit state and
local EAS messages they must comply with the Commission's Part 11
rules governing those messages. Essentially, DTV providers will
now have the same EAS obligations as analog television
broadcasters. In addition, the Order requires that, when DTV
broadcasters participate in EAS activations, they must provide
the EAS message to viewers of all program streams.273
19. We have revised our EAS rules to require digital cable
systems to participate in national level EAS activations.
Digital cable systems will now have the same EAS obligations as
analog cable systems.274 Participation in state and local EAS
activations will continue to be voluntary, but digital cable
systems that choose to participate must comply with the Part 11
rules. The Order requires that digital cable systems with fewer
than 5,000 subscribers must, like analog and wireless cable
systems with fewer than 5,000 subscribers, provide a video
interruption and an audio alert message on all channels and the
EAS message on at least one channel.275
20. We also have revised our EAS rules to make them apply
to digital audio broadcasting (DAB) providers. The Order
requires DAB providers to air all national EAS messages.276
Participation in state and local EAS activations will be
voluntary, as it is for analog radio broadcasters. If DAB
providers choose to participate in state and local EAS
activations, they must comply with Part 11 of our rules. DAB
providers will now have the same EAS obligations as analog radio
broadcasters. The Order also requires DAB providers to transmit
all EAS messages that they air on all audio streams.277
21. We have revised our EAS rules to require that all
Satellite Digital Audio Radio Service (SDARS) licensees
participate in EAS in its current form. The Order requires SDARS
licensees to transmit national level EAS messages on all
channels.278 We also strongly encourage SDARS licensees to have
the ability to receive EAS alerts from state and local emergency
managers and the ability to disseminate state and local EAS
warnings on any local traffic and weather channels that the SDARS
licensees provide. We have required SDARS licensees to inform
their customers of the channels that will and will not supply
state and local EAS messages. This information should be
provided on the SDARS licensee's website and should also be
distributed in writing to customers at least annually.
22. In addition, in order to ensure that Direct Broadcast
Satellite (DBS) subscribers receive an EAS message from the
President in the event of a national emergency, we have revised
our EAS rules to require that DBS providers participate in
national EAS activations.279 For purposes of this Order, DBS
providers include the entities set forth in section 25.701(a) of
the Commission's rules.280 The Order permits DBS providers to
determine the method they will use to distribute EAS messages to
viewers, as long as all viewers receive the national EAS message
on the channel they are watching. We note that SBCA commented
that DBS providers need additional development time to
participate in national EAS activations. SBCA focuses on the
technical and operational difficulties involved in investing in
new hardware and software, but has provided no cost estimate.281
However, DIRECTV commented that it was prepared to commit the
assets to develop the systems and procedure necessary to deliver
National EAS.282 We have determined that the public safety
benefit that would result from imposing a timely public alert and
warning obligation on DBS providers far outweighs the burdens to
such providers from implementing these new requirements.
23. Although participation in state and local EAS
activations remains voluntary, we have required DBS providers to
pass through all EAS messages aired on local channels to
subscribers receiving those channels so that subscribers viewing
local channels through DBS services will receive all EAS messages
transmitted over those local channels. We have also required DBS
providers to be capable of receiving (from state and local
emergency managers) and distributing state and local EAS messages
or they must disclose their inability to do on their website and
in writing to their customers at least annually.283
E. Steps Taken to Minimize the Significant Economic Impact
on Small Entities, and Significant Alternatives
Considered
24. 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.''284
25. The EAS NPRM invited comments on a number of
alternatives to the imposition of EAS obligations on the digital
communications technologies discussed in this Order that are
increasingly being used by the American public. For example, the
EAS NPRM specifically sought comment on the technical
alternatives to providing EAS messages. In particular, the EAS
NPRM sought comment on whether the EAS system could be made more
efficient. Should it be phased out in favor of a new model? If
so, what would the new model look like? If a new model were to
be adopted, what legal and practical barriers would have to be
overcome to ensure its implementation and effectiveness? What
technologies should serve as the basis for such a model?
Alternatively, should EAS requirements be extended to other
services such as cellular telephones?285
26. The Commission has considered each of the alternatives
described above, and in today's Order imposes minimal regulation
on small 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. We believe that
the benefits of requiring DTV, DAB, digital cable, DBS and SDARS
providers 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. We agree with those commenters who argue that EAS
should remain an important component of any future alert and
warning system. Further, in most cases, the digital platforms
affected by this 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. As we have indicated above, we will
continue, along with other agencies and industry, to explore ways
in which emergency information might be made available in an
efficient, effective, and technologically current fashion.
27. Report to Congress: The Commission will send a copy of
the Order, including this FRFA, in a report to be sent to
Congress and the Government Accountability Office pursuant to the
Congressional Review Act.286 In addition, the Commission will
send a copy of the Order, including this FRFA, to the Chief
Counsel for Advocacy of the SBA. A copy of the Order and FRFA
(or summaries thereof) will also be published in the Federal
Register.287
APPENDIX E
INITIAL REGULATORY FLEXIBILITY ANALYSIS
1. As required by the Regulatory Flexibility Act of 1980,
as amended (RFA),288 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 Further
Notice of Proposed Rulemaking (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 Further Notice provided in Section IV of the
item. The Commission will send a copy of the Further Notice,
including this IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration (SBA).289 In addition, the Further
Notice and IRFA (or summaries thereof) will be published in the
Federal Register.290
A. Need for, and Objectives of, the Proposed Rules
2. Today's Order, which accompanies the Further Notice, is
the Commission's first step to ensure that digital media is
capable of receiving and disseminating EAS messages. In the
Order, the Commission realized the immediate objective of
ensuring that the large and growing segments of the population
who rely on digital radio and television technologies are not
left without access to alerts in the event of an emergency.
Although the current EAS performs a critical function, the
Commission believes it could be improved. An accurate, wide-
reaching public alert and warning system is critical to the
public safety and a vital part of the Commission's core mission
to promote the safety of life and property through a robust
communications system. The Commission believes that such a
system should be technologically up-to-date, should have built-in
redundancy features, and should use a variety of communications
media to allow officials at the national, state and local levels
to send messages to reach the greatest number of citizens in the
affected areas in the most effective and efficient manner
possible.
3. Accordingly, the Commission is initiating this Further
Notice to seek additional comment on what actions the Commission,
along with our Federal, State and industry partners, should take
to help expedite the development of a robust, state-of-the-art,
digitally-based public alert and warning system. The Commission
also seeks comment on the appropriate role for the Commission
among the various government and industry entities that are
involved in the creation of this system. In their comments,
parties should also comment on the Commission's statutory
authority to regulate such a system.
4. The comments filed in response to the EAS Notice of
Proposed Rulemaking (EAS NPRM) reveal a multitude of technical
approaches to a digital alert and warning system, from specific
approaches to individual technologies to broad approaches to
architecture and protocol design. The Commission does not seek
to duplicate that significant effort, but rather seeks comment on
a representative group of issues. The issues on which comment
is sought do not constitute an exclusive list. Parties can - and
should - comment on any issues relevant to specific technologies
that can aid the development of a next-generation alert and
warning system.
5. Specifically, the Commission seeks comment on the
appropriate role for the Commission in developing system
architecture and common protocols that could be used for message
distribution across different platforms. The Commission also
asks questions specific to particular technologies, such as how
DTH and SDARS could deliver local alerts; how best to involve
wireless providers; and whether traditional wireline telephone
companies that become content providers should have an obligation
to provide alerts. To ensure that the American public receives
public alert and warning in an accurate and timely fashion from
this next-generation system, the Commission seeks comment whether
it will need to adopt performance standards and reporting
requirements.
6. The Commission also seeks comment regarding how it may,
consistent with the Order adopted today, make EAS alerts more
accessible to people with disabilities. The Commission is
committed to ensuring that persons with disabilities have equal
access to public warnings and are considered in emergency
preparedness planning. The Commission notes that it previously
sought comment on whether there are disparities in or conflicts
between the EAS rules and the Commission's other disability
access rules contained in section 79.2, and if so, the manner in
which such disparities or conflicts could be resolved in
subsequent rules. The Commission notes comments filed on this
issue, and asks whether it should revise the EAS rules to require
all video programming distributors subject to the Commission's
EAS rules to provide the same information in both the visual and
aural versions of all EAS messages, instead of only the header
code information that EAS participants now provide visually or
the critical details of the emergency information as required by
section 79.2. Further, the Commission asks whether the EAS rules
should require EAS participants to provide an audio feed that
duplicates any text portion of an EAS alert. Finally, the
Commission seeks comment on how any next-generation, digitally-
based alert and warning system can be developed in a manner that
assures that persons with disabilities will be given equal access
to alert and warning as other Americans.
7. The Commission recognizes the historic and important
role of states and localities in public safety matters, and the
essential role of states and localities in public safety matters,
and the essential role that state and local governments play in
delivering alert and warning. Accordingly, the Commission seeks
comment on how it can best work with the states to help implement
the EAS rules adopted in the Order as well as to develop the next
generation of alert and warning systems. In particular, the
Commission notes that there is a vital connection between state
and local alert and warning and Federal efforts to mitigate
disasters. The Commission seeks comment on whether its rules
should be revised to require that states notify the Commission of
any changes in EAS participants' state EAS Local Area and/or EAS
designation (PEP, LP1, LP2, SR, LR, etc.) within thirty days of
such change, and in the absence of a change, a yearly
confirmation that all state EAS Local Area and EAS designations
remain the same.
8. On September 22, 2005, the Independent Spanish
Broadcasters Association, the Office of Communication of the
United Church of Christ, Inc., and the Minority Media and
Telecommunications Council filed a Petition for Immediate Relief
with the Commission proposing changes to the Commission's EAS
rules to require stations to air EAS messages in other languages
in addition to English. The Commission seeks comment on the
issues raised in the petition and, for that purpose, incorporates
the petition as well as the other pleadings filed in response to
the petition into the record of this proceeding. The Commission
seeks comment on how this proposal would be implemented, and
seeks comment on any other proposals regarding how to best alert
non-English speakers.
B. Legal Basis
9. Authority for the actions proposed in this 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.
C. Description and Estimate of the Number of Small
Entities to Which Rules Will Apply
10. The RFA directs agencies to provide a description of,
and, where feasible, an estimate of, the number of small entities
that may be affected by the rules adopted herein.291 The RFA
generally defines the term ``small entity'' as having the same
meaning as the terms ``small business,'' ``small organization,''
and ``small governmental jurisdiction.''292 In addition, the
term ``small business'' has the same meaning as the term ``small
business concern'' under the Small Business Act.293 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).294
11. A small organization is generally ``any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.''295 Nationwide, as of 2002, there were
approximately 1.6 million small organizations.296 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.''297
As of 1997, there were approximately 87,453 governmental
jurisdictions in the United States.298 This number includes
39,044 county governments, municipalities, and townships, of
which 37,546 (approximately 96.2%) 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.299
12. Television Broadcasting. The SBA has developed a small
business sized standard for television broadcasting, which
consists of all such firms having $12 million or less in annual
receipts.300 Business concerns included in this industry are
those ``primarily engaged in broadcasting images together with
sound.''301 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) affiliations302must be included.303 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).304 Given the nature of this service, we will
presume that all LPTV licensees qualify as small entities under
the SBA size standard.
13. Radio Stations. The proposed 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 million or less in annual
receipts as a small business.305 A radio broadcasting station is
an establishment primarily engaged in broadcasting aural programs
by radio to the public.306 Included in this industry are
commercial, religious, educational, and other radio stations.307
Radio broadcasting stations which primarily are engaged in radio
broadcasting and which produce radio program materials are
similarly included.308 However, radio stations that are separate
establishments and are primarily engaged in producing radio
program material are classified under another NAICS number.309
According to Commission staff review of BIA Publications, Inc.
Master Access Radio Analyzer Database on March 31, 2005, about
10,840 (95%) 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.
14. 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.310 According to Census
Bureau data for 1997, in this category there was a total of 1,311
firms that operated for the entire year.311 Of this total, 1,180
firms had annual receipts of under $10 million, and an additional
52 firms had receipts of $10 million to $24,999,999.312 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 2002.313
15. 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
fewer than 400,000 subscribers nationwide.314 We have estimated
that there were 1,439 cable operators who qualified as small
cable system operators at the end of 1995.315 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 1,439 small entity cable system operators that may be
affected by the rules and policies proposed herein.
