On January 14, 2010, the FCC issued a Second Further Notice of Proposed Rulemaking proposing to amend Part 11 of its rules governing the Emergency Alert System (EAS) to provide for national testing of the EAS and collection of data from such tests. While the FCC's rules provide for periodic testing of EAS at the state and local levels, no systematic national test of the EAS has ever been conducted to determine whether the system would function as required, and, in their current form, the rules do not mandate any such test.

Although the EAS was designed primarily to carry a national warning issued by the President, no such warning has ever been issued. In fact, the great majority of EAS alerts issued to date have been localized weather-related alerts originated by the National Weather Service. Therefore, the FCC, the Federal Emergency Management Agency (FEMA), the National Weather Service and the Executive Office of the President have initiated discussions regarding testing of the EAS at the national level.

The national EAS delivery/transmission system relies on a daisy-chain architecture. At its initial level, various radio broadcast stations-known as Primary Entry Point (PEP) stations-are tasked with receiving and transmitting "Presidential-Level" messages initiated by FEMA. At the next level, designated "State Primary" stations monitor specifically designated PEP stations and retransmit the Presidential-level alert. At the level below the "State Primary" stations, Local Primary stations monitor the "State Primary" and PEP stations and are monitored, in turn, by all other EAS participants (radio and television broadcasters, cable TV service providers, etc.). The FCC is concerned this daisy-chain configuration makes the system vulnerable to "single-point-of-failure problems," where stations beyond that point in the chain do not receive the notification.

Under the proposed new rules, all EAS participants would be required to take part in national testing. The tests would consist of the nationwide delivery by FEMA to PEP/NP stations of a coded EAS message. EAS participants would be required to log the test results, including: (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. EAS participants would be required to submit the results to the FCC's Public Safety and Homeland Security Bureau within 30 days following the test. This information would be made available to the public. Under the proposed rule, the FCC would give EAS participants a two-month warning before conducting any such national test.

The FCC is seeking public comment on the specific language of its proposed rule and its sufficiency to ensure an adequate framework for the conduct of national tests. The FCC asks for comment on whether the proposed rule is the best way to implement national testing of the EAS or whether different provisions should be adopted. The FCC also asks for feedback on the equipment used to retransmit EAS codes, which differ depending on the manufacturer.

Comments are due on or before March 1, 2010, and reply comments are due on or before March 30, 2010.