Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: August 4, 2004 Released: August 12, 2004**

**Comment Date: \[60 days after publication in the Federal Register\]**

**Reply Comment Date: \[90 days after publication in the Federal
Register\]**

By the Commission: Chairman Powell and Commissioners Abernathy, Copps,
Martin, and Adelstein issuing separate statements.

# INTRODUCTION

1.  This Notice of Proposed Rulemaking (NPRM) examines the Emergency
    Alert System (EAS), and seeks comment on whether EAS in its present
    form is the most effective mechanism for warning the American public
    of an emergency and, if not, on how EAS can be improved. This NPRM
    is the most recent in a series of proceedings in which the Federal
    Communications Commission (Commission) has sought to contribute to
    an efficient and technologically current public alert and warning
    system.[^1]

2.  Since the tragic events of September 11, 2001, an expanding circle
    of interested parties, including individual citizens, public/private
    groups, and our federal, state, and local partners, have raised
    issues about the efficacy of EAS as a public warning mechanism. Some
    of these issues are rooted in the fact that EAS mandates only
    delivery of a "Presidential message."[^2] The Commission's EAS rules
    primarily are concerned with the implementation of EAS in this
    national role.

3.  Along with its primary role as a national public warning system, EAS
    and other emergency notification mechanisms, are part of an overall
    public alert and warning system, over which the Federal Emergency
    Management Agency (FEMA) exercises jurisdiction. EAS use as part of
    such a public warning system at the state and local levels, while
    encouraged, is merely voluntary.[^3] Thus, although Federal, state,
    and local governments, and the consumer electronics industry have
    taken steps to ensure that alert and warning messages are delivered
    by a responsive, robust and redundant system,[^4] the permissive
    nature of EAS at the state and local level has resulted in an
    inconsistent application of EAS as an effective component of overall
    public alert and warning system. Accordingly, we believe that we
    should now consider whether permissive state and local EAS
    participation is appropriate in today's world.

4.  There are similar questions about the technical capabilities of EAS.
    For example, since it relies almost exclusively on delivery through
    analog radio and television broadcast stations and cable systems, is
    EAS, in the current communications universe, outdated? How could it
    be made more efficient? Should it be phased out in favor of a new
    model? If so, what would the new model look like? If a new model
    were to be adopted, what legal and practical barriers would have to
    be overcome to ensure its implementation and effectiveness? Would a
    new model require legislation from Congress or an Executive Order?
    What technologies should serve as the basis for such a model?
    Alternatively, should EAS requirements be extended to other services
    (e.g. cellular telephones)?

5.  It is our intention in this proceeding to seek comment on these and
    an array of other questions and potential rule changes. We have
    already begun ---and will continue throughout this proceeding --- to
    coordinate carefully with the Department of Homeland Security (DHS),
    its component, FEMA, and the Department of Commerce and its
    component, the National Oceanic and Atmospheric Administration's
    (NOAA's) National Weather Service (NWS). We anticipate these federal
    partners will be active participants in the proceeding. In addition
    to seeking comments from all interested individuals and federal
    entities on the issues raised in this NPRM, we also specifically
    seek the participation of state and local emergency planning
    organizations and solicit their views. Finally, we seek input from
    all telecommunications industries concerned about developing a more
    effective EAS.

# BACKGROUND

## History of EAS

6.  In 1951, during the Korean War, President Harry S. Truman
    established CONELRAD (Control of Electromagnetic Radiation), the
    first national warning system, to provide a means for the President
    to address the American people, to provide attack warning, and to
    supply emergency information.[^5] Under CONELRAD, designated AM
    radio stations operated on 640 or 1240 kHz during an emergency alert
    so that enemy missiles or bombers could not use broadcast
    transmissions of other stations as a guide to their targets.
    CONELRAD had a simple system for alerting the public and other
    "downstream" stations; the alerting system consisted of a sequence
    of shutting the station off for five seconds, returning to the air
    for five seconds, again shutting down for five seconds, and then
    transmitting a tone for 15 seconds.

7.  In 1963, President John F. Kennedy replaced CONELRAD with the
    Emergency Broadcast System (EBS), a system that allowed all
    broadcast stations to continue operating on their assigned
    frequencies during an emergency.[^6] The EBS was an analog
    transmission system which required broadcasters to install specified
    equipment, and relied upon these broadcasters to control the
    system.[^7] Technical requirements for EBS equipment were developed
    during the 1960s, and the Commission did not amend its rules to
    replace the CONELRAD signaling technique with the EBS audio signal
    until the mid‑1970s.

8.  In 1994, the Commission adopted rules that replaced EBS with EAS
    (described in further detail below) and, consistent with a statutory
    requirement,[^8] required cable systems as well as broadcast
    stations to install EAS equipment and participate in national alerts
    and required testing.[^9] In 1997, the Commission extended EAS
    requirements to wireless cable systems, with the qualified support
    of that industry.[^10]

## Federal/State Program Responsibility

9.  The Commission, in conjunction with FEMA and the NWS, implement EAS
    at the federal level. The respective roles currently are based on a
    1981 Memorandum of Understanding between FEMA, NWS, and the
    Commission,[^11] on a 1984 Executive Order,[^12] and on a 1995
    Presidential Statement of Requirements.[^13] In addition, State
    Emergency Coordination Committees (SECCs) and Local Emergency
    Coordination Committees (LECCs) develop state and local EAS plans.

10. [The Commission]{.underline}. The Commission's authority to regulate
    emergency broadcasting emanates primarily from sections 1, 4(i) and
    (o), 303(r), and 706 of the Communications Act of 1934, as amended,
    (Act).[^14] Section 1 of the Act states that the Commission was
    created for the purposes of, *inter alia*, national defense and
    promoting safety of life and property through the use of wire and
    radio communication.[^15] In section 4(i), there is a general grant
    of authority to perform any and all acts, make such rules and
    regulations, and issue such orders, not inconsistent with the Act,
    as may be necessary in the execution of the Commission's functions.
    Section 4(o) provides the Commission with authority to investigate,
    study, and propose best methods to resolve any and all problems
    preventing the maximum effective use of radio and wire
    communications in connection with safety of life and property.
    Section 303(r) is a general grant of rulemaking authority to the
    Commission. Section 706 grants specific, communications-related
    powers to the President in time of war or national emergency. In
    such event, the President may, for example, take control of, or
    suspend or amend the rules and regulations applicable to, any or all
    cable and radio and television broadcast stations within the
    Commission\'s jurisdiction.

11. Commission authority to regulate participation by cable systems in
    the emergency alerting process stems primarily from section 624(g)
    of the Act.[^16] That provision requires the Commission to ensure
    that cable viewers are afforded the same access to emergency
    communications as broadcast viewers and listeners. Additionally, the
    Americans with Disabilities Act,[^17] strives to make all facets of
    our society fully accessible to individuals with disabilities.[^18]

12. In general, the Commission's rules prescribe: (1) technical
    standards for the EAS; (2) procedures for radio and television
    broadcast stations and cable systems to follow in the event EAS is
    activated; and (3) EAS testing protocols. Under the rules, national
    activation of the EAS for a Presidential message with the Emergency
    Action Notification event code is designed to provide the President
    the capability to transmit within ten minutes from any location at
    any time, and must take priority over any other message and preempt
    other messages in progress.[^19] As noted, use of the EAS by state
    or local governments to initiate warnings and the broadcast and
    transmission of other-than-Presidential alerts by broadcasters and
    cable systems is voluntary.[^20] The rules mandate EAS obligations
    only for analog radio and television stations, and wired and
    wireless cable television systems.[^21] Other systems, including,
    for example, low earth orbit satellite systems, paging, direct
    broadcast satellite (DBS), digital television (DTV), satellite
    Digital Audio Radio service (satellite DARS), and In-Band-On-Channel
    Digital Audio Broadcasting (IBOC DAB) currently have no EAS
    requirements.[^22]

13. [FEMA]{.underline}*.* Activation of the national-level EAS rests
    solely with the President. The Stafford Act[^23] authorizes the
    President to make provisions for emergency preparedness
    communications and dissemination of warnings to governmental
    authorities and the civilian population in areas endangered by
    disasters.[^24] This authority has been delegated to DHS'
    Undersecretary for Emergency Preparedness and Response as director
    of FEMA. FEMA acts as the White House's executive agent for the
    development, operations, and maintenance of the national level EAS
    and is responsible for implementation of the national level
    activation of EAS, tests, and exercises.

14. [NOAA]{.underline}*.* As the originator of emergency weather
    information, NOAA, through its component agency, the NWS, plays a
    significant role in the implementation of EAS at the state and local
    level.[^25] Through its All-Hazards Network, NWS originates
    approximately 80 percent of all EAS alerts.[^26] The NWS supplies
    local alerts to broadcast and cable entry points designated in
    approved EAS state and local plans.[^27] Many broadcast stations and
    cable systems also directly monitor NWS transmissions and relay the
    NWS messages to their audiences over EAS.[^28] In order to ensure
    that there is equipment interoperability between EAS and NWS
    Specific Area Message Encoding (SAME) technology used by NOAA
    Weather Radios, the Commission's rules specifically provide that EAS
    event codes must be compatible with the codes used by the NWS SAME
    encoder.[^29]

15. [SECCs and LECCs]{.underline}. State Emergency Communications
    Committees (SECCs) and Local Emergency Communications Committees
    (LECCs), comprised of emergency management personnel and volunteers
    from industry, may be established in each state and territory to
    prepare coordinated emergency communications systems and to develop
    state and local emergency communications plans and procedures for
    EAS and other Public Alert and Warning (PAW) systems the state may
    use in combination with EAS. These committees also establish an
    authentication procedure and establish the date and time of the
    required monthly EAS tests.

## EAS Structure and EAS Codes

16. [Primary Entry Points (PEPs)]{.underline}. The EAS is essentially a
    hierarchal, trickle down distribution system.[^30] FEMA has
    designated 34 radio broadcast stations as Primary Entry Point (PEP)
    stations. At the request of the President, FEMA distributes
    "Presidential Level" messages to these PEP stations.[^31] As the
    entry point for national level EAS messages, the PEP stations have a
    National Primary (NP) EAS designation, and are monitored in turn by
    other stations in the hierarchical chain.

17. The United States is divided into approximately 550 EAS local areas,
    each containing a key EAS source, called the Local Primary One
    (LP-1). The LP-1 monitors its regional PEP station for Presidential
    messages, and serves as the point of contact for local authorities
    and NWS officials to activate EAS. Other stations and cable systems
    in the area monitor their LP-1 station, and if a Presidential
    message is sent, they are required to air the message received from
    their LP-1 station. For non-Presidential messages, these monitoring
    stations and cable systems may carry the message at their
    discretion. Local Primary sources are assigned numbers in the
    sequence they are to be monitored by other broadcast stations in the
    local area (*i.e.*, LP-1, 2, 3, etc.). Broadcast stations and cable
    systems are required to monitor at least two EAS sources for
    Presidential alerts, as specified in their state EAS plans.[^32] As
    we discuss in paragraph 31 below, however, the number of households
    that actually are watching or listening to these broadcast and cable
    outlets at any point in time is often relatively small.

18. State and local emergency operations managers can request activation
    of EAS for state and local public alert and warning. State-level EAS
    entry points are designated as State Primary and State Relay.[^33]
    State Primary Entry Points can be broadcast stations, state
    emergency operation centers, or other statewide networks, and can
    act as sources of EAS state messages originating from the State
    Governor or a State Emergency Operations Center. State Relay sources
    relay state common emergency messages into local areas.[^34] Local
    Primary sources are responsible for coordinating the carriage of
    common emergency messages from sources such as the NWS or local
    emergency management offices as specified in EAS local area
    plans.[^35]

19. [EAS Codes]{.underline}. Initiating an EAS message, whether at the
    national, state, or local level, requires the broadcaster, cable
    operator or emergency administrator to enter certain codes into
    dedicated EAS equipment.[^36] EAS equipment also provides a method
    for automatic interruption of regular programming and is capable of
    providing warnings in the primary language that is used by the
    station or cable system.[^37] The EAS protocol, including any codes,
    may not be amended, extended or abridged without Commission
    authorization.[^38] EAS header codes identify the party that
    originated the emergency message, the nature of the event or
    emergency, the location of the emergency, and the valid time period
    of the message. The national level EAS activation audio message is
    unrestricted in length. However, for state and local implementation
    of EAS, the audio portion is restricted to two minutes.[^39]

# discussion

## General Considerations

20. The main objective of this NPRM is to seek comment on whether EAS as
    currently constituted is the most effective and efficient public
    warning system that best takes advantage of appropriate
    technological advances and best responds to the public's need to
    obtain timely emergency information. We also seek comment on rules
    that the Commission may adopt to enhance the effectiveness of EAS.
    One of the central issues on which this NPRM seeks comment is the
    current efficacy of EAS in an age when the communications landscape
    has evolved from what it was when EAS predecessors---and EAS
    itself---were originally conceived.