16. Cable System Operators (Telecom Act Standard). The 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.''316 The Commission has determined that
there are 67,700,000 subscribers in the United States.317
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.318 Based on available
data, the Commission estimates that the number of cable operators
serving 677,000 subscribers or fewer, totals 1,450.319 The
Commission neither requests nor collects information on whether
cable system operators are affiliated with entities whose gross
annual revenues exceed $250 million,320 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.
17. 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.321 This definition of small
entity in the context of MDS auctions has been approved by the
SBA.322 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.
18. 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 subscription programming, which includes all such
companies generating $12.5 million or less in annual receipts.323
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
2002.324
19. 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.325 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.326 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.
20. Wireless Service Providers. The SBA has developed a
small business size standard for wireless small businesses within
the two separate categories of Paging327 and Cellular and Other
Wireless Telecommunications. 328 Under both SBA categories, a
wireless business is small if it has 1,500 or fewer employees.
According to Commission data,329 1,012 companies reported that
they were engaged in the provision of wireless service. Of these
1,012 companies, an estimated 829 have 1,500 or fewer employees
and 183 have more than 1,500 employees. This SBA size standard
also applies to wireless telephony. Wireless telephony includes
cellular, personal communications services, and specialized
mobile radio telephony carriers. According to the data, 437
carriers reported that they were engaged in the provision of
wireless telephony.330 We have estimated that 260 of these are
small businesses under the SBA small business size standard.
21. Broadband Personal Communications Service. The
broadband personal communications services (PCS) spectrum is
divided into six frequency blocks designated A through F, and the
Commission has held auctions for each block. The Commission has
created a small business size standard for Blocks C and F as an
entity that has average gross revenues of less than $40 million
in the three previous calendar years.331 For Block F, an
additional small business size standard for ``very small
business'' was added and is defined as an entity that, together
with its affiliates, has average gross revenues of not more than
$15 million for the preceding three calendar years.332 These
small business size standards, in the context of broadband PCS
auctions, have been approved by the SBA.333 No small businesses
within the SBA-approved small business size standards bid
successfully for licenses in Blocks A and B. There were 90
winning bidders that qualified as small entities in the Block C
auctions. A total of 93 ``small'' and ``very small'' business
bidders won approximately 40 percent of the 1,479 licenses for
Blocks D, E, and F.334 On March 23, 1999, the Commission
reauctioned 155 C, D, E, and F Block licenses; there were 113
small business winning bidders.335 On January 26, 2001, the
Commission completed the auction of 422 C and F Broadband PCS
licenses in Auction No. 35. Of the 35 winning bidders in this
auction, 29 qualified as ``small'' or ``very small''
businesses.336 Subsequent events, concerning Auction 35,
including judicial and agency determinations, resulted in a total
of 163 C and F Block licenses being available for grant.337
22. Incumbent Local Exchange Carriers (Incumbent LECs). We
have included small incumbent local exchange carriers 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.''338 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.339 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.340
According to Commission data,341 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.
23. Competitive Local Exchange Carriers (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.342
According to Commission data,343 769 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.
24. 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.344 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.345
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.
25. 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.''346 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.
D. Description of Projected Reporting, Recordkeeping, and
Other Compliance Requirements
26. There are potential reporting or recordkeeping
requirements proposed in this Further Notice, particularly with
regard to state and local EAS participation and participation by
digital broadcasters. For example, the Commission is considering
whether to adopt performance standards and reporting obligations
for EAS participants.347 The proposals set forth in this Further
Notice are intended to advance our public safety mission and
enhance the performance of the EAS while reducing regulatory
burdens wherever possible.
E. Steps Taken to Minimize the Significant Economic Impact
on Small Entities, and Significant Alternatives
Considered
27. 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.''348
28. The EAS NPRM invited comments on a number of
alternatives to the imposition of EAS obligations on the digital
communications technologies. The Commission has considered each
of those comments and in today's Order imposes minimal regulation
on small entities to the extent consistent with our goal of
advancing our public safety mission by adopting rules that expand
the reach of EAS. We believe that requiring DTV, DAB, digital
cable, DBS and SDARS providers to install and use EAS equipment
will not impose undue regulatory or financial burdens.
29. This Further Notice seeks additional comment to help
expedite the development of a robust, state-of-the-art,
digitally-based public alert and warning system, and to further
minimize the impact on small entities. In particular, we seek
comment on how DTH and SDARS could deliver local alerts; how best
to involve wireless providers; and how the Commission can best
work with the states to help implement the EAS rules adopted in
today's Order as well as to develop the next generation of alert
and warning systems. We note that we sought specific comment
concerning possible alternatives in our approach toward small
entities in the context of making EAS accessible to persons with
disabilities.349
F. Federal Rules that May Duplicate, Overlap, or Conflict
with the Proposed Rules
30. None.
STATEMENT OF
CHAIRMAN KEVIN J. MARTIN
Re: Review of the Emergency Alert System, First Report and Order
and Further Notice of Proposed Rulemaking, EB Docket No. 04-296
Today, we take the important step of applying the emergency
alert system (EAS) rules to digital media. We also continue our
work to improve upon the current system.
Congress has charged the Commission with promoting the
safety of life and property through the use of wire and radio
communication. To fulfill this important directive, the
Commission has developed EAS, a national warning system. While
this system performs a critical function in ensuring public
safety, it was developed in 1994 and relies on the delivery of
alerts and warnings through analog radio and television broadcast
stations and cable systems. Today, however, a large and growing
percentage of television viewers and radio listeners receive
their programming from digital media. In this Order, we update
our rules to require the participation of digital television and
radio, digital cable, and satellite television and radio in EAS.
This will ensure that all television viewers and radio listeners
have access to national and/or regional public alerts and
warnings in the event of an emergency.
Equally, if not more, important, is our continued work to
develop a more comprehensive and more robust alert system.
Hurricane Katrina (and Hurricanes Rita and Wilma) have only
served to emphasize the need for a comprehensive and robust alert
system that allows officials at the national, state and local
levels to reach affected citizens in the most effective and
efficient manner possible. This system should have built-in
redundancy features. Among other things, it should incorporate
the internet, which was designed by the military to be robust and
contains network redundancy functionalities. The system also
should take advantage of advances in technology that enable
officials to reach large numbers of people simultaneously through
a variety of communications media. Our work in this area is of
the utmost importance. I look forward to working with my fellow
Commissioners to develop a public alert and warning system that
is wide-reaching and furthers the Commission's core mission of
promoting public safety through a robust communications system.
STATEMENT OF
COMMISSIONER KATHLEEN Q. ABERNATHY
Re: Review of Emergency Alert System (EB Docket No. 04-296)
In the world we live in today, telecommunications is the vital
link that keeps us in touch with each other and with what is
going on around us. Unfortunately, the world we live in today
has come to be a very dangerous place. Therefore, it is
critically important for telecommunications to serve as a
reliable instant messenger of news and information that we and
our families need to protect ourselves in sudden emergencies.
The Order and Further Notice we adopt today help assure that kind
of reliability. By expanding the Commission's Emergency Alert
System requirements to the new generation of digital
communications services that American families increasingly rely
on -- digital broadcast radio and TV, digital cable, and
direct-to-home satellite TV and radio services -- the Order
advances the goal of getting lifesaving information out to those
who need it. And the Further Notice looks to added ways of
guaranteeing that no American lacks access to emergency
information, that all technologies are appropriately tasked to
help safeguard our people, and that any state governor wishing to
do so can activate EAS warnings for disasters impacting people
in one or more states.
These are excellent outcomes, and I thank the Chairman and the
staff who worked so diligently to develop this item and present
it to us today. I also express thanks to those in the
telecommunications industry who came forward proactively with
proposals on how other technologies can contribute to a seamless
digital emergency alert system. These issues are discussed in
the Further Notice and I look forward to receiving public comment
on them.
Given the complexity of telecom regulation, many of the items the
Commission votes on have to be broken down and translated to
understand the good things expected to come from them. This item
isn't one of them: its benefits will be real and tangible,
helping to protect our safety and well-being when we are most in
peril. For this reason, I fully support it and vote to approve
it.
STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Review of the Emergency Alert System
This Order paves the way for bringing our warning system
into the digital era. There is every reason to make this a
priority, from the threat of more terrorism to the continuing
ravages of nature that we have endured this summer. So I am
pleased that we are moving to expand EAS into the new digital
technologies that so many Americans are using.
Surely it is also time to explore a more comprehensive EAS
system. People today use communications devices to receive
information in so many ways -- wireline, wireless, radio and
television broadcasting, satellite, cable, IP technologies, and
others. To make our warning systems and information
dissemination as effective as possible, we need to figure out how
to integrate these diverse technologies.
While the Further Notice is rather brief, I hope everyone
will realize the many questions that need to be addressed as we
bring the EAS into the Twenty-first century. For example, we
need to make sure that all Americans receive emergency
information, including those with disabilities and those whose
primary fluency is in a language other than English. In the
recent hurricanes, tens of thousands of residents whose primary
language is not English lacked access to the information and
warnings that others were receiving. We need to solve this
problem.
Secondly, we need to realize that although EAS is a national
system, it also affords state and local authorities the
capability to provide emergency information on everything from
weather emergencies to Amber alerts that save abducted children.
So we need to decide who exactly, and at what level, can activate
this system. And does it make sense that employment of the
system remains voluntary in most instances?
So there is a lot to do to complete this proceeding. And we
do not have the luxury of time in these efforts�terrorists and
hurricanes don't wait on us. These are critical questions that
are integral to our public safety and homeland security efforts.
I look forward to working on this with my colleagues and with our
new Bureau which I hope will be up and running soon.
SEPARATE STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: In the Matter of Review of the Emergency Alert System, EB
Docket No. 04-296.
Not only does Section One of the Communications Act of 1934
make the Commission responsible for promoting the ``safety of
life and property through the use of wire and radio
communication,'' it also charges the Commission with making
communications available ``to all the people of the United
States, without discrimination on the basis of race, color,
religion, national origin, or sex.'' In this item, we take a few
important steps toward satisfying these important statutory
obligations, but there remains some heavy lifting to do very
soon.
I am pleased to support this item, as it expands the
obligation to transmit Presidential-level emergency messages from
analog broadcast and cable to include new distribution platforms
- digital broadcast and cable, and satellite radio and
television. Equally important, this item encourages the voluntary
transmission of multilingual emergency information in areas where
a significant proportion of the population has its primary
fluency in a language other than English. Until the Commission
has had an opportunity to examine this issue more fully, I
strongly encourage all EAS participants to provide this important
public safety service.
We cannot overemphasize the importance of disseminating
emergency information in multiple languages. In New Orleans
alone, it is estimated that there were more than 50,000 Spanish-
speaking residents, and the only Spanish language station in the
area was off-air before Hurricane Katrina even reached city
limits. It stayed off the air for the next seven days. While
all Gulf Coast broadcasters performed admirably - with great
personal sacrifice - to provide news coverage to millions of
households, some non-English speaking households may have been
left in complete darkness. As set forth in Section 1 of the
Communications Act, we have an obligation to address this
problem.
We must find ways to ensure that all households have access
to emergency warnings and alerts in a language they understand
and that EAS meets the needs of individuals with hearing and
vision disabilities. All of us at the Commission should closely
review and consider the comments of interested parties, and
engage broadcasters, minority and disability groups in a
constructive dialogue with the goal of achieving a sensible
consensus on multilingual emergency alert information and
disability access.
In the past four years, this nation has experienced several
disasters - Hurricanes Katrina and Rita, the East Coast blackout
and, of course, the September 11th terrorist attacks. Noticeably
unused during all of these disasters was the activation of EAS �
an alert system intended to deliver Presidential-level messages
only.
While these recent disasters have focused attention on ways
to improve our national system, clearly, we also need to focus
attention on the ability of state governments to access EAS
facilities to transmit emergency information, warnings and
alerts. So it's critical that we're seeking comment on whether
we should require EAS participants to transmit all EAS messages
issued by the Governor of the state in which they provide
services. Additionally, I am pleased we are seeking comment on
how best to coordinate with state and local governments to help
implement the expanded EAS rules we adopt today.
