At the December Open Meeting of the Federal Communications Commission (“FCC”), the Commissioners approved a Report and Order (“Order”) that adopts a new form of emergency alerting, Blue Alerts, which would serve to inform the public of actionable threats to state or local law enforcement. Once the new alert is implemented, radio and TV broadcasters and a variety of other video providers will broadcast emergency alerts much as they do for weather and other emergencies. Wireless telephone providers also may transmit the alerts through their emergency notification system. The action was adopted less than six months after the rulemaking proposal was initiated, a significantly shorter time period than that in which the Commission typically acts.

The Rafael Ramos and Wenjian Liu National Blue Alert Act of 2015 encourages states and localities to develop plans for how to distribute information about when a law enforcement officer is seriously injured, killed, or missing in the line of duty. To facilitate that effort, the law directs the Attorney General to establish a national Blue Alert communications network within the Department of Justice and coordinate with the FCC to executive its directive. Based on recommendations from the DOJ COPs Office, the FCC issued a notice of proposed rulemaking in June proposing to revise the existing emergency alert system (“EAS”) to include a new event code (BLU) for the transmission of Blue Alerts to the public.

The EAS is a national public warning system that requires TV and radio broadcasters, cable television systems, wireless cable systems, satellite digital audio radio service providers, direct broadcast satellite service providers and wireline video service providers to deliver important emergency information during national or local emergencies. In the Order, the FCC concludes that the EAS is an effective and technically feasible mechanism for distributing Blue Alerts. The FCC amends section 11.31(e) of its rules on EAS to adopt a new dedicated BLU event code to be used when there is actionable information about a missing or injured law enforcement officer. The FCC also allows for Blue Alerts to be sent via the Wireless Emergency Alert (“WEA”) system, a separate public safety system that allows wireless customers with certain devices to receive geographically-targeted text-like alerts of threats. The FCC found that an incident that would qualify for an imminent threat alert via WEA would also qualify for a Blue Alert.

There were concerns raised by both Commissioners Rosenworcel, who partially dissented from the Order, and O’Rielly about the cost-benefit analysis undertaken by the FCC. In the Order, the FCC found that implementing the BLU alert outweighed the potential costs, which mostly relate to software updates that would have to be made outside of the normal course of planned upgrades. However, in assessing the benefits of the proposal, the FCC put a numerical value on the lives that would potentially be saved by the rule change. According to Rosenworcel, “this cold calculus is neither needed nor smart” because “[t]here is a way to do cost-benefit analysis thoughtfully and with dignity for [officers.]” Commissioner O’Rielly, who voted in favor of the Order, expressed skepticism at the impact the Order would have and the idea of using the value of a “statistical life” in the analysis.

The Order provides an implementation period of 12 months from the effective date of the Order to enable the delivery of Blue Alerts over EAS, and an additional 6 months from the effective date to be able to deliver these alerts over WEA.