2011-5222. Review of the Emergency Alert System

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission) amends its rules governing the Emergency Alert System (EAS) to provide for national EAS testing and collection of data from such tests. This will help determine whether the EAS functions as intended to deliver a national Presidential alert.

DATES:

Effective March 8, 2011.

FOR FURTHER INFORMATION CONTACT:

Lisa Fowlkes, Deputy Bureau Chief, Public Safety and Homeland Security Bureau, at [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Third Report and Order (Third R&O) in EB Docket No. 04-296, FCC 11-12, adopted on February 2, 2011, and released on February 3, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov.

1. The Third R&O amends the Commission's part 11 rules governing the EAS to require: all EAS Participants to participate in national EAS tests as scheduled by the Commission in consultation with the Federal Emergency Management Agency (FEMA); that the first national EAS test use the Emergency Alert Notification (EAN), the live event code for nationwide Presidential alerts; that the national test replace the monthly and weekly EAS tests in the month and week in which it is held; that the Commission's Public Safety and Homeland Security Bureau (Bureau) provide at least two months public notice prior to any national test of the EAS; EAS Participants to submit test-related data to the Bureau within 45 days following a national EAS test; and that test data received from EAS Participants be treated as presumptively confidential, but allow test data to be shared on a confidential basis with other Federal agencies and State governmental emergency management agencies that have confidentiality protection as least equal to that provided by the Freedom of Information Act (FOIA). The Third R&O also notes that the Commission will shortly be releasing a public notice establishing a voluntary electronic reporting system that EAS test participants may use as part of their participation in the national EAS test. The Third R&O also delegates authority to the Bureau to determine, in consultation with FEMA and with other EAS stakeholders, as appropriate, various administrative procedures for national tests, including test codes to be used and pre-test outreach.

I. Procedural Matters

A. Paperwork Reduction Act Analysis

2. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It has been 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 or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), it previously sought specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

3. In this present document, the Commission has assessed the effects of the information collection associated with national testing of the EAS, and finds that because this information collection requests information that is readily available and easily accessible to all EAS Participants, and, further, that may be submitted electronically, none of the requirements in the collection will pose a substantial burden for businesses with fewer than 25 employees.

B. Congressional Review Act

4. The Commission will send a copy of this Third R&O in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).

II. Final Regulatory Flexibility Analysis

5. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Second Further Notice of Proposed Rulemaking in EB Docket 04-296 (Second FNPRM). The Commission sought written comment on the proposals in the Second FNPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Proposed Rules

6. This Third R&O seeks to ensure that the Commission's EAS rules better protect the life and property of all Americans. To further serve this goal, this Third R&O adopts a rule to implement national testing of the EAS through use of a coded EAS message which will replace a required monthly test, and requiring logging and provision to the Commission of test-related diagnostic information within 45 days of the test.

7. Specifically, this Third R&O:

• Requires all EAS Participants to participate in national EAS tests as scheduled by the Commission in consultation with FEMA;
• Requires that the first national EAS test use the EAN, the live event code for nationwide Presidential alerts;
• Requires that the national test replace the monthly and weekly EAS tests in the month and week in which it is held;
• Requires the Bureau to provide at least two months' public notice prior to any national test of the EAS;
• Requires EAS Participants to submit test-related data to the Bureau within 45 days following a national EAS test;
• Requires that test data received from EAS Participants be treated as presumptively confidential, but allow test data to be shared on a confidential basis with other Federal agencies and State governmental emergency management agencies that have confidentiality protection at least equal to that provided by the FOIA;
• Notes that the Commission will shortly be releasing a public notice establishing a voluntary electronic reporting system that EAS test participants may use as part of their participation in the national EAS test; and
• Delegates authority to the Bureau to determine, in consultation with FEMA and with other EAS stakeholders, as appropriate, various administrative procedures for national tests, including test codes to be used and pre-test outreach.

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

8. There were no comments that specifically addressed the IRFA.

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

9. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

10. Television Broadcasting. The SBA has developed a small business sized standard for television broadcasting, which consists of all such firms having $14 million or less in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of BIA Publications, Inc. Master Access Television Analyzer Database, as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States had revenues of $12 million or less. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. There are also 2,127 low power television stations (LPTV). Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the SBA size standard.

11. Radio Stations. The revised rules and policies potentially will apply to all AM and commercial FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has $7 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under another NAICS number. According to Commission staff review of BIA Publications, Inc. Master Access Radio Analyzer Database on March 31, 2005, about 10,840 (95 percent) of 11,410 commercial radio stations have revenue of $6 million or less. We note, however, that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action.

