The Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking (“NPRM” or “Proposed EAS Rules”) in January, proposing improvements to the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”). The NPRM was published in the Federal Register March 24, marking the beginning of the comment period. The NPRM focuses on expanding EAS to new media platforms and social media to ensure that the public can receive emergency messages through these new sources in an “effective and accessible manner” that “minimizes burdens for stakeholders and safeguards these alerting systems against inherent vulnerabilities and attacks.” For example, the Commission is exploring expanding emergency alert procedures to include alternative alerting mechanisms through social media while being mindful of the potential for fraud and other malicious activity.

The NPRM focuses on the following four issues: (1) improving emergency alert processes at the state and local levels, (2) building effective community-based public safety exercises, (3) ensuring that alerting mechanisms leverage technology improvements, and (4) securing the Emergency Alert System against accidental misuse and malicious intrusion.

New Roles for Non-Broadcasters in the Proposed EAS Rules

The FCC is considering adding additional EAS designations to reflect changes in the alerting landscape. By way of background, EAS rules currently require EAS Participants (traditionally broadcasters, cable television systems, wireless cable systems, satellite digital audio radio service (SDARS) providers, and direct broadcast satellite (DBS) providers) to deliver alerts to the public and warn them of impending emergencies, and to monitor other stations that distribute these messages. The FCC created various EAS designations for stations and networks tasked with delivering messages from particular sources. For example, National Primary (NP) designated stations are the “primary entry point for Presidential messages delivered by FEMA…responsible for broadcasting a Presidential alert to the public[.]” Certain broadcast stations have been designated as “key” EAS sources.

In what has been historically a role for broadcasters, the FCC is now considering adding cable and satellite participants to the list of key EAS sources in this NPRM. The FCC is also considering updating EAS designations to add a category for cable and other Multichannel Video Programming Distributors (MVPDs). The FCC notes that these designations could result in additional EAS administration and monitoring burdens for the MVPD Participants.

The way each EAS Participant operates is outlined in each state’s EAS Plan. The FCC proposes that state EAS Plans include a comprehensive list of procedures that state emergency management officials, local forecasting stations, and EAS Participants would then use to transmit emergency information to the public. Additionally, the FCC proposes that each state could modify its EAS Plan to include alternative alerting mechanisms such as the NPR Squawk Channel (an off-air frequency used to alert NPR radio stations to breaking news events) or the social media by which EAS Participants could deliver emergency messages in a reliable manner. Satellite technologies such as the NPR Squawk Channel generally are unaffected by natural disasters, which is why EAS Participants often resort to using these alternate technologies to deliver emergency messages. However, the FCC seeks comments on whether these alternate reporting mechanisms are sufficiently reliable to serve as primary or secondary EAS assignment for the Presidential Alert.

Community-Based Public Safety Exercises and Accessibility Requirements

The FCC also proposes amending its rules to authorize EAS Participants to conduct periodic EAS exercises using live code testing to simulate actual emergency situations in order to raise public awareness and to test EAS equipment. The NPRM highlights the need to target alert exercises to individuals with disabilities and/or with limited English proficiency, noting that these individuals are particularly vulnerable to being excluded from community preparedness initiatives. The FCC expects EAS Participants to take special care to ensure that live code testing does not confuse or mislead persons with disabilities and those with limited English proficiency, while testing preparedness for a real emergency situation and raising public awareness of emergency response resources.

Distribution of Emergency Alerts in Light of Technological Advances

Cable Providers

Wireless and digital cable service providers and wireline video providers may transmit EAS information by “force tuning” or automatically tuning the subscribers’ set top boxes (STBs) to a designated channel that carries the required message, thus effectively interrupting programming to transmit EAS alerts. However, this practice can sometimes result in channel “freeze” causing subscribers to be unable to navigate from the channel on which the EAS message is displayed for an extended period of time.

In view of the technological advances in STBs, the FCC asks whether “force tuning” rules should be reduced or eliminated. For example, if broadcast channels are already transmitting EAS messages, there may be no need to force tune a cable viewer to a different channel, particularly if “selective” force tuning is an option. Similarly, emergency information could be provided by crawls without the need to change channels. The widespread use of STBs and “smart” TVs could provide for greater user control, allowing subscribers to acknowledge receipt of EAS announcements and even provide user feedback. Social media crowdsourcing could be a valuable way of disseminating emergency information and improving the response to those emergencies. However, the FCC is also concerned about the possibility of abuse that could arise with increased user interaction.

The FCC also asks whether cable providers should be required to transmit EAS messages on channels that do not provide traditional video programming, such as those that provide data, interactive games or Internet access.

Tablets as “Mobile Devices”

In 2008, the FCC adopted rules allowing Commercial Mobile Service (CMS) providers to voluntarily deliver WEAs to subscribers’ mobile devices. The FCC’s WEA rules define a “mobile device” as “subscriber equipment generally offered by CMS Providers that supports the distribution of WEA Alert Messages.” That definition can omit tablet computers, many of which are not WEA capable. The FCC proposes designating tablets as “mobile devices” for the purpose of imposing WEA rules on participating CMS Providers whose devices are otherwise not WEA capable. The designation of tablets as “mobile devices” could create additional regulatory burdens for the tablet manufacturers.

Over-the-top (“OTT”) and EAS Alerts

The FCC also seeks comment whether over-the-top (“OTT”) EAS alerts are provided in a manner similar to the way alerts are provided via STBs and other traditional means or whether OTT alerts could be personalized to improve accessibility for the public, including individuals with disabilities and those with limited English proficiency. Ultimately, the FCC is interested in leveraging OTT to provide customizable EAS alerts, for example, via URLs or by allowing individual changes to the way audio and video alerts are displayed.

Security Risks Associated with EAS

Finally, the NPRM highlights the increase in security incidents with respect to EAS, and the need for improving security of EAS infrastructure and security measures. Describing several EAS security breaches, the FCC notes the lack of preparedness and shortcomings of EAS Participants’ approach to system security. In order to improve EAS security, the FCC proposes an annual certification requirement “that attests to performance of required security measures with a baseline security posture in four core areas,” as well as reporting of false alerts.

The FCC recognizes that sharing of such information could implicate confidentiality and cost issues, especially with respect to small entities.

Comments on the proposed rules are due on May 9, 2016 and reply comments are due on June 7, 2016.