21. We note initially that two public/private partnerships have studied
    and addressed this issue extensively. The Media Security and
    Reliability Council (MSRC) is an industry-led Federal Advisory
    Committee created by the Commission and comprised of leaders from
    the radio, television, multi-channel video, public safety and
    disabled communities. [^40] The Partnership for Public Warning (PPW)
    was incorporated in January 2002 as a not-for-profit public-private
    partnership, whose goal is to promote and enhance effective,
    integrated dissemination of public warnings and related information
    that will save lives, reduce losses and speed recovery from acts of
    terrorism, accidents and natural disasters.[^41] Both PPW and MSRC
    advocate upgrading, not replacing, EAS.[^42] In particular, PPW
    asserts that any new public warning system design should take
    advantage of the existing EAS infrastructure and should be able to
    accommodate existing EAS equipment in place, noting that it would be
    difficult to replace or rebuild such a capability today at a
    reasonable cost.[^43] In responding to the general issue of the EAS
    system's future viability, as well as other issues raised in this
    NPRM, we encourage commenters to take into account MSRC's and PPW's
    recommendations.

## Federal/State Program Responsibility

22. PPW has recently recommended that a single federal entity,
    specifically DHS, should take the lead in creating and overseeing an
    effective national public warning program.[^44] PPW also noted that
    DHS, with other federal agencies and stakeholders, should update and
    clearly designate EAS management, operational and oversight
    responsibilities among the appropriate federal agencies and other
    authorities.[^45] Additionally, MSRC has recommended that a single
    federal entity should be responsible for assuring: (1) that public
    communications capabilities and procedures exist, are effective, and
    are deployed for distribution of risk communication and warnings to
    the public by appropriate federal, state and local government
    personnel, agencies and authorities; (2) that lead responsibilities
    and actions under various circumstances are established at federal,
    state and local levels within the overall discipline of emergency
    management; and (3) that a national, uniform, all-hazard risk
    communication warning process is implemented from a public and
    private consensus on what best meets the needs of the public,
    including people of diverse language and/or with disabilities,
    including sensory disabilities.[^46] MSRC and PPW also assert that
    effective delivery of emergency information to the public should be
    achieved through a public/private partnership that makes coordinated
    use of mass media and other dissemination systems.[^47] We seek
    comment on PPW's and MSRC's suggestions. Would legislation be
    required to effectuate the recommendations described in this
    paragraph?

23. We seek comment regarding the respective roles of the federal
    government departments and agencies involved with the implementation
    of EAS, specifically the Commission, DHS, FEMA and NOAA. Should each
    of these agencies remain involved? If not, what specific changes in
    roles should occur? For changes to occur, would the Commission or
    other federal entity have to recommend that current legal
    authorities be updated or supplemented?[^48] Should a new
    public/private partnership be created to ensure the effective and
    efficient delivery of emergency information to the public and, if
    so, how should this partnership be structured and what should its
    responsibilities be? What federal agency should be its primary point
    of contact? Should a particular federal agency take the lead role
    for the future EAS?

24. We also seek comment about several aspects of state and local EAS.
    First, we note that some parties assert that voluntary (as opposed
    to mandatory) participation in state and local EAS alerts impairs
    the credibility of the entire EAS. They claim that it makes no sense
    to mandate participation only on a national level in a system that
    has never issued a Presidential alert and is instead used to deliver
    vital information about life-threatening local, state, and regional
    events.[^49] These parties believe that the voluntary nature of
    participation in state and local EAS alerts also makes it difficult
    to find enough dedicated people to participate with system
    implementation.[^50] As we noted in the *Localism NOI*, the
    dissemination of emergency information is a critical and fundamental
    component of broadcasters' local public service obligations,[^51]
    and we accordingly seek comment on whether voluntary participation
    in EAS is consistent with those obligations. We seek comment on
    whether the Commission should adopt rules to require broadcasters to
    make their facilities available to local emergency managers? If so,
    what should be the nature and scope of any such rules? In their
    comments, parties should address the issue of whether there would be
    adverse effects from imposing some uniform requirement on
    broadcasters rather than allowing them to continue to make voluntary
    arrangements with local officials? Conversely, should incentives be
    provided to encourage the participation of broadcasters and cable
    operators? What incentives could be provided? To avoid what
    broadcasters and cable operators might view as a burdensome level of
    program interruptions, should there be a federal rule establishing a
    standard regarding when state emergency managers may and must
    activate EAS and, if so, what should that standard be? Should use of
    any of the existing voluntary EAS codes be mandated? Should the
    federal government monitor EAS usage to determine a standard?

25. We also seek comment on whether Commission rules that require states
    with EAS plans to file those plans with the Commission for approval
    have little impact because Commission rules do not require that
    states have plans in the first instance. Further, no current
    guidelines or standards exist for the structure/creation of state or
    local EAS plans.[^52] We seek comment on whether the Commission
    should adopt rules requiring state and/or local EAS plans. We
    further seek comment on whether the Commission should establish
    national guidelines and standards for the structure of such plans?
    Parties filing comments should consider the following issues: Should
    there be a specific standard of review, and if so, what should it
    be? Is the Commission the appropriate agency to undertake this task?
    Is the SECC and LECC structure the appropriate mechanism for
    generating such plans? Who should generate such plans? Does the
    Commission or other federal entity currently have legal authority to
    require and oversee the development of such plans? Where would
    enforcement action lie for failure to develop an appropriate plan?
    Should periodic updating and review of state and local plans be
    required and, if so, how often? Should adjacent state and local
    jurisdictions implement standardized EAS plans so that responses to
    large-scale emergencies that impact more than one state or local
    area can be better coordinated? Should multi-state regions be
    defined and plans developed for them? Should there be reporting
    requirements for EAS activations to facilitate the development of
    accurate reports?[^53]

26. We also seek comment on whether uniform national guidelines are
    preferred over the disparate manner in which states and localities
    implement EAS. For example, EAS alerts may be requested by FEMA
    emergency managers, state and local emergency managers, public
    safety officials, and other individuals identified in state plans.
    EAS may also be activated at the state or local level by any AM, FM,
    or TV station or cable system, at management's discretion, in
    connection with day-to-day emergency situations posing a threat to
    life and property. Additionally, broadcasters and cable operators
    can, but are not required to, monitor the NWS and activate EAS in
    response to an NWS warning. We seek comment on whether the
    Commission should adopt rules to require all EAS participants to
    monitor the NWS where signals are available. Should staff at any
    broadcast station or cable system continue to be permitted to
    initiate EAS alerts without concurrence from local or state
    emergency managers and, if so, should the Commission or some other
    federal entity establish standards regarding the issuance of public
    warning by these entities?

## EAS Structure and EAS Codes

27. The primary method of delivery of Presidential EAS messages to state
    and local areas is over-the-air broadcast signals that follow a
    hierarchical structure, beginning with FEMA's relay of the message
    to the 34 PEP stations, which in turn are monitored by the 550 LP1
    and state relay stations, which in turn are monitored by over 14,000
    broadcast stations and 10,000 cable systems nationwide. However,
    some emergency managers and SECC members say they lack confidence in
    the manner in which this system is implemented in their states.[^54]
    They believe stations "down the chain" may miss important state and
    local messages because, for example, stations that they monitor "up
    the chain" chose not to air a non-Presidential message or are
    unattended stations that have pre-programmed their EAS equipment to
    forward only certain event codes. Some claim that this
    interdependent structure could be problematic even for a national
    level alert. They believe a non-PEP station may be unable to
    reliably monitor a signal due to problems with terrain, because it
    is located in a rural area too far from a PEP station, or because
    the PEP station's signal cannot cover the large area it is supposed
    to cover.[^55] Some assert that, in any event, the process takes too
    long to transmit across an entire state. [^56] Accordingly, we seek
    comment regarding how to improve the distribution of emergency
    alerts, both national and state/local. Should the originating local
    agencies transmit alerts directly to as many stations and cable
    systems as possible without intervening relay stations?[^57] Should
    other technologies, such as satellite delivery systems, be used as
    part of a backbone to distribute the alert to entry points? Given
    the changes in technology within the broadcasting industry, is there
    still a need to structure EAS with the PEP system? To the extent
    that any businesses using such technologies are small businesses,
    how should that status affect our analysis? As we discussed in
    paragraph 25 above, could inconsistencies in the manner in which
    states implement EAS be alleviated by the adoption of national
    guidelines?

28. In the *2002 Report and Order*, the Commission amended Part 11 of
    the Commission's rules by, *inter alia*, adding new state and local
    event codes, most of which are for non-weather events such as child
    abductions (Amber Alerts) and new location codes. The Commission did
    not mandate the use of these codes. Rather, effective May 16, 2002,
    broadcast stations and cable systems could upgrade their existing
    EAS equipment to add the new codes on a voluntary basis until the
    equipment is replaced.[^58] All models of EAS equipment manufactured
    after August 1, 2003, had to be capable of receiving and
    transmitting the new codes.[^59] Broadcast stations and cable
    systems that replace their EAS equipment after February 1, 2004,
    must install equipment that is capable of receiving and transmitting
    the new event codes.[^60] We seek comment regarding whether
    circumstances have changed such that the Commission should adopt
    rules that require broadcasters and cable operators to upgrade their
    EAS equipment so that it is capable of receiving and transmitting
    all current event and location codes, including those adopted in the
    2002 Report and Order. If such upgrading of EAS equipment should be
    required, how much time should broadcasters and cable operators have
    to replace their EAS equipment? How will this impact small cable
    operators and broadcasters? Should the government fund upgrades for
    small systems to mitigate the burden?

## Expanding EAS Requirements to Other Services

29. In the 1994 *First Report and Order* on EAS**,** the Commission
    encouraged - but did not require - EAS participation by digital
    broadcasters.[^61] In the *Localism NOI*, however, we noted that
    digital technologies have evolved, and can allow broadcasters to
    provide emergency information in innovative ways.[^62] For example,
    using digital technology, broadcast stations can pinpoint specific
    households and neighborhoods at risk, with minimal burden on the
    available spectrum.[^63] Accordingly, we seek comment on how digital
    technology can be used to enhance warnings, and to what extent
    broadcast stations currently make use of that technology. We also
    recently reached the tentative conclusion that EAS rules should
    apply to all audio streams broadcast by a radio station, such as
    IBOC.[^64] We seek comment on whether we should adopt rules
    extending EAS obligations to other digital broadcast media, such as
    DBS, DTV, and satellite DARS services. Commenters should also
    address whether, when television stations turn off their analog
    signals as part of the DTV transition, they could leave a market
    devoid of an EAS participating broadcaster? Is digital cable
    television service treated in the same regulatory fashion as is
    "over the air" digital broadcast? If so, should the Commission
    extend EAS obligations to digital cable television? Does it continue
    to serve the public interest to exempt services that reach
    increasingly larger portions of the American public from any
    requirement to provide public warning? What burdens would extending
    the obligations place on these services, and do the benefits
    outweigh the burdens? For example, if DBS satellites were required
    to carry EAS, what effect would inclement weather have on their
    ability to send signals. Further, if an EAS alert needed to be sent
    to an area on the border of a DMA, where a DBS provider only
    provided local-into-local service in one DMA, satellite customers in
    the unserved DMA would not receive the signal. How would an EAS
    signal be fed to a DBS operator? While it could be sent over fiber
    to their local receive facility (LRF) where they offer
    local-into-local service, they would not have an LRF where they
    don\'t provide local-into-local service. Similarly, how would DBS
    operators conduct testing, particularly on a national v. local
    level? Finally, to the extent that software updates were needed in
    set top boxes, what would be an appropriate implementation time
    frame? What about legacy boxes that have already been deployed?
    Satellite DARS serves the public primarily on a nation-wide, rather
    than regional, basis.  Does this distribution structure affect the
    ability of satellite DARS licensees to discharge EAS obligations
    effectively?  If the national distribution of satellite DARS
    services limits the ability to discharge state and local EAS
    obligations, are such limitations technological or regulatory in
    nature?