12. Wired Telecommunications Carriers. The 2007 North American Industry Classification System (NAICS) defines “Wired Telecommunications Carriers” as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for wireline firms within the broad economic census category, “Wired Telecommunications Carriers.” Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. Census Bureau data for 2002 show that there were 2,432 firms in this category that operated for the entire year. Of this total, 2,395 firms had employment of 999 or fewer employees, and 37 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small.

13. Wired Telecommunications Carriers—Cable and Other Program Distribution. This category includes, among others, cable operators, direct broadcast satellite (DBS) services, home satellite dish (HSD) services, satellite master antenna television (SMATV) systems, and open video systems (OVS). The data we have available as a basis for estimating the number of such entities were gathered under a superseded SBA small business size standard formerly titled Cable and Other Program Distribution. The former Cable and Other Program Distribution category is now included in the category of Wired Telecommunications Carriers, the majority of which, as discussed above, can be considered small. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, we believe that a substantial number of entities included in the former Cable and Other Program Distribution category may have been categorized as small entities under the now superseded SBA small business size standard for Cable and Other Program Distribution. With respect to OVS, the Commission has approved approximately 120 OVS certifications with some OVS operators now providing service. Broadband service providers (BSPs) are currently the only significant holders of OVS certifications or local OVS franchises, even though OVS is one of four statutorily-recognized options for local exchange carriers (LECs) to offer video programming services. As of June 2006, BSPs served approximately 1.4 million subscribers, representing 1.46 percent of all MVPD households. Among BSPs, however, those operating under the OVS framework are in the minority. The Commission does not have financial information regarding the entities authorized to provide OVS, some of which may not yet be operational. We thus believe that at least some of the OVS operators may qualify as small entities.

14. Cable System Operators (Rate Regulation Standard). The Commission has developed its own small business size standard for cable system operators, for purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. We have estimated that there were 1,065 cable operators who qualified as small cable system operators at the end of 2005. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, the Commission estimates that there are now fewer than 1,065 small entity cable system operators that may be affected by the rules and policies proposed herein.

15. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, (“Act”) also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 67,700,000 subscribers in the United States. Therefore, an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, the Commission estimates that the number of cable operators serving 677,000 subscribers or fewer, totals 1,065. The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore are unable, at this time, to estimate more accurately the number of cable system operators that would qualify as small cable operators under the size standard contained in the Act.

16. Broadband Radio Service (FCC Auction Standard). The established rules apply to Broadband Radio Service (“BRS,” formerly known as Multipoint Distribution Systems, or “MDS”) operated as part of a wireless cable system. The Commission has defined “small entity” for purposes of the auction of BRS frequencies as an entity that, together with its affiliates, has average gross annual revenues that are not more than $40 million for the preceding three calendar years. This definition of small entity in the context of MDS auctions has been approved by the SBA. The Commission completed its MDS auction in March 1996 for authorizations in 493 basic trading areas. Of 67 winning bidders, 61 qualified as small entities. At this time, we estimate that of the 61 small business MDS auction winners, 48 remain small business licensees.

17. Wireless Telecommunications Carrier (except satellite). BRS also includes licensees of stations authorized prior to the auction. As noted above, the SBA has developed a definition of small entities for pay television services, Cable and Other Subscription Programming, which includes all such companies generating $15 million or less in annual receipts. This definition includes BRS and thus applies to BRS licensees that did not participate in the MDS auction. Information available to us indicates that there are approximately 392 incumbent BRS licensees that do not generate revenue in excess of $11 million annually. Therefore, we estimate that there are at least 440 (392 pre-auction plus 48 auction licensees) small BRS providers as defined by the SBA and the Commission's auction rules which may be affected by the rules adopted herein. In addition, limited preliminary census data for 2002 indicate that the total number of cable and other program distribution companies increased approximately 46 percent from 1997 to 2002.

18. Educational Broadband Service. The proposed rules would also apply to Educational Broadband Service (“EBS,” formerly known as Instructional Television Fixed Service or “ITFS”) facilities operated as part of a wireless cable system. The SBA definition of small entities for pay television services, Cable and Other Subscription Programming also appears to apply to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in the definition of a small business. However, we do not collect annual revenue data for EBS licensees, and are not able to ascertain how many of the 100 non-educational licensees would be categorized as small under the SBA definition. Thus, we tentatively conclude that at least 1,932 are small businesses and may be affected by the proposed rules.

19. Incumbent Local Exchange Carriers (LECs). We have included small incumbent LECs in this present IRFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our proposed rules.

20. Competitive (LECs), Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 93 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1.500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our proposed rules.

21. Satellite Telecommunications. The Commission has not developed a small business size standard specifically for providers of satellite service. The appropriate size standard under SBA rules is for Satellite Telecommunications. Under that category, such a business is small if it has $15 million or less in average annual receipts. Under the category of Satellite Telecommunications, Census Bureau data for 1997 show that there were a total of 324 firms that operated for the entire year. Of this total, 273 firms had annual receipts of under $10 million, and an additional twenty-four firms had receipts of $10 million to $24,999,999. Thus, the majority of Satellite Telecommunications firms can be considered small.