A final highlight is our request for comment on the
integration of new technologies, primarily wireless devices such
as cell phones, pagers, and PDA's, into our current emergency
response system. We seek comment, for example, on the benefits
and limitations of the delivery of emergency alert messages
through text-based messaging delivered by SMS or cell broadcast.
While these technologies would complement, rather than replace,
the current EAS, we should pay careful attention to practical
implications for underserved and rural communities. We should
also consider alternative wireless technologies such as a
proposal to take advantage of an existing wireless public alert
service provided by the National Oceanic and Atmospheric
Administration (NOAA).
We are acting on this issue with the urgency it deserves.
Just last week, the Senate Commerce Committee approved
legislation - the Warning, Alert, and Response Network (WARN) Act
- to create an enhanced emergency alert system. The WARN Act
would finance the creation of an All Hazards Alert System to
deliver emergency warnings and alerts across a variety of
devices, including mobile phones and Blackberry devices. While
the National Program Office would be established within NOAA, the
FCC along with National Institute of Standards and Technology and
the Federal Emergency Management Agency would form a working
group to develop this new, enhanced alert system and to prepare
guidelines for the technical capabilities of the system. The Act
would also give governors access to broadcast a message in their
respective States.
I am pleased to support our decision to expand EAS to
require, not just analog broadcast and cable, but also digital
broadcast and satellite radio and television, to transmit
national emergency warnings and alerts. The heavy lifting will
come when we consider multilingual emergency information
dissemination, greater disability access, coordination with state
and local governments, and the integration of new wireless
technologies into EAS. I thank the Chairman for his leadership
on this matter, and I look forward to working with him and all of
my colleagues on these and other EAS-related issues as quickly as
possible.
_________________________
1 See 47 U.S.C. � 151.
2 The respective roles of the Commission, FEMA, and NWS are based
on a 1981 Memorandum of Understanding, see State and Local
Emergency Broadcasting System (EBS) Memorandum of Understanding
Among the Federal Emergency Management Agency (FEMA), Federal
Communications Commission (Commission), and the National Oceanic
and Atmospheric Administration (NOAA) (Approved by National
Industry Advisory Committee (NIAC) on April 21, 1982), a 1984
Executive Order, Assignment of National Security and Emergency
Preparedness Telecommunications Functions, Exec. Order No.
12,472, 49 Fed. Reg. 13,471 (1984), and a 1995 Presidential
Statement of Requirements, see Presidential Communications with
the General Public During Periods of National Emergency, The
White House (September 15, 1995).
3 For purposes of this Order and our Part 11 rules only, the term
``digital cable systems" is defined 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.
4 See Review of the Emergency Alert System, Notice of Proposed
Rulemaking, EB Docket No. 04-296, 19 FCC Rcd 15775 (2004) (EAS
NPRM). Further, we recognize the importance of the issue raised
in the EAS NPRM of whether participation in state and local EAS
activations should remain voluntary, particularly in light of
Hurricane Katrina, which highlighted the need for effective
public alert and warning. Resolution of this issue will require
coordination with our Federal and State partners, and will also
be the subject of a subsequent order.
5 See infra Appendix C.
6 See infra Appendix C..
7 See infra Appendix C.
8 See infra Appendix C.
9 Providing for Emergency Control Over Certain Government and
Non-Government Stations Engaged in Radio Communication or Radio
Transmission of Energy, Exec. Order No. 10,312, 51 Fed. Reg.
14,769 (1951). See also EAS NPRM, 19 FCC Rcd at 15776-78, paras.
6-8.
10 Assigning Emergency Preparedness Functions to the Federal
Communications Commission, Exec. Order No. 11,092, 63 Fed. Reg.
2216 (1963).
11 See Amendment of Part 73, Subpart G, of the Commission's Rules
Regarding the Emergency Broadcast System, Second Report and
Order, FO Docket No. 91-301, FO Docket No. 91-171, 12 FCC Rcd
15503 (1997) (Second Report and Order).
12 See supra n.2.
13 47 U.S.C. �� 151 (stating that the Commission was created for
the purposes of, inter alia, national defense and promoting
safety of life and property through the use of wire and radio
communication), 154(i) and (o) (providing a general grant of
authority to perform any and all acts, make such rules and
regulations, and issue such orders, not inconsistent with the
Act, as may be necessary in the execution of the Commission's
functions; and providing the Commission with authority to
investigate, study, and propose best methods to resolve any and
all problems preventing the maximum effective use of radio and
wire communications in connection with safety of life and
property), 303(r) (generally granting rulemaking authority to the
Commission), 606 (granting 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).
14 See supra n.2.
15 The Stafford Act authorizes the President to make provisions
for emergency preparedness communications and dissemination of
warnings to governmental authorities and the civilian population
in areas endangered by disasters. Robert T. Stafford Disaster
Relief and Emergency Assistance Act (Stafford Act), as amended,
42 U.S.C. ��5121, et. seq.
16 47 C.F.R. ��11.44(a).
17 47 C.F.R. � 11.55(a); see also Amendment of Part 11 of the
Commission's Rules Regarding the Emergency Alert System, Report
and Order, EB Docket No. 01-66, 17 FCC Rcd 4055, 4057, para. 3
(2002) (2002 Report and Order); Amendment of Part 73, Subpart G,
of the Commission's Rules Regarding the Emergency Broadcast
System, Report and Order and Further Notice of Proposed
Rulemaking, FO Docket 91-301, FO Docket 91-171, 10 FCC Rcd 1786,
1809, para. 66 (1994) (First Report and Order), reconsideration
granted in part, denied in part, 10 FCC Rcd 11494 (1995).
18 All broadcast stations and cable systems have EAS designations
that describe their functions within EAS. See 47 C.F.R. ��11.18.
19 47 C.F.R. ��11.14.
20 See 47 C.F.R. ��11.51(k) (stating that broadcast stations and
cable systems and wireless cable systems are required to transmit
all received EAS messages in which the header code contains the
Event codes for Emergency Action Notification (EAN), Emergency
Action Termination (EAT), and Required Monthly Test (RMT), and
when the accompanying location codes include their State or
State/county and stating that these EAS messages must be
retransmitted unchanged except for the identification of the
broadcast station, cable system, wireless cable system, or other
entity retransmitting the message). Section 11.31(a)(3) states
that the EAS message may be audio, video or text and Section
11.31(c) sets out a representation of the EAS protocol, including
the message format which includes "transmission of audio, video
or text messages." 47 C.F.R. ��11.31(a)(3), 11.31(c); see also
47 C.F.R. ���11.11 (requiring that all EAS participants use the
common EAS protocol defined in section 11.11).
21 The State Relay Network is composed of State Relay sources,
leased common carrier communications facilities, or any other
available communication facilities. In addition to EAS
monitoring, satellites, microwave, FM subcarrier, or any other
communications technology may be used to distribute state
emergency messages. See 47 C.F.R. ��11.20.
22 47 C.F.R. ��11.18(d).
23 47 C.F.R. ��11.18(b).
24 47 C.F.R. ��11.31.
25 47 C.F.R. ��11.31(a).
26 47 C.F.R. ���11.33(a)(4), 11.51(k)(1), 11.54.
27 See generally EAS NPRM, 19 FCC Rcd 15775.
28 Testimony of Michael D. Brown, Under Secretary of Homeland
Security for Emergency Preparedness and Response, Federal
Emergency Management Agency, House of Representatives, Committee
on Appropriations, Subcommittee on Homeland Security, March 9,
2005 and Testimony of Reynold N. Hoover, Director, Office of
National Security Coordination, FEMA, Department of Homeland
Security, All-Hazards Alert Systems, Senate Committee on
Commerce, Science and Transportation, Subcommittee on Disaster
Prevention and Prediction, July 27, 2005.
29 Testimony of John M. Lawson, President and CEO, Association of
Public Television Stations (APTS), Senate Hearing, July 27, 2005.
30 Information on CAP available at
http://www.incident.com/cookbook/index.php/CAP_Fact_Sheet (last
visited Aug. 11, 2005).
31 Reverse 911 is a term that describes a calling system that
places calls generated by a public safety call center to a
specific audience.
32 Intelligence Reform and Terrorism Prevention Act of 2004, Pub.
L. No. 108-458, 118 Stat. 3638 (2004) (to be codified at
scattered sections U.S.C.). Information regarding pending
federal legislation related to emergency alert and warning (i.e.
Tsunami Preparedness Act, S. 50, 109th Cong (2005)) can be found
in the CRS Report for Congress. See Linda K. Moore and Shawn
Reese, Emergency Communications: The Emergency Alert System (EAS)
and All-Hazard Warnings, Congressional Research Service, The
Library of Congress, CRS Report for Congress, at CRS-9-12
(updated Sept. 2, 2005), available at
http://www.uscongress.com/section/pdf/CRSRL32527_9_11.pdf (last
visited Sept. 21, 2005).
33 Id., � 7502(a).
34 See e.g., Contra Costa County Community Warning System (Contra
Costa County) Comments at 10; Dr. Peter L. Ward (Dr. Ward)
Comments at 4; Developers � Sage Alerting Systems ENDEC, Gerald
LeBow and Harold Price (Developers) Comments at 8-9; Jefferson
Pilot Communications Company (Jefferson Pilot) Comments at 1.
35 The Further Notice also seeks comment on wireless-related
issues and whether participation in state and local EAS
activations should remain voluntary.
36 In the Telecommunications Act of 1996, Congress provided that
initial eligibility for any advanced television licenses issued
by the Commission should be limited to existing broadcasters,
conditioned on the eventual return of either the current 6 MHz
channel or the new digital channel. 47 U.S.C. ��336; Pub. L. No.
104-104, 110 Stat. 56 (1996).
37 DTV refers to any technology that uses digital techniques to
provide advanced television services such as high definition TV,
multiple standard definition TV and other advanced features and
services. See Advanced Television Systems and Their Impact upon
the Existing Television Broadcast Service, Sixth Further Notice
of Proposed Rulemaking, MM Docket No. 87-268, 11 FCC Rcd 10968,
10970 n.1 (1996).
38 Approximately 88.5% of the authorized DTV channels are
operational and on the air. DTV Stations Authorized to Be on the
Air, Video Division, Media Bureau, Federal Communications
Commission, (July 18, 2005) available at
http://www.fcc.gov/mb/video/files/dtvonairsum.html.
39 Advanced Television Systems and Their Impact upon the Existing
Television Broadcast Service, Fifth Report and Order, MM Docket
No. 87-268, 12 FCC Rcd 12809, 12843-44, paras. 82-86 (1997) (DTV
Fifth Report and Order).
40 47 U.S.C. � 309(j)(14). As of September 20, 2005, no such
extension requests have been filed. Congress has recently been
considering proposed legislation that would establish a date
certain for the transition end date. See, e.g., Spectrum
Availability for Emergency-Response and Law Enforcement to
Improve Vital Emergency Service Act, S. 1268, 109th Cong. (2005);
DTV Transition Act of 2005: Hearing on a Staff Discussion Draft
Before the Subcomm. on Telecomm. & the Internet, House Comm. on
Energy and Commerce, 109th Cong. (2005), available at
http://energycommerce.house.gov/108/Hearings/05262005hearing1533-
/hearing.htm.
41 See, e.g., 47 C.F.R. �� 73.622-625.
42 At that time, DTV was referred to as High Definition
Television or HDTV.
43 First Report and Order, 10 FCC Rcd at 1786, 1811. TV stations
were not operating digitally at the time and therefore were not a
necessary link in disseminating emergency information.
44 EAS NPRM, 19 FCC Rcd at 15786, para. 29.
45 Id.
46 We note that APTS has initiated a ``Datacasting'' project
whereby EAS and other emergency notifications can be carried on
the digital television bit stream. See Jeffrey Davis et al.,
Public Digital Television: Improving Homeland Security, APTS
(June 2003), available at
http://www.apts.org/html/homeland/hswhitepaper.pdf.
47 EAS NPRM, 19 FCC Rcd at 15786, para. 30. ``Force tuning''
technology allows a provider to switch subscribers from any
programmed channel or stream to a specific channel or stream that
will carry EAS messages.
48 This includes broadcasters of digital low power television and
digital Class A television.