30. We seek comment generally on what is needed to extend EAS
    obligations to digital broadcasting, whether this step should be
    taken regardless of other alternatives, and the timing of any such
    extension. Digital broadcast services such as DTV and DAB have the
    ability to transmit more than one program stream on their assigned
    channel (multicasting). Should DTV broadcasters be required to
    transmit EAS messages on all program streams?[^65] Should they
    transmit EAS messages only on one stream and force-tune receivers to
    that stream?[^66] What percentage of receivers in the public have
    the ability to be force tuned? IBOC DAB broadcasters typically use
    the digital part of their signal to replicate their analog
    programming. In that case, should EAS messages be carried on the
    analog, the digital, or both program streams? If an IBOC broadcaster
    chooses to transmit a different program on their digital stream, how
    should EAS messages be carried? Do IBOC receivers have the ability
    to be force tuned? The IBOC signal also has the ability to carry
    text data to be displayed by the receiver. Should a textual alert be
    part of the EAS message sent by the IBOC broadcaster? How should
    other multicasting services, such as digital cable, be treated with
    regards to EAS messages and forced tuning?

## Alternate Public Alert and Warning Mechanisms

31. In creating EAS, the Commission sought to design a public alert and
    warning system that would function seamlessly with many sources of
    emergency communications.[^67] The Commission wished to avoid
    limiting EAS to a particular transmission system, so it adopted a
    mandatory standard digital protocol with a flexible architecture
    that the Commission believed could be used by many kinds of
    transmission media, encompass new technologies, and be expanded and
    upgraded as new kinds and generations of transmission systems became
    available.[^68] Despite this intended technical flexibility, EAS, as
    currently constituted, reaches the very limited audience listening
    to broadcast radio or watching broadcast or cable television at the
    time the emergency announcement is made. The most ubiquitous outlet
    for EAS is radio.[^69] However, on average, Americans listen to the
    radio for only about an hour and a half a day, primarily between
    6:00 a.m. and 6:00 p.m.[^70] Even fewer people are reached by
    television. Although more than 98 percent of households in the
    United States have at least one television, the average set is in
    use only 31 percent of the day.[^71] We seek comment on whether this
    level of penetration is sufficient to comprise an effective public
    warning system.[^72] If it is not, what level of penetration should
    we seek and what is the best mechanism for reaching that goal?

32. Because EAS relies almost exclusively on delivery through analog
    radio and television broadcast stations and cable systems, is EAS,
    in the current communications universe, outdated? Instead, should
    there be a concerted government/industry effort to combine EAS with
    alternative public alert and warning systems (APAWS) to form a
    comprehensive national public warning system capable of reaching
    virtually everyone all the time? The possibilities are numerous and
    varied. Several companies offer landline-based interactive
    notification systems that would convey national, regional, and local
    emergency messages via the public switched telephone network to
    wireline telephone subscribers located in the specific geographic
    areas affected by emergencies.[^73] Other companies offer systems
    that use Internet and/or cellular capabilities, including the cell
    broadcast feature of digital cellular networks, to deliver alerts to
    mobile handsets of wireless subscribers or to televisions, cable
    boxes, clock radios, cars, computers, stand alone units or other
    devices after incorporating patented receiver devices. Some
    companies offer satellite based warning and messaging systems which
    use very small aperture terminal networking to provide direct
    satellite communications. There are also emergency message and
    warning systems offered on a subscription basis that use
    computerized calling systems, fax, email, and digital messaging to
    reach many different types of devices. Some of these systems are
    used currently by certain states, along with EAS as part of their
    public alert and warning system. How could a combined warning system
    that makes use of some or all of the features described here be
    implemented? Should the Commission require any APAWS to participate
    in the existing EAS and, if so, which ones and how should they
    participate? For example, should all APAWS be required to be
    compatible with the existing EAS protocol? In considering these
    issues, should our analysis distinguish between wireless systems
    used primarily for one-versus two-way communication, or
    point-to-point or multi-point versus broadcast? Commenters should
    discuss any legal or practical barriers to its implementation and
    effectiveness, noting whether legislation would be required from
    Congress or by Executive Order.

33. As an alternative, would the appropriate approach be to integrate
    EAS into a PAW "system of systems" by adopting and using a single,
    integrated interface that would link the emergency manager and all
    emergency notification and delivery systems, regardless of the
    technology on which a particular system is based? In this regard, we
    note that the Organization for the Advancement of Structured
    Information Standards (OASIS), a not-for-profit, international
    consortium that addresses the development, convergence and adoption
    of e-business standards, has adopted the Common Alerting Protocol
    (CAP) as an OASIS standard.[^74] CAP is a standardized,
    non-proprietary, data interchange format that simultaneously
    disseminates consistent all-hazard emergency alerts or public
    warning messages over different kinds of communications networks and
    systems, including those designed for multilingual and special needs
    populations. The CAP format is compatible with emerging and existing
    formats, such as web service applications, NWS\' SAME, and the EAS
    protocol and offers a number of enhanced capabilities.[^75]
    Proponents assert that CAP has the potential to increase warning
    effectiveness and reduce costs and operational complexity by
    eliminating the need for multiple custom software interfaces to the
    many APAWS involved in all hazard warning. CAP has also been
    implemented by several government agencies and private companies,
    including DHS, NWS, and Comlabs, Inc.[^76] We seek comment on
    whether the CAP could act as an effective interface through which an
    emergency manager could access multiple emergency notification
    services, including EAS.

34. MSRC's Future Technologies/Digital Solutions Task Force recommends
    that the government should coordinate development of a Media Common
    Alert Protocol (MCAP) which should: (1) be designed to deliver
    emergency messages via digital networks; (2) flow over all methods
    of digital transport; (3) be received by all digital receivers;
    and (4) be optimized for point-to-multi-point networks and devices
    only. MSRC also suggests that key attributes of the MCAP should be
    addressability, scalability, interoperability and prioritizing. MSRC
    recommends that industry organizations and companies should develop
    standards and specifications for carriage of MCAP on various
    media.[^77] We seek comment on MSRC's recommendation. We are mindful
    that the availability of particular delivery methods may differ in
    rural and insular areas from more urban areas. We seek comment on
    any particular needs or considerations we should afford rural areas.

35. Finally, to what extent does an effective public warning system
    depend on the consumer electronics equipment that receives the
    warning? MSRC has identified as two primary functionalities of a
    future warning system the ability of a device (such as a radio or
    television set) to automatically turn on and tune in to the channel
    carrying the warning, and the capability of such a device to receive
    a geographically addressed message (through FIPS or GPS). We note
    that the technology exists to have consumer electronic devices turn
    on automatically in the event of an emergency. We note that, as
    described in paragraph 14 above, NOAA Weather Radios currently
    supply both these functions. Would mandating the adoption of such
    technology to other consumer electronic devices enhance the
    effectiveness of EAS and other PAW systems?

## Public Warnings and Alerts for Individuals with Disabilities and Individuals for Whom English is a Second Language 

36. [Notifying Persons with Hearing and Vision
    Disabilities.]{.underline} Any consideration of best methods to
    contact the public during an emergency must address the needs of
    persons with disabilities. It is the policy of the United States for
    federal agencies to consider persons with disabilities in their
    emergency preparedness planning.[^78] According to the Department of
    Commerce, one in five Americans is disabled and one in ten is
    severely disabled.[^79] Fifty million people have some type of long
    lasting condition or disability, three million of whom have sensory
    disabilities involving sight or hearing.[^80]

37. The Commission's commitment to ensuring that persons with
    disabilities have equal access to public warnings is well
    documented. For example, in addition to EAS, the Commission requires
    all distributors of video programming (including local broadcasters,
    cable operators and satellite television service providers) that
    provide emergency information to do so in a format that is
    accessible to persons with hearing and vision disabilities.[^81]
    When emergency information is provided in the audio portion of the
    programming, critical details about the emergency and how to respond
    must be provided in a visual format, such as closed captioning, open
    captions, crawls, or scrolls.[^82] Further, emergency information
    provided by crawls, scrolls or other visual means should not block
    closed captioning, and closed captioning should not block any
    emergency information provided by crawls, scrolls, or other visual
    means. Emergency information that is provided in the video portion
    of a regularly scheduled newscast or a newscast that interrupts
    regular programming must also be made accessible to persons who are
    blind or have low vision. If this information is not part of a
    regularly scheduled newscast or is part of programming that
    interrupts regular programming (e.g. the emergency information is
    provided through "crawling" or "scrolling"), then this information
    must be accompanied by an aural tone. The same information must also
    be provided in an audible manner that is accessible to persons who
    are blind or have low vision.[^83] Emergency information provided by
    means other than closed captioning or video description should not
    block any closed captioning or video description and closed
    captioning or video description should not block any emergency
    information provided by means other than closed captioning or video
    description.[^84]

38. We note that section 79.2 of the Commission's rules specifies
    particular triggering events and methods for emergency transmittal
    separate from those required by EAS. We seek comment on whether
    there are disparities in or conflicts between our EAS rules and
    those contained in section 79.2 that should be reconciled or
    combined and the manner in which such disparities or conflicts could
    be resolved in subsequent rules.

39. We also note that the digital and alternative technologies discussed
    in paragraphs 29 to 30 above may have particular benefits for
    persons with hearing and vision disabilities. We seek comment on how
    individuals with disabilities can be notified of EAS activation or
    other emergency alerts by such means. Such comments should address
    whether particular technological and economic resources associated
    with bringing state of the art emergency notification to the
    disabled community are adequate and, if not, what additional
    provisions are necessary. They should also address what the
    associated burdens would be of adding such resources.

40. [Emergency Warning for Non-English Speakers]{.underline}*.* We
    should also consider the needs of people with primary languages
    other than English when considering the best method of contacting
    the public during an emergency. In order to ensure that foreign
    language audiences are alerted, the Commission's EAS rules provide
    that EAS announcements may be made in the same language as the
    primary language of the station.[^85] We seek comment of the
    efficacy of these rules. For example, if a radio station
    transmitting in English is located in a predominantly
    Spanish-speaking community, should the station transmit EAS alerts
    in both English and Spanish? Additionally, products can be developed
    to convert the EAS digital signal to provide aural and visual
    messages in any language. We seek comment on whether current
    methodologies for providing alert and warning to non-English
    speaking persons are adequate. If not, what additional provisions
    are necessary, and what would be the costs associated with
    implementing such provisions?

## Other Issues

41. [Security.]{.underline} We also seek comment as to the security
    issues relevant to EAS. Security and encryption were not the primary
    design criteria when EAS was developed and initially implemented.
    Now, however, emergency managers are becoming more aware of
    potential vulnerabilities within the system. For example, the
    complete EAS protocol is a matter of public record and potentially
    subject to malicious activations or interference. Further, EAS
    distribution methods have potential for security concerns. For
    example, Internet Protocol-based systems and control links could be
    subjected to "denial of service" attacks aimed at preventing them
    from functioning.[^86] Additionally, when a station is operating
    unattended, no one is available on-site to intervene should an
    unauthorized seizure occur.[^87] There is also concern about
    physical security and unauthorized use of the system at state and
    local EAS activation sites. Although Commission-certified EAS
    encoders have the capability for password protection, it is up to
    each station and cable system to implement sufficient security and
    there is no way of knowing which stations use password
    security.[^88] Finally, EAS signal could be subject to jamming. Such
    vulnerabilities could be exploited during times of heightened public
    anxiety and uncertainty. We seek comment on how to improve the
    security of EAS distribution methods, information, and equipment or
    how to ensure the security of any public warning system. Should the
    Commission require password protection of all EAS encoders? Who
    should be responsible for system security and what security
    standards, if any, should be implemented? How can the authenticity
    of EAS messages be verified and/or how can broadcasters be protected
    from liability issues if they inadvertently rebroadcast a false or
    incorrect EAS message? Would adoption of any of MSRC's Best
    Practices alleviate security concerns?

