05-7412. Emergency Alert System

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document adopts revisions to the Federal Communication Commission's (Commission's) rules governing the Emergency Alert System (EAS) that will allow wireless cable television systems to provide EAS alerts to their subscribers in a more efficient and less burdensome manner. Specifically, wireless cable system operators will now be able to install equipment that provides a means to switch all programmed channels to a predesignated channel that carries an EAS alert in lieu of installing an EAS decoder for each and every system channel. Accordingly, upon receipt of an EAS alert, subscribers' equipment will automatically be tuned to the channel carrying the EAS message.

DATES:

Effective May 13, 2005.

FOR FURTHER INFORMATION CONTACT:

Shannon Lipp, Enforcement Bureau, Office of Homeland Security, at [phone], or via the Internet at [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Report and Order, in EB Docket No. 04-51, FCC 05-21, adopted January 28, 2005 and released February 7, 2005. The complete text of this Report and Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, 445 12th Street, SW., Room CY-A527, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone [phone], facsimile [phone], or via Web site at http://www.bcpiweb.com. It is also available on the Commission's Web site at http://www.fcc.gov.

Synopsis of the Report and Order

1. In this Report and Order, the Commission adopts revisions to part 11 of the Commission's rules governing the Emergency Alert System (EAS) that will allow wireless cable television systems to provide EAS alerts to their subscribers in a more efficient and less burdensome manner. Specifically, wireless cable system operators will now be able to install equipment that provides a means to switch all programmed channels to a predesignated channel that carries an EAS alert in lieu of installing an EAS decoder for each and every system channel. Accordingly, upon receipt of an EAS alert, subscribers' equipment will automatically be tuned to the channel carrying the EAS message.

2. The Commission released a Notice of Proposed Rulemaking (NPRM), 69 FR 18857, March 12, 2004, seeking comment on revisions to part 11 of the Commission's rules. Comments and replies were due May 10, 2004 and May 24, 2004, respectively. WCA and W.A.T.C.H. TV both submitted comments in support of the proposed modifications. W.A.T.C.H. TV, in its comments recommended a permanent rule change. No comments opposed the suggested rule revision, and no replies were submitted.

3. The Commission's EAS rules are designed to ensure that individual TV viewers, including viewers of wireless cable TV systems, receive all national level EAS alerts, no matter what channel the viewer may be watching. As these rules are currently written, wireless cable providers serving more than 5,000 subscribers are required to install special equipment sufficient to display the audio and video EAS message on every channel in their systems. Systems serving fewer than 5,000 subscribers are required to display the audio and video EAS message only on one channel, but must provide a video interrupt and an audio alert on every channel.

4. The Commission's EAS rules were neither intended to require a particular technical solution nor to impose an unnecessary financial burden on participating cable providers. The Commission agrees that a good technical alternative exists to minimize that burden without harm to the public. As a result of these modifications, a wireless cable operator would be able to install EAS equipment for one channel only at the headend of each of its systems, and in the event of an EAS alert, automatically force each subscriber's equipment to tune to the channel carrying the EAS alert. This would allow wireless cable providers to deliver EAS alerts to all viewers in a more technologically and economically efficient manner. The Commission believes these revisions would satisfy the Communications Act's intent to provide national alert and warning to the public, while reducing the regulatory burden on wireless cable systems. The Commission also notes that W.A.T.C.H. TV, a wireless cable system, has successfully deployed force tuning in its system, and that no comments were filed opposing this approach. Accordingly, the Commission modifies its EAS rules to allow wireless cable TV systems to supply an EAS alert to their viewers by force tuning their systems. Also, because the revisions the Commission adopts today do not affect wireless cable systems' EAS equipment, the Commission adopts its tentative conclusion that no new authorization standards for such equipment are required.

5. The Commission recently released a Notice of Proposed Rulemaking (NPRM), 69 FR 52843 (August 30, 2004), in which it sought comment on whether EAS as currently constituted is the most effective and efficient public warning system available to the American public. One of the primary objectives of the August 2004 NPRM is to determine whether there are any specific steps the Commission may take to enhance the effectiveness of EAS, particularly as regards digital, wireless, and other emerging communications technologies. Accordingly, regardless of the modifications made in the Report and Order, wireless cable operators are still subject to any future rulemaking proceedings. The Report and Order does not affect the Commission's ability to adjust any of the wireless cable requirements or impose other obligations on wireless cable operators through general rulemaking proceedings.

6. Because the modifications to the Commission's EAS rules will contribute to an economically efficient and technologically current public alert and warning system, in the Report and Order, the Commission adopts the proposed revisions to the EAS rules for wireless cable operators.

