Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matters of                | * | EB Docket No. 04-296         |
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**SECOND REPORT AND ORDER**

**AND FURTHER NOTICE OF PROPOSED RULEMAKING**

**Adopted: May 31, 2007 Released: July 12, 2007**

**Comment Date: \[30 days after publication in the Federal Register\]**

**Reply Comment Date: \[45 days after publication in the Federal
Register\]**

By the Commission: Chairman Martin, and Commissioners Copps, Adelstein,
Tate, and McDowell issuing separate statements.

Table of Contents

Paragraph

I. Introduction 1

II\. Background AND SUMMARY 2

III\. discussion 15

A. Next Generation EAS 15

1\. Maintaining Existing EAS 17

2\. Common Alerting Protocol (CAP) for EAS 20

3\. Authentication and Security 27

4\. Next Generation Distribution Systems 29

B. CAP and Next Generation EAS: Better Serving the Needs of Persons with
Disabilities and Non-English Speakers 33

1\. Background 33

2\. Discussion 36

C. Expanding the Base of EAS Participants 43

1\. Wireline Video Participation in EAS 43

a\. Background 43

b\. Comments 44

c\. Discussion 46

2\. Wireless Participation in EAS 51

a\. Background 51

b\. Discussion 52

D. State-Level and Geographically Targeted EAS Alerts 53

1\. Background 53

2\. Discussion 55

a\. Receipt of State-Level Messages 55

b\. Geographically Targeted Alerts at Less than State-Level 64

E. Coordination with State and Local Governments 65

1\. Background 65

2\. Discussion 66

F. Assessing EAS Operation 70

IV\. FURTHER NOTICE OF PROPOSED RULEMAKING 72

V. procedural matters 76

A. *Ex Parte* Presentations 76

B. Comment Filing Procedures 77

C. Accessible Formats 78

D. Regulatory Flexibility Analysis 79

E. Paperwork Reduction Act Analysis 81

F. Congressional Review Act 82

VI\. Ordering Clauses 83

APPENDIX A: List Of Commenters

APPENDIX B: Final Regulatory Flexibility Analysis

APPENDIX C: Final Rules

APPENDIX D: Initial Regulatory Flexibility Analysis

# Introduction

1.  In this *Second Report and Order* (*Order*), we revise the
    Commission's Part 11 Emergency Alert System (EAS) rules as part of
    our continuing effort to provide the American public a
    state-of-the-art, next-generation national EAS ("Next Generation
    EAS").[^1] We also take steps today to fulfill the Commission's
    responsibilities under the President's Public Alert and Warning
    System Executive Order.[^2] Specifically, in order to ensure the
    efficient, rapid, and secure transmission of EAS alerts in a variety
    of formats (including text, audio, and video) and via different
    means (broadcast, cable, satellite, and other networks), we adopt a
    requirement for various entities required to participate in EAS
    pursuant to this *Order* and prior Commission orders (EAS
    Participants) to accept a message using a common EAS messaging
    protocol, Common Alerting Protocol v1.1 (CAP),[^3] no later than 180
    days after FEMA publicly publishes its adoption of such standard.
    Second, we require EAS Participants to adopt Next Generation EAS
    delivery systems no later than 180 days after FEMA publicly releases
    standards for those systems. Third, we preserve the current EAS
    network but enhance its effectiveness, scope, and redundancy by
    enabling EAS delivery system upgrades and by including wireline
    common carriers providing video programming ("Wireline Video
    Providers") in EAS. Fourth, we require EAS Participants to transmit
    state and local EAS alerts that are originated by governors or their
    designees no later than 180 days after FEMA publishes its adoption
    of the CAP standard,[^4] provided that the state has a
    Commission-approved EAS state plan that provides for delivery of
    such alerts.[^5] Fifth, we concurrently adopt a Further Notice of
    Proposed Rulemaking to explore further certain EAS-related issues.
    In sum, the actions that we take today will increase the
    reliability, security, and efficacy of the nation's EAS network and
    will enable the President, the National Weather Service (NWS),[^6]
    and state officials to rapidly communicate with citizens in times of
    crisis, over multiple communications platforms.

#  Background AND SUMMARY

2.  *Further Notice*. In the November 2005 *Further Notice*, the
    Commission sought comment on how to improve EAS. It stated that a
    reliable "wide-reaching public alert and warning system is critical
    to public safety" and that the EAS network should permit "officials
    at the national, state and local levels to reach affected citizens
    in the most effective and efficient manner possible."[^7] The
    Commission requested comment on a wide range of issues, including:
    enhancing the EAS network architecture and message distribution,[^8]
    adopting a common EAS messaging protocol,[^9] the feasibility of
    satellite television and radio service providers delivering state
    and local emergency messages,[^10] whether to require Wireline Video
    Providers to transmit EAS alerts,[^11] and the provision of EAS
    alerts to persons with sight and hearing disabilities.[^12] The
    Commission also sought comment on providing EAS alerts to
    non-English speakers,[^13] and on certain related issues raised in a
    Petition for Immediate Relief, which was jointly filed by the
    Independent Spanish Broadcasters Association, the Office of
    Communication of the United Church of Christ, Inc., and the Minority
    Media and Telecommunications Council on September 22, 2005.[^14]
    Numerous parties filed detailed comments and made presentations to
    FCC staff in response to the *Further Notice*, resulting in a
    well-developed record.[^15]

3.  Congress established the Commission "for the purpose of the national
    defense, \[and\] for the purpose of promoting the safety of life and
    property through the use of wire and radio communication"
    networks.[^16] For nearly fifty years, the Commission has
    implemented this mandate, in part, by affording the American public
    an effective national alert and warning system. During most of its
    existence, this system was known as the Emergency Broadcast System
    (EBS).[^17] Its name was changed to the Emergency Alert System in
    1994, however, when it was upgraded and automated.[^18]

4.  As explained in more detail below, it is well established that the
    Commission has authority to regulate participation in EAS under
    Sections 1, 4(i) and (o), 303(r), and 706 of the Communications
    Act.[^19] The Commission, in conjunction with FEMA and NWS,
    implements EAS at the federal level. Their respective roles are
    based on a 1981 Memorandum of Understanding between FEMA, NWS, and
    the Commission,[^20] a 1984 Executive Order,[^21] and a 1995
    Presidential Statement of EAS Requirements.[^22] In addition, State
    Emergency Coordination Committees ("SECCs") and Local Emergency
    Coordination Committees ("LECCs") develop state and local EAS plans.
    FEMA, NWS, and the Commission work closely with EAS participants as
    well as state, local, and tribal governments to ensure the integrity
    and utility of EAS.

5.  *Executive Order*. On June 26, 2006, pursuant to the Robert T.
    Stafford Disaster Relief and Emergency Assistance Act, as
    amended,[^23] and the Homeland Security Act of 2002, as
    amended,[^24] President George W. Bush issued a "Public Alert and
    Warning System" Executive Order. The *Executive Order* provides, in
    relevant part, that:

> It is the policy of the United States to have an effective, reliable,
> integrated, flexible, and comprehensive system to alert and warn the
> American people in situations of war, terrorist attack, natural
> disaster, or other hazards to public safety and well-being (public
> alert and warning system), taking appropriate account of the
> functions, capabilities, and needs of the private sector and of all
> levels of government in our Federal system, and to ensure that under
> all conditions the President can communicate with the American
> people.[^25]

6.  The *Executive Order* requires the Secretary of Homeland Security to
    "administer the Emergency Alert System (EAS) as a critical component
    of the \[national\] public alert and warning system," including a
    requirement to "establish, or adopt, as appropriate, common alerting
    and warning protocols, standards, terminology, and operating
    procedures for the public alert and warning system."[^26] Under the
    *Executive Order*, the Secretary must submit a plan to the President
    for implementation of the order,[^27] and issue guidance that
    addresses the subject matter of the *1995 Presidential
    Statement*.[^28] Upon issuance of such guidance, the *1995
    Presidential Statement* will be revoked.

7.  Section 3(b)(iii) of the *Executive Order* directs the Commission to
    "adopt rules to ensure that communications systems have the capacity
    to transmit alerts and warnings to the public as part of the
    \[national\] public alert and warning system."[^29] The Commission
    is committed to working with the Secretary, FEMA, and other
    governmental entities to ensure the effective implementation of the
    *Executive Order*.

8.  *WARN Act.* On October 13, 2006, the President signed the Security
    and Accountability For Every Port Act (Safe Port Act) into law.
    Title VI of the SAFE Port Act -- the Warning, Alert and Response
    Network Act ("WARN Act") -- establishes a framework for commercial
    mobile service (CMS) providers to voluntarily elect to transmit
    emergency alerts.[^30] As the statute required, the Commission
    established a Commercial Mobile Service Alert Advisory Committee
    that is developing recommendations for technical standards and
    protocols to facilitate the voluntary transmission of emergency
    alerts by CMS providers.[^31] The Committee must submit its
    recommendations to the Commission within one year of the enactment
    of the statute.[^32] Following the submission of the Committee's
    recommendations, the Commission will initiate a rulemaking to
    develop technical standards and other requirements to facilitate CMS
    providers' transmission of emergency alerts.[^33] Accordingly, in
    light of the passage of the WARN Act, we do not address commercial
    wireless carrier participation in EAS in this *Order*.

9.  *Independent Panel*. In January 2006, Chairman Kevin J. Martin
    established a Federal Advisory Committee to study the impact of
    Hurricane Katrina on communications infrastructure,[^34] which
    submitted a comprehensive report to the Commission on June 12, 2006.
    The Commission, in turn, issued a Notice of Proposed Rulemaking on
    June 19, 2006, to address the panel\'s recommendations, including
    what actions it could take to improve communication of emergency
    information to the public.[^35] The Independent Panel recommended
    that the Commission improve and facilitate the use of the EAS
    network during disasters, educate state and local officials and the
    public about EAS, and ensure that the disabled and non-English
    speaking communities have ready access to EAS warnings.[^36] The
    panel also noted that wireless technology offers the potential for
    enhancing the existing EAS network.[^37]

10. Accordingly, we take key steps today necessary to ensure the
    development of a next-generation EAS network, steps which are
    grounded in the Commission's November 2005 *Further Notice* and
    related record. We also seek to implement the Commission's
    responsibilities under the President's *Executive Order* and to
    address certain of the EAS-related recommendations of the Hurricane
    Katrina Independent Panel.

11. *Current EAS Participants and Message Distribution*. EAS equipment
    is in place in television, radio, and cable facilities nationwide
    and has been used effectively for state and local emergencies for
    decades. The EAS currently is comprised of analog and digital radio
    broadcast stations, including AM, FM, and low-power FM stations;
    analog and digital television (DTV) broadcast stations, including
    Class A television and low-power TV stations; analog, digital, and
    wireless cable systems; Direct Broadcast Satellite (DBS) systems,
    Satellite Digital Audio Radio Systems (SDARS); and other entities
    and industries operating on an organized basis during emergencies at
    the national, state, and local levels.[^38] EAS messages currently
    are distributed via a multi-level distribution system.[^39] The
    current EAS network includes numerous message entry and distribution
    points:

-   **National Primary** (NP) stations are the primary entry point for
    Presidential messages delivered by FEMA.[^40] These stations are
    responsible for broadcasting a Presidential alert to the public and
    to State Primary stations within their broadcast range.[^41]

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-   **State Primary** (SP) stations are the entry point for State
    messages, which can originate from the Governor or a designated
    representative. Messages may then be sent via the State Relay
    Network.[^42]

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-   **State Relay** (SR) stations are part of the State Relay Network
    and relay National and State emergency messages into Local
    Areas.[^43]

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-   **Local Primary** (LP) stations provide EAS Local Area messages. An
    LP source is responsible for coordinating the carriage of emergency
    messages from sources such as the NWS or local emergency management
    offices as specified in its EAS Local Area Plan. LP stations receive
    Presidential and State EAS messages from SP and SR stations.

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-   **Participating National** (PN) stations transmit EAS National,
    State, or Local Area messages directly to the public.

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-   **Non-participating National** (NN) sources have elected not to
    participate in the National level EAS and hold an authorization
    letter to that effect. They may transmit EAS State or Local Area
    messages.[^44]

12. *EAS Protocol*. All EAS message originators (whether FEMA, NWS, or a
    state or local authority) currently must transmit messages using the
    EAS protocol and codes specified in section 11.31 of the
    Commission's rules.[^45] Dedicated equipment currently is required
    to initiate, receive, and retransmit EAS alerts, and must be
    installed by every EAS Participant. Sections 11.32 and 11.33 of the
    Commission's rules set forth minimum requirements for EAS encoders
    and decoders, respectively,[^46] the functions of which can be
    combined into a single unit referred to as an Encoder/Decoder
    (ENDEC).[^47] In this *Order*, once FEMA adopts the CAP protocol, we
    require existing EAS Participants to receive alert messages
    formatted to CAP, a standard alert message format that specifies
    data fields to facilitate data sharing across different distribution
    systems.[^48] As explained below, timely adoption of CAP by all EAS
    Participants is an essential component of and prerequisite for the
    development of Next Generation EAS.

13. *New EAS Participants*. The Commission enhanced the EAS network in
    the 1990s to include cable television systems[^49] and wireless
    cable systems.[^50] The Commission further enhanced the EAS network
    in 2005 to include providers of DTV,[^51] digital audio broadcasts
    (DAB), digital cable television, DBS, and SDARS.[^52] In order to
    increase the reliability and efficacy of the nation's EAS network,
    and for other reasons stated below, we augment the EAS distribution
    network to include Wireline Video Providers.

14. *State EAS Alerts*. The EAS network originally was conceived to
    provide the President with the ability to rapidly communicate via
    radio and TV broadcast networks with the American public during a
    national crisis, such as a nuclear attack.[^53] The system also has
    been used for the provision of state and local emergency alerts to
    the public since it was opened to state and local participation
    in 1963. Several thousand state and local EAS messages are
    transmitted annually. More than 70 percent of all state and local
    EAS messages are vital weather-related alerts (such as flash flood,
    hurricane, and tornado warnings), which are originated by the NWS
    via the NOAA Weather Radio (NWR) network.[^54] NWR includes more
    than 940 transmitters covering all 50 states and the District of
    Columbia, adjacent coastal waters, Puerto Rico, the U.S. Virgin
    Islands, and the U.S. Pacific Territories.[^55] NWR uses an EAS
    compatible digital protocol,[^56] which supplies local EAS encoded
    alerts to broadcast and cable EAS entry points pursuant to EAS state
    and local plans.[^57] Under the Commission's current EAS rules, EAS
    Participants may voluntarily transmit NWS, state, and local EAS
    messages to the public.[^58] If they do, they must follow the
    Commission's Part 11 EAS rules. In this *Order*, we find that the
    public interest will be served by continuing to allow these entities
    to voluntarily participate in the delivery of NWS and certain state
    and local messages via the existing EAS. As explained more fully
    below, however, we will enable state governors (or their designees)
    to deliver CAP-formatted EAS messages to EAS Participants on both
    existing and Next Generation EAS. EAS Participants must then issue
    message-based alerts based on the information received.

# discussion

## Next Generation EAS 

15. In this *Order*, we reaffirm the obligations of today's EAS
    Participants to maintain existing EAS and establish the framework
    for the nation's Next Generation EAS. This Next Generation EAS will
    include new and innovative technologies and distribution systems
    that will provide increased redundancy and resiliency for the
    delivery of emergency alerts. We also take steps to ensure that the
    upgraded EAS will meet the needs of all Americans, including persons
    with hearing and vision disabilities and those who do not speak
    English. Finally, we will continue to harness the benefits of
    existing EAS while the Next Generation EAS is developed and
    deployed. The combination of the existing and Next Generation EAS
    systems will ensure the continuity of EAS while the Next Generation
    EAS is being implemented, and ensure that EAS alerts reach the
    largest number of affected people by multiple communications paths
    as quickly as possible.

16. Below, we describe the four cornerstones of the Next Generation
    EAS: 1) maintaining the existing EAS network; 2) utilizing a common
    messaging protocol, CAP, to be implemented by all EAS Participants
    following its adoption by FEMA; 3) incorporating new authentication
    and security requirements; and 4) fostering the deployment of new,
    redundant EAS delivery systems, including satellite, Internet, and
    wireline networks.

### Maintaining Existing EAS

17. Although a Presidential alert has never been sent over the EAS, the
    current EAS network has been used for state, local, and
    weather--related emergencies. We recognize that in certain emergency
    situations, battery-powered AM or FM receivers may be the primary
    source of emergency information for the general public. Broadcast
    and cable personnel are familiar with current EAS equipment and are
    trained in its use. In addition, it would be inadvisable to require
    immediate use of a new system until that system is fully in place
    and its reliability tested. We therefore do not agree with those
    commenters who argue that the existing EAS should be wholly
    abandoned or replaced at this time.[^59]

18. Instead, we conclude that broadcast, cable and other current EAS
    Participants should maintain the existing EAS, particularly since
    alternative delivery mechanisms, although potentially more robust,
    have yet to be deployed.[^60] We recognize, however, that EAS
    currently uses a station-relay message dissemination process that
    lacks the flexibility and redundancy of certain evolving digital
    communications systems.[^61] Consequently, we also require these
    current EAS Participants to upgrade their networks to the Next
    Generation EAS, as discussed below, while maintaining existing EAS.

19. *NOAA Weather Radio*. In addition, we disagree with those commenters
    who suggest that NWR should replace the existing EAS. We believe,
    however, that the NWR system should continue to be closely
    integrated with EAS. NWR is one of the principal sources of alert
    information,[^62] and is likely to continue to be the primary
    originator of weather-based alerts. We also recognize that voluntary
    efforts, including CEA's Public Alert™ Certification and Logo
    Program launched in April 2004, further enhance the value and
    potential of this proven emergency-alert delivery system.[^63] The
    record demonstrates that redundant alert-delivery systems will
    enhance the overall reach, efficacy, and reliability of the EAS as a
    whole. NWR provides an alternative source of emergency alerts, and
    we expect that it will continue to be an important component of EAS
    and the overall national public alert and warning system. We
    nevertheless caution EAS Participants that retransmit NWR alerts to
    ensure that such retransmission is consistent with our EAS rules and
    associated protocols.

### Common Alerting Protocol (CAP) for EAS 

20. In the *Further Notice,* the Commission sought comment on the
    widespread assertion in the record that a common messaging protocol
    should be adopted to permit a digitally-based alert or warning to be
    distributed simultaneously over multiple platforms.[^64] The
    Commission noted that the Partnership for Public Warning had
    endorsed the OASIS Common Alerting Protocol (CAP) for this purpose
    and that many public and private organizations responsible for
    alerts believed that CAP offered the most practical means of quickly
    creating an effective interface between emergency managers and
    multiple emergency alert distribution platforms.[^65] Accordingly,
    the Commission asked whether CAP should be adopted as the common
    messaging protocol for any future digital alert system, and
    particularly for EAS alerts.[^66] The Commission also asked whether
    CAP would allow simultaneous distribution to radio, television, and
    wireless media such as mobile telephones and personal digital
    assistants (PDAs), and how it would ensure uniformity of alerts
    across multiple platforms.[^67] Currently, the EAS and the NWS
    utilize the SAME[^68] protocol, which introduces special digital
    codes at the beginning and end of messages. SAME provides
    information concerning the originator of the alert, the event type,
    the areas affected, the duration of the alert, the time the alert
    was issued, and the station's call sign. SAME originally was
    developed to be transmitted over a radio medium with relatively
    simple devices receiving the message. For the most part, it performs
    well for the existing EAS and NWR but does not fully utilize the
    capabilities inherent in digital transmission.[^69]

21. The need for a more robust and flexible protocol that can take full
    advantage of digital technology has long been recognized. In 2000,
    the U.S. National Science and Technology Council issued its report,
    *Effective Disaster Warnings*, concluding that a "standard method
    should be developed to collect and relay instantaneously and
    automatically all types of hazard warnings and reports locally,
    regionally, and nationally for input into a wide variety of
    dissemination systems."[^70] In 2001, more than 130 emergency
    managers and technologists initiated development of a common alert
    message standard.[^71] In 2003, this work became a part of the OASIS
    standards process[^72] of the Emergency Management Technical
    Committee.[^73] A year later, the Emergency Management Technical
    Committee released CAP version 1.0, which was revised in 2005 as
    CAP v. 1.1.[^74]

22. CAP is an open, interoperable standard that incorporates a language
    developed and widely used for web documents.[^75] Its standardized
    alert message format -- based on the World Wide Web Consortium's
    ("W3C's") Extensible Markup Language ("XML")[^76] -- is a text-based
    format that facilitates data sharing across different distribution
    systems. As noted by various commenters, the agreed-upon XML format
    of CAP can be accepted by a wide variety of devices or systems.[^77]
    The format also permits links to voice, audio or data files, images,
    and multilingual translations of the alert, and to links providing
    further information.