49 See infra Appendix B, 47 C.F.R. ��11.54(b).
50 See infra Appendix B, 47 C.F.R. ��11.55(a) and (c).
51 See, e.g., 47 C.F.R. ���11.35(a), 11.61.
52 See 47 U.S.C. ��336; see also DTV Fifth Report and Order, 12
FCC Rcd at 12810-11, para. 2.
53 National Association of Broadcasters and Association for
Maximum Service TV, Inc. (NAB/MSTV) Comments at 18-19.
54 See Second Report and Order, 12 FCC Rcd at 15793, para. 38 (in
extending EAS requirements to wireless cable providers,
explaining that ``[w]e believe it is important to provide
emergency information to as many people as possible through
different means of delivery and that including a wide variety of
multichannel video providers such as wireless cable could provide
important safety information to viewers.'').
55 Entergy Nuclear Northeast, Michael J. Slobodien (Entergy)
Comments at 2-3; NAB/MSTV Comments at 16-17; North Carolina
Association of Broadcasters (NCAB) Comments at 13; Developers
Comments at 8-9; Liberty Corporation (Liberty) Comments at 3;
Society of Broadcast Engineers, Inc. (SBE) Comments at 19-20;
Thomas A. Newell, Facilities Engineer (Newell) Comments at 4.
56 See infra Appendix B, 47 C.F.R. ��11.51(c). This requirement
applies only to program streams and not to data streams.
57 Cox Broadcasting, Inc. (Cox) Comments at 7-8 (agreeing that
DTV providers should have the ability to provide EAS information
in their program streams, but not in the data streams);
Developers Comments at 8-9; Gary E. Timm, Chair, Wisconsin SECC
(Timm) Comments at 6; Hearst-Argyle Television, Inc. (Hearst-
Argyle) Comments at 6; Liberty Comments at 3; NCAB Comments at
13; Ohio Association of Broadcasters (OAS) Comments at 14-15;
Rehabilitation Engineering Research Center on Telecommunications
Access (RERC) Comments at 5-6; Consumer Electronics Association
(CEA) Reply Comments at 9; SBE Reply Comments at 5 (asserting
that EAS messages should be provided in program data streams but
not in their auxiliary data streams).
58 Rehabilitation Engineering Research Center on Mobile Wireless
Technologies (RERC Wireless) Comments at 8.
59 Ohio Emergency Management Agency (Ohio EMA) Comments at 3.
60 NAB/MSTV Comments at 16-17.
61 Harris Corporation contends that, although software changes
may be required for the forced display of graphics and the
forced-change of program streams, such changes are not
significant. Harris Corporation (Harris) Comments at 5-6.
62 We agree with the commenters who argue that force tuning
should not be required. Hearst-Argyle Comments at 6; OAS
Comments at 14-15.
63 Section 624(g) of the Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. No. 102-385, � 16(b), 106 Stat.
1460, 1490 (1992), codified at 47 U.S.C. � 544.
64 First Report and Order, 10 FCC Rcd at 1788, para. 1.
65 Id. at 1806-07, paras. 58-59.
66 See Second Report and Order, 12 FCC Rcd at 15504, para. 1.
For purposes of the EAS rules, a ``wireless cable system'' is a
collection of Multipoint Distribution Service, Multichannel
Multipoint Distribution Service or Instructional Television Fixed
Service channels used to provide video programming and other one-
way and two-way communications services to subscribers. The
channels may be licensed to or leased by wireless cable system
operators. See 47 C.F.R. ��11.11(c)(1).
67 EAS NPRM, 19 FCC Rcd at 15786, para. 29.
68 Id. at paras. 29-30.
69 Jade Clayton, McGraw-Hill Telecom Dictionary 183 (2d ed.
2000).
70 See infra Appendix C.
71 The signal is provided to the subscriber in digital format at
the input of Unidirectional Digital Cable Product or other
navigation device.
72 See infra Appendix B, 47 C.F.R. � 11.54(b).
73 See infra Appendix B, 47 C.F.R. � 11.55(a) and (c)(4).
74 H.R. Rep. No. 102-628, H.R. Rep. No. 628, 102nd Cong., 2d
Session 1992, at 110.
75 See 47 U.S.C. � 151.
76 See, e.g., Entergy Comments at 2-3, FEMA, Director, Office of
Nat'l Security Coordination (FEMA) Comments at 2, Partnership for
Public Warning (PPW) Comments at 19, SBE Comments at 19.
77 SBE Comments at 19.
78 Id.
79 PPW Comments at 19.
80 Id.
81 See, e.g., Ohio EMA Comments at 3 (indicating that the force
tuning of receivers is a viable EAS option if technology allows
such an alternative).
82 The Plug-and-Play Agreement is a Memorandum of Understanding
("MOU") between representatives of the cable television and
consumer electronics industries that details a comprehensive
agreement on a cable compatibility standard for integrated,
unidirectional digital cable television receivers, as well as
other unidirectional digital cable products. This agreement was
essentially adopted by the Commission. See Implementation of
Section 304 of the Telecommunications Act of 1996, Second Report
and Order and Second Further Notice of Proposed Rulemaking, PP
Docket No. 00-67, 18 FCC Rcd 20885 (2003). We await a similar
agreement on Two-Way Plug-and-Play.
83 See ANSI/SCTE 54 2003: ``Digital Video Service Multiplex and
Transport System Standard for Cable Television.'' Section 15.38
of our rules specifically mentions this standard. See 47 C.F.R.
��15.38. ANSI/SCTE 54 2003 specifies that emergency alert
information transmitted shall conform to ANSI-J-STD-042-2002:
``Emergency Alert Message for Cable'' (also known as SCTE 18
2002).
84 See infra Appendix B, 47 C.F.R. � 11.51(g).
85 Digital Audio Broadcasting Systems and Their Impact on the
Terrestrial Radio Broadcast Service, First Report and Order, MM
Docket No. 99-325, 17 FCC Rcd 19990 (2002) (DAB R&O).
86 See DAB R&O, 17 FCC Rcd at 20004-05, para. 41.
87 See also Digital Audio Broadcasting Systems and Their Impact
on the Terrestrial Radio Broadcast Service, Further Notice of
Proposed Rulemaking and Notice of Inquiry, MM Docket No. 99-325,
19 FCC Rcd 7505, 7506, 7519, paras. 1, 37-38 (2004) (DAB FNPRM).
The Commission's statutory authority for implementing rules
regarding DAB is derived from, inter alia, Sections 1, 4, 303,
and 307 of the Communications Act. 47 U.S.C. ���151, 154, 303,
and 307.
88 These data services are able to transmit information such as
station, song and artist identification, stock and news updates,
and local traffic and weather bulletins.
89 See DAB FNPRM, 19 FCC Rcd at 7506, para. 2.
90 IBOC technology transmits the digital signals using orthogonal
frequency division multiplexing.
91 Existing analog radios continue to receive analog broadcast
signals.
92 EAS NPRM, 19 FCC Rcd at 15786, para. 29. See also DAB FNPRM,
19 FCC Rcd at 7519, paras. 37-38.
93 This includes digital low power FM broadcasters.
94 See, e.g., Developers Comments at 3, 7-8; Harris Comments at
6; NAB/MSTV Comments at 17-18, 37; Larry A. Estlack (Estlack)
Comments at 4; Ohio EMA Comments at 3; SBE Comments at 19, 21;
Timm Comments at 6-7; Primary Entry Point Advisory Committee,
Inc., (PEPAC) Comments at 4; RERC Wireless Comments at 8; WTOP-
AM, (WTOP-FM) and WXTR-AM (WTOP/WXTR) Comments at 10; see also
National Association of Broadcasters Comments at 23-24 in MM
Docket No. 99-325.
95 See infra Appendix B, 47 C.F.R. � 11.54(b).
96 See infra Appendix B, 47 C.F.R. � 11.55(a).
97 See infra Appendix B, 47 C.F.R. � 11.55(a) and (c).
98 See infra Appendix B, 47 C.F.R. � 11.51(c).
99 See DAB FNPRM, 19 FCC Rcd at 7519, paras. 37-38. See also
Second Report and Order, 12 FCC Rcd at 15522, para. 38.
100 See, e.g., Cox Comments at 7-8 (agreeing that digital radio
should have the ability to provide EAS information in their
program streams, but not in the data streams); Developers
Comments at 8; Newell Comments at 4; Ohio EMA Comments at 3; SBE
Comments at 19-21; Timm Comments at 6; WTOP/WXTR Comments at 10.
101 See SBE Comments at 19-21; WTOP/WXTR Comments at 10.
102 NAB/MSTV and National Public Radio assert that we should
extend EAS obligations only to audio streams available free to
the general public. See, e.g., NAB/MSTV Comments at 17-18
(asserting that EAS information ``may not be suitable'' for
supplementary services that deliver more focused programming or
data or are only available to subscribers and ``urg[ing] the
Commission to require EAS functionality on secondary services
intended for the general public, but at this time not to extend
this requirement to other services''); National Public Radio,
June 16, 2004, Comments in MM Docket No. 99-325 at 13 (agreeing
that each free over the-air audio program service should
participate in the emergency alert system). As EAS is being
applied to other digital subscription services, we see no reason
to defer this determination for DAB.
103 In the DAB FNPRM, the Commission sought comment on the
appropriate policies the Commission may adopt to encourage radio
stations to convert from an analog-only radio service to a hybrid
analog/digital radio service, and, eventually, to an all-digital
radio service. See DAB FNPRM, 19 FCC Rcd at 7511-12, paras. 15-
17.
104 NAB/MSTV Comments at 17.
105 National Public Radio June 16, 2004, Comments in Docket No.
99-325, at 13.
106 Although one such method could consist of transmitting the
EAS message on one stream and force tuning all receivers to that
stream, we decline to require this force tuning method as Harris
Corporation requests. See Harris Comments at 6 (acknowledging
that IBOC receivers currently do not have the ability to be force
tuned, but asserting that manufacturers could make basic
adjustments to receivers to enable force tuning); see also Ohio
EMA Comments at 3 (stating that force tuning of receivers is a
viable EAS option, as technology allows for this to occur, but in
the interim, EAS messages should be aired on all program
streams); WTOP/WXTR Comments at 10 (noting that force tuning is
one method of insuring that emergency messages reach the
listening public and, while noting that there are technical
details to be worked out, supporting it in principle).
107 SBE Comments at 21-22.
108 47 C.F.R. � 25.201 (defining SDARS as ``[a]
radiocommunication service in which audio programming is
digitally transmitted by one or more space stations directly to
fixed, mobile, and/or portable stations, and which may involve
complementary repeating terrestrial transmitters, telemetry,
tracking and control facilities''). The Commission has not
classified SDARS as either a broadcast or common carrier service
under our rules. Establishment of Rules and Policies for the
Digital Audio Radio Satellite Service in the 2310-2360 MHz
Frequency Band, Report and Order, Memorandum Opinion and Order
and Further Notice of Proposed Rulemaking, IB Docket No. 95-91,
12 FCC Rcd 5754, 5788-89, para. 84 (1997) (SDARS Order). At this
time, SDARS licensees are not required to, and do not, serve
Alaska or Hawaii. The Commission's statutory authority to
regulate SDARS emanates primarily from Titles I and III of the
Act. 47 U.S.C. �� 151, et seq., 301, et seq.
109 Satellite CD Radio, Inc. Application for Authority to
Construct, Launch, and Operate Two Satellites in the Satellite
Digital Audio Radio Service, Order and Authorization, File Nos.
71-SAT-AMEND-97, 49/50-DSS-P/LA-905, 58/59-DSS-AMEND-90, 8/9-DSS-
AMEND-92, 12/13-DSS-AMEND-92, 44/45-DSS-AMEND-92, 42-SAT-AMEND-
95, 71-SAT-AMEND-97, 13 FCC Rcd 7971 (1997) (Sirius Authorization
Order), modified sub nom, Sirius Satellite Radio Inc. for Minor
Modification of License to Construct, Launch and Operate a Non-
Geostationary Satellite Digital Audio Radio Service System, Order
and Authorization, File No. SAT-MOD-19981211-00099, 16 FCC Rcd
5419 (2001).
110 American Mobile Radio Corporation Application for Authority
to Construct, Launch and Operate Two Satellites in the Satellite
Digital Audio Radio Service, Order and Authorization, File Nos.