42. [Location of EAS Equipment.]{.underline} In the *2002 Report and
    Order*, the Commission modified its rules to exempt
    satellite/repeater stations which rebroadcast 100% of their hub
    station from the requirement to install EAS equipment, provided the
    hub station complies with existing National level EAS equipment
    installation, activation and testing regulations.[^89] We
    acknowledge that this practice removes EAS equipment from the
    satellite/repeater stations and thereby precludes their
    participation in the State or local EAS activations via the EAS
    network. We seek comment on the impact this practice has or will
    have on any proposed changes to EAS or public warning systems. We
    also seek comment on whether the Commission should extend this
    practice to any other EAS providers. In this regard, such comment
    should address whether any centralized placement of EAS equipment,
    such as at the head-end of a cable system or satellite uplink, would
    have a positive or negative impact on the efficacy of EAS as a
    national, state, or local emergency notification system. Where is
    the best place to locate EAS equipment so it can be the most useful
    and maintainable?

43. [Testing.]{.underline} FEMA conducts weekly closed circuit tests of
    the PEP system by sending signals to EAS equipment at each PEP
    station site.[^90] However, no on-air tests of the PEP system ever
    have been conducted. All broadcasters and cable operators are
    required to conduct EAS weekly and monthly tests to ensure their EAS
    equipment is in operating condition.[^91] Should comprehensive
    periodic testing of the entire national EAS system from the PEP
    stations on down to state and local broadcast stations and cable
    systems be required? If so, how often should such testing occur?
    Should a special national level test code be adopted for this
    purpose, and should a post-test report be required? Should these
    national tests be in addition to the current testing requirement?
    Would having too many tests become a public nuisance leading to
    ignoring EAS alerts by the public? Additionally, we seek comment on
    whether the required monthly tests adequately evaluate the
    state-wide distribution of EAS alerts and, if not, what method of
    testing should be required.

44. [Training.]{.underline} Some broadcasters and cable operators state
    that the EAS system and equipment are difficult to learn and use
    during actual emergencies and that the infrequent use of the
    equipment results in staff members being unable to remember how to
    use it when necessary.[^92] Additionally, lack of EAS training for
    emergency management personnel is a concern.[^93] We seek comment on
    whether additional training resources should be provided to
    emergency managers and, if so, what these materials should include.
    Should there be periodic mandatory EAS training of broadcast station
    and cable system personnel? Should emergency managers receive
    mandatory education and training regarding how and when to utilize
    warning systems? Who should provide such education and training? Is
    there a need to educate the public about the EAS and public
    warning?  If yes, who should be responsible for such education? Who
    should incur the costs of training materials and employee time?

45. [Small Operators.]{.underline} Many of the topics discussed above
    would likely require participating services to incur additional
    costs. While large companies may have the resources to absorb
    equipment upgrades and staff, small business entities may not.
    Should the level of participation required be dependent on the size
    of the participating entity? How would predicating participation
    based on company size affect the usefulness of EAS? Should
    assistance be provided to small businesses? Should we consider
    government or other funding assistance to small entities? We note
    that many small cable operators have received temporary waivers of
    certain EAS rules due to financial hardship. What has been the
    effect of such waivers?

46. [Enforcement.]{.underline} The Commission has been aggressively
    enforcing the Commission's EAS rules. In 2003, for example, the
    Enforcement Bureau took approximately 80 EAS enforcement actions.
    Nonetheless, some broadcasters have failed to install or properly
    maintain EAS equipment. The base forfeiture amount set in the
    *Forfeiture Policy Statement*[^94] and section 1.80 of the
    rules[^95] for an EAS violation is \$8,000. We seek comment on
    whether we should increase the base amount or otherwise impose
    higher forfeitures in this area, and on whether there are additional
    ways to better ensure compliance. We also seek comment on whether we
    should seek legislation from Congress to increase the maximum
    forfeitures in this area from the current \$32,500 for a single
    violation or day of a continuing violation and maximum of \$325,000
    for a continuing violation.[^96]

47. [Miscellaneous Issues.]{.underline} We request comments on any other
    matters or issues, in addition to those discussed above, that may be
    pertinent to establishing the most effective and efficient public
    warning system in the United States and its territories.

#  CONCLUSION

48. We initiate this proceeding to establish a record on how the
    Commission can best facilitate the implementation of EAS as part of
    an effective public alert and warning system. After review of the
    record we will determine what rules or other next steps are
    appropriate. We may adopt new rules or revise certain of our current
    EAS rules, or we may combine an order adopting rules with a report
    summarizing the record and our policy perspectives regarding matters
    raised in the record in advance of further work with DHS and others
    in this area. At the same time, we might make legislative
    recommendations to Congress. In this regard, we invite comments on
    whether the Commission should make recommendations to Congress
    regarding EAS, or whether any of the Commission's EAS rules not
    otherwise addressed in this NPRM should be changed, and if so, why.
    Finally, although we have identified above particular subjects that
    we believe of interest to the public regarding EAS and public alert
    and warning in general, we welcome comment on any other ideas
    relevant to the issues addressed in this NPRM.

# procedural matters

49. [Comments and Reply Comments]{.underline}. Pursuant to sections
    1.415, 1.419, and 1.430 of the Commission's rules, 47 C.F.R. §§
    1.415, 1.419, 1.430, interested parties may file comments on or
    before 60 days after publication of this NPRM in the Federal
    Register, and reply comments on or before 90 days after publication
    of this NPRM in the Federal Register. All filings should refer to EB
    Docket No. 04-296. Comments may be filed using the Commission's
    Electronic Comment Filing System (ECFS) or by filing paper
    copies.[^97] For additional information on this proceeding, please
    contact Jean Ann Collins in the Enforcement Bureau, Office of
    Homeland Security at (202) 418-1199.

50. Comments filed through the ECFS can be sent as an electronic file
    via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally,
    only one copy of an electronic submission must be filed. In
    completing the transmittal screen, commenters should include their
    full name, postal service mailing address, and the applicable docket
    number, which in this instance is EB Docket No. 04-296. Parties may
    also submit an electronic comment by Internet e-mail. To obtain
    filing instructions for e-mail comments, commenters should send an
    e-mail to ecfshelp@fcc.gov, and should include the following words
    in the body of the message: "get form \<your e-mail address\>." A
    sample form and instructions will be sent in reply. You also may
    obtain a copy of the ASCII Electronic Transmittal Form (FORM-ET) at
    \<http://www.fcc.gov/e-file/email.html\>. Parties who choose to file
    by paper must file an original and four copies of each filing.
    Filings can be sent by hand or messenger delivery, by commercial
    overnight courier, or by first-class or overnight U.S. Postal
    Service mail (although we continue to experience delays in receiving
    U.S. Postal Service mail).

51. For hand deliveries, the Commission\'s contractor, Natek, Inc., will
    receive hand-delivered or messenger-delivered paper filings for the
    Commission\'s Secretary at 236 Massachusetts Avenue, NE, Suite 110,
    Washington, D.C. 20002. The filing hours at this location are 8:00
    a.m. to 7:00 p.m. All hand deliveries must be held together with
    rubber bands or fasteners. Any envelopes must be disposed of before
    entering the building. Commercial overnight mail (other than U.S.
    Postal Service Express Mail and Priority Mail) must be sent to 9300
    East Hampton Drive, Capitol Heights, MD 20743.

-   U.S. Postal Service first-class mail, Express Mail, and Priority
    Mail should be addressed to 445 12th Street, SW, Washington, D.C.
    20554.

-   All filings must be addressed to the Commission's Secretary, Office
    of the Secretary, Federal Communications Commission.

52. Comments and reply comments must include a short and concise summary
    of the substantive discussion and questions raised in the NPRM. We
    further direct all interested parties to include the name of the
    filing party and the date of the filing on each page of their
    comments and reply comments. We strongly encourage that parties
    track the organization set forth in this NPRM in order to facilitate
    our internal review process. Comments and reply comments must
    otherwise comply with section 1.48 and all other applicable sections
    of the Commission's rules.[^98]

53. To request materials in accessible formats (such as Braille, large
    print, electronic files, or audio format), send an e-mail to
    fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau
    at (202) 418-0531 (voice) or (202) 418-7365 (TTY). This Public
    Notice can also be downloaded in Word and Portable Document Format
    at \<http://www.fcc.gov/cgb.dro\>.

54. [Ex Parte Rules.]{.underline} These matters shall be treated as a
    "permit-but-disclose" proceeding in accordance with the Commission's
    *ex parte* rules.[^99] Persons making oral *ex parte* presentations
    are reminded that memoranda summarizing the presentations must
    contain summaries of the substance of the presentations and not
    merely a listing of the subjects discussed. More than a one or two
    sentence description of the views and arguments presented is
    generally required.[^100] Other requirements pertaining to oral and
    written presentations are set forth in section 1.1206(b) of the
    Commission's rules.

55. [Initial Regulatory Flexibility Analysis.]{.underline} With respect
    to this NPRM, an Initial Regulatory Flexibility Analysis (IRFA) is
    contained in Appendix A. As required by section 603 of the
    Regulatory Flexibility Act, the Commission has prepared an IRFA of
    the expected impact on small entities of the proposals contained in
    the NPRM. Written public comments are requested on the IRFA.
    Comments must be identified as responses to the IRFA and must be
    filed by the deadlines for comments on the NPRM specified in
    paragraph 49 above. The Commission will send a copy of the NPRM,
    including the IRFA, to the Chief Counsel for Advocacy of the Small
    Business Administration.[^101]

56. [Initial Paperwork Reduction Act of 1995 Analysis.]{.underline} This
    document contains proposed or modified information collection
    requirements. The Commission, as part of its continuing effort to
    reduce paperwork burdens, invites the general public and the Office
    of Management and Budget (OMB) to comment on the information
    collection requirements contained in this document, as required by
    the Paperwork Reduction Act of 1995, Public Law 104-13. Public and
    agency comments are due 60 days after date of publication of this
    Notice in the Federal Register. Comments should address: (a) whether
    the proposed collection of information is necessary for the proper
    performance of the functions of the Commission, including whether
    the information shall have practical utility; (b) the accuracy of
    the Commission\'s burden estimates; (c) ways to enhance the quality,
    utility, and clarity of the information collected; and (d) ways to
    minimize the burden of the collection of information on the
    respondents, including the use of automated collection techniques or
    other forms of information technology. In addition, pursuant to the
    Small Business Paperwork Relief Act of 2002, Public Law 107-198,
    *[see]{.underline}* 44 U.S.C. 3506(c)(4), we seek specific comment
    on how we might "further reduce the information collection burden
    for small business concerns with fewer than 25 employees."

# ordering clause

57. IT IS ORDERED, that pursuant to in sections 1, 4(i) and (o), 303(r),
    403, 624(g) and 706 of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 151, 154(i) and (o), 303(r), 403, 554(g), and 606, this
    Notice of Proposed Rulemaking is hereby ADOPTED.

58. IT IS FURTHER ORDERED that the Commission\'s Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this Notice of Proposed Rulemaking, including the
    Initial Regulatory Flexibility Analysis, to the Chief Counsel for
    Advocacy of the Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**Initial Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^102] the Commission has prepared this present Initial
    Regulatory Flexibility Analysis (IRFA) of the possible significant
    economic impact on a substantial number of small entities by the
    policies and rules proposed in this Notice of Proposed Rulemaking
    (NPRM). Written public comments are requested on this IRFA. Comments
    must be identified as responses to the IRFA and must be filed by the
    deadlines for comments on the NPRM provided above in paragraph 49 of
    the item. The Commission will send a copy of the NPRM, including
    this IRFA, to the Chief Counsel for Advocacy of the Small Business
    Administration (SBA).[^103] In addition, the NPRM and IRFA (or
    summaries thereof) will be published in the Federal Register.[^104]

## Need for, and Objectives of, the Proposed Rules

59. In this NPRM, the Commission solicits comment on whether EAS in its
    present form is the most effective mechanism for warning the
    American public of an emergency and, if not, on how EAS can be
    improved.