23. The CAP standard specifies what fields an alert message can contain
    and what information can be included in the particular fields. A CAP
    alert provides fields such as message type, scope, incident, event
    information, event certainty, sender, geographic scope,[^78] and the
    time when an alert becomes effective and expires.[^79] Because CAP
    has standardized alert elements, commenters assert it will
    facilitate accurate and meaningful message creation[^80] and
    decrease the potential for operator error.[^81] CAP also facilitates
    interoperability between devices, an attribute essential to
    establishing an EAS that can operate over multiple platforms.[^82]

24. Commenters who addressed the issue generally support the use of CAP
    as a means for standardizing emergency messages; and no parties
    indicated that CAP-based messages could not be readily accepted and
    processed by all EAS Participants.[^83] The USGS notes its own
    experience using CAP, and argues that CAP is an effective content
    standard that can be applied at interfaces between senders,
    transmitters, and receivers of alerts covering many of the common
    natural and man-made hazard situations.[^84] USGS concludes that CAP
    should be mandatory for the EAS.[^85] NASCIO also recognizes the
    flexibility of CAP, noting that any EAS initiator can take
    information from a CAP-based message and translate it into any other
    standard for distribution over a particular channel, network, or
    technology.[^86] CAP also is supported by individuals with hearing
    and sight disabilities, because it enables equivalent, multiple text
    and audio messages to be sent concerning the same event to a variety
    of devices that are accessible to such individuals.[^87]

25. We note that CAP also supports capabilities for a digital signature
    to authenticate the sender and validate the integrity of the
    text,[^88] and an encryption field that enables the encryption of
    the CAP message. An EAS initiator may encrypt, address, and
    otherwise secure a CAP alert, thus in part addressing security
    concerns that arise due to CAP's open text format. [^89] Further,
    CAP uniquely identifies each specific alert. Finally, CAP has been
    implemented by several government agencies including the USGS,[^90]
    NOAA NWS,[^91] and the Oregon Amber Alert Program.[^92] CAP also has
    been implemented in the Disaster Management Interoperability
    Services.[^93] Several governmental agencies, including FEMA[^94]
    and NOAA HAZCOLLECT,[^95] are testing CAP,[^96] and other agencies,
    such as the Center for Disease Control[^97] and the Virginia
    Department of Transportation,[^98] have endorsed it. We note that
    the U.S. Department of Defense and the U.S. Department of the
    Interior both voted for the adoption of CAP-V1.1.[^99]

26. We conclude that all EAS Participants will be required to accept
    alerts and warnings in the CAP format should that protocol be
    adopted by FEMA.[^100] This requirement applies to an EAS
    Participant regardless of whether the participant is utilizing
    existing EAS or the Next Generation EAS established in this *Order*.
    Although this requirement requires action by FEMA, we find that
    adopting it now furthers the prompt development of a
    state-of-the-art, next-generation national EAS. Significantly, many
    EAS Participants currently are implementing other revisions to their
    EAS systems, and they can incorporate CAP into these revisions.
    Specifically, should FEMA adopt CAP as the common alerting protocol
    for EAS alerts, EAS Participants must accept CAP-based alerts 180
    days after the date that FEMA publishes the applicable technical
    standards for such CAP alerts.[^101] Because most commenters urge
    the Commission to adopt the CAP format, we find that EAS
    Participants are already aware that CAP will likely be adopted, and
    we believe that 180 days will give them adequate time to prepare to
    receive CAP alerts. EAS Participants have been on notice since
    November 10, 2005, when the *FNPRM* was issued, that the EAS
    delivery standards might change.  Thus, we find that 180 days will
    give EAS participants a reasonable period of time in which to
    implement changes that they should have been expecting for over 18
    months since the FNPRM was issued.  We further find that 180 days is
    reasonable in light of the significant public interest, to protect
    life and property, in implementing next generation EAS systems as
    soon as possible. We also note that EAS Participants will have the
    time period between the release of this *Order* and FEMA action for
    preparation.

### Authentication and Security

27. In the *2004 NPRM*, the Commission noted that security and
    encryption were not the primary design criteria when EAS was
    developed and initially implemented, and that emergency managers
    were becoming more aware of potential vulnerabilities within the
    system.[^102] The Commission expressed concern that the EAS may be
    subject to unauthorized access, and that a legitimate EAS signal
    could be subject to hacking or jamming.[^103] Although ENDECs
    currently have the capability for password protection, it is up to
    each EAS Participant to implement the safeguard, and there is no
    means to monitor the extent to which EAS Participants employ
    passwords.[^104] Additionally, when facilities are operating
    unattended, no one is available on-site to intervene should
    unauthorized use occur.[^105] Accordingly, the Commission sought
    comment on how to improve the security of EAS distribution methods,
    information, and equipment and how to ensure the security of any
    public warning system.[^106] It also sought comment on the
    authentication and verification of EAS alerts.[^107] Cox agrees with
    the FCC that there are legitimate concerns regarding the security of
    the EAS, and contends that any attacks on EAS or unauthorized use
    could be devastating. As such, Cox urges the adoption of methods to
    keep the system secure from intentionally false control or
    sabotage.[^108] Radio stations WTOP(AM), WTOP-FM, and WXTR(AM)
    (WTOP) contend the security of EAS distribution channels is crucial
    to the system working properly. WTOP suggests that the security of
    emergency and test messages can be improved by switching to a system
    which encrypts messages and guarantees secure delivery with password
    protection and confirmation of delivery.[^109] NAB urges the FCC to
    coordinate with FEMA and equipment manufacturers to look for
    technical solutions for ensuring the security of EAS.[^110] Contra
    Costa states that digital technology, particularly the use of the
    CAP protocol, can protect and verify the security of public warning
    communication links, and can enable the consistent and comprehensive
    monitoring of all kinds and levels of warning activity nationwide.
    Contra Costa states just as the Internet Protocols enable various
    kinds of computers to work together, CAP can provide the basis for a
    secure "warning internet" that can leverage all our warning assets
    to achieve more than any single system can alone.[^111]

28. We agree with commenters that all EAS Participants should
    authenticate the source of, and validate the contents of, EAS
    alerts. As discussed above, CAP has the capability to allow those
    who initiate and retransmit EAS alerts to encrypt, authenticate, and
    validate EAS alerts. We believe that EAS Participants that configure
    their networks to receive CAP-formatted messages will be able to
    satisfactorily authenticate and validate EAS alerts in consultation
    with FEMA. Accordingly, should FEMA adopt CAP as the common alerting
    protocol for EAS alerts, all EAS Participants must configure their
    systems to incorporate CAP security functions within 180 days after
    FEMA publishes the standards for authentication and validation of
    CAP-formatted alerts.[^112] We expect EAS Participants to cooperate
    with FEMA in its efforts to develop policies, plans, and procedures
    that meet FEMA's requirements for the new delivery systems and CAP
    protocol adopted by FEMA.

### Next Generation Distribution Systems

29. Recent experience demonstrates that natural disasters and terrorist
    incidents can adversely impact terrestrial telecommunications
    infrastructure. To achieve the Commission's goals of enhancing the
    redundancy, reliability and security of EAS, we enable the use of
    diverse EAS distribution platforms. Our actions today also will
    ensure that the Secretary of Homeland Security can implement the
    President's directive to provide "as many communications pathways as
    practicable" to reach the American people during crises.[^113]

30. The development of alternative distribution systems is already
    underway. For example, we note that the Association of Public
    Television Stations ("APTS") has proposed a hybrid, satellite/DTV
    broadcast system that was an integral part of FEMA's Digital
    Emergency Alert System (DEAS) National Capital Region Pilot.[^114]
    On July 12, 2006, FEMA and APTS announced the successful completion
    of Phase II of the DEAS pilot, and that the new DEAS would be
    operational in the Gulf Coast and Atlantic regions by the end of
    2006, and will be deployed nationally by the end of 2007.[^115]

31. We agree with commenters that satellite-based alert distribution
    could be a valuable complement to the existing EAS station-relay
    distribution method.[^116] The vast coverage area of satellite
    signal footprints would allow immediate alerting of substantial
    portions of the country with appropriate equipment. Satellite
    systems also are generally immune from natural disasters and
    therefore may provide critical redundancy in the event that
    terrestrial wireline or wireless infrastructure is compromised. We
    also agree with commenters that Internet-based systems may enhance
    the resiliency of the EAS distribution network.[^117] The Internet
    is a robust, packet-switched network with intelligent routing,[^118]
    and is designed to provide alternative routes to reach almost all
    users.[^119] Moreover, the Internet is ubiquitous and can enhance
    the geographic reach of EAS. The open design of the Internet also
    means that EAS applications can be designed to meet the specific
    needs of EAS without limitation by the network.

32. We conclude that the distribution architecture of the existing EAS
    should be enhanced. The record underscores that EAS could be
    improved by authorizing the delivery of alerts through the existing
    EAS coupled with new redundant, distribution systems for EAS.[^120]
    We conclude, however, that FEMA is best positioned to determine the
    types of additional EAS systems that should be accommodated by EAS
    Participants.[^121] We expect that EAS Participants will collaborate
    closely with FEMA and other governmental entities to fully implement
    such requirements. Accordingly, should FEMA announce technical
    standards for any Next Generation EAS alert delivery system, EAS
    Participants must configure their networks to receive CAP-formatted
    alerts delivered pursuant to such delivery system, whether wireline,
    Internet, satellite or other, within 180 days after the date that
    FEMA announces the technical standards for such Next Generation EAS
    alert delivery.[^122]

## CAP and Next Generation EAS: Better Serving the Needs of Persons with Disabilities and Non-English Speakers

### Background

33. *Serving the needs of persons with disabilities.* The Commission's
    EAS rules currently require that EAS provide visual and aural
    messages.[^123] Under the rules, a visual EAS alert does not have to
    be an exact transcription of an audio alert, but must be "any method
    of visual presentation which results in a legible message conveying
    the essential emergency information."[^124] In the *Further Notice*,
    the Commission sought comment on how it could make EAS alerts more
    accessible to persons with disabilities.[^125] The Commission sought
    comment on whether to require all video programming distributors
    subject to Part 11 to provide the same information in both the
    visual and audio versions of EAS messages, instead of only the
    header code information that EAS Participants now provide
    visually.[^126]

34. A number of commenters suggest that the audio and visual formats are
    equally important and should contain the same information,
    especially for persons with disabilities.[^127] Service providers,
    however, request that the Commission not require video programming
    distributors to provide the same information for visual and aural
    versions of emergency messages, unless the digital message received
    by the station includes sufficient information to generate an aural
    and visual message automatically.[^128] These commenters argue that
    it would be technically and economically infeasible for a
    broadcaster or other EAS Participant to provide an accurate
    simultaneous transcription of an audio EAS alert.[^129] A number of
    commenters noted that CAP-formatted alerts could provide the same
    alert in text, aural, and video formats, and multiple languages,
    thus providing broad access to the public.[^130]

35. *Serving the non-English speaking community.* In the *Further
    Notice*, the Commission sought comment on the issues raised in a
    September 20, 2005 Petition for Immediate Interim Relief filed by
    the Independent Spanish Broadcasters Association, *et al*.[^131] The
    Petitioners requested that the Commission significantly revise our
    EAS rules by expanding the system to provide for multilingual EAS
    messages.[^132]

### Discussion

36. *Serving the needs of persons with disabilities.* President Bush's
    Executive Order mandates that the Secretary of Homeland Security
    "include in the public alert and warning system the capability to
    alert and warn all Americans, including those with disabilities and
    those without an understanding of the English language."[^133] We
    believe that CAP could provide an important tool for helping to
    accomplish this goal.

37. CAP should facilitate the provision of functionally equivalent EAS
    alerts and warnings to persons with disabilities.[^134] Using CAP,
    the original format of warning messages could be converted into
    various formats, including text, video, and audio.[^135] Critical
    information graphically portrayed, scrolled, or crawled on the
    screen also could be accompanied by an audio description.[^136]
    Persons with hearing disabilities would be able to read the entire
    emergency message instead of a brief summary. Audio and visual
    formats are both important and could contain the same
    information.[^137] Moreover, a CAP-formatted message could be
    converted to synthesized speech, as is done by NWS weather alerts,
    for visually impaired persons.[^138] Accordingly, in this *Order*,
    we promote the delivery of audio, video, and text messages to
    persons with disabilities by requiring EAS Participants to accept
    CAP-formatted alerts and warnings, should CAP be adopted by FEMA.

38. While CAP is promising, however, it may not be the whole answer for
    making EAS alerts accessible to persons with disabilities, and it
    does not address the broader question of making emergency and public
    safety information available to persons with disabilities. For
    example, Section 79.2 of the Commission's rules requires video
    programming distributors[^139] to make the audio portion of
    emergency information accessible to persons with hearing
    disabilities using closed captioning or other methods of visual
    presentation.[^140] Video programming distributors also must ensure
    that emergency information provided in the video portion of a
    regularly scheduled newscast, or a newscast that interrupts regular
    programming, is accessible to persons with visual disabilities
    through aural description in the main audio, such as open video
    description.[^141] Emergency information is defined as information
    about a current emergency that is intended to further the protection
    of life, health, safety, and property, *i.e.* critical details
    regarding the emergency and how to respond to the emergency.[^142]

39. We are issuing a *Further Notice of Proposed Rulemaking* to
    re-examine the best way to make EAS and other emergency information
    accessible to persons with disabilities. We will invite comment
    on: (1) presentation of the audio feed in text format, and
    vice-versa; (2) making emergency information available to various
    devices commonly used by persons with disabilities; and (3)
    providing emergency messages in multiple formats to meet the needs
    of persons with disabilities.

40. *Serving non-English Speakers*. We also affirm our commitment that
    non-English speakers should have access to EAS alerts as soon as the
    simultaneous transmission of multilingual messages is
    practicable.[^143] We believe that the first step toward more
    effectively serving non-English speakers, consistent with the
    Secretary of Homeland Security's responsibility to enable alerting
    of "those without an understanding of the English language"[^144] is
    to require the use of CAP, conditional on its adoption by FEMA.
    Requiring EAS Participants to be able to receive CAP-formatted
    alerts will facilitate more accurate and detailed multilingual
    alerts. At the same time, we also expect that EAS participants will
    simultaneously transmit multilingual CAP-formatted messages by EAS
    Participants as soon as such transmission is practicable. For
    example, this could happen either as a result of the development of
    comprehensive, nation-wide Next Generation EAS under FEMA's
    auspices, or pursuant to the earlier development of CAP-based
    transmission systems at the state level per coordination between
    state planners and FEMA. This requirement will ensure that the
    initiator of any EAS alert has the technological capability to
    deliver simultaneously messages in English and any other language
    determined to be appropriate for a given alert.

41. The Rules we adopt today provide the groundwork for transmission of
    multilingual EAS alerts and warnings. CAP, however, may not be a
    complete answer for making EAS alerts available to non-English
    speakers, and is not a comprehensive solution for making general
    emergency and public safety information available to non-English
    speakers. Indeed, we believe that Petitioners' request is broader
    than the formal EAS structure and raises important questions about
    the availability of emergency information to the non-English
    speaking audience. We initiate today a Further Notice to seek
    additional comment on these proposals. Although we hope that the
    stakeholders will work together, under our auspices, to reach a
    resolution prior to the conclusion of our proceeding on these
    issues, we are prepared to issue an order addressing these issues
    within six months.[^145]

42. In order to begin focusing on these issues quickly, we direct the
    Public Safety and Homeland Security Bureau to convene a discussion
    (or a series of discussions) at the Commission among stakeholders as
    soon as possible, and to place a report describing the results in
    the public docket within 30 days of release of this Order.

## Expanding the Base of EAS Participants

### Wireline Video Participation in EAS

#### Background 

43. Under the Commission's current EAS rules, wireline common carriers
    are not required to participate in EAS. In the *Further Notice*, the
    Commission noted that some traditional telephone companies have
    indicated that they intend to compete with cable television service
    and DBS providers in bringing multichannel video programming service
    to customers' homes through fiber optic connections.[^146] The
    Commission sought comment on whether Wireline Video Providers should
    have public alert and warning responsibilities similar to those of
    other providers subject to the EAS rules, if there are particular
    attributes of wireline technology that would make it easier (or more
    difficult) to deliver alerts and warnings to the public, and whether
    there are policy considerations the Commission should consider
    regarding requiring Wireline Video Providers to provide alerts and
    warnings.[^147]

#### Comments

44. Most commenters, including Wireline Video Providers, agree that
    Wireline Video Providers should be subject to the same EAS
    obligations as other multichannel video programming distributors
    (MVPDs).[^148] These commenters agree that it will be important to
    ensure that all consumers receive the benefits and protections of
    EAS, regardless of the technology used to deliver the video
    services. They also argue that because many consumers will likely
    use television programming services offered by Wireline Video
    Providers, the Commission should require such offers to be
    EAS-compliant to ensure that the greatest possible number of
    consumers is alerted in the case of an emergency.

45. Verizon states that its FiOS service already complies with the EAS
    obligations that apply to cable operators.[^149] AT&T asserts that
    it will "participate in the EAS" whether or not Commission rules
    mandate it.[^150] AT&T argues, however, that only a limited set of
    EAS system receivers provide alert information in an IP format and
    that video vendors are not technically capable of routing EAS
    messages to the correct end user. AT&T states that it is developing
    an IPTV-specific EAS solution for non-broadcast channels, and is
    working on an interface between EAS equipment and IPTV
    middleware.[^151] Thus, it requests that no deadlines for
    non-cable-operator EAS compliance be set before June 30, 2008, and
    that rules do not "unduly restrict" how IP service providers
    distribute and display information*.*[^152]

#### Discussion

46. We agree with commenters that Wireline Video Providers should be
    considered Participants under our EAS rules. The EAS plays a
    critical role in providing vital public safety information. The
    long-term resilience of the EAS could be significantly increased by
    careful implementation that could better accommodate, and even
    harness, the innate flexibility of IP-based networks that can route
    around damaged nodes. Moreover, a viewer's reasonable expectation
    regarding the availability of alerts over television programming is
    identical, whether the programming is over-the-air broadcasting,
    cable, DBS, or a new wireline video service. By adopting a
    technologically neutral EAS obligation today, the Commission is
    enabling these emerging service providers to integrate EAS at an
    early developmental stage.

47. Under section 624(g) of the Act and the Commission's EAS
    regulations, providers of "cable systems" must participate in
    EAS.[^153] Section 624(g) of the Act 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 in subpart G of part 73, title 47, Code of Federal
    Regulations."[^154] The Commission imposed EAS regulations on cable
    operators pursuant to this mandate in 1994, concluding that cable
    "is invaluable in the dissemination of information during
    emergencies."[^155] The term "cable operator" means a person "who
    provides cable service over a cable system,"[^156] including "a
    facility of a common carrier which is subject, in whole or in part,
    to the provisions of title II of this Act ... to the extent such
    facility is used in the transmission of video programming directly
    to subscribers, unless the extent of such use is solely to provide
    interactive on-demand services."[^157] Thus, section 624(g)
    expressly authorizes the imposition of EAS requirements on Wireline
    Video Providers to the extent that they qualify as "cable operators"
    under the Act.

48. To the extent that Wireline Video Providers do not qualify as "cable
    operators" under the Act, we require that they participate in EAS
    pursuant to our Title I ancillary jurisdiction and in connection
    with our specific responsibilities under sections 624(g) and
    706.[^158] As a general matter, the Commission has discretion to use
    ancillary jurisdiction when the Commission has Title I subject
    matter jurisdiction over the service and the assertion of
    jurisdiction is "reasonably ancillary to the effective performance
    of \[its\] various responsibilities."[^159] Wireline Video Providers
    fall within the scope of the Commission's jurisdiction because they
    provide "interstate . . . communication by wire."[^160] At least
    some of their services involve transmission across state lines,
    meeting the definition of "interstate communication,"[^161] and they
    are "wire communication," which is "transmission of . . . pictures .
    . . and sounds . . . by aid of wire, cable, or other like
    connection."[^162] Thus, the Commission has subject matter
    jurisdiction over these services. We also find that imposing an EAS
    requirement is reasonably ancillary to the effective performance of
    our responsibilities.[^163] Wireline Video Providers' participation
    in the EAS will advance the animating purpose of section 624(g) by
    ensuring that their video subscribers have access to the same
    emergency information as broadcast and cable television
    viewers.[^164] Indeed, we believe that their EAS participation is
    necessary to preserve and advance the goals of section 624(g), as
    Wireline Video Providers offer competitive alternatives to the video
    programming available through broadcast and cable television, and
    are likely to reach increasingly large portions of the American
    public as they deploy their services.[^165] Moreover, requiring
    Wireline Video Providers to participate in EAS also will further our
    core public safety mission under Title I, which requires us to take
    steps to "promot\[e\] safety of life and property,"[^166] and
    section 706, and is consistent with prior Commission actions.
    Accordingly, we conclude that we have ancillary jurisdiction to
    require even those Wireline Video Providers that may not be cable
    operators under the Act to participate in EAS.