22. All Other Telecommunications. This category 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.” Under that category, which is defined by the SBA, such a business is small if it has $25 million or less in average annual receipts. 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

23. This Third R&O requires that EAS Participants record and submit to the Commission the following test-related diagnostic information for each alert received from each message source monitored at the time of the national test: (1) Whether they received the alert message during the designated test; (2) whether they retransmitted the alert; and (3) if they were not able to receive and/or transmit the alert, their `best effort' diagnostic analysis regarding the cause or causes for such failure. It also requires EAS Participants to provide us with a description of their station identification and level of designation (PEP, LP-1, etc.); the date/time of receipt of the EAN message by all stations; the date/time of PEP station acknowledgement of receipt of the EAN message to FOC; the date/time of initiation of actual broadcast of the Presidential message; the date/time of receipt of the EAT message by all stations; who they were monitoring at the time of the test, and the make and model number of the EAS equipment that they utilized. These requirements 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

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.”

25. The rules are designed to minimally impact all EAS participants, including small entities, while at the same time protecting the lives and property of all Americans, which confers a direct benefit on small entities. The Second FNPRM sought comment on how the Commission may better protect the lives and property of Americans. In commenting on this goal, commenters were invited to propose steps that the Commission may take to further minimize any significant economic impact on small entities. When considering proposals made by other parties, commenters were invited to propose significant alternatives that serve the goals of these proposals.

26. No commenters disputed the proposed requirement that all EAS Participants to participate in national EAS tests as scheduled by the Commission in consultation with FEMA. While some commenters opposed a requirement that the first national EAS test use the EAN, the live event code for nationwide Presidential alerts, there is at present no other way to test the entire system for propagation of a national-level EAS alert. No commenter opposed the requirement that the national test replace the monthly and weekly EAS tests in the month and week in which it is held and this requirement in fact serves to minimize burdens on all participants be relieving them of certain testing obligations. While some commenters sought more than two months notice, the Order requires the Bureau to provide at least two months' public notice prior to any national test of the EAS. The impact on small entities will be a factor considered by the Bureau in making its determination of notice period.

27. The new rule requires EAS Participants to submit test-related data to the Bureau within 45 days following a national EAS test. This was an extension of the 30 days initially proposed in the Second FNPRM and will minimize the burden on all participants. A number of commenters requested the ability to submit the required test data electronically and this Third R&O provides for this alternative method of data submission, also lessening the economic impact on all entities. The requirement that test data received from EAS Participants be treated as presumptively confidential, but allowing test data to be shared on a confidential basis with other Federal agencies and State governmental emergency management agencies that have confidentiality protection at least equal to that provided by the Freedom of Information Act (FOIA), has no economic impact on small entities. In delegating authority to the Bureau to determine, in consultation with FEMA and with other EAS stakeholders, as appropriate, various administrative procedures for national tests, including test codes to be used and pre-test outreach, the Commission has instructed the Bureau to factor in the needs of all stakeholders, including small business entities.

28. Report to Congress: The Commission will send a copy of the Third R&O including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Third R&O, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Third R&O and FRFA (or summaries thereof) will also be published in the Federal Register.

III. Ordering Clauses

29. Accordingly, it is ordered that pursuant to sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g),706 and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and (o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, this Third Report and Order is adopted.

30. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Third Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 11

• Radio
• Television
• Emergency alerting

Federal Communications Commission.

Bulah P. Wheeler,

Deputy Manager.

Final Rule

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

PART 11—EMERGENCY ALERT SYSTEM (EAS)

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

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

2. Revise § 11.61(a)(3) to read as follows:

§ 11.61

Tests of EAS procedures.

(a) * * *

(3) National Tests. (i) All EAS Participants shall participate in national tests as scheduled by the Commission in consultation with the Federal Emergency Management Agency (FEMA). Such tests will consist of the delivery by FEMA to PEP/NP stations of a coded EAS message, including EAS header codes, Attention Signal, Test Script, and EOM code. All other EAS Participants will then be required to relay that EAS message. The coded message shall utilize EAS test codes as designated by the Commission's rules.

(ii) A national test shall replace the required weekly and monthly tests for all EAS Participants, as set forth in paragraphs (a)(1) and (a)(2) of this section, in the week and month in which it occurs.

(iii) Notice shall be provided to EAS Participants by the Commission at least two months prior to the conduct of any such national test.

(iv) Test results as required by the Commission shall be logged by all EAS Participants and shall be provided to the Commission's Public Safety and Homeland Security Bureau within forty five (45) days following the test.

* * * * *