## Legal Basis

60. Authority for the actions proposed in this NPRM may be found 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.

## Description and Estimate of the Number of Small Entities to which the Proposed Rules Will Apply

61. 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.[^105] The RFA generally defines the
    term "small entity" as having the same meaning as the terms "small
    business," "small organization," and "small governmental
    jurisdiction."[^106] In addition, the term "small business" has the
    same meaning as the term "small business concern" under the Small
    Business Act.[^107] 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).[^108] A small
    organization is generally "any not-for-profit enterprise which is
    independently owned and operated and is not dominant in its
    field."[^109] The arts, entertainment, and recreations sector had
    96,497 small firms.[^110]

62. *Television Broadcasting*. The SBA has developed a small business
    sized standard for television broadcasting, which consists of all
    such firms having \$12 million or less in annual receipts.[^111]
    Business concerns included in this industry are those "primarily
    engaged in broadcasting images together with sound."[^112] According
    to Commission staff review of BIA Publications, Inc. Master Access
    Television Analyzer Database as of May 16, 2003, about 814 of the
    1,220 commercial television stations in the United States had
    revenues of \$12 million or less. We note, however, that, in
    assessing whether a business concern qualifies as small under the
    above definition, business (control) affiliations[^113] must be
    included.[^114] Our estimate, therefore, likely overstates the
    number of small entities that might be affected by our action,
    because the revenue figure on which it is based does not include or
    aggregate revenues from affiliated companies. There are also 2,127
    low power television stations (LPTV).[^115] Given the nature of this
    service, we will presume that all LPTV licensees qualify as small
    entities under the SBA size standard.

63. *Radio Stations*. The SBA has developed a small business size
    standard for Radio Stations, which consists of all such firms having
    \$6 million or less in annual receipts.[^116] Business concerns
    included in this industry are those "primarily engaged in
    broadcasting aural programs by radio to the public."[^117] According
    to Commission staff review of BIA Publications, Inc., Master Access
    Radio Analyzer Database, as of May 16, 2003, about 10,427 of the
    10,945 commercial radio stations in the United States had revenue of
    \$6 million or less. We note, however, that many radio stations are
    affiliated with much larger corporations with much higher revenue,
    and, that in assessing whether a business concern qualifies as small
    under the above definition, such business (control)
    affiliations[^118] are included.[^119] Our estimate, therefore,
    likely overstates the number of small businesses that might be
    affected by our action.

64. *Cable and Other Program Distribution*. The SBA has developed a
    small business size standard for Cable and Other Program
    Distribution, which consists of all such firms having \$12.5 million
    or less in annual receipts.[^120] According to Census Bureau data
    for 1997, in this category there was a total of 1,311 firms that
    operated for the entire year.[^121] Of this total, 1,180 firms had
    annual receipts of under \$10 million, and an additional 52 firms
    had receipts of \$10 million to \$24,999,999.[^122] Thus, under this
    size standard, the majority of firms can be considered small.

65. *Multipoint Distribution Systems.* The proposed rules would apply to
    Multipoint Distribution Systems operated as part of a wireless cable
    system. The Commission has defined "small entity" for purposes of
    the auction of MDS 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.[^123] This
    definition of small entity in the context of MDS auctions has been
    approved by the SBA.[^124] The Commission completed its MDS 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 MDS auction winners, 48
    remain small business licensees.

66. MDS 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.[^125] This definition includes
    MDS and thus applies to MDS licensees that did not participate in
    the MDS auction. Information available to us indicates that there
    are approximately 392 incumbent MDS 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 MDS providers as defined by the SBA and the
    Commission's auction rules which may be affected by the rules
    proposed herein.

67. *Instructional Television Fixed Service.* The proposed rules would
    also apply to Instructional Television Fixed Service facilities
    operated as part of a wireless cable system. The SBA definition of
    small entities for pay television services also appears to apply to
    ITFS.[^126] There are presently 2,032 ITFS licensees. All but 100 of
    these licenses are held by educational institutions. Educational
    institutions are included in the definition of a small
    business.[^127] However, we do not collect annual revenue data for
    ITFS 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 tentatively conclude that at least 1,932
    ITFS are small businesses and may be affected by the proposed rules.

68. *Wireless Service Providers*. The SBA has developed a small business
    size standard for wireless small businesses within the two separate
    categories of Paging[^128] and Cellular and Other Wireless
    Telecommunications. [^129] Under both SBA categories, a wireless
    business is small if it has 1,500 or fewer employees. According to
    the Commission's most recent data,[^130] 1,761 companies reported
    that they were engaged in the provision of wireless service. Of
    these 1,761 companies, an estimated 1,175 have 1,500 or fewer
    employees and 586 have more than 1,500 employees. This SBA size
    standard also applies to wireless telephony. Wireless telephony
    includes cellular, personal communications services, and specialized
    mobile radio telephony carriers. According to the most recent Trends
    in Telephone Service data, 719 carriers reported that they were
    engaged in the provision of wireless telephony.[^131] We have
    estimated that 294 of these are small under the SBA small business
    size standard.

69. *Broadband Personal Communications Service*. The broadband personal
    communications services (PCS) spectrum is divided into six frequency
    blocks designated A through F, and the Commission has held auctions
    for each block. The Commission has created a small business size
    standard for Blocks C and F as an entity that has average gross
    revenues of less than \$40 million in the three previous calendar
    years.[^132] For Block F, an additional small business size standard
    for "very small business" was added and is defined as an entity
    that, together with its affiliates, has average gross revenues of
    not more than \$15 million for the preceding three calendar
    years.[^133] These small business size standards, in the context of
    broadband PCS auctions, have been approved by the SBA.[^134] No
    small businesses within the SBA-approved small business size
    standards bid successfully for licenses in Blocks A and B. There
    were 90 winning bidders that qualified as small entities in the
    Block C auctions. A total of 93 "small" and "very small" business
    bidders won approximately 40 percent of the 1,479 licenses for
    Blocks D, E, and F.[^135] On March 23, 1999, the Commission
    reauctioned 155 C, D, E, and F Block licenses; there were 113 small
    business winning bidders.[^136] On January 26, 2001, the Commission
    completed the auction of 422 C and F Broadband PCS licenses in
    Auction No. 35. Of the 35 winning bidders in this auction, 29
    qualified as "small" or "very small" businesses.[^137] Subsequent
    events, concerning Auction 35, including judicial and agency
    determinations, resulted in a total of 163 C and F Block licenses
    being available for grant.

70. *Incumbent Local Exchange Carriers (Incumbent LECs)*. We have
    included small incumbent local exchange carriers in this present
    IRFA analysis. As noted above, a "small business" under the RFA is
    one that, *inter alia*, meets the pertinent small business size
    standard (*e.g*., a telephone communications business having 1,500
    or fewer employees), and "is not dominant in its field of
    operation."[^138] The SBA's Office of Advocacy contends that, for
    RFA purposes, small incumbent LECs are not dominant in their field
    of operation because any such dominance is not "national" in
    scope.[^139] We have therefore included small incumbent local
    exchange carriers in this RFA analysis, although we emphasize that
    this RFA action has no effect on Commission analyses and
    determinations in other, non-RFA contexts. Neither the Commission
    nor the SBA has developed a small business size standard
    specifically for incumbent local exchange services. The appropriate
    size standard under SBA rules is for the category Wired
    Telecommunications Carriers. Under that size standard, such a
    business is small if it has 1,500 or fewer employees.[^140]
    According to Commission data,[^141] 1,337 carriers have reported
    that they are engaged in the provision of incumbent local exchange
    services. Of these 1,337 carriers, an estimated 1,032 have 1,500 or
    fewer employees and 305 have more than 1,500 employees.
    Consequently, the Commission estimates that most providers of
    incumbent local exchange service are small businesses that may be
    affected by our proposed rules.

71. *Competitive Local Exchange Carriers (Competitive LECs), Competitive
    Access Providers (CAPs), "Shared-Tenant Service Providers," and
    "Other Local Service Providers."* Neither the Commission nor the SBA
    has developed a small business size standard specifically for these
    service providers. The appropriate size standard under SBA rules is
    for the category Wired Telecommunications Carriers. Under that size
    standard, such a business is small if it has 1,500 or fewer
    employees.[^142] According to Commission data,[^143] 609 carriers
    have reported that they are engaged in the provision of either
    competitive access provider services or competitive local exchange
    carrier services. Of these 609 carriers, an estimated 458 have 1,500
    or fewer employees and 151 have more than 1,500 employees. In
    addition, 16 carriers have reported that they are "Shared-Tenant
    Service Providers," and all 16 are estimated to have 1.500 or fewer
    employees. In addition, 35 carriers have reported that they are
    "Other Local Service Providers." Of the 35, an estimated 34 have
    1,500 or fewer employees and one has more than 1,500 employees.
    Consequently, the Commission estimates that most providers of
    competitive local exchange service, competitive access providers,
    "Shared-Tenant Service Providers," and "Other Local Service
    Providers" are small entities that may be affected by our proposed
    rules.

72. *Satellite Telecommunications and Other Telecommunications*. The
    Commission has not developed a small business size standard
    specifically for providers of international service. The appropriate
    size standards under SBA rules are for the two broad categories of
    Satellite Telecommunications and Other Telecommunications. Under
    both categories, such a business is small if it has \$12.5 or less
    in average annual receipts.[^144] For the first category of
    Satellite Telecommunications, Census Bureau data for 1997 show that
    there were a total of 324 firms that operated for the entire
    year.[^145] Of this total, 273 firms had annual receipts of under
    \$10 million, and an additional twenty-four firms had receipts of
    \$10 million to \$24,999,999. Thus, the majority of Satellite
    Telecommunications firms can be considered small.

73. The second category -- Other Telecommunications -- includes
    "establishments primarily engaged in ... providing satellite
    terminal stations and associated facilities operationally connected
    with one or more terrestrial communications systems and capable of
    transmitting telecommunications to or receiving telecommunications
    from satellite systems."[^146] According to Census Bureau data for
    1997, there were 439 firms in this category that operated for the
    entire year.[^147] Of this total, 424 firms had annual receipts of
    \$5 million to \$9,999,999 and an additional 6 firms had annual
    receipts of \$10 million to \$24,999,990. Thus, under this second
    size standard, the majority of firms can be considered small.

## Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

74. There are potential reporting or recordkeeping requirements proposed
    in this NPRM, particularly with regard to state and local EAS
    participation and participation by digital broadcasters. The
    proposals set forth in the NPRM are intended to enhance the
    performance of the EAS while reducing regulatory burdens wherever
    possible.

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

75. The RFA requires an agency to describe any significant alternatives
    that it has considered in reaching its proposed 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.

76. In setting forth the proposals contained in this NPRM, we have
    attempted to minimize the burdens on all entities.[^148] We seek
    comment on the impact of our proposals on small entities and on any
    possible alternatives that would minimize the impact on small
    entities.

## Federal Rules that Duplicate, Overlap, or Conflict with the Proposed Rules

77. None.

**STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: Review of the Emergency Alert System, Notice of Proposed
Rulemaking*

For over a half century, the United States has had in place a national
warning system utilizing, in part, our Nation's broadcast outlets. From
the CONELRAD, established in 1951 by President Truman during the Korean
War to its replacement, the Emergency Broadcast System, established in
1963 by President Kennedy to the modern day Emergency Alert System
(EAS), our government has sought to employ our country's media outlets
as a mechanism for warning the American public of an emergency.

A lot has changed since 1951. As the primary role of EAS remains a
national public warning system, increasingly state and local
jurisdictions have used its capabilities to notify their citizens of
local emergencies, including natural weather disasters and in saving the
lives of many abducted children through the Amber Alert. In addition,
EAS has grown from its predecessor's birth on AM radio to FM radio,
broadcast television and wireline and wireless cable systems. Of course,
the threats to our homeland have also changed dramatically over the last
fifty years. As the world around us has changed, however, the import of
the EAS as a tool for reaching our citizenry during time of need remains
high.

We are proud to adopt this Notice today, as a result, in part, of the
recommendations of the Media Security and Reliability Council and the
Partnership for Public Warning and in coordination with our partners at
the Department of Homeland Security and its component, FEMA and the
Department of Commerce and its component, the National Oceanic and
Atmospheric Administration's National Weather Service.