49. As a policy matter, we believe that the reasonable expectations of
    viewers should guide our efforts to encourage the development of a
    more comprehensive EAS system. We reaffirm that our long-term goal
    is to incorporate as many communications technologies as possible
    into a comprehensive, flexible, and redundant system to deliver EAS
    alerts quickly to the largest number of consumers.

50. Wireline Video Providers should be subject to the same EAS
    requirements as providers of Digital Cable Systems.[^167] We
    therefore amend our EAS rules to specifically include Wireline Video
    Providers. Wireline Video Providers are EAS Participants, however,
    only to the extent they provide video services; our EAS rules do not
    impose mandatory EAS obligations on wireline telephone companies
    providing traditional landline telephone services at this
    time.[^168]

### Wireless Participation in EAS

#### Background

51. In the *Further Notice*, the Commission noted that wireless devices
    are used to reach the American public quickly and efficiently.[^169]
    The Commission specifically noted the participation of the wireless
    industry in FEMA's DEAS pilot projects and asked what further steps
    it should take to facilitate wireless provision of EAS alerts,
    including whether to require wireless carriers to provide emergency
    alerts.[^170] It also noted that commenters to the *2004 NPRM* had
    identified technologies that would enable wireless handsets to
    receive EAS alerts and requested comment on these and other
    approaches to wireless alert and warning.[^171] The Commission
    directed commenters to address the extent to which each approach
    would permit the use of a common messaging protocol and whether
    handsets would have to be replaced. Numerous parties responded to
    these and related questions specified in the *Further Notice*,
    resulting in a well-developed record.

#### Discussion

52. As discussed in paragraph 8 above, on October 13, 2006, the
    President signed the WARN Act into law. Because the WARN Act directs
    the Commission to initiate a rulemaking regarding the establishment
    of an alerting system for commercial mobile service (CMS) providers
    that voluntarily elect to transmit emergency alerts, and the
    schedule set by the WARN Act precludes initiation of such rulemaking
    until a later date, we do not address commercial wireless carrier
    participation in EAS in this *Order*.

## State-Level and Geographically Targeted EAS Alerts

### Background

53. EAS Participants currently have the discretion whether to receive
    and retransmit alerts from state and local EAS entities,[^172] and
    we applaud the numerous entities that have chosen to serve the
    public by voluntarily participating in state and local EAS
    activations.[^173] In the *Further Notice*, the Commission
    acknowledged the essential role that state and local governments
    play in providing emergency information to the public,[^174] and
    specifically noted the close nexus between state and local alerting
    and federal efforts to provide disaster relief. The Commission
    observed that the public interest may be served by affording state
    governors the ability to disseminate emergency information via EAS
    facilities, and sought comment on whether EAS Participants should be
    required to transmit EAS messages delivered by the governor of any
    state in which they provide service.[^175]

54. As many commenters have noted, nearly all emergencies affect
    regional, state or smaller areas.[^176] Although EAS is frequently
    used to provide the public vital localized weather-related
    announcements (such as tornado warnings), it generally has not been
    used by states to formally provide the public state-wide EAS alerts
    regarding emergencies such as natural disasters or terrorism
    incidents. For example, during Hurricanes Katrina, Wilma, and Rita,
    broadcasters provided localized emergency information to the public,
    while none of the affected state governors formally activated EAS to
    provide the public evacuation, shelter or other critical
    information.[^177] We believe that, consistent with the Commission's
    fundamental mandate to promote the safety of life and property
    through the use of wire and radio communications,[^178] we should go
    further to encourage and facilitate state use of the EAS network.

### Discussion

#### Receipt of State-Level Messages

55. We believe that voluntary participation by cable and broadcast EAS
    Participants in accommodating state and local level alerting in the
    existing EAS has been generally successful. Nevertheless, we
    conclude there are compelling policy reasons to order EAS
    Participants to receive CAP-formatted EAS alerts activated by state
    governors or their designees. First, we again note that EAS use to
    date has been overwhelmingly related to weather and state and local
    alerts.[^179] We also believe that states will be more inclined to
    deploy the necessary resources to upgrade to Next Generation EAS,
    including the ability to simultaneously transmit multiple and
    differentiated CAP-formatted messages, if the states have a
    particular -- and FCC-enforceable -- stake in the EAS during state
    and local emergencies. We conclude, therefore, that all EAS
    Participants within a state[^180] are required to be prepared to
    receive state-level messages delivered to the participant by the
    state's governor (or the governor's designee) within 180 days from
    the date FEMA adopts CAP, so long as such delivery is explicitly
    described in a state EAS plan that is submitted to and approved by
    the Commission. In addition, we believe that other public officials
    may, in appropriate circumstances, activate EAS alerts. We seek
    comment in the attached Further Notice about which officials should
    be permitted to activate EAS alerts and under what circumstances.

56. We recognize that requiring EAS Participants to receive emergency
    alerts directly from state political subdivisions, such as counties
    and cities, could be unduly complex and costly and would create the
    potential for some alerts to reach those who may not be affected by
    a particular emergency. Accordingly, we will only require EAS
    Participants to receive CAP-formatted EAS messages delivered to them
    by a state governor (or the governor's designee), or by FEMA (or its
    designee) on behalf of a state.[^181] We find that requiring EAS
    Participants to receive CAP-formatted EAS messages delivered by a
    state governor of any state in which they provide service falls
    within the scope of our Title I subject matter jurisdiction as well
    as our public interest authority to grant licenses for radio
    communication under Title III of the Act. "\[P\]romoting safety of
    life and property through the use of wire and radio communication"
    is a core mission of the FCC under Title I,[^182] Title III
    authorizes the FCC to grant radio licenses in the public
    interest,[^183] and the Commission is authorized to "make such rules
    and regulations . . . as may be necessary in the execution of its
    functions," and to "\[m\]ake such rules and regulations . . . not
    inconsistent with law, as may be necessary to carry out the
    provisions of this Act . . . "[^184] Developing and maintaining an
    effective, reliable, integrated, flexible, and comprehensive EAS
    system is a fundamental and longstanding FCC mission under the
    Communications Act.

57. Requiring EAS Participants to receive state-level alerts delivered
    pursuant to, and upon adoption by FEMA of CAP advances the
    Commission's policy objectives and serves the public interest by
    ensuring the ability of state governors to disseminate emergency
    information via EAS facilities. State governments play an essential
    role in providing emergency information to the public. The
    Commission's EAS regulations always have accounted for the
    importance of state-level alerts, but we now conclude that mandating
    receipt of state-level EAS messages will further our core public
    safety mission.

58. Exercising ancillary jurisdiction to require EAS participants to
    receive messages delivered to them by a state governor also furthers
    other statutory goals. Section 615 requires the Commission to
    "encourage and support efforts by States to deploy comprehensive
    end-to-end emergency communications infrastructure and
    programs,"[^185] while 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. Commission authority
    to regulate participation by cable systems in the emergency alerting
    process stems primarily from section 624(g) of the Act.[^186] 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 strives to make all facets of our society fully accessible to
    individuals with disabilities.[^187] Finally, in light of the
    President's 2006 *Executive Order*, which directs the Commission to
    adopt rules to ensure that communications systems have the capacity
    to transmit alerts and warnings to the public as part of the public
    alert and warning system, we note that our action today is
    consistent with that Presidential directive as well as with
    emergency preparedness goals expressed by Congress in other
    statutes.[^188]

59. Accordingly, we reject as without merit NAB's argument that the
    Commission lacks authority to mandate participation in state-level
    EAS alerts. NAB points out that section 706 concerns Presidential
    communications, and the executive orders delegating authority to the
    FCC pursuant to section 706 largely concern the development of a
    national-level communications capability to serve Presidential
    needs, rather than state or local needs.[^189] Section 706 is not
    the only source of FCC authority to impose EAS requirements,
    however. The Commission's core public safety mission under Title I
    is not limited to national emergencies,[^190] nor is our Title III
    authority to grant radio licenses in the public interest so
    limited.[^191] Indeed, the *Executive Order* broadly affirms that
    "\[i\]t is the policy of the United States to have an effective,
    reliable, integrated, flexible, and *comprehensive* *system* to
    alert and warn the American people ... , *taking appropriate account
    of* ... *all levels of government in our Federal system* ..."[^192]
    We could not ensure a "comprehensive" system without taking state
    governments into account. The FCC's past reliance on voluntary
    state-level EAS participation reflects a policy judgment, rather
    than a lack of authority, as NAB suggests.

60. NAB also argues that the Commission cannot rely on section 1 because
    requiring state-level EAS participation implicates programming
    content. The only support that NAB offers for this argument is the
    D.C. Circuit's statement in *Motion Picture Ass'n of America,
    Inc. v. FCC* that "\[o\]ne of the reasons why § 1 has not been
    construed to allow the FCC to regulate programming content is
    because such regulations invariably raise First Amendment
    issues."[^193] NAB's reliance on this statement is misplaced. In the
    *MPAA* decision, the Commission was relying on Title I alone to
    regulate programming content in the face of a statutory provision
    regarding video descriptions that the court interpreted as limiting
    FCC authority.[^194] Here, in contrast, we rely on Title III as well
    as Title I to mandate the carriage of emergency information.
    Requiring the carriage of emergency information also is a
    longstanding function of the Commission. NAB fails to explain how
    requiring state-level EAS participation implicates programming
    content in a manner different from the longstanding requirement of
    national-level EAS participation, which NAB does not challenge.

61. In addition to the source of our legal authority to require
    participation in state-level EAS, we also must consider the
    facilities and architecture of the various EAS Participants in
    determining how best to implement a state-level EAS requirement. We
    note that the existing EAS network architecture is based on a
    broadcast model of localized receipt and distribution by radio,
    television, and cable service providers using ENDEC units situated
    throughout their service areas. We recognize that certain other EAS
    Participants may have organized their service infrastructure on a
    national, not regional, basis. For example, the Commission
    recognized in the *First Report and Order* that SDARS "is by nature
    a national service and that as a result the development of methods
    to ensure receipt of state and local alerts by SDARS licensees is
    likely to be challenging."[^195] Requiring these carriers to
    establish monitoring capability in every state where they do
    business could prove to be unduly burdensome. Satellite carriers, in
    particular, have expressed a need for a single receive point for EAS
    alerts that would complement their organizational structure.

62. We do not require SDARs and DBS providers to accommodate state-level
    alerts given the national nature of their broadcast area. We note
    that SDARS and DBS cannot accommodate state-level alerts at present
    and might not be able to do so even after the full implementation of
    Next Generation EAS. In the United States, there are two licensed
    SDARS operators: Sirius Satellite Radio, Inc. ("Sirius") and XM
    Radio, Inc. ("XM").[^196] Both licensees transmit their programming
    via satellite directly to subscribers' receivers on a nationwide
    basis.[^197] In the *First Report and Order*, the Commission
    required the SDARS licensees to transmit national level EAS messages
    on all channels on their systems.[^198] In the *Further Notice*, the
    Commission sought comment on how technologies like SDARS, which are
    designed to receive and deliver national programming, could deliver
    state and local alerts. [^199] Although some potential, developing
    functionalities may enable SDARS to support geo-targeting, such as
    state-level alerts, in the future, XM expressed concerns that its
    current system cannot support geographical targeting of even
    state-level alerts to affected subscribers.[^200] XM states that
    there are two impediments for SDARS to transmit state or local
    alerts \-- a satellite radio provider does not have an ENDEC unit
    located in every area where a local alert might originate, and a
    satellite radio provider\'s programming reaches subscribers
    nationwide.[^201]  Because SDARS providers face technical
    difficulties in distributing even state-level alerts to their
    subscribers, we will not at this time require SDARS to provide
    geographically-targeted alerts, including state-level alerts.

63. Likewise, DBS satellite service providers, such as EchoStar (Dish
    Network) and DIRECTV, transmit video programming on a nationwide
    basis to subscribers over a wide area. DIRECTV and PanAmSat state
    that currently DBS systems cannot distribute state and local alerts
    without interrupting programming across a wide area.[^202] DIRECTV
    also states that its system currently does not have the capability
    to receive, sort, and disseminate state and local EAS messages only
    to the subscribers in the affected areas.[^203] Because DBS
    providers also face technical difficulties in distributing alerts to
    portions of their subscribers, we will not at this time require DBS
    to provide geographically-targeted alerts, including state-level
    alerts.

#### Geographically Targeted Alerts at Less than State-Level

64. Although we are limiting the requirement that EAS Participants
    receive state level messages to messages received from state
    governors (or their designees) pursuant to CAP, we do not seek to
    restrict state use of the EAS network to only emergency messages
    that require statewide distribution. A governor could, for example,
    determine that certain emergencies warrant use of the EAS network to
    deliver a geographically-targeted alert to particular regions**.**
    Employing CAP will facilitate such geo-targeting, at least in
    connection with some technologies. Accordingly, we also require EAS
    Participants to deliver emergency alerts to areas smaller than a
    state. In order to transmit such targeted alerts, however, EAS
    Participants must be provided with CAP-formatted messages containing
    appropriate codes.[^204] Further, EAS Participants may comply with
    this requirement by utilizing geographic-specific alerts such as
    subscripts utilizing localized information. Expanding our
    state-level alert transmission requirement to include geographically
    targeted alerts will afford each state governor the ability to
    determine the types and geographic scope of emergency alerts
    provided to residents via the EAS network, in coordination with the
    ability of EAS Participants in his or her state to accommodate such
    alerts. Importantly, however, in adopting this requirement, we note
    that terrestrial broadcasters may not presently have the technical
    ability to restrict delivery of a targeted alert solely to the
    affected portion of their service area. This type of restriction is
    not necessary in order to comply with the requirements established
    in this Order.[^205]

## Coordination with State and Local Governments

### Background

65. State and local participation in the EAS is not currently required
    by the Commission's rules. Nevertheless, all states, the District of
    Columbia, as well as many local jurisdictions, have elected to
    participate in the EAS to varying degrees. In order to participate
    in the EAS, entities must file an EAS plan with the Commission for
    review and approval "prior to implementation to ensure that they are
    consistent with national plans, FCC regulations, and EAS
    operation."[^206] In the *2004 NPRM*, the Commission noted the
    importance of state and local EAS plans and requested comment on
    whether to require periodic updating and review of these
    plans.[^207] In the *Further Notice*, the Commission reiterated this
    request and also asked whether it should require state and local
    entities to notify the Commission of any revisions to their EAS
    plans or their EAS designations (for example, NP, LP1, LP2, SR, and
    LR).[^208] The Commission also inquired whether it should require
    state and local entities to annually confirm their plans and
    designations.[^209]

### Discussion

66. For nearly half a century, the Commission has encouraged state and
    local participation in the EAS (and its predecessor, the EBS), and
    we take additional steps today in this *Order* that will ensure the
    effective and efficient participation by states and local
    jurisdictions in the EAS. We note that the SECCs, industry
    participants, and state and local officials have worked closely with
    Commission staff to ensure the efficacy of the EAS, resulting in EAS
    plans for all 50 states.[^210] The Commission has reviewed and
    approved EAS plans for a number of states,[^211] and continues to
    have a cooperative, highly effective relationship with the SECCs.
    [^212]

67. As a result of the actions we take today to ensure that state
    governors have a robust and reliable EAS network at their disposal,
    states will likely need to revise their EAS plans to specify how and
    what types of EAS alerts they will transmit to EAS Participants.
    Such information will enable the Commission, FEMA, affected EAS
    Participants, and other interested parties to ensure that these
    plans are implemented successfully. While we do not dictate specific
    plan revisions other than those set forth herein for implementing
    mandatory state-level alerts, we encourage states to include
    information regarding redundant distribution of EAS alerts. Since
    state EAS plans will be required to contain information concerning
    our new requirement that EAS Participants must distribute EAS alerts
    delivered by state governors, plans should specify how the
    governor's CAP-formatted EAS messages will be transmitted to all EAS
    Participants who provide services in the state. We also encourage
    states to submit an electronic data file specifying monitoring
    assignments and the paths for the Emergency Action Notification
    (EAN) from the NP to each station in their plans. We believe that
    such an electronic submission would facilitate the Commission's
    revision of the EAS "Map Book" required under the EAS rules.[^213]
    We also urge states to provide detailed information identifying the
    monitored and monitoring broadcast stations.

68. In order to ensure that the Commission has sufficient notice of
    revised EAS plans, we will require state and local entities to file
    modified plans with the Commission at least 90 days before the
    effective date of any revision to their EAS plans or their EAS
    designations. In addition, we will require state and local entities
    to annually confirm their plans and designations.

69. We also agree with commenters and the specific recommendation of the
    Independent Panel that the Commission should proactively provide EAS
    training to interested parties. [^214] We agree with Contra Costa
    that education to public safety and citizens is critical in making
    any type of infrastructure successful.[^215] We also believe that
    the Alaska Broadcasters Association and the State Emergency
    Communications Committee (Joint Parties) in our EAS proceeding are
    correct in recommending that training be provided for emergency
    managers as well as subject broadcasters, cable systems and other
    media operators.[^216] We take particular note of the argument of
    the Ohio Association of Broadcasters that proper training (and
    retraining) is a critical component of EAS, and supports training
    programs at the local level. OAB believes the Federal government
    also should be responsible for providing guidance to ensure that an
    appropriate minimum level of training of emergency management
    personnel is provided. According to OAB, a national training
    standard would ensure that training of persons who administer and
    activate EAS is uniform throughout local communities, states, and
    among federal, state and local government agencies.[^217]
    Accordingly, we hereby instruct the Commission's Public Safety and
    Homeland Security Bureau to coordinate with FEMA on the appropriate
    requirements for and resources to conduct EAS training programs to
    ensure states and other interested parties can implement the Next
    Generation EAS.

## Assessing EAS Operation

70. In the *Further Notice*, we asked whether performance standards are
    necessary to ensure that Next Generation technologies deliver alerts
    to the American public in a timely and accurate fashion.[^218] We
    noted that proposed standards could include the length of time it
    takes to receive a message and the accuracy of the message.[^219]

71. It is vital that the EAS operates as designed in an emergency. We
    intend to examine several potential mechanisms to ensure that is the
    case. In the Further Notice of Proposed Rulemaking, we seek comment
    on several options, including: (1) additional testing; (2) station
    certification of compliance; and (3) assessments of EAS performance
    after an alert has been triggered. We will revisit the issue of
    performance standards if it appears that they are warranted.

    .

# FURTHER NOTICE OF PROPOSED RULEMAKING[^220]

72. *Non-English Speakers*. We recognize the need for *all* Americans --
    including those whose primary language is not English -- to be
    alerted in the event of an emergency. We therefore seek comment on
    how non-English speakers may best be served by national, state and
    local EAS. In particular, we invite comment on how localities with
    non-English speakers should be identified. In which markets should
    special emergency alert rules apply? As MMTC et al. propose, should
    state and local EAS plans designate a "Local Primary Multilingual"
    station to transmit emergency information the relevant foreign
    language in local areas where a substantial proportion of the
    population has a fluency in a language other than English?[^221] How
    should we quantify the "substantial proportion"? Should at least one
    broadcast station in every market, or some subset of markets, be
    required to monitor and rebroadcast emergency information carried by
    a "Local Primary Multilingual" station. And, should stations that
    remain on the air during an emergency be required to broadcast
    emergency information in the relevant foreign language to the extent
    that the "Local Primary Multilingual" station loses transmission
    capability. What criteria should the originator of an EAS message
    use in determining which languages to require EAS Participants to
    transmit? Should more than two languages be transmitted in certain
    areas? We seek comments on the technical, economic, practical, and
    legal issues, including the Commission's authority, involved in
    making emergency information accessible to persons whose primary
    language is not English. We would especially welcome comments on
    state-level or other efforts designed to address these issues. We
    note, for example, that Florida has implemented a program to promote
    the provision of emergency information to non-English speakers in
    that state, and that California and Texas have addressed the issue
    in their EAS plans filed with this Commission.[^222] We direct the
    Public Safety and Homeland Security Bureau to convene a meeting --
    or series of meetings -- as soon as possible concerning EAS as it
    relates to the needs of non-English speakers. The Bureau should
    thereafter submit into the record a progress report on these
    discussions within 30 days of this Order's release.