72-SAT-AMEND-97, 10/11-DSS-P-9312/15/92, 26/27-DSS-LA-931/15/93,
83/84-SAT-AMEND-953/10/95, 72-SAT-AMEND-97, 13 FCC Rcd 8829
(1997) (XM Radio Authorization Order).
111 See Sirius Satellite Radio, Inc. Comments at 3 (Sirius
Comments) (``Sirius cannot and does not broadcast programming on
a local or regional basis; instead, all of Sirius' subscribers,
regardless of location, receive precisely the same
programming.''); XM Radio Inc. Comments at 3-4 (XM Comments)
(``As with all satellite radio programming, the traffic and
weather information is simultaneously transmitted by XM's
satellites and terrestrial repeaters directly to subscribers'
receivers throughout XM's coverage area.''). Although SDARS
systems do utilize localized terrestrial transmitters to amplify
their signal and fill gaps in satellite coverage, the authority
for use of these terrestrial repeater networks is temporary, and
SDARS operators are prohibited from originating programming at
their terrestrial repeaters. See Sirius Satellite Radio, Inc.,
Application for Special Temporary Authority to Operate Satellite
Digital Audio Radio Service Complementary Terrestrial Repeaters,
Order and Authorization, File No. SAT-STA-20010724-00064, 16 FCC
Rcd 16773, 16777, para. 11 (2001) (Sirius STA Order), modified
by, Order, File No. SAT-STA-20010724-00064, 16 FCC Rcd 18481
(2001) (modifying, on the Commission's own motion, requirement
that Sirius coordinate with WCS licensees to also include
coordination with Multipoint Distribution Service and
Instructional Television Fixed Service licensees); XM Radio Inc.,
Application for Special Temporary Authority to Operate Satellite
Digital Audio Radio Service Complementary Terrestrial Repeaters,
Order and Authorization, File No. SAT-STA-20010712-00063, 16 FCC
Rcd 16781, 16784, para. 11 (2001), modified by, Order, File No.
SAT-STA-200110712-00063, 16 FCC Rcd 18481 (2001) (modifying, on
the Commission's own motion, requirement that XM coordinate with
WCS licensees to also include coordination with Multipoint
Distribution Service and Instructional Television Fixed Service
licensees).
112 See Sirius Comments at 3; XM Comments at 3-4.
113 See generally First Report and Order, 10 FCC Rcd 1786. See
generally 47 C.F.R. � 11.11(e). (``Organizations that choose to
voluntarily participate [in the EAS] must comply with the
requirements [set forth in Part 11].'').
114 EAS NPRM, 19 FCC Rcd at 15786, para. 29.
115 Id.
116 See XM Comments at 4. In addition to weather related
emergency information, XM also transmits Amber Alerts over its
traffic and weather channels. See XM Comments at 5. These
alerts include verbal delivery of critical information and a
visual scroll of the alleged abductor's license plate number and
other vital information, which appears on the LED screen of the
subscriber's satellite radio receiver. See id.
117 See XM Comments at 3, 5.
118 See XM Comments at 5. We note that XM recently dedicated
this channel to emergency information related to Hurricane
Katrina.
119 See XM Comments at 4, 9.
120 See Sirius Comments at 3.
121 Id. On August 14, 2003, an electrical power blackout
affected approximately 50 million people in large portions of the
northeastern and midwestern United States, as well as parts of
Canada. See, e.g., Washington Post, Blackout 2003, available at
http://www.washingtonpost.com/wp-dyn/nation/specials/blackout2003
(last visited Sept. 20, 2005) (compiling 2003 Washington Post
news reports on the blackout).
122 See infra Appendix B, 47 C.F.R. ���11.11(a), 11.51(i),
11.54(b).
123 See Sirius Comments at 2-3 (explaining that once a national
level alert is received, Sirius can commit all channels to
relaying that alert); XM Comments at 8 (explaining that in the
event that a Presidential Level alert is delivered, XM's
headquarters and operations center is staffed 24 hours per day, 7
days per week, and is equipped with a manual switching device
that can force every XM channel to the emergency audio alert
delivered by the President or his designate).
124 See infra Appendix B, 47 C.F.R. ���11.11(a), 11.35(a),
11.51(i)(1), 11.52(d), 11.54(b)(1).
125 See XM Comments at 8.
126 We note that SDARS licensees are not required to provide
traffic and weather channels. These new rules will apply only to
those traffic and weather channels that they choose to offer.
127 See infra Appendix B, 47 C.F.R. ��11.55(a)(2).
128 See infra Appendix B, 47 C.F.R. � 11.61(a).
129 See XM comments at 9.
130 See infra Appendix B, 47 C.F.R. ��11.11(a).
131 See infra Appendix C.
132 See e.g. Jeff Leeds, Venture to Put Live Shows On Internet
And Radio, N.Y. Times, July 13, 2005, at C4, available at 2005
WLNR 10935780 (XM teaming with America Online to offer live
concerts via Internet, satellite, wireless and other media); Cell
Phone Companies Seek Profit in Music Services, Washington Post,
July 2, 2005, available at 2005 WLNR 10436405 (Sirius teaming
with Sprint Corp. to offer commercial-free music and music video
streams over mobile phones); Bloomberg News, 2 Automakers Reach
Deals On Installing Satellite Radio, N.Y. Times, Mar. 24, 2005,
at C8, available at 2005 WLNR 4609972 (XM and Sirius teaming with
various car manufacturers to include a satellite radio receiver
as a standard or factory-installed option).
133 See Sirius Comments at 2; XM Comments at 8, 11; Satellite
Broadcasting and Communications Association (SBCA) Reply Comments
at 2.
134 See Alaska Broadcasters Association and the State Emergency
Communications Committee (ABA/ASECC) Comments at 1-2; Developers
Comments at 3; Entergy Comments at 2-3; Estlack Comments at 4;
Newell Comments at 4; SBE Comments at 20-21; Timm Comments at 7.
135 See supra note 123.
136 See CEA Comments at 8-9 (``[T]he Commission's suggestions for
mandatory standards on equipment would disserve the public
interest. With technology ever more rapidly changing, only
marketplace forces have the agility needed for manufacturers to
adjust in a timely fashion to consumer needs and technological
improvements. Particularly with regards to emergency alerts, FCC
standards or other edicts are likely to be outmoded soon after
adoption given that the rulemaking process often is longer than
the life cycles of technologies.''); XM Comments at 11-12; XM
Reply Comments at 4.
137 See SBCA Comments at 7 (``Satellite participation in national
EAS would be possible, if somewhat difficult. Satellite
participation in state and local EAS, however, is a far more
daunting proposition.'') (emphasis in original); Sirius Comments
at 3-4; XM Comments at 9-10.
138 See supra para. 42.
139 See Dr. Ward Comments at 4 (contending the primary needs to
move into the digital future of warning are: (1) a national
standard data format for warning information; (2) a national
source of official warnings that can be relayed by industry with
no liability for message content; and (3) a robust secure, multi-
stranded network that can relay official inputs to all types of
systems that can rebroadcast or address the warning information
to those directly at risk); XM Comments at 10-11 (``To the extent
that a single entity were established to collect and transmit all
state and local EAS alerts . . . XM could explore providing state
and local EAS alerts for'' regions not covered by its 21
metropolitan area traffic and weather channels).
140 See Sirius Comments at 5, n.13; XM Comments at 10-11.
141 See, e.g., SBCA Comments at 8; Sirius Comments at 3 (``Sirius
cannot and does not broadcast programming on a local or regional
basis...''); XM Comments at 10 (stating that with its extensive
coverage area, satellite radio is fundamentally different than
locally-based multichannel programming providers because the
subscribers for these providers are all located in the vicinity
of the emergency); SBCA Reply Comments at 3-4. Both current
SDARS licensees implement a localized system of terrestrial
repeaters, but XM and Sirius agree that it is infeasible to use
those repeaters to transmit EAS alerts for both regulatory and
technological reasons. See Sirius STA Order, 16 FCC Rcd at
16777, para. 11 (special temporary authority restricts the use of
repeaters to the simultaneous retransmission of programming, in
its entirety, transmitted by the satellite directly to SDARS
subscriber's receivers). Sirius contends that it would need
regulatory relief before it could use its terrestrial repeaters
locally or regionally to preempt programming and deliver local or
regional EAS alerts. Even if such regulatory relief were
granted, Sirius contends it would have to deploy additional
equipment in order to be able to use terrestrial repeaters to
originate EAS alerts since Sirius' terrestrial repeaters are not
technologically equipped to originate programming. Moreover,
Sirius states that, because terrestrial repeaters are meant to
address coverage gaps, Sirius' terrestrial repeater network does
not cover the entire nation. Sirius Comments at 3. See also XM
Comments at 2 (citing Commission temporary authority order
granting XM use of terrestrial repeaters for the exclusive
purpose of simultaneously retransmitting the programming
delivered via XM's satellites); XM Reply Comments at 3 (agreeing
with Sirius that use of terrestrial repeaters to transmit EAS
alerts is infeasible for both regulatory and technological
reasons).
142 See Sirius Comments at 4 (Sirius proposes to distribute local
and regional EAS messages by ``pre-empt[ing] the relevant
channel(s) normally used for local traffic and weather to
transmit the authorized emergency information.''); XM Comments at
9 (XM suggests ``transmitting state and local EAS alerts to its
subscribers on the Instant Traffic & Weather channel appropriate
for the region in which the emergency occurs.''); see also SBCA
Reply Comments at 3 (SBC argues that the dissemination of state
and local EAS warnings on satellite radio should be limited to
the distribution on the traffic and weather channels of each
provider).
143 XM Comments at n. 6 (``XM currently provides Instant Traffic
& Weather channels for the following cities and their surrounding
areas: Atlanta, GA; Baltimore, MD; Boston, MA; Chicago, IL;
Dallas/Ft. Worth, TX; Detroit, MI; Houston, TX; Los Angeles, CA;
Miami/Ft. Lauderdale, FL; Minneapolis/St. Paul, MN; New York, NY;
Orlando, FL; Philadelphia, PA; Phoenix, AZ; Pittsburgh, PA; San
Diego, CA; San Francisco Bay Area, CA; Seattle, WA; St. Louis,
MO; Tampa, FL; Washington, DC.''). Sirius has similar traffic
and weather channels for 20 markets/regions. See Sirius Comments
at 3.
144 See Sirius Comments at 4.
145 47 U.S.C. � 303(v) (``Except as otherwise provided in this
Act, the Commission from time to time, as public convenience,
interest, or necessity requires shall... [h]ave exclusive
jurisdiction to regulate the provision of DTH satellite services.
As used in this subsection, the term 'direct-to-home satellite
services' means the distribution or broadcasting of programming
or services by satellite directly to the subscriber's premises
without the use of ground receiving or distribution equipment,
except at the subscriber's premises or in the uplink process to
the satellite.'').
146 47 C.F.R. � 25.201 (defining DBS service as ``[a]
radiocommunication service in which signals transmitted or
retransmitted by space stations, using frequencies specified in �
25.202(a)(7), are intended for direct reception by the general
public. For the purposes of this definition, the term direct
reception shall encompass both individual reception and community
reception.). See also 47 C.F.R. �� 25.148 (Licensing provisions
for the DBS Service), 25.202(a)(7) (listing frequencies available
for use by the DBS service). Sections 25.148(f) and 25.215 of
the Commission's rules address technical requirements for the DBS
service and its space stations, respectively. See 47 C.F.R. ��
25.148(f), 25.215.
147 Our rules do not define HSD. The HSD service uses Fixed-
Satellite Service (FSS) space stations, while the DBS service
uses both DBS and FSS space stations. See 47 C.F.R. � 25.201
(defining fixed satellite services as a radiocommunication
service between earth stations at given positions, when one or
more satellites are used; the given position may be a specified
fixed point or any fixed point within specified areas; in some
cases this service includes satellite-to-satellite links, which
may also be operated in the inter-satellite service; the fixed-
satellite service may also include feeder links of other space
radiocommunication services). See infra note 190 for more
information regarding HSD.