This proceeding will provide one of many vehicles by which we
collectively explore the most effective mechanism for warning the
American public of an emergency and the role of EAS as we move further
into our digital future. I commend my colleagues here at the Commission
and our partners at DHS, FEMA, DoC and NOAA for their dedication to
making our homeland a safer place for our citizens.

**STATEMENT OF**

**COMMISSIONER KATHLEEN Q. ABERNATHY**

*Re: Review of the Emergency Alert System, Notice of Proposed
Rulemaking*

It is essential that the American public has access to emergency
information in times of crisis. The Emergency Alert System ("EAS")
provides a means for the President and national, state and local
authorities to directly relay emergency information to the public
regarding such matters as national security and preparedness, natural
disasters, and missing children alerts. As new communications
technologies develop and become integrated into our society, it is
important that we adapt our rules to ensure that the purposes of the EAS
are being fulfilled. Today, we take an important step toward improving
this critical public safety tool by seeking comment on how we can keep
up with the changing times, technologies, and security issues.

Additionally, I am very pleased that this NPRM recognizes the
Commission's continued commitment to ensuring that persons with
disabilities and speakers of other languages have equal access to public
warnings. It is critical that we keep these communities in mind, and
recognize the particular benefits that digital and other technologies
may provide, as we move forward to improve our emergency alert system.

I look forward to working with DHS, FEMA, NOAA, and NWS to create a
system that effectively and efficiently utilizes modern technology to
successfully keep the American public apprised of vital safety
information.

STATEMENT OF

COMMISSIONER MICHAEL J. COPPS

*Re: Review of the Emergency Alert System, Notice of Proposed
Rulemaking*

September 11 and events in this country since have highlighted the need
for a warning system which affords national as well as state and local
authorities the capability to provide emergency communications and
information to the American public. The EAS serves as our primary alert
system today for everything from weather emergencies to Amber alerts to
save abducted children.

The Commission asked its Media Security and Reliability Council to
examine the best means to reach the broadest possible population with
emergency and public safety information. We also benefited in our
deliberations from the analysis and recommendations of the Partnership
for Public Warning, a public-private partnership whose goal is to
increase emergency preparedness. These groups addressed shortcomings in
the current EAS, including, among others, the need to upgrade the system
and enhance its use for providing state and local, as well as national,
emergency information. They considered the important goal of finding
ways to integrate diverse technologies so people can receive information
in myriad ways. And these expert committees concluded that while
improvements to the EAS are needed, it remains integral to our national
warning system.

I appreciate my colleagues' willingness to accelerate action on these
recommendations through an NPRM rather than a start-from-scratch Notice
of Inquiry. The issues on which we seek comment, in addition to the ones
I've already mentioned, include bringing our warning system into the
digital era, ensuring the security of the EAS, and addressing how best
to provide emergency information to all segments of our population,
including those with disabilities and those whose primary language is
not English. We unfortunately do not have the luxury of time in these
efforts. I vote for this item with the understanding that we will work
aggressively in partnership with other government agencies, industry,
and all stakeholders to promote a comprehensive national public warning
capability.

**STATEMENT OF**

**COMMISSIONER KEVIN J. MARTIN**

*Re: Review of the Emergency Alert System, Notice of Proposed
Rulemaking*

The importance of our ability to quickly and effectively inform the
public of an emergency cannot be understated.  Whether the issue is a
terrorist attack or impending weather disaster, our success in this
endeavor can mean the difference between life and death.  Currently, we
rely almost exclusively on the Emergency Alert System to disseminate
warnings to the public. EAS therefore serves a critical purpose, yet it
applies only to analog broadcast and cable television and its use is, in
many instances, merely voluntary.  We need either to update this system
or to replace it with a more comprehensive and effective digital warning
mechanism. 

I strongly support initiation of this rulemaking to determine the best
solution to ensure that all Americans can receive emergency
information.  I am pleased at the coordination that has taken place to
date with the Department of Homeland Security and the Department of
Commerce, and I look forward to working with these partners as well as
our colleagues at the state and local level to develop the best system
to protect the American people.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Review of the Emergency Alert System, Notice of Proposed
Rulemaking*

I am pleased we launch this review of our nation's increasingly outdated
Emergency Alert System. We must move quickly to act on this rulemaking
and further protect the lives of all Americans.

Our task is not easy, but we cannot afford to wait. The public warning
capability of communications technologies should be among the highest
priorities of this agency. This will take hard work and continued
coordination with the Department of Homeland Security and our other
partners.

The Cold-War era EAS system is an imperfect system for our modern
society, but for the near term it remains one of the best options we
have to deliver emergency messages to as many people as possible as
quickly as possible. The Media Security and Reliability Council and the
Partnership for Public Warning have suggested ways to improve EAS. The
Commission must now buckle down and do what it is we are asking state
and local officials to do -- assess vulnerabilities, create a plan for
better service, and review and update that plan as communications
technologies evolve.

The American public expects broadcasters to deliver timely local and
national emergency and public safety information. For example, the FCC's
broadcast localism hearing in Rapid City, South Dakota, proved how
vitally important disaster warnings are for rural areas of the country.
The County's Emergency Management Director testified about the
cooperation and collaboration among public safety officials and all
local broadcasters that resulted from a devastating flood and led to a
voluntary initiative to improve public safety warnings in the county.
But not all broadcasters and state and local governments have taken this
step.

We should use our oversight of the broadcast and other communications
industries to ensure more consistency at the state and local level. With
the transition of television and radio to digital broadcasting, we have
an opportunity to improve upon the EAS system to communicate emergency
and public safety information in even more targeted and innovative ways.
We can design a system to better serve all stakeholders, including the
disability community and the nation's many non-English speakers.

But we must act quickly. In conjunction with our other federal partners,
the American public counts on us to ensure a public warning system
second to none. It is imperative that we quickly put ideas into action
and lead our country to an even higher level of security.

[^1]: *See Amendment of Part 11 of the Commission's Rules Regarding the
    Emergency Alert System*, Report and Order, 17 FCC Rcd 4055 (2002)
    (*2002 Report and Order*); *Amendment of Part 11 of the Commission's
    Rules Regarding the Emergency Alert System*, Notice of Proposed
    Rulemaking, 16 FCC Rcd 7255 (2001); *Amendment of Part 73, Subpart
    G, of the Commission's Rules Regarding the Emergency Broadcast
    System,* Second Further Notice of Proposed Rulemaking, 13 FCC Rcd
    6353 (1998); *Amendment of Part 73, Subpart G, of the Commission's
    Rules Regarding the Emergency Broadcast System,* Third Report and
    Order, 14 FCC Rcd 1273 (1998); *Amendment of Part 73, Subpart G, of
    the Commission's Rules Regarding the Emergency Broadcast System,*
    Second Report and Order, 12 FCC Rcd 15503 (1997) (*Second Report and
    Order*); *Amendment of Part 73, Subpart G, of the Commission's Rules
    Regarding the Emergency Broadcast System,* Report and Order and
    Further Notice of Proposed Rulemaking, 10 FCC Rcd 1786 (1994)
    (*First Report and Order*), *reconsideration granted in part, denied
    in part*, 10 FCC Rcd 11494 (1995) (*Memorandum Opinion and Order*);
    *Amendment of Part 73, Subpart G, of the Commission's Rules
    Regarding the Emergency Broadcast System,* Notice of Proposed
    Rulemaking and Further Notice of Proposed Rulemaking, 7 FCC Rcd 6903
    (1992); *Amendment of Part 73, Subpart G, of the Commission's Rules
    Regarding the Emergency Broadcast System,* Notice of Inquiry and
    Notice of Proposed Rulemaking, 6 FCC Rcd 6739 (1991); *Inquiry into
    Possible Technical Improvements in the Emergency Broadcasting
    System*, Notice of Inquiry, 6 FCC Rcd 4264 (1991).

[^2]: 47 C.F.R. § 11.44.

[^3]: 47 C.F.R. § 11.1.

[^4]: *See, e.g., NOAA News Release,* Homeland Security Uses NOAA
    All-Hazards Network For Alerts And Warnings (June 17, 2004); *CEA
    News Release*, CEA Welcomes DHS and NOAA Public Alert Memorandum of
    Agreement (June 17, 2004)*; see also* *Pennsylvania Emergency Alert
    System State EAS Plan (2004).*

[^5]: *Providing for Emergency Control Over Certain Government and
    Non-Government Stations Engaged in Radio Communication or Radio
    Transmission of Energy*, Exec. Order No. 10,312, 51 Fed. Reg. 14,769
    (1951).

[^6]: *Assigning Emergency Preparedness Functions to the Federal
    Communications Commission*, Exec. Order No. 11,092, 63 Fed. Reg.
    2216 (1963).

[^7]: *See Amendment of Section 73.906 of the Commission's Rules to
    Substitute a Two-Tone Attention Signal for the Carrier-Break and
    1,000 HZ Signal Presently in Use*, Order, 49 FCC 2d 1160 (1974). By
    transmitting the frequencies 853Hz and 960Hz simultaneously, the new
    EBS equipment produced an audio/analog two-tone alerting signal
    which was broadcast by stations on the main audio channel. This
    two-tone signal served the dual purpose of getting the listener's
    attention and activating other EBS equipment in the surrounding
    area. The EBS station operator then listened to the audio message
    coming out of the speaker of the decoder/receiver to determine the
    reason the EBS signal had been transmitted, and acted accordingly.
    The EBS initially focused on the distribution of national level
    emergency information, however, in 1976, the Commission, FEMA, and
    the NWS endorsed the use of the two‑tone EBS audio signal during
    state and local emergencies. *See* *State and Local Emergency
    Broadcasting System (EBS) Memorandum of Understanding Among the
    Federal Emergency Management Agency (FEMA), Federal Communications
    Commission (FCC), and the National Oceanic and Atmospheric
    Administration (NOAA)*, (June 28, 1976).

[^8]: Cable Television Consumer Protection and Competition Act of 1992,
    Pub. L. No. 102-385, § 16(b), 106 Stat. 1460, 1490 (1992). Section
    624(g) provides that \"each cable operator shall comply with such
    standards as the Commission shall prescribe to ensure that viewers
    of video programming on cable systems are afforded the same
    emergency information as is afforded by the emergency broadcasting
    system pursuant to Commission regulations \....\" 47 U.S.C. §
    544(g).

[^9]: *See First Report and Order*, 10 FCC Rcd at 1786; *see also* Cable
    Television Consumer Protection and Competition Act of 1992, Pub. L.
    No. 102-385, § 16(b), 106 Stat. 1460, 1490 (1992).

[^10]: *See Second Report and Order*, 12 FCC Rcd at 15503. For purposes
    of the EAS rules, a "wireless cable system" is a collection of
    Multipoint Distribution Service, Multichannel Multipoint
    Distribution Service or Instructional Television Fixed Service
    channels used to provide video programming and other one-way and
    two-way communications services to subscribers. The channels may be
    licensed to or leased by wireless cable system operators. *See* 47
    C.F.R. § 11.11(c)(1). Hereafter, use of the term "cable systems" and
    "cable operators" includes wired and wireless cable systems unless
    specifically stated otherwise. As part of its ongoing efforts to
    promote the deployment of wireless broadband services, the
    Commission recently adopted revisions that transform the rules
    governing MDS/MMDS (renamed the \"Broadband Radio Service\") and
    ITFS to provide greater flexibility and a more functional band plan
    for licensees. *See Amendment 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 and 2500-2690 MHz Bands*, WT Docket No. 03-66, Report and
    Order and Further Notice of Proposed Rulemaking, FCC 04-135 (rel.
    July 29, 2004).

[^11]: *See* *State and Local Emergency Broadcasting System (EBS)
    Memorandum of Understanding Among the Federal Emergency Management
    Agency (FEMA), Federal Communications Commission (FCC), and the
    National Oceanic and Atmospheric Administration (NOAA)* (Approved by
    National Industry Advisory Committee (NIAC) on April 21, 1982). Note
    that NIAC was chartered in 1963 to advise and assist the Commission
    in executing its emergency preparedness responsibilities. *See
    supra* note Error: Reference source not found.