73. *Persons with Disabilities*. In this *Further Notice of Proposed
    Rulemaking* we reexamine the best way to make EAS and other
    emergency information accessible to persons with disabilities. We
    request comments on this subject, including, but not necessarily
    limited to the following key issues: (1) presentation of the audio
    feed in text format, and vice-versa; (2) making emergency
    information available to various devices commonly used by persons
    with disabilities; and (3) providing emergency messages in multiple
    formats to meet the needs of persons with disabilities. We also seek
    comment on the interaction between our Part 11 rules and section
    79.2 of our rules. We welcome comments on the technical, economic,
    practical, and legal issues, including the Commission's authority,
    involved in making emergency information accessible to persons with
    disabilities.

74. *Other local official alerts.* Our action today enables state
    governors (or their designees) to initiate state-level and
    geo-targeted alerts for mandatory transmission by EAS Participants.
    Since, as stated above, EAS activations to date have been
    overwhelmingly related to weather and state and local alerts, we
    seek comment on whether EAS Participants should be required to
    receive and transmit alerts initiated by government entities other
    than a state governor. Should local, county, tribal, or other state
    governmental entities be allowed to initiate mandatory state and
    local alerts? How should the Commission decide which public
    officials should be permitted to activate the alert? Should the
    expansion of mandatory state and local alerts be limited to certain
    types of alerts? We seek comment on whether the Commission should
    specify the types of emergency alerts that these local officials
    should be permitted to activate? Should only certain classes of EAS
    Participants be required to transmit such alerts by entities other
    than the governor? Does CAP allow for proper delivery of such
    alerts, or should such alerts be mandatory only in the context of
    Next Generation EAS? What other considerations should govern the
    appropriate use of a mandatory alerting process by entities other
    than a governor? We seek comment generally on how this type of
    requirement should be implemented.

75. *Assessing EAS Operation*. We seek comment on several options for
    ensuring that EAS operates as designed in an emergency, including
    whether we should require: (1) additional testing of the EAS,[^223]
    and specifically CAP; (2) station certification of compliance;
    and (3) assessments of EAS performance after an alert has been
    triggered. We will revisit the issue of performance standards if it
    appears that they are warranted. In particular, we seek comments on
    the technical, economic, practical, and legal issues involved.

# procedural matters

## *Ex Parte* Presentations 

76. This matter shall be treated as a "permit-but-disclose" proceeding
    in accordance with the Commission's *ex parte* rules.[^224] 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.[^225] Other
    requirements pertaining to oral and written presentations are set
    forth in section 1.1206(b) of the Commission's rules.

## Comment Filing Procedures

77. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
    C.F.R §§ 1.415, 1.419, interested parties may file comments and
    reply comments on or before the dates indicated on the first page of
    this document. **All filings related to this Order and the Further
    Notice of Proposed Rulemaking should refer to EB Docket No.
    04-296**. Comments may be filed using: (1) the Commission's
    Electronic Comment Filing System (ECFS), (2) the Federal
    Government's eRulemaking Portal, or (3) by filing paper copies.
    *See* *Electronic Filing of Documents in Rulemaking Proceedings*, 63
    FR 24121 (1998).

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: <http://www.fcc.gov/cgb/ecfs/> or
    the Federal eRulemaking Portal:
    [http://www.regulations.gov](http://www.regulations.gov/). Filers
    should follow the instructions provided on the website for
    submitting comments.

    -   For ECFS filers, if multiple docket or rulemaking numbers appear
        in the caption of this proceeding, filers must transmit one
        electronic copy of the comments for each docket or rulemaking
        number referenced in the caption. In completing the transmittal
        screen, filers should include their full name, U.S. Postal
        Service mailing address, and the applicable docket or rulemaking
        number. Parties may also submit an electronic comment by
        Internet e-mail. To get filing instructions, filers should send
        an e-mail to <ecfs@fcc.gov>, and include the following words in
        the body of the message, "get form." A sample form and
        directions will be sent in response.

```{=html}
<!-- -->
```
-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. If more than one docket or
    rulemaking number appears in the caption of this proceeding, filers
    must submit two additional copies for each additional docket or
    rulemaking number.

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

-   The Commission's contractor will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, NE., Suite 110, Washington, DC 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]{.underline} 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, Express, and Priority mail should
    be addressed to 445 12^th^ Street, SW, Washington DC 20554.

## Accessible Formats

78. To request materials in accessible formats for people with
    disabilities (braille, large print, electronic files, audio format),
    send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
    Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

## Regulatory Flexibility Analysis

79. As required by the Regulatory Flexibility Act of 1980, *see* 5
    U.S.C. § 604, the Commission has prepared a Final Regulatory
    Flexibility Analysis (FRFA) of the possible significant economic
    impact on small entities of the policies and rules addressed in this
    document. The FRFA is set forth in Appendix B.

80. As required by the Regulatory Flexibility Act of 1980, *see* 5
    U.S.C. § 603, the Commission has prepared an Initial Regulatory
    Flexibility Analysis (IRFA) of the possible significant economic
    impact on small entities of the policies and rules addressed in this
    document. The IRFA is set forth in Appendix D. Written public
    comments are requested on the IRFA. These comments must be filed in
    accordance with the same filing deadlines as comments filed in
    response to this Further Notice of Proposed Rulemaking as set forth
    in paragraph 77, and have a separate and distinct heading
    designating them as responses to the IRFA.

## Paperwork Reduction Act Analysis

81. This Second Report and Order contains new and modified information
    collection requirements subject to the Paperwork Reduction Act of
    1995 ("PRA"), Public Law 104-13. It will be submitted to the Office
    of Management and Budget ("OMB") for review under Section 3507(d) of
    the PRA.

## Congressional Review Act

82. The Commission will send a copy of this Second Report and Order in a
    report to be sent to Congress and the Government Accountability
    Office pursuant to the Congressional Review Act ("CRA"), *see* 5
    U.S.C. § 801(a)(1)(A).

# Ordering Clauses

83. Accordingly, IT IS ORDERED that pursuant to sections 1, 2, 4(i),
    4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g),706 and 715 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152,
    154(i) and (o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g),
    606, and 615. the Second Report and Order and Further Notice of
    Proposed Rulemaking in EB Docket No. 04-296 IS ADOPTED, and that
    Part 11 of the Commission's Rules, 47 C.F.R. Part 11, is amended as
    set forth in Appendix C. The Order shall become effective 30 days
    after publication in the Federal Register, except that new or
    modified information collection requirements contained in Appendix C
    will not become effective prior to OMB approval; and

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

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

> **List Of Commenters**
>
> **Comments in EB Docket No. 04-296**

**[Commenters]{.underline}** **[Abbreviation]{.underline}**

Active Data Exchange, Inc. Active Data

Airit2me, Inc. Airit2me

Alert Systems, Inc. Alert Systems

American Association of Paging Carriers AAPC

American Foundation for the Blind AFB

Association of Maximum Service Television AMST

Association of Public Broadcasting APB

AT&T AT&T

Azos AI, LLC Azos

Bell, Frank W. Bell

BellSouth BellSouth

Brooks, Rex Brooks

Brown, Robert Brown

Cellular Telecommunications & Internet Association CTIA

City of New York NYC

Cingular Cingular

Cohen, Philip Cohen

Community Broadcasters Association CBA

Consumer Electronics Association CEA

Cox Broadcasting COX

DIRECTV DIRECTV

Dodds, Betty Dodds

EchoStar EchoStar

Emergency E-Mail & Wireless Network EEWN

Ericsson Inc. Ericsson

Harris Corporation Harris

Jones, Elysa Jones

Marks, Alan R. Marks

Merrell, John Merrell

Minority Media & Telecommunications Council, MMTC

Independent Spanish Broadcasters, *et. al.*

Named State Broadcasters Associations State Associations

National Association of Broadcasters NAB

National Cable & Telecommunications Association NCTA

National Public Safety Telecommunications Council NPSTC

Notification Technologies, Inc. NT

PanAmSat, *et. al.* PanAmSat

Putkovich, Kenneth Putkovich

RadioShack Corporation RadioShack

Rehabilitation Engineering Research Center on Mobile Wireless
Technologies RERC Wireless

Research Center on Telecommunications Access RCTA

Rural Cellular Association RCA

Society of Broadcast Engineers, Inc. SBE

Sprint Nextel Sprint Nextel

Telecommunications for the Deaf and Hard of Hearing TDI

TFT, Inc. TFT

T-Mobile T-Mobile

U.S. Geological Survey USGS

USA Mobility, Inc. USA Mobility

VeriSign VeriSign

Verizon Verizon

WFSA-TV Montgomery, AL WFSA-TV

WGBH National Center for Accessible Media and Rehabilitation Engineering
WGBH

XM Radio Inc. XM

**[Reply Commenters]{.underline}** **[Abbreviation]{.underline}**

3G Americas, LLC 3G

Airit2me, Inc. Airit2me

Association for Maximum Service Television, Inc. AMST

AT&T AT&T

Bell, Frank W. Bell

Cingular Wireless LLC Cingular

Communication Service for the Deaf, Inc. CSD

CTIA - The Wireless Association™ CTIA

Dominion Video Satellite Inc. DVS

EchoStar Satellite LLC EchoStar

Minority Media & Telecommunications Council, MMTC

Independent Spanish Broadcasters, *et. al.*

National Association of Broadcasters NAB

National Cable & Telecommunications Association NCTA

National Public Safety Telecommunications Council NPSTC

NYC Department of Information Technology and Telecommunications NYC

Putkovich, Kenneth Putkovich

Rural Cellular Association RCA

Telecommunications for the Deaf and Hard of Hearing, Inc. TDI

TFT, Inc. TFT

T-Mobile USA, Inc. T-Mobile

USA Mobility, Inc. USA Mobility

**APPENDIX B**

**Final Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act ("RFA"),[^226] an
    Initial Regulatory Flexibility Analysis ("IRFA") was incorporated in
    the Further Notice of Proposed Rulemaking in EB Docket 04-296
    ("*First Report and Order and FNPRM*").[^227] The Commission sought
    written public comment on the proposals in the *EAS NPRM*, including
    comment on the IRFA. This Final Regulatory Flexibility Analysis
    ("FRFA") conforms to the RFA.

## Need for, and Objectives of, the Rules

1.  This *Second Report and Order* adopts rules that set the framework
    for a Next Generation EAS. In this Order, we take the following
    actions to establish service requirements for a Next Generation EAS,
    and establish schedules by which industry segments must transition
    to the new system: (1) require EAS Participants to configure their
    systems to accept EAS alerts formatted in the Common Alerting
    Protocol ("CAP") format no later than 180 days after FEMA announces
    the technical standards and requirements for CAP-formatted
    messages; (2) require EAS Participants to configure their systems to
    authenticate and validate EAS alerts formatted in the CAP format no
    later than 180 days after FEMA announces the standards for
    authentication and validation of CAP-formatted messages; (3) require
    EAS Participants to receive and transmit state-level messages
    delivered to the Participant by the state's governor (or the
    governor's designee) within 180 days from the date FEMA adopts CAP,
    so long as such delivery is explicitly described in a state EAS plan
    that is submitted to and approved by the Commission; (4) require
    wireline common carriers that provide video programming service to
    receive and distribute EAS messages; and (5) delegate authority to
    the Chief, Public Safety and Homeland Security Bureau to perform
    actions that will facilitate proper implementation of our rules and
    resolution of issues as set forth herein.

## Summary of Significant Issues Raised by Public Comments in Response to the IRFA

2.  There were no comments filed that specifically addressed the IRFA.

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

3.  The RFA directs agencies to provide a description of, and, where
    feasible, an estimate of, the number of small entities that may be
    affected by the rules adopted herein.[^228] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^229] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^230] 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").[^231]

4.  A small organization is generally "any not-for-profit enterprise
    which is independently owned and operated and is not dominant in its
    field."[^232] Nationwide, as of 2002, there were approximately 1.6
    million small organizations.[^233] The term "small governmental
    jurisdiction" is defined as "governments of cities, towns,
    townships, villages, school districts, or special districts, with a
    population of less than fifty thousand."[^234] As of 1997, there
    were approximately 87,453 governmental jurisdictions in the United
    States.[^235] This number includes 39,044 county governments,
    municipalities, and townships, of which 37,546 (approximately 96.2
    percent) have populations of fewer than 50,000, and of which 1,498
    have populations of 50,000 or more. Thus, we estimate the number of
    small governmental jurisdictions overall to be 84,098 or fewer.
    Nationwide, there are a total of approximately 22.4 million small
    businesses, according to SBA data.[^236]

5.  *Television Broadcasting*. The SBA has developed a small business
    sized standard for television broadcasting, which consists of all
    such firms having \$13 million or less in annual receipts.[^237]
    Business concerns included in this industry are those "primarily
    engaged in broadcasting images together with sound."[^238] 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[^239]must be
    included.[^240] 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").[^241] Given the nature of
    this service, we will presume that all LPTV licensees qualify as
    small entities under the SBA size standard.

6.  *Radio Stations**. ***The revised rules and policies potentially
    will apply to all AM and commercial FM radio broadcasting licensees
    and potential licensees. The SBA defines a radio broadcasting
    station that has \$6.5 million or less in annual receipts as a small
    business.[^242] A radio broadcasting station is an establishment
    primarily engaged in broadcasting aural programs by radio to the
    public.[^243] Included in this industry are commercial, religious,
    educational, and other radio stations.[^244] Radio broadcasting
    stations which primarily are engaged in radio broadcasting and which
    produce radio program materials are similarly included.[^245]
    However, radio stations that are separate establishments and are
    primarily engaged in producing radio program material are classified
    under another NAICS number.[^246] According to Commission staff
    review of BIA Publications, Inc. Master Access Radio Analyzer
    Database on March 31, 2005, about 10,840 (95 percent) of 11,410
    commercial radio stations have revenue of \$6 million or less. We
    note, however, that many radio stations are affiliated with much
    larger corporations having much higher revenue. Our estimate,
    therefore, likely overstates the number of small entities that might
    be affected by our action.

7.  *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.[^247] According to Census Bureau data
    for 1997, in this category there was a total of 1,311 firms that
    operated for the entire year.[^248] 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.[^249] Thus, under this
    size standard, the majority of firms can be considered small. In
    addition, limited preliminary census data for 2002 indicate that the
    total number of cable and other program distribution companies
    increased approximately 46 percent from 1997 to 2002.[^250]

8.  *Cable System Operators (Rate Regulation Standard)*. The Commission
    has developed its own small business size standard for cable system
    operators, for purposes of rate regulation. Under the Commission's
    rules, a "small cable company" is one serving 400,000 or fewer
    subscribers nationwide.[^251] We have estimated that there were
    1,065 cable operators who qualified as small cable system operators
    at the end of 2005.[^252] Since then, some of those companies may
    have grown to serve over 400,000 subscribers, and others may have
    been involved in transactions that caused them to be combined with
    other cable operators. Consequently, the Commission estimates that
    there are now fewer than 1,065 small entity cable system operators
    that may be affected by the rules and policies proposed herein.

9.  *Cable System Operators (Telecom Act Standard)*. The Communications
    Act of 1934, as amended, ("Act") also contains a size standard for
    small cable system operators, which is "a cable operator that,
    directly or through an affiliate, serves in the aggregate fewer than
    1 percent of all subscribers in the United States and is not
    affiliated with any entity or entities whose gross annual revenues
    in the aggregate exceed \$250,000,000."[^253] The Commission has
    determined that there are 67,700,000 subscribers in the United
    States.[^254] Therefore, an operator serving fewer than 677,000
    subscribers shall be deemed a small operator, if its annual
    revenues, when combined with the total annual revenues of all its
    affiliates, do not exceed \$250 million in the aggregate.[^255]
    Based on available data, the Commission estimates that the number of
    cable operators serving 677,000 subscribers or fewer, totals
    1,065.[^256] The Commission neither requests nor collects
    information on whether cable system operators are affiliated with
    entities whose gross annual revenues exceed \$250 million,[^257] and
    therefore are unable, at this time, to estimate more accurately the
    number of cable system operators that would qualify as small cable
    operators under the size standard contained in the Act.

10. *Multipoint Distribution Systems*. The established rules apply to
    Multipoint Distribution Systems ("MDS") 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.[^258] This definition of small entity in the context of MDS
    auctions has been approved by the SBA.[^259] 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.

11. MDS also includes licensees of stations authorized prior to the
    auction. As noted above, the SBA has developed a definition of small
    entities for pay television services, cable and other subscription
    programming, which includes all such companies generating \$13.5
    million or less in annual receipts.[^260] 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 estimate
    that there are at least 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
    adopted herein. In addition, limited preliminary census data for
    2002 indicate that the total number of cable and other program
    distribution companies increased approximately 46 percent from 1997
    to 2002.[^261]

12. *Instructional Television Fixed Service*. The established rules
    would also apply to Instructional Television Fixed Service ("ITFS")
    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.[^262] 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.[^263] 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 are small businesses and may be
    affected by the established rules.

13. *Incumbent Local Exchange Carriers ("LECs")*. We have included small
    incumbent LECs 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."[^264] 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.[^265] 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.[^266]
    According to Commission data,[^267] 1,303 carriers have reported
    that they are engaged in the provision of incumbent local exchange
    services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or
    fewer employees and 283 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.

14. *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.[^268] According to Commission data,[^269] 769 carriers
    have reported that they are engaged in the provision of either
    competitive access provider services or competitive local exchange
    carrier services. Of these 769 carriers, an estimated 676 have 1,500
    or fewer employees and 93 have more than 1,500 employees. In
    addition, 12 carriers have reported that they are "Shared-Tenant
    Service Providers," and all 12 are estimated to have 1.500 or fewer
    employees. In addition, 39 carriers have reported that they are
    "Other Local Service Providers." Of the 39, an estimated 38 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.

15. *Satellite Telecommunications and Other Telecommunications*. The
    Commission has not developed a small business size standard
    specifically for providers of satellite 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 million
    or less in average annual receipts.[^270] 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.[^271] 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.

16. 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."[^272] 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

17. In this Second Report and Order, we have taken steps to advance our
    public safety mission by establishing a framework for the Next
    Generation of EAS and by expanding the base of EAS participants to
    include wireline telephone companies that provide programming in
    competition with broadcast and cable television.

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

18. The RFA requires an agency to describe any significant alternatives
    that it has considered in developing its approach, which may include
    the following four alternatives (among others): "(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 and reporting requirements under the rule for such 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 such small entities."[^273]

19. The *First Report and Order and FNPRM* sought comment on a number of
    alternatives to the imposition of EAS obligations on the digital
    communications technologies discussed in this Second Report and
    Order that are increasingly being used by the American public. The
    Commission has considered each of the alternatives and in this
    Second Report and Order imposes minimal regulation on small entities
    to the extent consistent with our goal of advancing our public
    safety mission by adopting rules that expand the reach of EAS. The
    affected service providers have generally expressed their
    willingness to cooperate in a national warning system, and we
    anticipate that this addition of new providers to EAS can be
    accomplished swiftly and smoothly.

20. The benefits of requiring additional carriers to participate in the
    current EAS far outweigh any burdens associated with implementing
    these requirements. EAS represents a significant and valuable
    investment that is able to provide effective alert and warning
    during the time that new, digitally-based public alert and warning
    systems are being developed. Most commenters contend, and we agree,
    that the EAS should remain an important component of any future
    alert and warning system. Further, in most cases, the digital
    platforms affected by this Second Report and Order either have in
    place the ability to distribute EAS warnings, or can do so in a
    reasonable amount of time and with minimal cost.

21. Likewise, most commenters agreed that CAP is best-suited to deliver
    Next Generation EAS. By requiring EAS participants to adopt CAP, we
    believe that this will best serve our goal of protecting the life
    and property of all Americans. We acknowledge that compliance with
    the rules adopted in the order may impose cost burdens on small
    entities. However, given the great public interest benefits of the
    rules, we find that the public interest benefits outweigh the
    economic burdens, if any. In the Initial Regulatory Flexibility
    Analysis, we sought comment on these rules and no commenter proposed
    an alternative version that would serve these benefits while
    lessening the economic burdens. Accordingly, we find that we have
    discharged our duty to consider burdens imposed on small entities.

22. **[Report to Congress]{.underline}:** The Commission will send a
    copy of the Second Report and Order, including this FRFA, in a
    report to be sent to Congress and the Government Accountability
    Office pursuant to the Congressional Review Act.[^274] In addition,
    the Commission will send a copy of the Second Report and Order,
    including this FRFA, to the Chief Counsel for Advocacy of the SBA. A
    copy of the Second Report and Order and FRFA (or summaries thereof)
    will also be published in the Federal Register.[^275]

**APPENDIX C**

**Final Rules**

For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 C.F.R. Part 11 as follows:

**[PART 11 -- EMERGENCY ALERT SYSTEM (EAS)]{.underline}**

1.  The authority citation for Part 11 continues to read as follows:

Authority:  47 U.S.C. 151, 154 (i) and (o), 303(r), 544(g) and 606.

