On July 13, 2018, the Federal Communications Commission (“FCC”) released a Report and Order and Further Notice of Proposed Rulemaking aimed at improving the reliability of the nation’s Emergency Alert System (“EAS”). This action comes six months after a well-publicized false ballistic missile alert that caused widespread confusion and concern in Hawaii, which the FCC observed “underscore[d] the need to streamline [its] testing processes and to ensure proper safeguards are in place.” The FCC explained that the rule changes “will help alert initiators, as well as EAS Participants to develop the skills necessary to effectively use the EAS.” EAS Participants are radio and television broadcast stations, cable systems, wireline video systems, wireless cable systems, direct broadcast satellite service providers, and digital audio radio service providers. In an unusual move, Republican Commissioner Michael O’Rielly dissented in part from the item, citing concerns about “alert fatigue” and suggesting that the Commission may be “overstepping” its bounds by requiring communications providers to provide false alert reports.

The rule changes adopted in the Report and Order allow local EAS tests to use actual EAS alert codes, provided that the entity conducting the test must

(1) notify the public that there will be a test that uses a live code;

(2) coordinate the test with the appropriate EAS participants (e.g., radio and television broadcast stations, cable systems) and state and local emergency authorities, and;

(3) to the extent technically feasible, inform the public in the test message that the event is only a test (that is, that there is no real emergency).

The visual and audio components of the notification must comply with the FCC’s disabilities access rules (e.g., “must be displayed at the top of the television screen or where it will not interfere with other visual messages; in a manner (i.e., font size, color, contrast, location, and speed) that is readily readable and understandable, which does not contain overlapping lines of EAS text or extend beyond the viewable display (except for video crawls that intentionally scroll on and off of the screen), and which displays the message in full at least once during any EAS message”) . The FCC is encouraging, but not requiring, entities that conduct testing to provide notice and coordinate with other stakeholders at least two weeks prior to the test. To avoid alert “exhaustion” by consumers, alert originators may conduct only two live code tests per calendar year. The new rules also permit public service announcements (“PSAs”) about EAS alerts to include the EAS attention signal and audible tones. The FCC expects these PSAs will be accessible to individuals with disabilities. Finally, the new rules require EAS participants to notify the FCC via email no later than 24 hours after it discovers “that it has transmitted or otherwise sent a false alert to the public.”

In the Further Notice of Proposed Rulemaking, the FCC seeks comment on other specific measures to help prevent and correct false alerts, as well as requiring “State EAS Plans to include procedures to help prevent false alerts, or to swiftly mitigate their consequences should a false alert occur.” Finally, the FCC seeks comment on the performance of Wireless Emergency Alerts (“WEA”), including how stakeholders could measure and report WEA performance, and any measures the FCC should take to “address inconsistent WEA delivery.” Comments on these proposals will be due 30 days after the item is published in the Federal Register, and replies will be due 30 days after that.