148 47 C.F.R. �� 11.11(e) (``Organizations using other
communications systems or technologies such as, Direct Broadcast
Satellite (DBS)...may join the EAS on a voluntary basis by
contacting the FCC. Organizations that choose to voluntarily
participate must comply with the requirements of this part.''),
11.43 (``Entities that wish to voluntarily participate in the
national level EAS may submit a written request to the Director,
Office of Homeland Security, Enforcement Bureau.''), 11.47(b)
(``Other technologies and public service providers, such as
DBS...that wish to participate in the EAS may contact the FCC's
Office of Homeland Security, Enforcement Bureau, or their State
Emergency Communications Committee for information and
guidance.'').
149 See generally First Report and Order, 10 FCC Rcd 1786.
150 47 C.F.R. ��25.701(a).
151 Id.
152 Under this approach, however, the DTH-FSS licensee will have
the ability to delegate its responsibilities to such video
programming distributors. Thus, compliance with EAS requirements
may be established based upon a certification from a distributor
that expressly states that the distributor has complied with the
EAS obligations. Because we believe that it is appropriate for a
DTH-FSS licensee to rely on the accuracy of certifications by
program distributors offering DTH-FSS service, licensees will not
be required to verify compliance by distributors unless there is
evidence that the distributor has not met its obligation. If a
satellite licensee has reason to believe that its customer-
program distributor is not complying with these rules or has
falsely certified compliance, the licensee should report the
situation to the Commission for appropriate action. We believe
that under this scheme, placing the ultimate compliance
responsibility on the satellite licensees is not unduly
burdensome, as certification requirements can be included in
satellite carriage and leasing contracts. For reasons
articulated in connection with use of a similar approach for DBS
public interest obligations, we believe this approach will ensure
implementation of EAS obligations without proving unduly
burdensome. Cf. Implementation of Section 25 of the Cable
Television Consumer Protection and Competition Act of 1992,
Direct Broadcast Satellite Public Interest Obligations, Report
and Order, MM Docket 93-25, 13 FCC Rcd 23254, 23264, para. 25
(1998), reconsideration granted in part, denied in part, 19 FCC
Rcd 5647, 5650-54 (2004) (adopting a certification process for
this purpose). We also note that some DBS providers are
beginning to use the Ka band FSS to transmit video programming
directly to consumers. Few consumers currently receive Ka band
transmissions and most of the programming through Ka band FSS
involves "local-into-local" broadcast television stations that
are already required to participate in the EAS. Thus, we do not
see any need to expand the definition of DBS provider to include
the Ka band at this time. However, if it appears in the future
that the Ka band is being used by DBS operators for programming
other than local broadcast television signals, we will revisit
this decision.
153 Currently, DIRECTV, Inc. and DISH Network, a division of
EchoStar Satellite, L.L.C., are two of the major providers of
satellite television.
154 See infra Appendix C.
155 Id.
156 Id.
157 EAS NPRM, 19 FCC Rcd at 15786, para. 29.
158 A satellite carrier provides "local-into-local" satellite
service when it retransmits a local television signal back into
the local market of that television station for reception by
subscribers. See 47 C.F.R. ��76.66(a)(6).
159 EAS NPRM, 19 FCC Rcd at 15786, para. 29.
160 Id.
161 Id.
162 Id.
163 See infra Appendix B, 47 C.F.R. ���11.11(a), 11.51(j),
11.54(b)(2).
164 DTH satellite service providers must ensure that their EAS
equipment is fully compliant with Part 11, including sections
dealing specifically with EAS equipment. See infra Appendix B,
47 C.F.R. ���11.31(c)-(f), 11.33(a)(4), 11.34(e), 11.35(a)-(c).
165 See infra Appendix B, 47 C.F.R. ���11.35(a), 11.54(b)(1).
166 See infra Appendix B, 47 C.F.R. ��11.61(a).
167 See generally SBCA Comments (objecting to national, state,
and local participation); EchoStar Satellite, LLC (EchoStar)
Reply Comments (objecting to mandatory state and local
participation); DIRECTV Ex Parte Comments at 2 (filed October 20,
2005) (stating that achieving the ability to deliver national EAS
messages would require a substantial investment of time and money
and noting that any obligation to carry EAS messages on a state
or local basis would be highly problematic, assuming the
technological and managerial challenges could actually be
overcome).
168 See SBCA Comments at 3, 4 (stating that ``DBS operators
could, with sufficient lead time, participate in the national EAS
system, although in a manner that would look very different than
the EAS message formats currently prescribed for cable operators
and broadcasters. But that such participation would entail
technical and operational difficulties - including potential
interference with more useful local broadcast EAS
information.'').
169 See DIRECTV Ex Parte Comments at 2-3.
170 ABA/ASECC Comments at 2; Charter Communications, Inc.
(Charter) Comments at 10; Dan Rau (Rau) Comments at 11; Douglas
S. Simar (Simar) Comments at 2; Developers Comments at 8-9;
Entergy Comments at 2-3; Municipalities and Municipal
Organizations (Municipalities) Comments at 2; NAB/MSTV Comments
at 16-17; Newell Comments at 4; North Carolina State Emergency
Communications Committee (NC SECC) Comments at 5; Ohio EMA
Comments at 3; SBE Comments at 19-20; Timm Comments at 4, 6.
171 See SBCA Comments at 2, 5; EchoStar Reply Comments at 4.
172 See infra Appendix C.
173 As noted above (see supra, Section III.C), Congress
explained, in legislative history enacting section 624(g) of the
Cable Act, ``. . . [t]he Committee believes that emergency
information should be accessible to all television viewers,
regardless of the distribution medium in use. The Committee
believes that it is appropriate for cable operators to
participate in EBS because cable television has become the
predominant model of distribution of video programming for
American households.'' H.R. Rep. No. 102-628-, H.R. Rep. No.
628, 102d Cong., 2d Sess. 1992, at 110. Since the Cable Act of
1992, DTH satellite service has joined cable to become one of the
predominant methods of distribution of video programming to
American households.
174 See infra Appendix B, 47 C.F.R. ��11.55(a)(1).
175 Section 338 of the Act requires satellite carriers to carry,
upon request, all local television broadcast stations' signals in
local markets in which the satellite carrier carries at least one
local television broadcast signal pursuant to the statutory
copyright license. See 47 U.S.C. � 338. Section 338 was adopted
as part of the Satellite Home Viewer Improvement Act of 1999
(SHVIA). Pub. L. No. 106-113, 113 Stat. 1501, 1501A-526 to
1501A-545 (Nov. 29, 1999). Under the Commission's broadcast
signal carriage rules, each satellite carrier providing local-
into-local service pursuant to the statutory copyright license is
generally obligated to carry any qualified local television
station in the particular designated market area (DMA) that has
made a timely election for mandatory carriage, unless the
station's programming is duplicative of the programming of
another station carried by the carrier in the DMA. See 47 C.F.R.
� 76.66; see also Implementation of Section 207 of The Satellite
Home Viewer Extension And Reauthorization Act Of 2004, Reciprocal
Bargaining Obligation, MB Docket No. 05-89, FCC 05-119 (rel. Jun.
7, 2005); Implementation of Section 207 of The Satellite Home
Viewer Improvement Act Of 1999, Broadcast Signal Carriage Issues,
Retransmission Consent Issues, 16 FCC Rcd 1918, 1934 (2000) (DBS
Mandatory Carriage Report and Order) (adopting satellite carriage
rules), recon., 16 FCC Rcd 16544 (2001) (DBS Mandatory Carriage
Reconsideration Order) (affirming and clarifying satellite
carriage rules). A DMA is a geographic area that describes each
television market exclusive of others, based on measured viewing
patterns. See 17 U.S.C. ��122(j)(2)(A)-(C).
176 See infra Appendix B, 47 C.F.R. ��11.55(a)(2).
177 See SBCA Comments at 3, EchoStar Reply Comments at 2-4,
DIRECTV Ex Parte Comments at 2.
178 See Ohio EMA Comments at 3 (urging the Commission to allow
ample time for the migration of new set-top technology and to
propose an interim solution to providers until upgrades can be
accomplished).
179 See infra Appendix B, 47 C.F.R. ��11.51(j)(3).
180 SBCA Comments at 5 (noting that DBS providers pass through
all EAS information as part of their local-into-local
retransmissions and stating that, therefore, the Commission could
limit DBS participation in EAS activations to dissemination of
alerts on nationally distributed channels such as ESPN or HGTV).
181 See DIRECTV Ex Parte Comments at 2. DIRECTV makes this
estimate ``assuming, of course, that a companion system is
devised to deliver the national EAS message to DBS operators.''
As noted above, DBS providers must locate equipment capable of
encoding and decoding the EAS protocol and generating and
detecting all EAS codes and must also monitor two EAS sources.
182 See infra Appendix B, 47 C.F.R. ��11.11(a).
183 See infra Appendix B, 47 C.F.R. ��11.61.
184 See Ohio EMA Comments at 3, 5 (asserting that DBS providers
should be required to participate in EAS and that all EAS
participants should be subject to the same testing requirements
at the national, state, and local levels); SBE Comments at 20
(asserting that DBS providers should conduct national testing on
a periodic basis).
185 See infra Appendix B, 47 C.F.R. ��11.61(a)(1)(ii).
186 Id.
187 Id.
188 See infra Appendix B, 47 C.F.R. ��11.61(a)(2)(ii).
189 See infra Appendix C.
190 Satellite television signals receivable by HSD receivers
include both non-encrypted, free-to-air signals, and encrypted
signals that require a receiver with an authorized decryption
device to receive them. Many HSD antennas are capable of being
pointed to all of the satellites that are above the horizon at
the user's location. These satellites are operated by a number
of FCC space station licensees that sell or lease satellite
transponders to the various programmers providing the signals.
The free-to-air program providers include such national providers
as Bloomberg TV, C-SPAN, Fox News Channel, CNBC, NASA TV, and
Voice of America. These national providers are not necessarily
FCC licensees, as they may obtain satellite uplink facility
services and transponder services from other entities. Other
free-to-air providers include a number of local broadcast
stations that will transmit the national EAS message and the
regional and local EAS messages for their area. The free-to-air
providers have no way of knowing the locations of all of the HSD
viewers that may be watching their programming at any given time,
and therefore could not be expected to transmit regional and
local messages appropriate to all of their viewers.
191 Section 11.41 is amended by deleting the last sentence "They
should contact the FCC to ensure that they are on the FCC EAS
mailing list." We no longer maintain a mailing list.
192 See infra Appendix B, 47 C.F.R. ��11.41(c).
193 See infra Appendix B, 47 C.F.R. ��11.52(b).
194 See 47 C.F.R. � 11.53(c).
195 See infra Appendix B, 47 C.F.R. ��11.53(c).
196 See infra Appendix B, 47 C.F.R. ��11.54(b)(13); see also 47
C.F.R. ��76.1711.
197 See e.g., Liberty Comments at 1.
198 WTOP/WXTR Comments at 9-10.
199 See e.g., Cox Comments at 2-3 (current EAS infrastructure is
a product of years of development and provides an excellent
framework for transmitting EAS alerts to the pubic. The current
system should be improved while taking advantage of technological
advances).
200 Association of Public Television Stations (APTS) Comments at
5-6.
201 National Center for Missing & Exploited Children (NCMEC)
Comments at 11.
202 LogicaCMG plc (LogicaCMG) Comments at 15; NAB/MSTV Comments
at 15-16; National Association of State Chief Information
Officers (NASCIO) Comments at 3-4; RERC Comments at 9; SWN
Communications, Inc. (SWN) Comments at 2; Timm Comments at 7;
Trilithic, Inc. (Trilithic) Comments at 4; Cellular Emergency
Alert Systems Association (CEASA) Reply Comments at 3-4.
203 SWN Comments at 2.
204 Sirius Comments at 3; XM Comments at 12; Echostar Reply
Comments at 1-4.
205 See, e.g., LogicaCMG Comments at 2, 7-8.
206 See, e.g., Cellular Telecommunications & Internet Association
(CTIA) Comments at 5, 8.
207 See Verizon News Release, Verizon FiOS TV Will Offer a New
Customer Experience, Seidenberg Says (April 18, 2005).
208 Linda K. Moore and Shawn Reese, Emergency Communications: The
Emergency Alert System (EAS) and All-Hazard Warnings,
Congressional Research Service, The Library of Congress, CRS
Report for Congress, at CRS-9-12 (updated Sept. 2, 2005),
available at
http://www.uscongress.com/section/pdf/CRSRL32527_9_11.pdf (last
visited Sept. 21, 2005).