2.  Revise § 11.1 to read as follows:

**[§ 11.1  Purpose.]{.underline}**

This part contains rules and regulations providing for an Emergency
Alert System (EAS). The EAS provides the President with the capability
to provide immediate communications and information to the general
public at the National, State and Local Area levels during periods of
national emergency. The rules in this part describe the required
technical standards and operational procedures of the EAS for analog AM,
FM, and TV broadcast stations, digital broadcast stations, analog cable
systems, digital cable systems, wireline video systems, wireless cable
systems, Direct Broadcast Satellite (DBS) services, Satellite Digital
Audio Radio Service (SDARS), and other participating entities. The EAS
may be used to provide the heads of State and local government, or their
designated representatives, with a means of emergency communication with
the public in their State or Local Area.

3.  Add new § 11.2, as follows:

**[§ 11.2 Definitions]{.underline}**

The definitions of terms used in Part 11 are:

\(a\) *Primary Entry Point (PEP) System*. The PEP system is a nationwide
network of broadcast stations and other entities connected with
government activation points. It is used to distribute the EAN, EAT, and
EAS national test messages and other EAS messages. FEMA has designated
34 of the nation's largest radio broadcast stations as PEPs. The PEPs
are designated to receive the Presidential alert from FEMA and
distribute it to local stations.

\(b\) *Local Primary One (LP-1).* The LP-1 is a radio station that acts
as a key EAS monitoring source. Each LP-1 station must monitor its
regional PEP station and a back-up source for Presidential messages.

\(c\) *EAS Participants*. Entities required under the Commission's rules
to comply with EAS rules, *e.g.*, analog radio and television stations,
and wired and wireless cable television systems, DBS, DTV, SDARS,
digital cable and DAB, and wireline video systems.

\(d\) *Wireline Video System.* The system of a wireline common carrier
used to provide video programming service.

\(e\) *Participating National (PN)*. PN stations are broadcast stations
that transmit EAS National, state, or local EAS messages to the public.

\(f\) *National Primary (NP)*. Stations that are the primary entry point
for Presidential messages delivered by FEMA. These stations are
responsible for broadcasting a Presidential alert to the public and to
State Primary stations within their broadcast range.

\(g\) *State Primary (SP).* Stations that are the entry point for State
messages, which can originate from the Governor or a designated
representative.

4.  Amend § 11.11 by revising paragraph (a) and (e) to read as follows:

**[§ 11.11 The Emergency Alert System (EAS).]{.underline}**

(a) The EAS is composed of analog radio broadcast stations including AM,
    FM, and Low-power FM (LPFM) stations; digital audio broadcasting
    (DAB) stations, including digital AM, FM, and Low-power FM stations;
    analog television broadcast stations including Class A television
    (CA) and Low-power TV (LPTV) stations; digital television (DTV)
    broadcast stations, including digital CA and digital LPTV stations;
    analog cable systems; digital cable systems which are defined for
    purposes of this Part only as the portion of a cable system that
    delivers channels in digital format to subscribers at the input of a
    Unidirectional Digital Cable Product or other navigation device;
    wireline video systems; wireless cable systems which may consist of
    Broadband Radio Service (BRS), or Educational Broadband Service
    (EBS) stations; DBS services, as defined in 47 C.F.R. § 25.701(a)
    (including certain Ku-band Fixed-Satellite Service Direct to Home
    providers); SDARS, as defined in 47 C.F.R. § 25.201; participating
    broadcast networks, cable networks and program suppliers; and other
    entities and industries operating on an organized basis during
    emergencies at the National, State and local levels. These entities
    are referred to collectively as EAS Participants in this Part, and
    are subject to this Part, except as otherwise provided herein. At a
    minimum EAS Participants must use a common EAS protocol, as defined
    in § 11.31, to send and receive emergency alerts in accordance with
    the effective dates listed above and in the following tables:

**Analog and Digital Broadcast Stations**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

EAS Equipment AM & FM Digital TV DTV FM Class D[^276] LPTV[^277]
LPFM[^278] Class A TV[^279]

Requirement AM & FM

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Two-tone encoder[^280] [^281]Y Y 12/31/06 Y Y 12/31/06 N N N Y

EAS decoder Y 1/1/97 Y 12/31/06 Y 1/1/97 Y 12/31/06 Y 1/1/97 Y 1/1/97 Y
Y

EAS encoger Y 1/1/97 Y 12/31/06 Y 1/1/97 Y 12/31/06 N N N Y

Audio message Y 1/1/97 Y 12/31/06 Y 1/1/97 Y 12/31/06 Y 1/1/97 Y 1/1/97
Y Y

Video message N/A N/A Y 1/1/97 Y 12/31/06 N/A Y 1/1/97 N/A Y

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Effective December 31, 2006, digital FM Class D stations have the same
requirements.

^2^ LPTV stations that operate as television broadcast translator
stations are exempt from the requirement to have EAS equipment.
Effective December 31, 2006, digital LPTV stations have the same
requirements.

^3^ LPFM stations must install a decoder within one year after the FCC
publishes in the Federal Register a public notice indicating that at
least one decoder has been certified by the FCC. Effective December 31,
2006, digital LPFM stations have the same requirements.

^4^ Effective December 31, 2006, digital Class A TV stations have the
same requirements.

^5^ Effective July 1, 1995, the two-tone signal must be 8-25 seconds

^6^ Effective January 1, 1998, the two-tone signal may only be used to
provide audio alerts to audiences before EAS emergency messages and the
required monthly tests.

**Analog Cable Systems**

\[A. Analog cable systems serving fewer than 5,000 subscribers from a
headend must either provide the National level EAS message on all
programmed channels including the required testing by October 1, 2002,
or comply with the following EAS requirements. All other analog cable
systems must comply with B.\]

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

System size and effective dates

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

B. EAS Equipment Requirement \>=5,000 but \< 10,000 subscribers
\>=10,000 subscribers \<5,000 subscribers

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Two-tone signal from storage device^1^ Y 12/31/98 Y 10/1/02 Y 10/1/02

EAS decoder^3^ Y 12/31/98 Y 10/1/02 Y 10/1/02

EAS encoder^2^ Y 12/31/98 Y 10/1/02 Y 10/1/02

Audio and Video EAS Message on all Y 12/31/98 Y 10/1/02 N

channels

Video interrupt and audio alert N N Y 10/1/02

message on all channels,^3^ Audio

and Video EAS message on at least

one channel

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

^1^ Two-tone signal is only used to provide an audio alert to audience
before EAS emergency messages and

required monthly test. The two-tone signal must be 8-25 seconds in
duration.

^2^ Analog cable systems serving \<5,000 subscribers are permitted to
operate without an EAS encoder if they install an FCC-certified decoder.

^3^ The Video interrupt must cause all channels that carry programming
to flash for the duration of the EAS

emergency message. The audio alert must give the channel where the EAS
messages are carried and be repeated

for the duration of the EAS message.

Note: Programmed channels do not include channels used for the
transmission of data such as interactive games.

**Wireless Cable Systems (BRS/EBS STATIONS)**

\[A. Wireless cable systems serving fewer than 5,000 subscribers from a
single transmission site must either provide the National level EAS
message on all programmed channels including the required testing by
October 1, 2002, or comply with the following EAS requirements. All
other wireless cable systems must comply with B.\]

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

System size and effective dates

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

B. EAS Equipment Requirement \>= 5,000 subscribers \< 5,000 subscribers

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

EAS decoder Y 10/1/02 Y 10/1/02

EAS encoder \\1\\ \\2\\ Y 10/1/02 Y 10/1/02

Audio and Video EAS Message on Y 10/1/02 N

all channels \\3\\

Video interrupt and audio alert N Y 10/1/02

message on all channels; \\4\\ Audio

and Video EAS message on

at least one channel

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\1\\ The two-tone signal is used only to provide an audio alert to an
audience prior to an EAS emergency message or to the Required Monthly
Test (RMT) under § 11.61(a)(1). The two-tone signal must be 8-25 seconds
in duration.

\\2\\ Wireless cable systems serving \< 5,000 subscribers are permitted
to operate without an EAS encoder if they install an FCC-certified
decoder.

\\3\\ All wireless cable systems may comply with this requirement by
providing a means to switch all programmed channels to a predesignated
channel that carries the required audio and video EAS messages.

\\4\\ The Video interrupt must cause all channels that carry programming

to flash for the duration of the EAS emergency message. The audio

alert must give the channel where the EAS messages are carried and be

repeated for the duration of the EAS message.

Note: Programmed channels do not include channels used for the
transmission of data services such as Internet.

**Digital Cable Systems and Wireline Video Systems**

\[A. Digital cable systems and Wireline Video Systems serving fewer than
5,000 subscribers from a headend must either provide the National level
EAS message on all programmed channels including the required testing by
December 31, 2006, or comply with the following EAS requirements. All
other digital cable systems and Wireline Video Systems must comply with
B.\]

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

System size and effective dates

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

B. EAS Equipment Requirement \>=5,000 subscribers \<5,000 subscribers

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Two-tone signal from storage device\\1\\ Y 12/31/06 Y 12/31/06

EAS decoder \\3\\ Y 12/31/06 Y 12/31/06

EAS encoder \\2\\ Y 12/31/06 Y 12/31/06

Audio and Video EAS Message on all Y 12/31/06 N

channels \\4\\

Video interrupt and audio alert N Y 12/31/06

message on all channels;\\3\\ Audio

and Video EAS message on at least

one channel

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\1\\ Two-tone signal is only used to provide an audio alert to audience
before EAS emergency messages and

required monthly test. The two-tone signal must be 8-25 seconds in
duration.

\\2\\ Digital cable systems and Wireline Video Systems serving \<5,000
subscribers are permitted to operate without an EAS encoder if they
install an FCC-certified decoder.

\\3\\ The Video interrupt must cause all channels that carry programming
to flash for the duration of the EAS

emergency message. The audio alert must give the channel where the EAS
messages are carried and be repeated

for the duration of the EAS message.

\\4\\ All digital cable systems and/Wireline Video Systems may comply
with this requirement by providing a means to switch all programmed
channels to a predesignated channel that carries the required audio and
video EAS messages.

Note: Programmed channels do not include channels used for the
transmission of data such as interactive games or the transmission of
data services such as Internet.

**SDARS and DBS**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

EAS Equipment Requirement SDARS DBS

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Two-tone signal \\1\\ Y 12/31/06 Y 5/31/07

EAS decoder Y 12/31/06 Y 5/31/07

EAS encoder Y 12/31/06 Y 5/31/07

Audio message on all channels \\2\\ Y 12/31/06 Y 5/31/07

Video message on all channels \\2\\ N/A Y 5/31/07

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\1\\ Two-tone signal is only used to provide an audio alert to audience
before EAS emergency messages and

required monthly test. The two-tone signal must be 8-25 seconds in
duration.

\\2\\ All SDARS and DBS providers may comply with this requirement by
providing a means to switch all programmed channels to a predesignated
channel that carries the required audio and video EAS messages or by any
other method that ensures that viewers of all channels receive the EAS
message.

> \* \* \* \* \*

\(e\) Other technologies and public service providers, such as low earth
orbiting satellites, that wish to participate in the EAS may contact the
FCC's Public Safety and Homeland Security Bureau or their State
Emergency Communications Committee for information and guidance.

5.  Revise § 11.21 introductory text and revise sections (a), (b),
    and (c) as follows:

**[§ 11.21 State and Local Area Plans and FCC Mapbook.]{.underline}**

EAS plans contain guidelines which must be followed by EAS Participants'
personnel, emergency officials, and National Weather Service (NWS)
personnel to activate the EAS. The plans include the EAS header codes
and messages that will be transmitted by key EAS sources (NP, LP, SP and
SR). State and local plans contain unique methods of EAS message
distribution such as the use of the Radio Broadcast Data System (RBDS).
The plans must be reviewed and approved by the Chief, Public Safety and
Homeland Security Bureau, prior to implementation to ensure that they
are consistent with national plans, FCC regulations, and EAS operation.

\(a\) The State plan contains procedures for State emergency management
and other State officials, the NWS, and EAS Participants\' personnel to
transmit emergency information to the public during a State emergency
using the EAS, including mandatory messages initiated by a state
governor or his/her designee. The State plan must specify how
state-level and geographically targeted EAS messages initiated by a
state governor or his/her designee will be transmitted to all EAS
Participants who provide services in the state, and must include
specific and detailed information describing how such messages will be
aggregated, designated as mandatory, and delivered to EAS Participants.
State EAS plans should include a data table, in computer readable form,
clearly showing monitoring assignments and the specific primary and
backup path for the emergency action notification ("EAN") from the PEP
to each station in the plan.

\(b\) The Local Area plan contains procedures for local officials or the
NWS to transmit emergency information to the public during a local
emergency using the EAS. Local plans may be a part of the State plan. A
Local Area is a geographical area of contiguous communities or counties
that may include more than one state.

\(c\) The FCC Mapbook is based on the above plans. It organizes all
broadcast stations and cable systems according to their State, EAS Local
Area, and EAS designation.

\* \* \* \* \*

6.  Revise § 11.47(b) to read as follows:

Other technologies and public service providers, such as low earth
orbiting satellites, that wish to participate in the EAS may contact the
FCC's Public Safety and Homeland Security Bureau or their State
Emergency Communications Committee for information and guidance.

7.  Revise § 11.51 (g) as follows:

\(g\) Analog cable systems and digital cable systems with fewer than
5,000 subscribers per headend and wireline video systems and wireless
cable systems with fewer than 5,000 subscribers..... \[rest of paragraph
*manet*\]

> 8\. Revise § 11.51 (h) as follows:

\(h\) Analog cable systems and digital cable systems with 10,000 or more
subscribers; analog cable and digital cable systems serving 5,000 or
more, but less than 10,000 subscribers per headend; and wireline video
systems and wireless cable systems with 5,000 or more subscribers\...
\[rest of paragraph *manet*\]

8.  Amend § 11.55 by revising paragraph (a) to read as follows:

**[§ 11.55  EAS operation during a State or Local Area
emergency.]{.underline}**

\(a\) All EAS Participants within a state (excepting SDARs and DBS
providers) must receive and transmit state-level and geographically
targeted EAS messages, as aggregated and delivered by the state governor
or his/her designee, or by FEMA on behalf of such state governor, upon
approval by the Commission of an applicable state plan providing for
delivery of such alerts no sooner than 180 days after adoption of CAP by
FEMA... \[(a)(1) and a(2) *manet*\]

9.  \(1\) Add new § 11.56 as follows:

**[§ 11.56 EAS Participants receive CAP-formatted alerts]{.underline}**

Notwithstanding anything herein to the contrary, all EAS Participants
must be able to receive CAP-formatted EAS alerts no later than 180 days
after FEMA publishes the technical standards and requirements for such
FEMA transmissions.

**APPENDIX D**

**Initial Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^282] 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 Further Notice of Proposed
    Rulemaking *(Further Notice)*. 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 *Further
    Notice* provided in Section IV of the item. The Commission will send
    a copy of the *Further Notice*, including this IRFA, to the Chief
    Counsel for Advocacy of the Small Business Administration
    (SBA).[^283] In addition, the *Further Notice* and IRFA (or
    summaries thereof) will be published in the Federal Register.[^284]

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A.  **Need for, and Objectives of, the Proposed Rules**

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2.  Today's *Second Report and Order* seeks to ensure that the
    Commission's emergency alert services ("EAS") rules better protect
    the life and property of all Americans.[^285] To further serve this
    goal, the *Further Notice* invites additional comment on four areas
    where the EAS rules might be amended. Recognizing the need of all
    Americans to be alerted in the event of an emergency, the Commission
    invites comments first on non-English speakers and second on persons
    with disabilities to determine how these communities might best be
    served by EAS. Third, the Commission invites comment on whether
    emergency alerts transmitted by local authorities should be
    transmitted. Fourth, the Commission invites comment on various ways
    that the performance of EAS operations may be assessed.[^286]

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B.  **Legal Basis**

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3.  Authority for the actions proposed in this *Further Notice* may be
    found in sections 1, 4(i), 4(o), 303(r), 403, 624(g) and 706 of the
    Communications Act of 1934, as amended, (Act) 47 U.S.C. §§ 151,
    154(i), 154(j), 154(o), 303(r), 544(g) and 606.

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C.  **Description and Estimate of the Number of Small Entities to Which
    Rules Will Apply**

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4.  The RFA directs agencies to provide a description of, and, where
    feasible, an estimate of, the number of small entities that may be
    affected by the rules adopted herein.[^287] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^288] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^289] 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).[^290]

5.  See Appendix B, Final Regulatory Flexibility Analysis, attached
    hereto for a detailed description of, and an estimate of, the number
    of small entities that may be affected by any rules that may be
    adopted in response to the *Further Notice.*

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D.  **Description of Projected Reporting, Recordkeeping, and Other
    Compliance Requirements**

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6.  There are potential reporting or recordkeeping requirements proposed
    in this *Further Notice.* For example, the Commission is considering
    whether to adopt performance standards and reporting obligations for
    EAS participants. The proposals set forth in this *Further Notice*
    are intended to advance our public safety mission and enhance the
    performance of the EAS while reducing regulatory burdens wherever
    possible.

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E.  **Steps Taken to Minimize the Significant Economic Impact on Small
    Entities, and Significant Alternatives Considered**

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7.  The RFA requires an agency to describe any significant alternatives
    that it has considered in developing its approach, which may include
    the following four alternatives (among others): "(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 and reporting requirements under the rule for such 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 such small entities."[^291]

8.  As noted in paragraph 2 above, the *Further Notice* seeks comment on
    how the Commission may better protect the lives and property of
    Americans. In commenting on this goal, commenters are invited to
    propose steps that the Commission may take to minimize any
    significant economic impact on small entities. When considering
    proposals made by other parties, commenters are invited to propose
    significant alternatives that serve the goals of these proposals. We
    expect that the record will develop to demonstrate significant
    alternatives.

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F.  **Federal Rules that May Duplicate, Overlap, or Conflict with the
    Proposed Rules**

    None.

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re: Review of the Emergency Alert System; Independent Spanish
Broadcasters Association, the Office of Communication of the United
Church of Christ, Inc., and the Minority Media and Telecommunications
Council, Petition for Immediate Relief,* EB Docket No. 04-296.

Public safety is one of the Commission's top priorities. The public must
have the tools necessary to know when an emergency is coming and what
type of emergency it is. The government's success in enabling reliable
and effective communications can often mean the difference between life
and death.

The Emergency Alert System (EAS) is designed to provide a means of
warning the American people in the event of a national emergency. The
EAS should be capable of disseminating emergency information as quickly
as possible. As with every aspect of today's technological revolution,
technological changes require us to update EAS to ensure it is a
state-of-the art, next-generation system. As such, it is imperative that
this system continually be revised and expanded to reflect new
technologies. Shortly after I became Chairman, the Commission expanded
the system to include participation by digital television broadcasters,
digital cable television providers, digital broadcast radio, Digital
Audio Radio Service (DARS) and DBS systems. In fact, the rules regarding
DBS systems take effect today.

In today's order, we revise and expand the system once again.
Specifically, the item we adopt today makes the EAS system more
reliable, secure, and efficient by requiring all EAS participants to be
able to receive EAS warnings sent using a common alert protocol (CAP)
once that protocol is adopted by FEMA. CAP, which employs an open and
interoperable standard, standardizes message formats and enables a
digitally-based alert or warning to be distributed simultaneously over
multiple distribution platforms. We also expand the scope of
participation in the system to include wireline video service providers.
It is critical that our public safety rules, like our competition rules,
be technologically neutral. Thus, all platform providers should have the
same obligations to notify the public of emergency situations. After
all, video programming viewers expect to receive an emergency alert
regardless of whether they subscribe to a cable, DBS, or any wireline
video service.

The order does not stop there however. Although traditionally EAS
participants have only been required to disseminate Presidential alerts,
today we take steps to require EAS participants to receive and pass
along state-level alerts triggered by a state governor. We also require
EAS participants to transmit geo-targeted alerts to areas smaller than a
state. These actions are critical in ensuring that the citizens most in
need of receiving emergency information receive it quickly and
effectively.