[^12]: The 1984 Executive Order addressed the assignment of national
    security and emergency preparedness functions relating to
    telecommunications, specifically stating that the Director of FEMA
    shall "\[d\]evelop, upon request and to the extent consistent with
    law and in consonance with regulations promulgated by and agreement
    with the Federal Communications Commission, plans and capabilities
    for, and provide policy and management oversight of, the Emergency
    Broadcast System, and advise and assist private radio licensees of
    the Commission in developing emergency communications plans,
    procedures and capabilities." *Assignment of National Security and
    Emergency Preparedness Telecommunications Functions*, Exec. Order
    No. 12,472, 49 Fed. Reg. 13,471 (1984).

[^13]: In a 1995 Presidential Statement of Requirements, President
    William J. Clinton addressed presidential communications with the
    general public during periods of national emergency; *see
    Presidential Communications with the General Public During Periods
    of National Emergency,* The White House (September 15, 1995)*(1995
    Presidential Statement of Requirements)*.

[^14]: 47 U.S.C. §§ 151, 154(i) and (o), 303(r), 606.

[^15]: 47 U.S.C. § 151.

[^16]: 47 U.S.C. § 544(g).

[^17]: Americans with Disabilities Act, (ADA), Pub. L. No. 101-336,104
    Stat. 327 (1990); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess.
    (1990) (House Report)*.*

[^18]: *See also Individuals with Disabilities in Emergency
    Preparedness*, Exec. Order No. 13,347, 69 Fed. Reg. 44,573 (2004).

[^19]: 47 C.F.R. § 11.44(a).

[^20]: *See* 47 C.F.R. § 11.55(a); *see also* *2002 Report and Order,*
    17 FCC Rcd at 4057; *First Report and Order*, 10 FCC Rcd at 1809.

[^21]: Amateur radio operators play an important role in providing
    emergency communications, but are not subject to mandatory EAS
    obligations. *See* 47 C.F.R. § 97.1(a).

[^22]: These services are among the evolving digital technologies that
    bring advanced services to consumers and make more efficient use of
    the available spectrum. DBS service, including the Direct-to-Home
    Fixed-Satellite Service (DTH-FSS), provides multi-channel video
    programming services to millions of households. DTV is a type of
    broadcasting technology that allows broadcasters to offer television
    with movie-quality picture and CD-quality sound, along with a
    variety of other enhancements that can be used to transmit large
    amounts of other data into the home, which may be accessible by
    using a computer or television set. DAB technology utilizes new and
    efficient audio compression techniques that reduce the amount of
    bandwidth required to transmit a high-quality audio signal. Finally,
    IBOC systems are designed to simultaneously broadcast both analog
    and digital radio signals on broadcasters\' existing AM and FM
    frequencies without disrupting existing analog service. *See* FCC
    Public Release*, FCC Commences Rulemaking To Consider Terrestrial
    Digital Audio Broadcasting* (November 1, 1999). We note that on
    April 20, 2004, the Commission tentatively concluded that IBOC
    systems are subject to the same EAS and other emergency broadcast
    rules as are AM radio stations. *See infra* para. 29.

[^23]: Robert T. Stafford Disaster Relief and Emergency Assistance Act
    (Stafford Act), as amended, 42 U.S.C. § 5121, *et. seq*. As a result
    of the Stafford Act, twenty-seven Federal departments and agencies
    signed an agreement concerning Federal response and assistance to
    State and local governments when a major disaster or emergency
    overwhelms their ability to respond.

[^24]: *See* National Operations Warning System Operations Manual, FEMA
    Manual 1550.2 at 1-2, March 30, 2001,
    \<http://[www.fema.gov/pdf/library/1550_2.pdf](http://www.fema.gov/pdf/library/1550_2.pdf)\>.

[^25]: NWS broadcasts NWS forecasts, warnings, watches, and other
    non-weather related hazard information 24 hours a day. During an
    emergency, NWS sends out a special tone that activates any NOAA
    Weather Radio, a specialized consumer electronic device, in the
    listening area. Using the Specific Area Message Encoding (SAME)
    technology, NOAA Weather Radios can be programmed to receive
    information specific to a certain area and, if equipped with a
    special alarm tone feature, can sound an alert and provide immediate
    information. Working with other federal agencies and EAS, NWS is an
    all-hazards radio network that broadcasts warnings and post-event
    information for all types of hazards, including weather, natural,
    technological, and national emergencies. *See*
    \<http://www.nws.noaa.gov/nwr/allhazard.htm\>. On June 17, 2004, the
    Information Analysis and Infrastructure Protection Directorate of
    DHS signed an agreement with NOAA to allow DHS to send critical
    all-hazard alert and warnings directly through the NOAA All-Hazard
    Network. *See DHS News Release,* Homeland Security Leverages NOAA
    All-Hazards Network for Alerts and Warnings (June 17, 2004). Local
    NWS offices provide NWS alerts and broadcast non-weather related
    emergency messages provided to them directly by local and state
    government officials. For non-weather emergencies, the system is
    activated by the NWS at the request of local and/or state officials.

[^26]: This number will likely increase due to the agreement between DHS
    and NOAA*. See id.*

[^27]: NWS also operates NOAA Weather Wire Service (NWWS), a satellite
    data collection and dissemination system. *See*
    \<http://www.nws.noaa.gov/nwws/description.htm\>. The purpose of
    NWWS is to provide state and federal government, commercial users,
    media, and private citizens with timely delivery of meteorological,
    hydrological, climatological, and geophysical information from 141
    NWS offices and the U.S. Geological Survey's national Earthquake
    Information Center. NWWS delivers severe weather and storm warnings
    to users in 10 seconds or less from the time they are issued. NWWS
    can be received via C-band satellite, Ku-band satellite, or over the
    Internet. All three options require a personal computer and
    appropriate software. NWWS can activate the EAS or provide warning
    information for non-EAS broadcast. *See A National Strategy for
    Integrated Public Warning Policy and Capability, Partnership for
    Public Warning Report* 2003-01 at 12 (May 16, 2003) (*PPW May 2003
    Report*).

[^28]: The Commission has encouraged the monitoring of NWS
    transmissions. *See First Report and Order*, 10 FCC Rcd at 1810-11.
    All EAS decoders are able to directly monitor and decode NWS SAME
    codes with the addition of any ordinary weather radio receiver and
    off-the-shelf connections to the EAS decoder.

[^29]: 47 C.F.R. § 11.31(c).

[^30]: All broadcast stations and cable systems have EAS designations
    that describe their functions within EAS. *See* 47 C.F.R. § 11.18.

[^31]: 47 C.F.R. § 11.14.

[^32]: 47 C.F.R. §§ 11.21, 11.52(d). The broadcast stations and cable
    systems must monitor at least two EAS sources to reduce the
    likelihood of a single point of failure preventing an EAS message
    from propagating through the system.

[^33]: The State Relay Network is composed of State Relay sources,
    leased common carrier communications facilities, or any other
    available communication facilities. In addition to EAS monitoring,
    satellites, microwave, FM subcarrier, or any other communications
    technology may be used to distribute state emergency messages. *See*
    47 C.F.R. § 11.20.

[^34]: 47 C.F.R. § 11.18(d).

[^35]: 47 C.F.R. § 11.18(b).

[^36]: 47 C.F.R. § 11.31. EAS messages enter the EAS system via
    equipment that is able both to encode and decode EAS messages, often
    called an ENDEC unit. EAS equipment sends and receives messages
    using a precise format referred to as the EAS digital protocol. An
    emergency activation of EAS uses a four part message: (1) preamble
    and EAS header codes; (2) audio attention signal; (3) message; and
    (4) preamble and EAS end of message codes. *See* 47 C.F.R.
    § 11.31(a).

[^37]: 47 C.F.R. §§ 11.33(a)(4), 11.51(k)(1), 11.54.

[^38]: 47 C.F.R. § 11.31(c).

[^39]: 47 C.F.R. § 11.31(a)(3)(i).

[^40]: MSRC was formed following the events of September 11, 2001, to
    study, develop, and report on Best Practices designed to ensure the
    continued operations and security of media facilities in times of a
    national emergency. *See* FCC News Release, *FCC Announces Creation
    of Media Security & Reliability Council; Tribune Company President
    Dennis Fitzsimons To Be Chairman*, (rel. Mar. 28, 2002).

[^41]: PPW is governed by an elected Board of Trustees representing
    local and state governments, private industry and the non-profit
    community. Federal agencies participating in PPW include the
    Department of Homeland Security, Department of Commerce and the
    Federal Communications Commission. *See*
    \<http://www.PartnershipForPublicWarning.org\>.

[^42]: *Partnership for Public Warning*, The Emergency Alert System
    (EAS): An Assessment, Partnership for Public Warning, 30 (February
    2004) (*PPW 2004 EAS Assessment*); *see also Media Security and
    Reliability Council* Comprehensive Best Practices Recommendations,
    Media Security and Reliability Council, 11-12 (March 2004) (*MSRC
    March 2004 Best Practices Recommendations*).

[^43]: *PPW 2004 EAS Assessment* at 28.

[^44]: *Id.* at 4, 30.

[^45]: *Id.* at 5.

[^46]: *MSRC March 2004 Best Practices Recommendations* at 11.

[^47]: *Id.* at 11; *PPW 2004 EAS Assessment* at 32.

[^48]: *See* *supra* paras. 9-12*.*

[^49]: *See, e.g., MSRC EAS Survey Results,* MSRC Government Media
    Subcommittee (May 23, 2003) \<http://www.tab.org/eas.php\> (*MSRC
    EAS Survey)*; *see also* Randy J. Stine, *Saving Lives or Wrecking
    Radio?,* Radio World (April 7, 2004).

[^50]: *MSRC EAS Survey* at 42.

[^51]: *Broadcast Localism*, Notice of Inquiry, MB Docket No. 04-233,
    FCC 04-129, para. 28 (July 1, 2004) (*Localism NOI*). We will
    incorporate comments on EAS filed in the *Broadcast Localism*
    proceeding into the record of this proceeding. The Commission's
    Localism Task Force has also discussed EAS and emergency
    notification issues in its recent localism hearings in Monterey,
    California, and Rapid City, South Dakota. *See* FCC News Release,
    *FCC's Localism Task Force Announces Panelists and Final Agenda for
    Public Hearing on Broadcast Localism in Monterey, California, July
    21, 2004* (rel. July 20, 2004); FCC News Release, *FCC's Localism
    Task Force Announces Panelists and Final Agenda for Public Hearing
    on Broadcast Localism in Rapid City, South Dakota, May 26, 2004*
    (rel. May 24, 2004). For more information about the Localism Task
    Force, see the Commission's website at
    \<http://www.fcc.gov/localism/\>.

[^52]: 47 C.F.R. § 11.21. Commission rules require only that, once
    created, state and local plans be reviewed and approved by the
    Director, Office of Homeland Security, Enforcement Bureau, prior to
    implementation to ensure that they are consistent with national
    plans, Commission regulations, and EAS operation. *See id.*

[^53]: *PPW 2004 EAS Assessment* at 30.

[^54]: *E.g., see generally MSRC EAS Survey*.

[^55]: Comments can address methods by which emergency managers address
    particular PEP problems. For example, Michigan was granted a FEMA
    Hazard Mitigation Grant in 2002 to help solve EAS relay problems and
    developed a hybrid Internet/satellite relay system in 2003. *See*
    *MSRC EAS Survey* at 72.

[^56]: *Id.*

[^57]: In an article arguing that this should be done, the author noted
    that redundant wired and wireless links are not that expensive to
    implement and maintain between 911 centers and electronic media
    outlets in population centers. *See* Guy Wire, *Overhauling EAS*,
    Radio World (February 24, 2004).

[^58]: 47 C.F.R. § 11.31(e)-(f).

[^59]: *Id*.

[^60]: *Id*.

[^61]: *See generally First Report and Order*.

[^62]: *See Localism NOI*, FCC 04-129 at para. 29 (citing *Public
    Interest Obligations of TV Broadcast Licensees,* Notice of Inquiry,
    14 FCC Rcd 21633, 21642 (1999))*.*

[^63]: *Id.*

[^64]: *See Digital Audio Broadcasting Systems and their Impact on the
    Terrestrial Radio Broadcast Service*, MM Docket No. 99-325, Further
    Notice of Proposed Rulemaking and Notice of Inquiry, 19 FCC Rcd
    7505, 7519 (2004).