Final Regulatory Flexibility Analysis

7. As required by the Regulatory Flexibility Act, 5 U.S.C. 603, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) for the Report and Order. The Commission will send a copy of the Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

8. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM. The Commission sought comment on the proposals in the NPRM, including comment on the IRFA. The present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

Need for, and Objectives of, the Rules

9. In the Report and Order, the Commission adopts revisions to part 11 of the Commission's rules governing the Emergency Alert System (EAS). The revisions will reduce burdens on wireless cable television systems and improve the overall performance of the EAS.

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

10. There were no comments filed specifically in response to the IRFA. Nevertheless, the agency has considered the potential impact of the rules proposed in the IRFA on small entities. As a result of these modifications, a wireless cable operator will now be able to install EAS equipment for one channel only at the headend of the system. In the event of an EAS alert, the system will automatically force each subscriber set-top box to tune to the channel carrying the EAS alert. This will allow wireless cable providers to deliver EAS alerts to all viewers in a more technologically and economically efficient manner. While this rule revision provides the greatest economic benefit to systems with over 5,000 subscribers by obviating the need for special signal conversion for all channels, it also provides a benefit to those systems with fewer than 5,000 subscribers.

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

11. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The arts, entertainment, and recreations sector had 96,497 small firms.

12. Broadband Radio Services. The adopted rules would apply to Broadband Radio Services (BRS) 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 BRS auctions has been approved by the SBA. The Commission completed its BRS 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 BRS auction winners, 48 remain small business licensees.

13. BRS also includes licensees of stations authorized prior to the auction. As noted, the SBA has developed a definition of small entities for pay television services, Cable and Other Subscription Programming, which includes all such companies generating $12.5 million or less in annual receipts. This definition includes BRS and thus applies to BRS licensees that did not participate in the BRS 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 find that there are approximately 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.

14. Educational Broadband Services. The adopted rules would also apply to Educational Broadband Services (EBS). The SBA definition of small entities for pay television services 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 conclude that at least 1,932 EBS are small businesses and may be affected by the adopted rules.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

15. There are no reporting or recordkeeping requirements adopted in the Report and Order. The revisions adopted in the Report and Order are, for the most part, intended to enhance the performance of the EAS while reducing the burden on digital wireless cable systems. We emphasize that participation in state and local EAS activities remains voluntary and that we do not impose additional costs or burdens on entities that choose not to participate in state and local area EAS plans. The Report and Order adopts rules that permit new equipment capabilities and new policies with regard to method of delivery of EAS messages to viewers for all EAS alerts: National, state and local. These modifications will lessen cost and operational burdens on digital wireless cable system EAS participants.

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

16. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

17. In the NPRM, we sought comment on the impact of our proposals on small entities and on any possible alternatives that would minimize the impact on small entities. In adopting the modifications contained in the Report and Order, we have attempted to minimize the burdens on all entities.

Report to Congress

18. The Commission will send a copy of the Report and Order, including the FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register.

Paperwork Reduction Act of 1995 Analysis

19. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198; see 44 U.S.C. 3506(4).

Ordering Clauses

20. Accordingly, it is ordered that pursuant to the authority contained in sections 1, 4(i), 4(j), and 4(o), 303(r), 624(g) and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 154(o), 303(r), 544(g) and 606, this Report and Order is adopted.

21. It is further ordered that part 11 of the Commission's rules, 47 CFR part 11, is amended as set forth, effective May 13, 2005.

22. It is further ordered that the Reference Information Center, Consumer and Governmental Affairs Bureau, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to Congress pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

23. It is further ordered that the Reference Information Center, Consumer and Governmental Affairs Bureau, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with the Regulatory Flexibility Act.

List of Subjects in 47 CFR Part 11

• Television
• Wireless cable
• Emergency alert system
• EAS
• Force tune

Federal Communications Commission.

Marlene H. Dortch,

Secretary.

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 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. Section 11.11 is amended by revising the table entitled “WIRELESS CABLE SYSTEMS (MDS/MMS/ITFS STATIONS)” in paragraph (a) to read as follows:

§ 11.11

The Emergency Alert System (EAS).

(a) * * *

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.]

B. EAS equipment requirement	System size and effective dates
	≥ 5,000 subscribers	< 5,000 subscribers
EAS decoder	Y 10/1/02	Y 10/1/02
EAS encoder1 2	Y 10/1/02	Y 10/1/02
Audio and Video EAS Message on all channels 3	Y 10/1/02	N
Video interrupt and audio alert message on all channels; 4 Audio and Video EAS message on at least one channel	N	Y 10/1/02
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.

* * * * *

3. Section 11.51 is amended by adding paragraphs (g)(5) and (h)(5) to read as follows:

§ 11.51

EAS code and Attention Signal Transmission requirements.

(g) * * *

(5) Wireless 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) * * *

(5) Wireless 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.

* * * * *