I am also pleased that the Commission is adopting a Further Notice in
this proceeding. It is the government's responsibility to ensure that
the communications needs of all Americans, including non-English
speakers and people with disabilities, are met in the event of an
emergency. I agree that more work needs to be done to address the public
safety needs of persons with disabilities and non-English speakers. It
is my hope that by the specific questions we raise in these areas, the
Commission will be in a better position to adopt meaningful rules that
enable these citizens to receive emergency information on a timely
basis. I also hope that the industry will continue to work hard to find
a way to provide multilingual alerts on its own.

In addition, local public safety officials need to be permitted to
activate emergency alerts. Local officials are often best-situated to
serve the needs of their own communities. I look forward to finding a
way to better utilize and empower local public safety officials as well.

The success of the EAS is dependent not only on the ability of the
Commission to adopt the appropriate rules to ensure that the
communications systems are capable of sending and receiving alerts to
the public but is also dependent on our continued collaboration and
coordination with the Department of Homeland Security who is charged
with administering the system. We look forward to continuing to work
with our federal colleagues as well state and local officials and all
the EAS participants to ensure that the United States continues to have
a robust, dynamic, and dependable alert system. Timely and reliable
communication is most critical in times of crisis. We are committed to
expending whatever resources are necessary to do our part in
implementing a resilient next-generation EAS system that will
effectively serve our citizens for decades to come.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re: Review of the Emergency Alert System; Independent Spanish
Broadcasters Association, the Office of Communication of the United
Church of Christ, Inc., and the Minority Media and Telecommunications
Council, Petition for Immediate Relief,* EB Docket No. 04-296.

 

            No one who has lived through recent American history needs
to be reminded of the importance of a warning system that reaches
***all*** of our citizens with timely emergency and public safety
information.  In order to achieve that goal, we need an Emergency Alert
System that is more flexible, more robust and more compatible with the
technologies that Americans are adopting in their everyday lives.  In
other words, EAS needs to move into the digital age.

 

            One promising step is our adoption of Common Alerting
Protocols (CAP), a standardized alert message format that will permit
emergency messages to flow across various digital platforms and devices,
thereby dramatically increasing the possible avenues for alerts to reach
the public.  The Commission also mandates the use of CAP's security
functions to strengthen significantly EAS defenses against hacking,
jamming, or other unauthorized use.

 

            CAP is a positive step, but we still have much work ahead of
us.  I am particularly committed to take whatever steps we can to ensure
that emergency and public safety information is fully accessible by
persons with disabilities and residents whose primary language is not
English.  This includes EAS, but may involve other Commission rules and
licensee obligations.  We need to take a comprehensive view of whether
these communities have access to the emergency information they need and
deserve -- and this is the ideal time to do it, when broadcast TV,
radio, and all of our media are moving to digital.  I thank the Chairman
and my colleagues for taking a proactive approach and making these
issues a priority.  We need solutions, and we need them now. 

 

            I'm also pleased that we have given state governors the
ability to trigger the mandatory EAS system.  State and local
governments play a crucial role in the EAS process.  While the federal
EAS system has never been activated, there are hundreds of state and
local warnings issued every year.  Our decision will permit state
governors to activate the system -- not only state-wide, but also for a
geographically-targeted area affected by a local emergency.  And I
support the idea of looking at whether mayors or other local officials
should have the authority to trigger EAS alerts as well. 

 

            While the move to digital promises great changes, one thing
that will not change is the need to assess whether the system is
operating properly.  We have not done a very good job of that up to
now.  I appreciate my colleagues' willingness to clearly state that we
intend to make sure that the system works, and to seek comment on the
best method for doing so.  The answer may involve additional testing,
licensee certification, or after-the-fact reviews of system
performance.  Whatever the method, however, the American public deserves
an EAS system that it can count on when the next hurricane or terrorist
attack occurs.

 

I thank the Chairman for his willingness to issue a Further Notice of
Proposed Rulemaking to address these issues and for putting this
proceeding on the fast track.  We do not have the luxury of time.  I
look forward to working with my colleagues to bring this proceeding to a
quick conclusion.

 

Finally, I want to acknowledge the presence of many in the disabilities
community who have made the effort to attend our meeting today.  We will
need your continued assistance -- as well as the assistance of those
representing the non-English speaking community -- as we work our way
through these issues.  

 

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Review of the Emergency Alert System; Independent Spanish
Broadcasters Association, the Office of Communication of the United
Church of Christ, Inc., and the Minority Media and Telecommunications
Council, Petition for Immediate Relief,* EB Docket No. 04-296.

I support today's *Report and Order* mindful of two essential facts.
First, one of the central purposes for the very creation of the FCC is
to promote the safety of life and property of all -- and I mean *all* --
Americans, without discrimination on the basis of race, color, religion,
national origin, or sex. And second, the Atlantic hurricane season
officially begins tomorrow, June 1st. The National Oceanic and
Atmospheric Administration's 2007 Atlantic hurricane season outlook
indicates a very high 75 percent chance of an above-normal hurricane
season, a 20 percent chance of a near-normal season, and only a five
percent chance of a below-normal season. Taken together, this means that
the Commission should not be bashful about using its authority to
execute our public safety mandate because it is just a matter of time
before we experience another emergency and people's lives literally
depend upon our actions.

Today's *Report and Order* primarily addresses the requirements for
broadcast, cable and satellite entities participating in the Emergency
Alert System (EAS) to receive and disseminate federal and state messages
using Common Alerting Protocol or CAP -- the next-generation EAS
messaging protocol -- six months after FEMA formally adopts the new
protocol. In *First Report and Order*, we expanded the EAS rules to
include digital broadcast and cable TV, digital audio broadcasting,
satellite radio, and direct broadcast satellite services. Today's
*Second Report and Order* takes the modest step to include wireline
video providers in EAS, irrespective of their regulatory classification
as video or information service providers. We also specifically permit
the transmission of state-level EAS alerts and warnings that are
originated by state governors.

While these are all modest steps, they are nevertheless important to
ensure that the current and next generation EAS network facilitates
prompt and accurate delivery of national, state and local messages to
ensure the safety and security of the American people during natural or
man-made disasters. The Commission has an important role in prescribing
rules that establish technical standards for EAS, procedures for
participating entities, and EAS testing protocol.

CAP will enable us develop a more secure, reliable, interoperable and
integrated multi-platform EAS network that better serves the needs of
the originating source, public safety, EAS participating entities and,
perhaps more importantly, the targeted communities who may be in the
path of danger. Even more hopeful is the potential for CAP to develop a
digital alert system which would better serve the needs of people with
disabilities. For instance, CAP-formatted messages could provide the
same alert in text, aural, and video formats. EAS message originators
and participants should remember that everyone deserves the same
information. Therefore, the exact transcription of an audio alert should
be the standard once CAP is adopted.

I am, however, disappointed that this *Report* does not resolve EAS and
general emergency information access concerns of non-English speaking
and multi-lingual communities. But at least today's item and the
*Further Notice* provide a framework for the Commission, for the first
time, to assemble all stakeholders -- broadcasters, state officials, FCC
Public Safety staff and representatives of non-English speaking
communities. According to the Census Bureau, there are over 14 million
U.S. households in which people speak a language other than English. One
in five people over age five speaks a language other than English.
Access to multi-lingual emergency information should have been a
priority issue fully addressed and resolved in today's item. I am
hopeful that, once and for all, the Commission will pay serious
attention to this important concern.

It is worth remembering, though, that Commission could impose countless
mandates and requirements, but the effectiveness of EAS still rests on
the good-faith of all participating entities and governmental agencies
involved in our national, state and local alert system. Accordingly,
collaboration, communication and cooperation must be routine -- not a
single event. I strongly encourage the FCC's Public Safety and Homeland
Security Bureau to remain sincerely engaged, and to encourage
collaboration among all stakeholders to develop policies, plans, and
procedures to address the emergency readiness needs of all communities.

Thus far, I am heartened by the efforts of the National Association of
Broadcasters and the Minority Media and Telecommunications Council for
acting on my request to begin talking about a multi-lingual EAS solution
in advance of the meetings that the Bureau is required to facilitate in
the coming weeks. It is my firm belief that these leaders, who are
trying to reach agreement in good-faith, should be able to find common
ground on an issue of this importance.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

*Re: Review of the Emergency Alert System; Independent Spanish
Broadcasters Association, the Office of Communication of the United
Church of Christ, Inc., and the Minority Media and Telecommunications
Council, Petition for Immediate Relief,* EB Docket No. 04-296.

The dissemination of vital information and interoperable communications
are the backbone of our defense against natural disasters, attacks on
our homeland, and even the possibility of a pandemic, health-related, or
environmental attack. The truth of this statement was driven home just a
few weeks ago in Greensburg, Kansas, where National Oceanic and
Atmospheric Administration forecasters were able to use the Emergency
Alert System (EAS) to issue a tornado warning a full 39 minutes before
the 1.7 mile wide wedge tornado hit the town, followed by a Tornado
Emergency message 10-12 minutes before the twister hit urging residents
to get to shelter immediately. As tragic as the results of that storm
were, residents of Greensburg and emergency response officials say that
those warnings saved countless lives.

The steps the Commission takes today to improve and enhance the EAS are
important ones, and will make the system even more effective. I am proud
to play a small role in helping to ensure that the President, the
National Weather Service, and state governors or their designees will be
able to rapidly communicate with our citizens in times of crisis over a
variety of communications platforms.

**STATEMENT OF**

**COMMISSIONER ROBERT M. MCDOWELL**

*Re: Review of the Emergency Alert System; Independent Spanish
Broadcasters Association, the Office of Communication of the United
Church of Christ, Inc., and the Minority Media and Telecommunications
Council, Petition for Immediate Relief,* EB Docket No. 04-296.

In this Order, we take steps to increase the reliability, security and
efficacy of the nation's Emergency Alert System (EAS) network to enable
federal and state authorities to rapidly communicate with the public in
times of crisis. Specifically, we: require EAS participants to accept
messages using Common Alerting Protocol (CAP) when CAP is approved by
FEMA; require common carriers providing video service to participate in
EAS as broadcasters and cable and satellite providers already do; and
permit the transmission of state-level EAS alerts that are originated by
governors or their designees. This Order establishes a framework for the
next generation of EAS, which through innovative technologies will
provide a redundant, more resilient system for delivering emergency
alerts. The upgraded EAS that CAP will enable also will ensure better
outreach to all Americans, including non-English speakers and persons
with hearing and vision disabilities.

As recent history has shown us, rapid response and warning systems are
vital to the safety and security of the public in emergencies, whether
the threat is an act of God or man-made. Americans tune in to their
radios and televisions for the information they need in such critical
times. Our actions today harness the capabilities offered by new
technologies to improve the EAS system for the benefit of the public,
particularly those who have been harder to reach.

I thank the Bureau for their hard work and I support this Order.

[^1]: *See* 47 C.F.R. Part 11. In 2005, the Commission sought comment on
    expediting the development of a Next Generation EAS network. *See*
    Review of the Emergency Alert System, EB Docket No. 04-296, *First
    Report and Order and Further Notice of Proposed Rulemaking*, 20 FCC
    Rcd 18625 (2005) (*First Report and Order and Further Notice*).
    Appendix A provides a list of commenters to the *Further Notice* and
    abbreviated names. *See also* Review of the Emergency Alert System,
    EB Docket No. 04-296, *Notice of Proposed Rulemaking*, 19 FCC Rcd
    15775 (2004) (*2004 NPRM*). XM Radio, Inc. filed a petition for
    reconsideration of the requirement adopted in the *First Report and
    Order* for Satellite Digital Audio Radio Service (SDARS) to conduct
    weekly and monthly tests on every channel. Separately, PanAmSat, SES
    Americom, and Intelsat jointly petitioned for reconsideration,
    arguing that EAS requirements adopted in the *First Report and
    Order* should not apply to fixed satellite service (FSS) operators
    on Ku-band frequencies selling or leasing satellite capacity to
    direct-to-home (DTH) distributors. The Commission will address these
    petitions, and related filings, in a subsequent order(s).

[^2]: Public Alert and Warning System*,* Exec. Order No. 13407, 71 Fed.
    Reg. 36975 (June 26, 2006) (*Executive Order*). Section 3(b)(iii) of
    the *Executive Order* directs the Commission to "adopt rules to
    ensure that communications systems have the capacity to transmit
    alerts and warnings to the public as part of the public alert and
    warning system."

[^3]: Cap v1.1 was developed by the Organization for the Advancement of
    Structured Information Standards (OASIS), a non-profit,
    international consortium that develops standards. *See*
    <http://www.oasis-open.org/home/index.php>.

[^4]: The Mayor of the District of Columbia, as well as the Governors of
    the Commonwealth of Puerto Rico, the Commonwealth of the Northern
    Mariana Islands, the U.S. Virgin Islands, American Samoa, and Guam
    also will have this capability. 47 U.S.C. § 153(40) ("the term
    "state" includes the District of Columbia and the Territories and
    possessions").

[^5]: See 47 C.F.R. § 11.21, and discussion at ¶¶ 14, 53-64 *infra*.

[^6]: The National Weather Service is the primary source of weather
    data, forecasts and warnings for the United States. *See*
    <http://www.nws.noaa.gov/>. It is an organization within the
    National Oceanic and Atmospheric Administration (NOAA).

[^7]: *Further Notice*, 20 FCC Rcd at 18651, ¶ 62.

[^8]: *Id.* at 18652, ¶ 66.

[^9]: *Id.* at 18652, ¶ 67.

[^10]: *Id.* at 18652-53, ¶ 68.

[^11]: *Id.* at 18653, ¶¶ 69, 70.

[^12]: *Id.* at 18654-57, ¶¶ 74-80.

[^13]: *Id.* at 18657-58, ¶ 81.

[^14]: *Id.*

[^15]: The record is available on the Commission's Electronic Comment
    Filing System, at
    [http://gullfoss2.fcc.gov/prod/ecfs/comsrch_v2.cgi]{.underline}.

[^16]: 47 U.S.C § 151.

[^17]: A more detailed history of EAS is set forth in the first Notice
    of Proposed Rulemaking in this docket*. See 2004 NPRM*, 19 FCC Rcd
    at 15776-77, ¶¶ 6-8.

[^18]: *See* Amendment of Part 73, Subpart G, of the Commission's Rules
    Regarding the Emergency Broadcast System, FO Docket Nos. 91-301,
    91-171, *Report and Order and Further Notice of Proposed
    Rulemaking*, 10 FCC Rcd 1786 (1994) (*1994 Report and Order*)
    (subsequent history omitted).

[^19]: 47 U.S.C. §§ 151, 154(i) and (o), 303(r), 606.

[^20]: *See* 1981 State and Local Emergency Broadcasting System (EBS)
    Memorandum of Understanding Among the Federal Emergency Management
    Agency (FEMA), Federal Communications Commission (FCC), the National
    Oceanic and Atmospheric Administration (NOAA), and the National
    Industry Advisory Committee (NIAC) *reprinted as* Appendix K to
    Partnership for Public Warning Report 2004-1, The Emergency Alert
    System (EAS): An Assessment.

[^21]: *See* Assignment of National Security and Emergency Preparedness
    Telecommunications Functions, Exec. Order No. 12472, 49 Fed. Reg.
    13471 (1984).

[^22]: FEMA acts as Executive Agent for the development, operation, and
    maintenance of the national-level EAS. *See Memorandum,*
    Presidential Communications with the General Public During Periods
    of National Emergency*,* The White House (Sept. 15, 1995) (*1995
    Presidential Statement*)*.*

[^23]: 42 U.S.C. § 5121 *et seq*.

[^24]: 6 U.S.C. § 101 *et seq*. The Homeland Security Act of 2002
    authorizes the Secretary of Homeland Security, acting through the
    Under Secretary for Emergency Preparedness and Response, to develop
    "a comprehensive national incident management system with Federal,
    State, and local government personnel, agencies, and authorities,"
    in order to respond to terrorist attacks, major disasters, and other
    emergencies. 6 U.S.C § 312(5).

[^25]: *Executive Order*, section 1.

[^26]: *Id.*, sections 2(a)(ii).

[^27]: *Id.*, section 4.

[^28]: *Id.*, section 5(b).

[^29]: *Id.*, section 3(b)(iii).

[^30]: Security and Accountability For Every Port Act, Pub. L. No.
    109-347, 120 Stat. 1936-1943 (2006).

[^31]: WARN Act § 603(a). The Commission announced the members of the
    Committee on December 5, 2006. Notice of Appointment of Members to
    the Commercial Mobile Service Alert Advisory Committee; Agenda for
    December 12, 2006 Meeting, *Public Notice*, 21 FCC Rcd 14175 (2006).

[^32]: WARN Act § 603(c).

[^33]: WARN Act § 603(a) and (b).

[^34]: *See* 71 Fed. Reg. 933 (Jan. 6, 2006). The panel was known as the
    "Independent Panel Reviewing the Impact of Hurricane Katrina on
    Communications Networks" (Independent Panel).

[^35]: *See* Recommendations of the Independent Panel Reviewing the
    Impact of Hurricane Katrina on Communications Networks, EB Docket.
    No. 06-119, *Notice of Proposed Rulemaking*, 21 FCC Rcd 7320 (2006)
    (*Hurricane Katrina NPRM*). The Notice also sought comment in three
    other broad areas: (1) pre-positioning the communications industry
    and the government for disasters in order to achieve greater network
    reliability and resiliency; (2) improving recovery coordination to
    address existing shortcomings and to maximize the use of existing
    resources; and (3) improving the operability and interoperability of
    public safety and 911 communications during crises.

[^36]: *Hurricane Katrina NPRM*, 21 FCC Rcd at 7326-27, ¶ 18 (noting
    that EAS was not used by state and local officials to provide
    emergency evacuation information). *Id*. at Appendix B, Report and
    Recommendations to the Federal Communications Commission, p. 28.

[^37]: *Id*. As we discuss herein, because the WARN Act makes EAS
    participation voluntary for commercial mobile service providers and
    mandates that the Commission initiate a rulemaking regarding such
    participation at a later date, today's *Order* does not address
    wireless EAS participation.

[^38]: *See* 47 C.F.R. § 11.11. SDARS and DBS were required to
    participate in the existing EAS by December 31, 2006 and May 31,
    2007, respectively. *First Report and Order*, 20 FCC Rcd at
    18641-43.

[^39]: A system in which stations relay emergency messages from one to
    others is also known as a daisy-chain. *See 1994 Report and Order*,
    10 FCC Rcd at 1790-91, ¶ 10 n.9.

[^40]: 47 C.F.R. § 11.18(a).

[^41]: 47 C.F.R. § 11.14.

[^42]: 47 C.F.R. § 11.18(c).

[^43]: 47 C.F.R. § 11.18(d). 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. 47 C.F.R. § 11.20.

[^44]: 47 C.F.R. § 11.18(d). Upon activation of the national level EAS,
    NN sources are required to broadcast the EAS codes, Attention
    Signal, and the sign-off announcement in the EAS Operating Handbook,
    and then stop operating. All NN sources are required to comply with
    47 C.F.R §§ 11.51, 11.52 and 11.61.

[^45]: 47 C.F.R. § 11.31. Under this protocol, an EAS alert uses a
    four-part message: (1) preamble and EAS header codes (these codes
    contain information regarding the identity of the sender, the type
    of emergency, its location and valid time period of the alert); (2)
    audio attention signal; (3) message; and (4) preamble and EAS end of
    message codes. 47 C.F.R. § 11.31(a).

[^46]: 47 C.F.R. §§ 11.32, 11.33.

[^47]: 47 C.F.R. § 11.34(c). EAS equipment also provides a means to
    automatically interrupt regular programming and is capable of
    providing warnings in the primary language that is used by the
    station or cable system. *See* 47 C.F.R. §§ 11.33(a)(4),
    11.51(k)(1), 11.54.

[^48]: A CAP-formatted alert may include fields for message type, scope,
    event information, event certainty, sender, geographic scope, and
    expiration, among others. CAP-formatted messages also can include
    links to data, audio and video files, and can be validated and
    authenticated through the use of digital signatures and encryption.

[^49]: *EAS 1994 Report and Order*, 10 FCC Rcd 1786.

[^50]: Amendment of Part 73, Subpart G, of the Commission's Rules
    Regarding the Emergency Broadcast System, FO Docket Nos. 91-301,
    91-171, *Second Report and Order*, 12 FCC Rcd 15503 (1997).

[^51]: DTV is any digital technology used to provide advanced television
    services such as high definition television programming, multiple
    standard definition programming streams, and other advanced features
    and services. *See* Advanced Television Systems and Their Impact
    upon the Existing Television Broadcast Service, MM Docket No.
    87-268, *Sixth Further Notice of Proposed Rulemaking*, 11 FCC Rcd
    10968, 10970 n.1 (1996).