209 EAS NPRM, 19 FCC Rcd at 15784, para. 25.
210 Summary Health Statistics for U.S. Adults: National Health
Interview Survey 2002, U.S. Department of Health and Human
Services, Centers for Disease Control and Prevention, National
Center for Health Statistics, available at
http://www.cdc.gov/nchs/fastats/disable.htm.
211 EAS NPRM, 19 FCC Rcd at 15790, para. 38.
212 47 C.F.R. �� 11.54(b)(5)-(6), 11.55(c)(4). See also 47
C.F.R. ��73.1250(h) (``...[W]hen an emergency operation is being
conducted under a national, State or Local Area Emergency Alert
System (EAS) plan, emergency information shall be transmitted
both aurally and visually unless only the EAS codes are
transmitted as specified in � 11.51(b) of this chapter.''). If
organizations using other communications systems or technologies
choose to participate in national, state, or local EAS
activations, they must comply with the Commission's EAS rules,
including the rules requiring that EAS warnings be provided in
both aural and visual formats. See 47 C.F.R. ��11.11(e).
213 47 C.F.R. ��11.51(d), (g)(3), (h)(3); see also 47 C.F.R.
��11.31(c) (providing the elements of the EAS header code). The
Emergency Alert System Handbooks for television broadcasters and
cable systems state that these entities must visually and aurally
transmit header code data.
214 47 C.F.R. ���11.31(a), 11.51(a). The modulation levels for
the audio Attention Signal must comply with the aural signal
requirements in Section 76.605 of the Commission's rules. 47
C.F.R. � 11.51 (g)(1), (h)(1); see generally 47�C.F.R. ��76.605.
215 See 47 C.F.R. � 79.1(a)(2) (defining ``video programming
distributors,'' as ``[a]ny television broadcast station licensed
by the Commission and any multichannel video programming
distributor as defined in � 76.1000(e) of this chapter, and any
other distributor of video programming for residential reception
that delivers such programming directly to the home and is
subject to the jurisdiction of the Commission''). See also 47
C.F.R. � 76.1000(e) (defining ``multichannel video programming
distributor'' as ``an entity engaged in the business of making
available for purchase, by subscribers or customers, multiple
channels of video programming. Such entities include, but are
not limited to, a cable operator, a multichannel multipoint
distribution service, a direct broadcast satellite service, a
television receive-only satellite program distributor, and a
satellite master antenna television system operator, as well as
buying groups or agents of all such entities'').
216 47 C.F.R. � 79.2(b)(1)(i); see also 47 C.F.R. � 79.1(a)(4)
(defining closed captioning as the ``visual display of the audio
portion of video programming''). Several proceedings have
further clarified captioning and other methods of visual
presentation, using examples including, but not limited to, open
captioning, crawls, scrolls, maps, signs, charts, or handwritten
information contained on a white board. See Amendment of Part 73
of the Rules to Establish Requirements for Captioning of
Emergency Messages on Television, Report and Order, Docket No.
20659, 61 FCC 2d 18, paras. 9, 11, Appendix B (1976) (1976 Order)
(visual presentations include, but are not limited to, slides
containing manual methods such as hand printing or mechanical
printing processes, or electronic captioning); Closed Captioning
and Video Description of Video Programming, Implementation of
Section 305 of the Telecommunications Act of 1996, Video
Programming Accessibility, Report and Order, MM Docket No. 95-
176, 13 FCC Rcd 3272 (1997) (Closed Captioning Report and Order)
(adopting closed captioning rules codified in section 79.1),
recon., 13 FCC Rcd 19973 (1998) (Closed Captioning
Reconsideration Order); Closed Captioning and Video Description
of Video Programming, Implementation of Section 305 of the
Telecommunications Act of 1996, Accessibility of Emergency
Programming, Second Report and Order, MM Docket No. 95-176, 15
FCC Rcd 6615 (2000) (Closed Captioning Second Report and Order)
(adopting rule codified in section 79.2 requiring emergency
information be made accessible to persons with hearing
disabilities). See also Waterman Broadcasting Corp. of Florida,
Inc., Licensee of WBBH-TV, Fort Myers-Naples, FL, Montclair
Communications, Inc., Licensee of WZVN-TV, Fort Myers-Naples, FL,
Notice of Apparent Liability for Forfeiture, DA 05-2258, para. 4
(rel. Aug. 9, 2005); McGraw-Hill Broadcasting Company, Inc.,
Licensee of KGTV, San Diego, CA, Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 3981, 3983, para. 6 (2005) (McGraw-Hill
NAL).
217 47 C.F.R. � 79.2(b)(1)(ii); see also Implementation of Video
Description of Video Programming, Report and Order, MM Docket No.
99-339, 15 FCC Rcd 15230, 15250-51, para. 50 (2000) (Video
Description Report and Order) (extending section 79.2 to include
provision that emergency information must be made accessible to
persons with visual disabilities and adopting video description
rules), modified by, Memorandum Opinion and Order on
Reconsideration, 16 FCC Rcd 1251 (2001), (modifying video
description rules contained in section 79.3), vacated in part and
reversed in part by, Motion Picture Association of America v.
FCC, 309 F.3d 796, 798-99 (D.C. Cir. 2002) (holding that the
Commission's video description rules significantly implicated
program content beyond the Commission's statutory authority),
rehearing and rehearing in banc denied (D.C. Cir. 2003).
Although the video description rules contained in section 79.3
have been vacated, video programming distributors are still
required, under section 79.2(b)(1), to make emergency information
accessible to persons with visual disabilities. See 47 C.F.R. �
79.2(b)(1). Section 713 of the Act defines ``video description''
as ``the insertion of audio narrated descriptions of a television
program's key visual elements into natural pauses between the
program's dialogue.'' 47 U.S.C. � 613(g). Video programming
distributors may use this definition as guidance in meeting the
requirements of section 79.2(b)(1)(ii). See 47 C.F.R. �
79.2(b)(1)(ii). For example, if a map is displayed on the
screen, the video programming distributor must provide an aural
description of the geographic location encompassed by the map and
any areas highlighted on the map in order to make the information
accessible to persons with visual disabilities. In addition,
emergency information provided in the video portion of
programming that is not a regularly scheduled newscast, or a
newscast that interrupts regular programming, such as a ``crawl''
or ``scroll,'' must be accompanied by an aural tone to alert
persons with vision disabilities that they should tune to another
source, such as a radio, for more information. See 47 C.F.R. �
79.2(b)(1)(iii); see also Video Description Report and Order, 15
FCC Rcd at 15251, para. 51.
218 Emergency situations in which the broadcasting of information
is considered as furthering the safety of life and property
include, but are not limited to, the following: tornadoes,
hurricanes, floods, tidal waves, earthquakes, icing conditions,
heavy snows, widespread fires, discharge of toxic gasses,
widespread power failures, industrial explosions, civil
disorders, school closings and changes in school bus schedules
resulting from such conditions, and warnings and watches of
impending changes in weather. See 47 C.F.R. ���73.1250(a),
79.2(a)(2).
219 See New Hampshire State Emergency Communications Committee
(NH SECC) Comments at 6; Ohio EMA Comments at 4; SBE Reply
Comments at 1 (arguing that there is a great disconnect between
the generic information displayed on the crawl and the
information contained in the audio portion of the EAS message).
220 See SBE Reply Comments at 1.
221 Video programming distributors that are EAS participants
include, but are not limited to, broadcast television stations,
cable systems, wireless cable systems and, as addressed in this
Order, digital cable systems, DTV broadcasters and DBS providers.
222 Closed captions are visual text displays that are hidden in
the video signal. Viewers can access closed captions through
their remote control or on-screen menu or through a special
decoder. See 47 C.F.R. � 79.1(a)(4) (defining closed
captioning). By contrast, access to open captions is not
controlled by the viewer. Open captions are an integral part of
the television picture, like subtitles in a movie. See Closed
Captioning Second Report and Order, 15 FCC Rcd at 6618, n.19
(describing open captions). Crawls refers to text that advances
very slowly across the bottom or top of the screen. Scrolls are
displayed text or graphics that move up and down the screen.
223 Id.
224 We note that, as of January 1, 2006, all video programming
distributors will be required to close caption 100 percent of new
programming, subject to certain exceptions. See 47 C.F.R. ��
79.1(b)(1), (b)(3), (d)-(f); see also 47 U.S.C. � 613.
225 47 C.F.R. ��11.54(b)(7), 11.55(c)(4).
226 EAS NPRM, 19 FCC Rcd at 15790, para. 40.
227 Petition for Immediate Interim Relief filed by Independent
Spanish Broadcasters Association, the Office of Communications of
the United Church of Christ, Inc., and the Minority Media and
Telecommunications Council filed September 22, 2005.
228 See e.g., Comments in Response to Petition for Immediate
Interim Relief, filed by National Association of Broadcasters on
October 4, 2005; Reply Comments of Consumers Union filed October
20, 2005.
229 47 C.F.R. �� 1.200 et seq.
230 See 47 C.F.R. � 1.1206(b)(2).
231 See 5 U.S.C. � 603. The RFA, see 5 U.S.C. �� 601-612, has
been amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110
Stat. 857 (1996).
232 See Review of the Emergency Alert System, Notice of Proposed
Rulemaking, EB Docket No. 04-296, 19 FCC Rcd 15775, Appendix A
(2004) (EAS NPRM).
233 5 U.S.C. � 604(a)(3).
234 5 U.S.C. � 601(6).
235 5 U.S.C. � 601(3) (incorporating by reference the definition
of ``small-business concern'' in the Small Business Act, 15
U.S.C. � 632). Pursuant to 5 U.S.C. � 601(3), the statutory
definition of a small business applies ``unless an agency, after
consultation with the Office of Advocacy of the Small Business
Administration and after opportunity for public comment,
establishes one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition(s) in the Federal Register.'' 5 U.S.C. � 601(3).
236 15 U.S.C. � 632.
237 5 U.S.C. � 601(4).
238 Independent Sector, The New Nonprofit Almanac & Desk
Reference (2002).
239 5 U.S.C. � 601(5).
240 U.S. Census Bureau, Statistical Abstract of the United
States: 2000, Section 9, pages 299-300, Tables 490 and 492.
241 See SBA, Programs and Services, SBA Pamphlet No. CO-0028, 40
(Jul. 2002).
242 13 C.F.R. � 121.201, North American Industry Classification
System (NAICS) code 515120.
243 Office of Management and Budget, North American Industry
Classification System: United States, 1997, at 509 (1997). This
category description continues, ``These establishments operate
television broadcasting studios and facilities for the
programming and transmission of programs to the public. These
establishments also produce or transmit visual programming to
affiliated broadcast television stations, which in turn broadcast
the programs to the public on a predetermined schedule.
Programming may originate in their own studios, from an
affiliated network, or from external sources.'' Separate census
categories pertain to businesses primarily engaged in producing
programming. Id. at 502-05, NAICS code 512120, Motion Picture
and Video Production; NAICS code 512120, Motion Picture and Video
Distribution; NAICS code 512191, Teleproduction and Other Post-
Production Services; and NAICS code 512199, Other Motion Picture
and Video Industries.
244 ``Concerns are affiliates of each other when one concern
controls or has the power to control the other or a third party
or parties controls or has to power to control both.'' 13 C.F.R.
� 121.103(a)(1).
245 ``SBA counts the receipts or employees of the concern whose
size is at issue and those of all its domestic concern's size.''
13 C.F.R. � 121.103(a)(4).
246 Broadcast Station Totals as of September 30, 2002, FCC News
Release (rel. Nov. 6, 2002).
247 See 13 C.F.R. � 121.201, NAICS code 515112 (changed from
513112 in October 2002).
248 Id.
249 Id.
250 Id.
251 Id.
252 13 C.F.R. � 121.201, NAICS code 517510 (formerly 513220).
253 U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, Establishment and Firm Size (including Legal Form of
Organization), Table 4, NAICS code 513220 (issued Oct. 2000).