[^65]: We note in this regard that the Association of Public Television
    Stations (APTS) has initiated a "Datacasting" project whereby EAS
    and other emergency notifications can be carried on the digital
    television bit stream. *See* Jeffrey Davis et al., *Public Digital
    Television: Improving Homeland Security*, The Association of Public
    Television Stations, 4, June 2003 \<
    http://www.apts.org/html/homeland/hswhitepaper.pdf\>.

[^66]: "Force tuning" technology allows a cable operator to switch
    subscribers from any programmed channel to a specific system channel
    that will carry EAS messages.

[^67]: *First Report and Order*, 10 FCC Rcd at 1796, 1799.

[^68]: *Id*. at 1799-1800.

[^69]: *PPW 2004 EAS Assessment* at 22 (citing Radio Advertising Bureau
    statistics).

[^70]: *Id.* at 21 (citing Arbitron 2001 Radio Today).

[^71]: *Id.* at 21 (citing Nielsen Media Research, 2000 Report on
    Television).

[^72]: Although EAS decoders can be built into a variety of electronic
    devices that would enable them to receive EAS alerts and activate
    devices even when they are not turned on, relatively few companies
    are producing such devices. *See PPW 2004 EAS Assessment* at 30*.*
    Further, although NWS signals are accessible to 95 percent of the
    American population in the fifty states, Puerto Rico, the Virgin
    Islands, Guam, and the Mariana Islands, a recent national survey of
    1,000 people concluded that, depending on the region of the country,
    only between eight and 13 percent of United States households have
    NWS receivers and less than half of those receivers are portable.
    *See* *PPW May 2003 Report* at 14-15 (citing eBrain.Consumer
    Research for the Consumer Electronics Association, 2002).

[^73]: *See Dabctom Technologies, Inc., Petition for Rulemaking to
    Establish Disaster Alert By Telephone System*, Order, 17 FCC Rcd
    11452 (2002).

[^74]: CAP has also been endorsed by organizations such as the
    Partnership for Public Warning, the ComCARE Alliance, and the
    National Emergency Management Association's Preparedness Committee.

[^75]: For example, CAP incorporates geospatial elements based on Open
    GIS Consortium recommendations to permit flexible but precise
    geographic targeting of alerts; provides for associating digital
    images and other binary information with alerts; and supports
    various mechanisms for ensuring message authenticity, integrity and
    confidentiality where necessary. *See* *CAP 1.0 - Fact Sheet* (March
    1, 2004)
    \<http://www.oasis-open.org/committees/tc_home.php?wg_abbrev=emergency\>.

[^76]: For more information about CAP see
    \<http://www.oasis-open.org/committees/download.php/6334/oasis-200402-cap-core-1.0.pdf\>
    and \<http://www.partnershipforpublicwarning.org/ppw/cap.html\>.

[^77]: *MSRC March 2004 Best Practices Recommendations* at 11.

[^78]: *See* *Individuals with Disabilities in Emergency Preparedness*,
    Exec. Order (ordering that federal agencies shall also encourage
    State, local, and tribal governments to consider persons with
    disabilities in emergency preparedness planning, providing technical
    assistance, as appropriate, and facilitate cooperation among the
    branches of government and private organizations and individuals in
    the implementation of emergency preparedness plans that address the
    needs of persons with disabilities.).

[^79]: 1997 US Department of Commerce, CENBR 97-5.

[^80]: *Id.*

[^81]: *See* 47 C.F.R. §§ 73.1250, 79.1, 79.2, 79.3; *see also Reminder
    to Video Programming Distributors of Obligation to Make Emergency
    Information Accessible to Persons with Hearing or Vision
    Disabilities*, Public Notice, DA 03-2361 (rel. July 18, 2003).
    Emergency information is defined as any information that is intended
    to further the protection of life, health, safety, or property,
    including information about hazardous weather situations, dangerous
    community situations such as the discharge of toxic gases or civil
    disorders, evacuation orders, school closings, or relief assistance.
    47 C.F.R. § 79.2(a)(2).

[^82]: The Commission has adopted technical standards for the display of
    closed captioning on DTV receivers and rules that require
    manufacturers of DTV receivers and DTV set-top converters to include
    DTV closed captioning display functionality in their DTV devices
    shipped in interstate commerce or manufactured in the United States
    on or after July 1, 2002. *Closed Captioning Requirements for
    Digital Television Receivers, Closed Captioning and Video
    Description of Video Programming, Implementation of Section 305 of
    the Telecommunications Act of 1996, Video Programming
    Accessibility*, Report and Order, 15 FCC Rcd 16788, 16790 (2000).

[^83]: Emergency information that is provided in the video portion of a
    regularly scheduled newscast or a newscast that interrupts regular
    programming must be made accessible through the oral description of
    the emergency information in the main audio, such as open video
    description. If the emergency information is being provided in the
    video portion of programming that is not a regularly scheduled
    newscast or a newscast that interrupts regular programming (e.g.,
    the programmer provides the emergency information through crawling
    or scrolling during regular programming), this information must be
    accompanied by an aural tone. This tone is to alert persons with
    vision disabilities that the video programming distributor is
    providing emergency information, and to alert such persons to tune
    to another source, such as a radio, for more information. 47 C.F.R.
    § 79.2(b)(1).

[^84]: 47 C.F.R. § 79.2(b)(3).

[^85]: 47 C.F.R. §§ 11.54(b)(7), 11.55(c)(4).

[^86]: *See PPW 2004 EAS Assessment* at 26-27.

[^87]: *Id*.

[^88]: *Id.*

[^89]: *See generally 2002 Report and Order*.

[^90]: There is also a National Periodic Test event code and National
    Primary sources must participate in Periodic National Tests as
    appropriate. *See* 47 C.F.R. §§ 11.31(e), 11.61(a)(3).

[^91]: *See* 47 C.F.R. § 11.61. 

[^92]: *MSRC EAS Survey* at 20.

[^93]: *Id.* at 10.

[^94]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    CI Docket No. 95-6, Report and Order, 12 FCC Rcd 17087 (1997),
    *recon. denied*, 15 FCC Rcd 303 (1999) (*Forfeiture Policy
    Statement*).

[^95]: 47 C.F.R. § 1.80.

[^96]: *See Amendment of Section 1.80(b) of the Rules*, Order, FCC
    04-139 (rel. June 18, 2004) (increasing the statutory forfeiture
    maximum to reflect inflation, effective September 7, 2004).

    .

[^97]: *See Electronic Filing of Documents in Rulemaking Proceedings*,
    13 FCC Rcd 11322, 11326 (1998).

[^98]: *See* 47 C.F.R. § 1.48.

[^99]: 47 C.F.R. §§ 1.200, *et seq*.

[^100]: *See* 47 C.F.R. § 1.1206(b)(2).

[^101]: *See* 5 U.S.C. § 603(a). In addition, the NPRM and IRFA (or
    summaries thereof) will be published in the Federal Register.

[^102]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 -- 612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^103]: *See* 5 U.S.C. § 603(a).

[^104]: *Id.*

[^105]: 5 U.S.C. §§ 603(b)(3), 604(a)(3).

[^106]: *Id*. § 601(6).

[^107]: *Id.* § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies "unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." 5 U.S.C. § 601(3).

[^108]: Small Business Act, 15 U.S.C. § 632 (1996).

[^109]: 5 U.S.C. § 601(4).

[^110]: *Id.*

[^111]: 13 C.F.R. § 121.201, NAICS code 515120.

[^112]: OMB, North American Industry Classification System: United
    States, 1997, at 509 (1997). This category description continues,
    "These establishments operate television broadcasting studios and
    facilities for the programming and transmission of programs to the
    public. These establishments also produce or transmit visual
    programming to affiliated broadcast television stations, which in
    turn broadcast the programs to the public on a predetermined
    schedule. Programming may originate in their own studios, from an
    affiliated network, or from external sources." Separate census
    categories pertain to businesses primarily engaged in producing
    programming. *See id*. at 502-05, North American Industry
    Classification System (NAICS) code 512120, Motion Picture and Video
    Production; code 512120, Motion Picture and Video Distribution; code
    512191, Teleproduction and Other Post-Production Services; and code
    512199, Other Motion Picture and Video Industries.

[^113]: "Concerns are affiliates of each other when one concern controls
    or has the power to control the other or a third party or parties
    controls or has to power to control both." 13 C.F.R. §
    121.103(a)(1).

[^114]: "SBA counts the receipts or employees of the concern whose size
    is at issue and those of all its domestic concern's size." 13 C.F.R.
    § 121.103(a)(4).

[^115]: *FCC News Release*, "Broadcast Station Totals as of September
    30, 2002" (Nov. 6, 2002).

[^116]: 13 C.F.R. § 121.201, NAICS code 515112.

[^117]: *Id*.

[^118]: "Concerns are affiliates of each other when one concern controls
    or has the power to control the other, or a third party or parties
    controls or has the power to control both." 13 C.F.R. §
    121.103(a)(1).

[^119]: "SBA counts the receipts or employees of the concern whose size
    is at issue and those of all its domestic and foreign affiliates,
    regardless of whether the affiliates are organized for profit, in
    determining the concern's size." 13 C.F.R. § 121.103(a)(4).

[^120]: 13 C.F.R. § 121.201, NAICS code 513220.

[^121]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 4, NAICS code 513220 (issued Oct. 2000).

[^122]: *Id.*

[^123]: 47 C.F.R. § 21.961(b)(1).

[^124]: *See Amendment of Parts 21 and 74 of the Commission's Rules With
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act -- Competitive Bidding*,
    MM Docket No. 94-131 and PP Docket No. 93-253, Report and Order, 10
    FCC Rcd 9589 (1995).

[^125]: 13 C.F.R. § 121.201, NAICS Code 515210.

[^126]: *Id*.

[^127]: 5 U.S.C. § 601(3).

[^128]: 13 CFR § 121.201, NAICS code 517211.

[^129]: 13 CFR § 121.201, NAICS code 517212.

[^130]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, Trends in Telephone Service, Table 5.3, (May
    2002).

[^131]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    page 5-5 (August 2003). This source uses data that are current as of
    December 31, 2001.

[^132]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824,
    7850-7852, paras. 57-60 (1996); *see also* 47 C.F.R. § 24.720(b).

[^133]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824, 7852,
    para. 60.

[^134]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^135]: FCC News, "Broadband PCS, D, E and F Block Auction Closes," No.
    71744 (released January 14, 1997).

[^136]: *See* "C, D, E, and F Block Broadband PCS Auction Closes,"
    *Public Notice*, 14 FCC Rcd 6688 (WTB 1999).

[^137]: *See* "C and F Block Broadband PCS Auction Closes; Winning
    Bidders Announced," *Public Notice*, 16 FCC Rcd 2339 (2001).

[^138]: *Id*. § 632.

[^139]: Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to
    William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business
    Act contains a definition of "small-business concern," which the RFA
    incorporates into its own definition of "small business." *See* 15
    U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA
    regulations interpret "small business concern" to include the
    concept of dominance on a national basis. *See* 13 C.F.R. §
    121.102(b).

[^140]: 13 C.F.R. § 121.201, NAICS code 517110.

[^141]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    Page 5-5 (Aug. 2003) (hereinafter "Trends in Telephone Service").
    This source uses data that are current as of December 31, 2001.

[^142]: 13 C.F.R. § 121.201, NAICS code 517110.

[^143]: "Trends in Telephone Service" at Table 5.3.

[^144]: 13 C.F.R. § 121.201, NAICS codes 517410 and 517910.

[^145]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, \"Establishment and Firm Size (Including Legal Form of
    Organization),\" Table 4, NAICS code 513340 (issued Oct. 2000).

[^146]: Office of Management and Budget, North American Industry
    Classification System, page 513 (1997) (NAICS code 513390, changed
    to 517910 in Oct. 2002).

[^147]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, \"Establishment and Firm Size (Including Legal Form of
    Organization),\" Table 4, NAICS code 513390 (issued Oct. 2000).

[^148]: *See supra* para. 45.