[^52]: *See* *First Report and Order*, 20 FCC Rcd at 18632-650, ¶¶
    19-58.

[^53]: The Commission's EAS rules are intended to ensure that national
    activation of EAS would enable the President to communicate with the
    American public within ten minutes from any location at any time.
    These messages must take priority over any other messages and
    preempt other messages in progress. *First Report and Order*, 20 FCC
    Rcd at 18628, ¶ 8; 47 C.F.R. § 11.44(a).

[^54]: *See* The Emergency Alert System (EAS): An Assessment,
    Partnership for Public Warning Report 2004-1, at 7 and Appendix E
    (EAS Activation Statistics); *see also* CEA Comments at 3-4 (stating
    that EAS alerts most often are originated on a local, regional, or
    state level using NWR facilities and then broadcast simultaneously
    directly to the public and to EAS Participants), Radio Shack
    Comments at 6 (stating that NWR is, or should be, the backbone of
    EAS). NOAA describes NWR as an \"All Hazards\" radio network---a
    single source for comprehensive weather and emergency information.
    *See* <http://www.nws.noaa.gov/nwr/> (August 30, 2006).

[^55]: *See* <http://www.nws.noaa.gov/nwr/> (March 6, 2007). According
    to CEA, NWR covers 97 percent of the country. *See* CEA Comments at
    4. NWR requires a special radio receiver (that can be programmed to
    respond to messages by the type of event and location) or scanner
    capable of receiving the signal in the 162 MHz (VHF) public service
    band on one of seven frequencies. *See*
    <http://www.nws.noaa.gov/nwr/> (March 6, 2007). The seven NWR
    frequencies (MHz) are: 162.400, 162.425, 162.450, 162.475, 162.500,
    162.525, and 162.550. *Id.*

[^56]: The digital protocol is known as Specific Area Message Encoding
    (SAME). *See* The Emergency Alert System (EAS): An Assessment,
    Partnership for Public Warning Report 2004-1, at 18.

[^57]: *See id*. at 7. In some localities, emergency managers can
    originate EAS alerts through NWS, through a broadcaster or cable
    operator, or through their own equipment if they have made prior
    arrangements that are documented in EAS plans. *Id.*

[^58]: 47 C.F.R. § 11.55(a); *see also* Amendment of Part 11 of the
    Commission's Rules Regarding the Emergency Alert System, EB Docket
    No. 01-66, *Report and Order*, 17 FCC Rcd 4055, 4056-57, ¶ 3 (2002)
    (*2002 Report and Order*); *1994 Report and Order,* 10 FCC Rcd at
    1809, ¶ 66.

[^59]: *See, e.g.,* SBE Comments at 10; WTOP 10/29/04 Comments at 8.

[^60]: We note that (1) analog radio broadcast stations, including AM,
    FM, and low-power FM ("LPFM") stations, (2) analog television
    broadcast stations, including Class A television ("CA") and
    low-power TV ("LPTV") stations, (3) analog cable systems, (4)
    wireless cable systems, which may consist of Broadband Radio Service
    ("BRS"), or Educational Broadband Service ("EBS") stations, (5)
    direct broadcast satellite ("DBS") service providers, and (6) SDARS
    service providers currently are subject to the existing EAS.

[^61]: *See, e.g.*, PPW 10/27/04 Comments at 3.

[^62]: *See, e.g*., EEWN Comments at 2.

[^63]: *See* CEA Comments at 6-10. CEA states that its Public Alert
    Technology Alliance, comprised of product manufacturers and
    government representatives working in a voluntary cooperative
    venture, adopted voluntary uniform requirements for consumer
    receivers that display the Public Alert logo and trigger alerts by
    decoding the entire digital data string (rather than 1050 Hz analog
    tones) transmitted over NWR broadcasts. *Id.* at 6. CEA states that
    this type of voluntary activity and flexible standard is more
    conducive than rigid FCC mandates and rules to maintaining
    state-of-the-art emergency systems at a time of significant
    technological change. *Id.* at 7, 11 n.10 (citing *Receiver
    Performance Specification for Public Alert Receivers* (CEA-2009),
    approved December 2003) (latest update, CEA-2009-A, was approved and
    published in March 2005). According to Putkovich, Public Alert™
    certified receivers currently are available from three major
    manufacturers, several others plan to market them, and plans are in
    progress to incorporate the AlertGuard television technology
    developed by Thomson (RCA) into HDTV systems for sale in 2007. *See*
    Putkovich Comments at 8. Merrell states that all Public Alert™
    devices incorporate SAME, which allows the device to respond only
    when an alert matches the specific area(s) the user has chosen for
    alert coverage, and also provide automatic translation for all
    alerts into multiple language text. *See* Merrell Comments at 2-5.

[^64]: *Further Notice,* 20 FCC Rcd at 18652, ¶ 67.

[^65]: *Id.*

[^66]: *Id.*

[^67]: *Id.*

[^68]: NOAA Weather Radio SAME Info,
    <http://www.nws.noaa.gov/nwr/nwrsame.htm>; Specific Area Message
    Encoding (SAME), National Weather Service Instruction 10-1712 (Feb.
    12, 2007) http://www.nws.noaa.gov/directives/010/pd01017012b.pdf.

[^69]: Use of a more robust and flexible digital protocol should enable
    EAS Participants to address this concern.

[^70]: National Science and Technology Council Subcommittee on Disaster
    Reduction, Effective Disaster Warnings, p. 25 (2000),
    <http://www.sdr.gov/NDIS_rev_Oct27.pdf>.

[^71]: Common Alerting Protocol, v .1.0, oasis-200402-cap-core-1.0, p.3.
    OASIS is a not-for-profit, international consortium that drives the
    development, convergence, and adoption of e-business standards.
    OASIS -- Who We Are, http://www.oasis-open.org/who/.

[^72]: Common Alerting Protocol, v .1.0, oasis-200402-cap-core-1.0, p.3.

[^73]: The OASIS Emergency Management Technical Committee works on
    "answering requirements for data exchange among emergency
    management, public safety, homeland security and related
    applications and systems." OASIS -- Emergency Management TC,
    <http://www.oasis-open.org/committees/emergency/charter.php>. Its
    membership currently includes DHS and the Department of Interior.
    OASIS Emergency Management TC,
    <http://www.oasis-open.org/committees/membership.php?wg_abbrev=emergency>.

[^74]: OASIS, Common Alerting Protocol v. 1.1, OASIS Standard CAP-V1.1
    Section 1.2 History (October 2005),
    [http://www.oasis-open.org/committees/download.php/15135/emergency-CAPv1.1-Corrected_DOM.pdf]{.underline}.

[^75]: *See* "Roadmap for Open ICT Ecosystems," Berkman Center for
    Internet & Society at Harvard Law School, p. 6 (2005);
    <http://cyber.law.harvard.edu/epolicy/roadmap.pdf> (defining an
    \"open standard\" as one which cannot be controlled by any one
    entity, evolves in a transparent process, is platform independent,
    is openly published, is available royalty free or at a minimal cost,
    and is approved through an open process); *Definition of Open
    Standards*, Denmark Ministry of Science, National IT and Telecom
    Agency (June 2004),
    <http://www.oio.dk/files/040622_Definition_of_open_standards.pdf>;
    NASCIO Comments at 3-4 (noting advantages of open standards); Harris
    10/28/04 Comments at 4-5 (noting that non-proprietary standards
    avoid intellectual property issues).

[^76]: W3C is the international consortium that develops World Wide Web
    standards. *See* "About W3C" <http://www.w3.org/Consortium/>.
    Extensible Markup Language (XML) refers to the extensible markup
    language that commonly is used for web documents. XML is a simple,
    very flexible, text format derived from SGML (ISO 8879), and created
    and maintained by W3C. <http://www.w3.org/XML/>. XML 1.0 was
    released in 1998; its predecessor dates back to 1986 (ISO
    8879:1986). There is extensive experience and expertise with XML,
    which has led to multiple other successful XML standards, including
    RSS, Atom, GML, and AJAX.

[^77]: CAP is not an Internet Protocol standard. It is a standard that,
    by design, will work over any feasible transmission medium. *See*
    Contra Costa 10/29/04 Comments at 10.

[^78]: CAP also incorporates geospatial elements to permit precise
    geographic targeting of alerts. For example, if a CAP message is
    used to provide an alert for an approaching, severe thunderstorm,
    the message could include the Federal Information Processing
    Standards ("FIPS") Codes that correspond to the counties and
    independent cities expected to be affected by the storm. EAS
    Participants receiving the CAP message would then be able to provide
    warnings to their customers located within those counties and cities
    who have customer equipment capable of receiving CAP-formatted
    transmissions.

[^79]: CAP Standard, Sec. 3.2. *See also* "Filtering and Routing of
    Alert Messages using Common Alerting Protocol (CAP)," Eliot
    Christian, USGS Slide 14 (Feb. 2005)
    http://www.search.gov/cap/routing.ppt.

[^80]: TFT Comments at 3-10.

[^81]: PPW 10/25/04 Comments at 21.

[^82]: PPW 10/25/04 Comments at 21-22.

[^83]: *See, e.g.*, Airit2me Comments at 4; Entergy Comments at 3 (the
    Federal government should adopt the CAP standard for use by
    manufacturers of devices capable of receiving digital signals); FEMA
    Comments at 3 (FEMA is aware of states' concerns who have invested
    in their own alert and warning systems, IPAWS is intended to be
    fully interoperable with those systems using common alerting
    protocols); NAB Comments at 15-16; Putkovich Comments at 9-10; TDI
    Comments at 2; TIA Comments at 3; TFT Comments at 10; USGS Comments
    at 4-5; Wireless RERC Comments at 4; MSTV Reply Comments at 2; NAB
    Reply Comments at 1; Cellular Emergency Alert Service Association
    ("CEASA") 10/20/04 Comments at 5; Contra Costa County Community
    Warning System ("Contra Costa") 10/29/04 Comments at 2; National
    Association of State Chief Information Officers ("NASCIO") 10/29/04
    Comments at 3-4; PPW 10/25/04 Comments at 21; SWN 10/29/04 Comments
    at 2; Timm (Wisconsin SECC) 10/28/04 Comments at 7 (the current
    updating of the EAS should keep in mind the incorporation of an
    alerting protocol such as CAP, which will allow the inclusion of
    cellular telephone and paging systems into the EAS network).

[^84]: USGS Comments at 4-5.

[^85]: *Id.* at 5.

[^86]: NASCIO 10/29/04 Comments at 3-4

[^87]: TDI Comments at 2; Wireless RERC Comments at 4.

[^88]: CAP v. 1.1, Sec. 3.3.2.1.

[^89]: *See*
    http://www.oasis-open.org/committees/download.php/15135/emergency-CAPv1.1-Corrected_DOM.pdf
    (CAP 1.1 Standards document, line 15).

[^90]: USGS Earthquake Hazards Program,
    <http://earthquake.usgs.gov/eqcenter/recenteqsww/catalogs/>; USGS
    Volcano Hazards Program, <http://volcanoes.usgs.gov/>; USGS
    Landslide Hazards Program: Advisories,
    http://landslides.usgs.gov/advisories/.

[^91]: NOAA National Weather Service, http://www.weather.gov/alerts/.

[^92]: Oregon Amber Alert Program Alert Web Portal FAQs ("It uses the
    new Department of Justice XML standards and the new Common Alert
    Protocol.") <http://www.oregon.gov/OSP/AMBERALERT/FAQ.shtml>.

[^93]: DMI-Services -- Training: Course 6: Lesson 2: Alerts,
    http://www.dmi-services.org/includes/PhoenixTraining/06_ToolsCourse/06_02_22ToolsCAPAlert_files/frame.htm;
    DMI-Services: Documentation
    <https://interop.cmiservices.org/documentation.jsp>. *See also*
    Presidential Initiatives: Disaster Management
    <http://www.whitehouse.gov/omb/egov/c-2-2-disaster.html>. (The White
    House website on Presidential Initiatives: Disaster Management
    states that the Disaster Management Interoperability Services was
    upgraded to incorporate CAP. As of August 4, 2005, 1400 CAP messages
    had been transmitted through DMIS. The White House lists as a next
    step: "assist agencies in deploying the DMIS toolset and in
    implementing the capability to send and receive alert messages using
    the CAP standard.").

[^94]: Statement of Reynold N. Hoover on Public Alert and Warning,
    Director, Office of National Security Coordination, FEMA, DHS,
    Before the Subcommittee on Disaster Prevention and Prediction,
    Committee on Commerce, Science, and Transportation (July 27, 2005),
    http://commerce.senate.gov/pdf/hoover.pdf ("With that in mind, IPAWS
    is intended to be fully interoperable with those systems using
    common alerting protocols."). *See also* FEMA Tests Digital Alert
    System, FCW (April 11, 2005)
    <http://www.fcw.com/article88522-04-11-05-Print> (FEMA test used
    CAP); Testimony of John M. Lawson, President and CEO, Association of
    Public Television Stations, Before the Senate Subcommittee on
    Disaster Prevention and Prediction, Committee on Commerce, Science,
    and Transportation (July 27, 2005)
    <http://commerce.senate.gov/pdf/lawson.pdf> (describing an APTS and
    FEMA Digital Emergency Alert System Pilot Project that employed
    CAP).

[^95]: NOAA HAZCOLLECT, "HazCollect: Speeding Emergency Messages to the
    Public," (Sept. 30, 2005),
    <http://www.weather.gov/os/hazcollect/resources/HazCollect_Intro_v2005-0930v.2.ppt>.

[^96]: *See also* US Department of Justice, Information Technology
    Initiatives, Global Justice XML Data Model 3.0.3,
    <http://it.ojp.gov/jxdm/3.0.3/> (referencing CAP).

[^97]: "PHIN Preparedness: Partner Communications and Alerting
    Functional Requirements," Center for Disease Control, Version 1.0
    (Apr. 2005),
    [http://www.cdc.gov/phin/preparedness/PCA%20_RSv1.0.pdf](http://www.cdc.gov/phin/preparedness/PCA _RSv1.0.pdf)
    ("Partners must be able to send cascade communications and alerts
    using the PHIN specification of the Common Alerting Protocol").

[^98]: *Id.*

[^99]: *See* http://www.oasis-open.org/committees/ballot.php?id=839.

[^100]: *See Executive Order*, sections 2(a)(ii), 3(b)(iii); supra ¶¶
    5-7. By adopting a requirement to accept CAP messages sent by FEMA,
    we do not intend to conclude or assume that FEMA will adopt the CAP
    protocol; however, should FEMA adopt the CAP protocol, we find that
    there is ample evidence in the record to support the CAP
    requirements set forth herein.

[^101]: *See* 47 C.F.R. § 11.11(a).

[^102]: *See 2004 NPRM*, 19 FCC Rcd at 15790-91, ¶ 41.

[^103]: *Id.*

[^104]: *Id.*

[^105]: *Id*.

[^106]: *Id*. at 15791, ¶ 41.

[^107]: *Id*.

[^108]: Cox Comments at 8.

[^109]: WTOP Comments at 11.

[^110]: NAB Comments at 14-15.

[^111]: Contra Costa 10/29/04 Comments at 10.

[^112]: *See* 47 C.F.R. § 11.11(a).

[^113]: *See Executive Order*, Section 2(a)(iii). Section 3(b)(iii) of
    the *Executive Order* directs the Commission to "adopt rules to
    ensure that communications systems have the capacity to transmit
    alerts and warnings to the public as part of the public alert and
    warning system."

[^114]: *Id.* To implement the DEAS, FEMA signed a cooperative agreement
    with APTS to conduct a Digital Emergency Alert System National
    Capital Region Pilot Program (DEAS-NCR) to demonstrate how public
    television's satellite infrastructure can act as a wireless
    datacasting network to relay alerts to cell phones, the Internet,
    pagers, and bulletin-board systems. The purpose of the DEAS-NCR was
    to show that the DTV broadcast stream was sufficiently
    congestion-free that its bandwidth could support public alert
    systems as well as closed networks to enable public safety and
    emergency management agencies to transmit securely critical
    time-sensitive information. In the pilot, data originating from FEMA
    was embedded within the PBS broadcast stream and sent over the PBS
    satellite system to the PBS stations nationwide (as well as to any
    radio stations, such as Primary Entry Points (PEPs), and other
    facilities set up to receive the down link). The PBS station, in
    turn, then would carry the alert within its digital TV signal to
    personal computers or local area networks equipped with an
    inexpensive DTV tuner card and a small antenna, that would allow the
    EAS Participant to decode the alert and then send it to the public.
    Local broadcasters and cable providers could program their ENDECs to
    receive a datacast alert, and thus bypass potential points of
    failure in the existing EAS by interconnecting at a more local
    level. Although national in scope, the system is scalable to work
    locally, thereby enabling potentially life-saving, critical
    information to be disseminated to both rural and urban communities.

    In Phase I of the pilot project, DEAS text, voice, and video were
    broadcast by public television stations, and CAP messages were
    successfully relayed to cell phones, the Internet, pagers, and
    electronic bulletin boards. Due to the success of Phase I, DHS
    extended the pilot program (Phase II) in order to lay the foundation
    for a national roll-out of a digitally based federal
    public-safety-alert system. As developed during Phase II, this
    national deployment is planned to include construction and timeline
    estimates, technical risk determinations, and other implementation
    options. This system will integrate with the existing national-level
    EAS system, and according to APTS it could supplement the digital
    broadcast EAS as a national alert system once fully constructed.

[^115]: *See* <http://www.apts.org/news/dhs_71206.cfm>. However,
    according to a recent project status update, the DHS revised the
    Gulf Coast and Atlantic region completion to be by the end of summer
    2007, and completion of the Pacific and Midwest regions by the end
    of December 2007.

[^116]: *See, e.g*., Cox Comments at 3; APTS Comments at 4-5; State
    Associations Comments at 10.

[^117]: SBE Comments at 11. TFT notes that outlying areas, too far from
    high-power broadcast facilities and on the fringes of satellite
    footprints, can still avail themselves of the ubiquitous nature of
    the Internet to originate and receive EAS messages. TFT Comments at
    6-7

[^118]: Definitions of the Internet: 47 U.S.C. § 231(e); Federal
    Networking Council: Definition of the Internet (1995)
    http://www.nitrd./gov/fncInternet_res.html.

[^119]: The Internet is designed to detect obstructions to the network
    (*i.e*., congestion, destruction, or other failures), determine
    alternative routes, and deliver data with a high degree of success.

[^120]: *See, e.g.*, Sage Alerting Systems ENDEC Developers 10/28/04
    Comments at 3 (compatibility with the existing EAS/WRSAME standards
    should be maintained and dissemination should be broadened beyond
    radio, TV and cable channels to include cell phones, satellite TV,
    digital radio, DARS, HDTV channels, and any medium which can reach
    the public); FEMA Comments at 2 (delivery of EAS messages should
    expand beyond the current universe of analog radio, TV, and cable);
    The National Center for Missing & Exploited Children 10/29/04
    Comments at 1 (supports enhancing the EAS to deliver urgent messages
    to all possible information pathways during crises so that damage to
    property is limited and lives are saved); Maine State Emergency
    Communications Committee 10/29/04 Comments at 2 (recent
    technological advances, microwave, satellite, and other alternative
    delivery methods, can make the EAS system more effective); North
    Carolina State Emergency Communications Committee 10/29/04 Comments
    at 1, 4-5 (emergency managers should extend delivery into other
    mediums in parallel to the current system).

[^121]: *See Executive Order*, sections 2(a)(ii), 3(b)(iii); supra ¶¶
    5-7.

[^122]: *See* 47 C.F.R. § 11.11(a).

[^123]: 47 C.F.R. § 11.51. The rules require that the national message
    crawl be displayed at the top of the television screen, where it
    will not interfere with other messages. 47 C.F.R. § 11.51(d).

[^124]: 47 C.F.R. § 73.1250(h).

[^125]: *Further Notice,* 20 FCC Rcd at 18654, ¶ 74.

[^126]: In many cases, descriptive information will be contained in the
    voice message, but the text-crawl contains only basic facts.

[^127]: *See, e.g.,* AFB Comments at 3; MSTV Comments at 10-11; SBE
    Comments at 23-25; TDI Comments at 6-7; WGBH Comments at 8-9; MSTV
    Reply Comments at 7; TDI Reply Comments at 7; Maine SECC 10/29/04
    Comments at 2; Timm 10/28/04 Comments at 6.

[^128]: CBA Comments at 3; NAB Comments at 10-11.

[^129]: *See, e.g.,* CBA Comments at 3 (very few stations have the
    resources to transcribe accurately and in real time); NAB Comments
    at 7-13.