254 Id.
255 See U.S. Census Bureau, 2002 Economic Census, Industry
Series: ``Information,'' Table 2, Comparative Statistics for the
United States (1997 NAICS Basis): 2002 and 1997, NAICS code
513220 (issued Nov. 2004). The preliminary data indicate that
the total number of ``establishments'' increased from 4,185 to
6,118. In this context, the number of establishments is a less
helpful indicator of small business prevalence than is the number
of ``firms,'' because the latter number takes into account the
concept of common ownership or control. The more helpful 2002
census data on firms, including employment and receipts numbers,
will be issued in late 2005.
256 47 C.F.R. � 76.901(e). The Commission developed this
definition based on its determination that a small cable system
operator is one with annual revenues of $100 million or less.
Implementation of Sections of the 1992 Cable Act: Rate
Regulation, Sixth Report and Order and Eleventh Order on
Reconsideration, 10 FCC Rcd 7393 (1995), 60 FR 10534 (February
27, 1995).
257 Paul Kagan Associates, Inc., Cable TV Investor, February 29,
1996 (based on figures for December 30, 1995).
258 47 U.S.C. � 543(m)(2).
259 See FCC Announces New Subscriber Count for the Definition of
Small Cable Operator, Public Notice, DA 01-158, 16 FCC Rcd 2225
(Jan. 24, 2001).
260 47 C.F.R. � 76.901(f).
261 See FCC Announces New Subscriber Count for the Definition of
Small Cable Operators, Public Notice, DA 01-158, 16 FCC Rcd 2225
(rel. Jan. 24, 2001).
262 The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise
authority's finding that the operator does not qualify as a small
cable operator pursuant to section 76.901(f) of the Commission's
rules. See 47 C.F.R. � 76.909(b).
263 47 C.F.R. � 21.961(b)(1).
264 See Amendment of Parts 21 and 74 of the Commission's Rules
With Regard to Filing Procedures in the Multipoint Distribution
Service and in the Instructional Television Fixed Service and
Implementation of Section 309(j) of the Communications Act -
Competitive Bidding, MM Docket No. 94-131 and PP Docket No. 93-
253, Report and Order, 10 FCC Rcd 9589 (1995).
265 13 C.F.R. � 121.201, NAICS code 515210.
266 See supra note 25.
267 13 C.F.R. � 121.201, NAICS code 515210.
268 5 U.S.C. � 601(3).
269 13 C.F.R. � 121.201, NAICS codes 517410 and 517910.
270 U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, Establishment and Firm Size (Including Legal Form of
Organization), Table 4, NAICS code 513340 (issued Oct. 2000).
271 Office of Management and Budget, North American Industry
Classification System, 513 (1997) (NAICS code 513390, changed to
517910 in Oct. 2002).
272 See supra Order at para. 21.
273 Id. at para. 23.
274 Id at para. 30.
275 Id. at para. 32.
276 Id. at para. 36.
277 Id.
278 Id. at para. 43.
279 Id. at para. 53.
280 See 47 C.F.R. ��25.701(a). For purposes of this Order we use
the definition of DBS providers set forth in this section of our
rules. Accordingly, DBS providers include: (1) entities
licensed to operate satellites in the 12.2 to 12.7 GHz DBS
frequency bands; (2) entities licensed to operate satellites in
the Ku band fixed satellite service (FSS) and that sell or lease
capacity to a video programming distributor that offers service
directly to consumers providing a sufficient number of channels
so that four percent of the total applicable programming channels
yields a set aside of at least one channel of non commercial
programming pursuant to section 25.701(e) of the Commission's
rules, or (3) non U.S. licensed satellite operators in the Ku
band that offer video programming directly to consumers in the
United States pursuant to an earth station license issued under
part 25 of this title and that offer a sufficient number of
channels to consumers so that four percent of the total
applicable programming channels yields a set aside of one channel
of non commercial programming pursuant to section 25.701(e) of
the Commission's rules. See 47 C.F.R. ��25.701(a).
281 See SBCA Comments at 3-4 (stating that ``DBS operators could,
with sufficient lead time, participate in the national EAS
system, although in a manner that would look very different than
the EAS message formats currently prescribed for cable operators
and broadcasters. But that such participation would entail
technical and operational difficulties - including potential
interference with more useful local broadcast EAS
information.'').
282 DIRECTV Ex Parte Comments at 2-3.
283 See supra Appendix B, 47 C.F.R. ��11.55(a)(2).
284 5 U.S.C. � 603(c)(1) - (c)(4).
285 See EAS NPRM, 19 FCC Rcd at 15776, para. 4.
286 See 5 U.S.C. � 801(a)(1)(A).
287 See 5 U.S.C. � 604(b).
288 See 5 U.S.C. � 603. The RFA, see 5 U.S.C. �� 601-612, has
been amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110
Stat. 857 (1996).
289 See 5 U.S.C. � 603(a).
290 Id.
291 5 U.S.C. � 604(a)(3).
292 5 U.S.C. � 601(6).
293 5 U.S.C. � 601(3) (incorporating by reference the definition
of ``small-business concern'' in the Small Business Act, 15
U.S.C. � 632). Pursuant to 5 U.S.C. � 601(3), the statutory
definition of a small business applies ``unless an agency, after
consultation with the Office of Advocacy of the Small Business
Administration and after opportunity for public comment,
establishes one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition(s) in the Federal Register.'' 5 U.S.C. � 601(3).
294 15 U.S.C. � 632.
295 5 U.S.C. � 601(4).
296 Independent Sector, The New Nonprofit Almanac & Desk
Reference (2002).
297 5 U.S.C. � 601(5).
298 U.S. Census Bureau, Statistical Abstract of the United
States: 2000, Section 9, pages 299-300, Tables 490 and 492.
299 See SBA, Programs and Services, SBA Pamphlet No. CO-0028, 40
(Jul. 2002).
300 13 C.F.R. � 121.201, North American Industry Classification
System (NAICS) code 515120.
301 Office of Management and Budget, North American Industry
Classification System: United States, at 509 (1997). This
category description continues, ``These establishments operate
television broadcasting studios and facilities for the
programming and transmission of programs to the public. These
establishments also produce or transmit visual programming to
affiliated broadcast television stations, which in turn broadcast
the programs to the public on a predetermined schedule.
Programming may originate in their own studios, from an
affiliated network, or from external sources.'' Separate census
categories pertain to businesses primarily engaged in producing
programming. Id. at 502-05, NAICS code 512120, Motion Picture
and Video Production; NAICS code 512120, Motion Picture and Video
Distribution; NAICS code 512191, Teleproduction and Other Post-
Production Services; and NAICS code 512199, Other Motion Picture
and Video Industries.
302 ``Concerns are affiliates of each other when one concern
controls or has the power to control the other or a third party
or parties controls or has to power to control both.'' 13 C.F.R.
� 121.103(a)(1).
303 ``SBA counts the receipts or employees of the concern whose
size is at issue and those of all its domestic concern's size.''
13 C.F.R. � 121.103(a)(4).
304 Broadcast Station Totals as of September 30, 2002, FCC News
Release (rel. Nov. 6, 2002).
305 See 13 C.F.R. � 121.201, NAICS code 515112 (changed from
513112 in Oct. 2002).
306 Id.
307 Id.
308 Id.
309 Id.
310 13 C.F.R. � 121.201, NAICS code 517510 (formerly 513220).
311 U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, Establishment and Firm Size (including Legal Form of
Organization), Table 4, NAICS code 513220 (issued Oct. 2000).
312 Id.
313 See U.S. Census Bureau, 2002 Economic Census, Industry
Series: Information, Table 2, Comparative Statistics for the
United States (1997 NAICS Basis): 2002 and 1997, NAICS code
513220 (issued Nov. 2004). The preliminary data indicate that
the total number of ``establishments'' increased from 4,185 to
6,118. In this context, the number of establishments is a less
helpful indicator of small business prevalence than is the number
of ``firms,'' because the latter number takes into account the
concept of common ownership or control. The more helpful 2002
census data on firms, including employment and receipts numbers,
will be issued in late 2005.
314 47 C.F.R. � 76.901(e). The Commission developed this
definition based on its determination that a small cable system
operator is one with annual revenues of $100 million or less.
Implementation of Sections of the 1992 Cable Act: Rate
Regulation, Sixth Report and Order and Eleventh Order on
Reconsideration, 10 FCC Rcd 7393 (1995), 60 FR 10534 (February
27, 1995).
315 Paul Kagan Associates, Inc., Cable TV Investor, February 29,
1996 (based on figures for December 30, 1995).
316 47 U.S.C. � 543(m)(2).
317 See FCC Announces New Subscriber Count for the Definition of
Small Cable Operator, Public Notice, DA 01-158, 16 FCC Rcd 2225
(rel. Jan. 24, 2001).
318 47 C.F.R. � 76.901(f).
319 See FCC Announces New Subscriber Count for the Definition of
Small Cable Operators, Public Notice, DA 01-158, 16 FCC Rcd 2225
(rel. Jan. 24, 2001).
320 The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise
authority's finding that the operator does not qualify as a small
cable operator pursuant to section 76.901(f) of the Commission's
rules. See 47 C.F.R. � 76.909(b).
321 47 C.F.R. � 21.961(b)(1).
322 See Amendment of Parts 21 and 74 of the Commission's Rules
With Regard to Filing Procedures in the Multipoint Distribution
Service and in the Instructional Television Fixed Service and
Implementation of Section 309(j) of the Communications Act -
Competitive Bidding, MM Docket No. 94-131 and PP Docket No. 93-
253, Report and Order, 10 FCC Rcd 9589 (1995).
323 13 C.F.R. � 121.201, NAICS code 515210.
324 See supra note 26.
325 13 C.F.R. � 121.201, NAICS code 515210.
326 5 U.S.C. � 601(3).
327 13 C.F.R. � 121.201, NAICS code 517211.
328 13 C.F.R. � 121.201, NAICS code 517212.
329 FCC, Wireline Competition Bureau, Industry Analysis and
Technology Division, Trends in Telephone Service at Table 5.3
(June 2005) (Trends in Telephone Service). This source uses data
that are current as of October 1, 2004.
330 Id. Table 5.3, page 5-5.
331 See Amendment of Parts 20 and 24 of the Commission's Rules -
Broadband PCS Competitive Bidding and the Commercial Mobile Radio
Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850-52,
paras. 57-60 (1996) (Broadband PCS Report and Order); see also 47
C.F.R. � 24.720(b).
332 See Broadband PCS Report and Order, 11 FCC Rcd at 7852, para.
60.
333 See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator,
Small Business Administration, dated December 2, 1998.
334 FCC News, Broadband PCS, D, E and F Block Auction Closes, No.
71744 (rel. Jan. 14, 1997).
335 See C, D, E, and F Block Broadband PCS Auction Closes, Public
Notice, 14 FCC Rcd 6688 (WTB 1999).
336 See C and F Block Broadband PCS Auction Closes; Winning
Bidders Announced, Public Notice, 16 FCC Rcd 2339 (2001).
337 In addition, we note that, as a general matter, the number
of winning bidders that qualify as small businesses at the close
of an auction does not necessarily represent the number of small
businesses currently in service. Also, the Commission does not
generally track subsequent business size unless, in the context
of assignments or transfers, unjust enrichment issues are
implicated.
338 15 U.S.C. � 632.
339 Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA,
to William E. Kennard, Chairman, FCC (May 27, 1999). The Small
Business Act contains a definition of ``small-business concern,''
which the RFA incorporates into its own definition of ``small
business.'' See 15 U.S.C. � 632(a) (Small Business Act); 5
U.S.C. � 601(3) (RFA). SBA regulations interpret ``small
business concern'' to include the concept of dominance on a
national basis. See 13 C.F.R. � 121.102(b).
340 13 C.F.R. � 121.201, NAICS code 517110.
341 Trends in Telephone Service, Table 5.3.
342 13 C.F.R. � 121.201, NAICS code 517110.
343 Trends in Telephone Service, Table 5.3.
344 13 C.F.R. � 121.201, NAICS codes 517410 and 517910.
345 U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, Establishment and Firm Size (Including Legal Form of
Organization), Table 4, NAICS code 513340 (issued Oct. 2000).
346 Office of Management and Budget, North American Industry
Classification System, 513 (1997) (NAICS code 513390, changed to
517910 in Oct. 2002).
347 See, e.g., supra Further Notice, at para. 72.
348 5 U.S.C. � 603(c)(1) - (c)(4).
349 See supra Order, at paras. 74-80.