[^130]: Airit2me Comments at 5; AFB Comments at 2-3; SBE Comments at 25;
    TIA 10/29/04 Comments at 3; TFT Comments at 8-11; WBGH Comments at
    9-10. RadioShack observes that it and many other manufacturers make
    products that include connections to activate flashing lights and
    bed shaking devices for persons with hearing disabilities and voice
    activation for the blind. RadioShack Comments at 9; *s*ee *also*
    Putkovich Comments at 21.

[^131]: "Petition for Immediate Interim Relief," filed Sept. 20, 2005 by
    the Independent Spanish Broadcasters Association, the Office of
    Communication of the United Church of Christ, Inc., and the Minority
    Media and Telecommunications Council. On October 14, 2005, NAB filed
    an opposition to the petition.

[^132]: The Petitioners requested the following:

    Revise section 11.14 to provide that all NP stations air
    Presidential messages in both English and Spanish. LP-1 stations
    monitoring the NP stations, and local stations monitoring the LP-1
    stations would also air the message in English and Spanish.

    Revise section 11.18(b) to include a Local Primary Spanish ("LP-S")
    designation, and have an LP-S station in each area where an LP-1
    station has been designated, in each radio market with a Latino
    population of 50,000 or 5 percent of the total market population.
    The LP-S station would monitor and rebroadcast Presidential messages
    and serve as the entry point for state and local authorities and the
    NWS to distribute emergency information in Spanish.

    Revise section 11.18(b) to include a Local Primary Multilingual
    ("LP-M") designation in areas with a population of a language
    minority (not Spanish) of either 50,000 or 5 percent of the total
    market population.

    Revise section 11.52(d) to provide that at least one broadcast
    station in each market would monitor and rebroadcast emergency
    information carried by LP-S and LP-M stations.

    Revise section 11.52(d) to provide that if during an emergency a
    local LP-S or LP-M station loses its transmission capability,
    stations remaining on the air should broadcast emergency information
    in the specified language or languages (in at least part of their
    broadcasts) until the affected LP-S or LP-M station is on the air.

    The Commission should encourage all broadcasters to assist the LP-S
    or LP-M stations damaged during an emergency to return to the air as
    soon as possible.

[^133]: *Executive Order*, section 2(a)(iv).

[^134]: *See* TIA 10/29/04 Comments at 3; SBE Comments at 13, 21-22; TDI
    Reply Comments at 5; LogicaCMG 10/29/04 Comments at 16; WGBH
    Comments at 9; Wireless RERC Comments at 4.

[^135]: RadioShack observes that it and many other manufacturers make
    products that include connections to activate flashing lights and
    bed shaking devices for persons with hearing disabilities and voice
    activation for the blind. RadioShack Comments at 9; *see also*
    Putkovich Comments at 21; NAB Comments at 6; WGBH Comments at 9-10.

[^136]: AFB Comments at 2-3; SBE Comments at 22-25.

[^137]: SBE Comments at 25; TDI Comments at 6; WGBH Comments at 9-10;
    MSTV Reply Comments at 7; TDI Reply Comments at 7.

[^138]: SBE Comments at 22; Dodds Comments at 2; WGBH Comments at 11.

[^139]: *See* 47 C.F.R. § 79.1(a)(2) (defining "video programming
    distributors," as "\[a\]ny television broadcast station licensed by
    the Commission and any multichannel video programming distributor as
    defined in § 76.1000(e) of this chapter, and any other distributor
    of video programming for residential reception that delivers such
    programming directly to the home and is subject to the jurisdiction
    of the Commission"); *see also* 47 C.F.R. § 76.1000(e) (defining
    "multichannel video programming distributor" as "an entity engaged
    in the business of making available for purchase, by subscribers or
    customers, multiple channels of video programming. Such entities
    include, but are not limited to, a cable operator, a multichannel
    multipoint distribution service, a direct broadcast satellite
    service, a television receive-only satellite program distributor,
    and a satellite master antenna television system operator, as well
    as buying groups or agents of all such entities").

[^140]: 47 C.F.R. § 79.2(b)(1)(i); *see also* 47 C.F.R. § 79.1(a)(4)
    (defining closed captioning as the "visual display of the audio
    portion of video programming"); *Obligation of Video Programming
    Distributors To Make Emergency Information Accessible To Persons
    with Hearing Disabilities Using Closed Captioning,* Public Notice,
    DA 06-2627 (Dec. 29, 2006) (addressing obligations of video
    programming distributors to make emergency information accessible in
    light of the 100% closed captioning requirement).

[^141]: 47 C.F.R. § 79.2(b)(1)(ii). Section 713 of the Act defines
    "video description" as "the insertion of audio narrated descriptions
    of a television program's key visual elements into natural pauses
    between the program's dialogue." 47 U.S.C. § 613(g). Video
    programming distributors may use this definition as guidance in
    meeting the requirements of section 79.2(b)(1)(ii). *See* 47 C.F.R.
    § 79.2(b)(1)(ii). For example, if a map is displayed on the screen,
    the video programming distributor must provide an aural description
    of the geographic location encompassed by the map and any areas
    highlighted on the map in order to make the information accessible
    to persons with visual disabilities. In addition, emergency
    information provided in the video portion of programming that is not
    a regularly scheduled newscast, or a newscast that interrupts
    regular programming, such as a "crawl" or "scroll," must be
    accompanied by an aural tone to alert persons with vision
    disabilities that they should tune to another source, such as a
    radio, for more information. *See* 47 C.F.R. § 79.2(b)(1)(iii).

[^142]: Emergency situations in which the broadcasting of information is
    considered as furthering the safety of life and property include,
    but are not limited to, the following: tornadoes, hurricanes,
    floods, tidal waves, earthquakes, icing conditions, heavy snows,
    widespread fires, discharge of toxic gasses, widespread power
    failures, industrial explosions, civil disorders, school closings
    and changes in school bus schedules resulting from such conditions,
    and warnings and watches of impending changes in weather. *See* 47
    C.F.R. §§ 73.1250(a), 79.2(a)(2).

[^143]: Commenters recognize that EAS alerts must be available to
    non-English speaking people as well as people with visual or hearing
    disabilities. *See, e.g*., AFB Comments at 3-4; State Associations
    Comments at 15-17; T-Mobile Comments at 17-18; Maine SECC 10/29/04
    Comments at 2; SWN 10/29/04 Comments at 2; TDI 10/24/04 Comments at
    4.

[^144]: *Executive Order*, section 2(a)(iv).

[^145]: *See also, infra,* n. 230.

[^146]: *Further Notice*, 20 FCC Rcd at 18653, ¶ 70.

[^147]: *Id.*

[^148]: Verizon Comments at 2 (EAS should apply to any broadcast video
    services carried over FTTP and other advanced broadband networks);
    Letter to Marlene H. Dortch, Secretary, FCC, from Glenn Reynolds,
    Vice President- Regulatory, BellSouth, at 2 (filed April 20, 2006)
    ("BellSouth is fully supportive... of applying equivalent EAS
    obligations on all multi-channel video providers, regardless of the
    platform used."); BellSouth Reply Comments at 4); NCTA Comments at
    8-11 (telephone companies providing video services should be subject
    to the EAS rules applicable to cable operators); TDI Reply Comments
    at 6 (telco-delivered video and multi-channel video service
    providers should have the same EAS obligations).

[^149]: Verizon Comments at 2.

[^150]: AT&T Comments at 2-4.

[^151]: *Id.* at 5-6. For local broadcasts, AT&T states that it will
    "pass through" all EAS alerts (local and national) provided by local
    broadcast channel feeds. AT&T also states it would pass through
    national alerts transmitted by cable services, but argues that
    layering EAS alerts on top of local broadcast feeds likely would
    obscure or interfere with the information being provided.

[^152]: *Id*. at 6; Letter to Marlene H. Dortch, Secretary, FCC, from
    Thomas J. Hughes, Vice President-Federal Regulatory, AT&T Services
    Inc. (filed April 6, 2007) (AT&T April 6, 2007 Letter).

[^153]: 47 U.S.C. § 544(g).

[^154]: *Id*.

[^155]: *1994 Report and Order*, 10 FCC Rcd at 1806, ¶ 57.

[^156]: 47 U.S.C. § 522(5); *see id.* at §§ 522(6) (defining a "cable
    service" as "the one-way transmission to subscribers of ... video
    programming ... and subscriber interaction, if any, which is
    required for the selection or use of such video programming ..."),
    522(7) (defining a "cable system" as "a facility ... designed to
    provide cable service").

[^157]: *Id.* at § 522(7)(C)*; see id.* at § 153(10) (defining common
    carrier).

[^158]: 47 U.S.C. §§ 151, 152(a), 154(i), 154(o), 544(g), 606.

[^159]: *See United States v. Southwestern Cable Co.*, 392 U.S. 157, 178
    (1968); *IP-Enabled Services*, First Report and Order and Notice of
    Proposed Rulemaking, 20 FCC Rcd 10245, 10261,¶ 27 & n.87 (2005)
    (*VoIP 911 Order*) (citing additional precedent and authority).

[^160]: 47 U.S.C. § 152(a).

[^161]: 47 U.S.C. § 153(22).

[^162]: 47 U.S.C. § 153(52).

[^163]: *See VoIP 911 Order*, 20 FCC Rcd at 10262, ¶ 29.

[^164]: *See* 47 U.S.C. § 544(g); U.S. v. Midwest Video Corp*.*, 406
    U.S. 649, 667-68 (1972) (cable regulation was reasonably ancillary
    to the Commission's statutory responsibilities where it would
    "further the achievement of long-established regulatory goals in the
    field of television broadcasting").

[^165]: *See 1994 Report and Order*, 10 FCC Rcd at 1806, ¶ 57 (imposing
    EAS obligations on cable systems because cable had become an
    "invaluable link in the dissemination of information during
    emergencies" in light of their high penetration levels).

[^166]: 47 U.S.C. § 151.

[^167]: 47 C.F.R. § 11.51(p)(1)-(3).

[^168]: The current wireline voice networks are not suited for EAS.
    Verizon Comments at 3 ("Data and voice services are point-to-point
    or circuit-switched services that, by their very nature, are not
    well situated for broadcasting emergency notifications on a wide
    scale."); *see also* Letter to Marlene H. Dortch, Secretary, FCC,
    from Paul Brigner, Executive Director, Verizon Regulatory,
    Attachment at 4 (filed Aug. 9, 2006) (PSTN is engineered to
    facilitate a "\[c\]ommunication path ... between specific nodes,"
    "to include concentration, but avoid blockage," and "to handle
    typical peaks in traffic (e.g., Mother's Day)," and is "\[s\]ubject
    to overload and failure under extreme calling volumes.").

[^169]: *Further Notice*, 20 FCC Rcd at 18653, ¶ 69.

[^170]: *Id.*

[^171]: *Id*. Participating wireless industry organizations included
    Cingular, Sprint Nextel, T-Mobile, Verizon Wireless, CTIA, and USA
    Mobility, among others.

[^172]: *See* 47 C.F.R. § 11.41(b)(2).

[^173]: If any entity chooses to participate in state and local EAS
    activations, it must comply with the Commission\'s Part 11 EAS
    rules.

[^174]: *Further Notice*, 20 FCC Rcd at 18654, ¶ 73.

[^175]: *Id.* The Commission also asked whether, if it were to require
    carriage of state-level alerts, it should adopt an additional
    originator code for state governors in section 11.31(d) of the
    Commission's rules. *Id.*

[^176]: To date, the EAS has not been used to deliver a Presidential
    message to the American public.

[^177]: *Hurricane Katrina NPRM* at Appendix B, Report and
    Recommendations to the Federal Communications Commission, p. 28.

[^178]: 47 U.S.C. § 151.

[^179]: *See* supra ¶ 14 n. 58.

[^180]: As explained below, this requirement does not apply to SDARs and
    DBS providers.

[^181]: The Mayor of the District of Columbia, as well as the Governors
    of the Commonwealth of Puerto Rico, the Commonwealth of the Northern
    Mariana Islands, the U.S. Virgin Islands, American Samoa, and Guam
    will also have this capability. *Accord* 47 U.S.C. § 153(40) ("the
    term "state" includes the District of Columbia and the Territories
    and possessions").

[^182]: 47 U.S.C. § 151.

[^183]: *Id.* at §§ 301, 307(a), 309(a).

[^184]: *Id.* at §§ 154(i), 303(r). *See also id.* at § 154(o)
    (requiring the Commission, "\[f\]or the purpose of obtaining maximum
    effectiveness from the use of radio and wire communications in
    connection with safety of life and property," to study "methods of
    obtaining the cooperation and coordination of these systems.").

[^185]: 47 U.S.C. § 615 (support for universal emergency telephone
    number). While generally supporting our subject matter jurisdiction
    in this area, we acknowledge that "nothing in this section shall be
    construed to authorize or require the Commission to impose
    obligations or costs on any person." *Id.*

[^186]: 47 U.S.C. § 544(g).

[^187]: *See also Individuals with Disabilities in Emergency
    Preparedness*, Exec. Order No. 13347, 69 Fed. Reg. 44,573 (2004).

[^188]: "The Congress recognizes that the organizational structure
    established jointly by the Federal Government and the States and
    their political subdivisions for emergency preparedness purposes can
    be effectively utilized to provide relief and assistance to people
    in areas of the United States struck by a hazard. The Federal
    Government shall provide necessary direction, coordination, and
    guidance, and shall provide necessary assistance, as authorized in
    this subchapter so that a comprehensive emergency preparedness
    system exists for all hazards." 42 USCA § 5195 (Declaration of
    Policy).

[^189]: *See* Joint Comments of the National Association of Broadcasters
    and the Association for Maximum Television Service, Inc. in EB
    Docket No. 04-296 at 25-27 (filed Oct. 29, 2004) (NAB Comments).

[^190]: *See* 47 U.S.C. § 152(a) (establishing the Commission to
    regulate interstate and foreign communications for the purpose of
    "promoting safety of life and property through the use of wire and
    radio communication").

[^191]: *Id.* at §§ 301, 307(a), 309(a).

[^192]: *Executive Order*, section 1 (emphasis added).

[^193]: *Motion Picture Ass'n of America, Inc. v. FCC*, 309 F.3d 796,
    805 (D.C. Cir. 2002) (*MPAA*). NAB erroneously attributes this quote
    to the Supreme Court in *Turner Broadcasting System, Inc. v. FCC*,
    512 U.S. 622, 651 (1994). *See* NAB Comments at 30.

[^194]: *See MPAA*, 309 F.3d at 804 ("Section 1 does not address the
    *content* of the programs with which accessibility is to be
    ensured."). NAB's contention that mandating state-level EAS
    participation contravenes section 4(o) of the Act is specious. NAB
    Comments at 29. Whereas the *MPAA* decision on which NAB relies
    concerned section 713 of the Act, which Congress had recently
    adopted and which the Court interpreted as withholding authority
    under title I, section 4 of the Act enumerates various functions of
    the agency and has long co-existed with the FCC's regulatory
    authority over EAS. *See* NAB Comments at 28, citing *MPAA*, 309
    F.3d at 807 (concurring opinion of Henderson, J.).

[^195]: *First Report and Order*, 20 FCC Rcd at 18643-44, ¶ 46.

[^196]: SDARS is commonly known as "satellite radio."

[^197]: *First Report and Order*, 20 FCC Rcd at 18639-640, ¶ 40.

[^198]: *Id.* at 18641-42, ¶ 43.

[^199]: *Further Notice*, 20 FCC Rcd at 18652-53, ¶ 68.

[^200]: *See, e.g.,* June 9, 2006 *ex parte* meeting with Anthony
    Masiello, Senior Vice President, Broadcast Operations, and John
    Archer, Vice President, Operations, XM Radio, Inc.

[^201]: XM Comments at 4.

[^202]: DIRECTV Comments at 2; PanAmSat Comments at 5-6.

[^203]: DIRECTV Comments at 2. DIRECTV already provides state and local
    emergency information to many subscribers by retransmitting state
    and local alerts aired by local television broadcast stations in
    over 140 markets where it provides local-into-local service*. Id.*
    at 3.

[^204]: CAP incorporates geospatial elements to permit precise
    geographic targeting of alerts. For example, a CAP-formatted message
    could include the Federal Information Processing Standards (FIPS)
    Codes that correspond to the counties and independent cities
    expected to be affected by a storm.

[^205]: Thus, to the extent that there is a tornado warning for
    Gaithersburg, MD, it would be acceptable for a station to broadcast
    the alert in the entire D.C. Metropolitan area.

[^206]: Section 11.21 of the Commission's rules states that EAS plans
    "must be reviewed and approved by the Director, Office of Homeland
    Security, Enforcement Bureau \[now, Chief, Public Safety and
    Homeland Security Bureau\], prior to implementation to ensure that
    they are consistent with national plans, FCC regulations, and EAS
    operation." 47 C.F.R. § 11.21.

[^207]: *2004 NPRM*, 19 FCC Rcd at 15784, ¶ 25.

[^208]: *Further Notice*, 20 FCC Rcd at 18654, ¶ 73.

[^209]: *Id.*

[^210]: "The Emergency Alert Systems (EAS): An Assessment," Partnership
    for Public Warning, February 2004, PPW Report 2004-1, pg. 52.

[^211]: *See* www.fcc.gov/pshs/eas/Welcome.html.

[^212]: Commenters, including broadcasters and SECCs, support a
    mandatory state EAS plan filing requirement. *See, e.g*., AFB
    10/29/04 Comments at 2 (every state and municipality should adopt an
    EAS plan); California Broadcasters Assoc. 11/10/04 Comments at 12;
    ComLabs, Inc. 10/29/04 Comments at 8; Hearst-Argyle Television
    10/29/04 Comments at 3-5 (all states would be required to file EAS
    plans and update them at least once every five years; National
    Center for Missing and Exploited Children 10/29/04 Comments at 5;
    New Hampshire SECC 10/27/04 Comments at 5; NC Association of
    Broadcasters 10/29/04 Comments at 9; Partnership for Public Warning
    10/25/04 Comments at 4); State of Ohio Emergency Management Agency
    10/27/04 Comments at 2; TFT 10/22/04 Comments at 6; Thomas Newell
    10/29/04 Comments at 2; WTOP 10/29/04 Comments at 6. In addition,
    several commenters filed comments to the *FNPRM* recommending
    mandatory state plans. *See, e.g*., Wireless RERC Comments at 9;
    NPSTC Comments at 6 (no entity is responsible for ensuring that
    every state adopts a plan); SBE Comments at 19-20.

[^213]: *See* 47 C.F.R. § 11.21(c).

[^214]: Some commenters have suggested that the Commission develop
    training programs and model state plans in conjunction with DHS and
    the Media Security and Reliability Council ("MSRC"). *See, e.g.,*
    SBE Comments at 19-21 (training sessions for emergency managers and
    broadcasters); NPSTC Comments at 7 (implementation of MSRC's
    recommendations); State Associations Comments at 14 (educate state
    and local emergency management); NYC Comments at 4 (training
    programs); State of Ohio Emergency Management Agency 10/27/04
    Comments at 5 (recommending training).

[^215]: Contra Costa 10/29/04 Comments at 3.

[^216]: Joint Parties 11/1/04 Comments at 5.

[^217]: OAB Comments at 12-13.

[^218]: *Further Notice*, 20 FCC Rcd at 18654, ¶ 72.

[^219]: *Id.*

[^220]: Given the importance of these issues, we intend to issue an
    order addressing the issues set forth below within six months.

[^221]: MMTC et. al at 4.

[^222]: Written Statement of Mr. C. Patrick Roberts, President of the
    Florida Association of Broadcasters, On the Lifesaving Role of
    Accurate Hurricane Predication, Before the Subcommittee on Disaster
    Prevention and Prediction of the Committee on Commerce, Science and
    Transpiration, United States Senate, at 3, 4, 5, 11 (Sept. 20,
    2005), available at <http://commerce.senate.gov/pdf/roberts.pdf>.
    California EAS Plan, at 7 (revised July 2002); Texas EAS Plan,at 5
    (revised March 2004).

[^223]: *See* 47 C.F.R. § 11.61(a) (distinguishing 'additional' EAS
    tests from 'required' tests).

[^224]: 47 C.F.R. §§ 1.200 *et seq*.

[^225]: *See* 47 C.F.R. § 1.1206(b)(2).

[^226]: *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).

[^227]: *See* *Review of the Emergency Alert System*, EB Docket No.
    04-296, First Report and Order and Further Notice of Proposed
    Rulemaking, 20 FCC Rcd 18625 (2005) ("*First Report and Order and
    FNPRM*").

[^228]: 5 U.S.C. § 604(a)(3).

[^229]: 5 U.S.C. § 601(6).

[^230]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), 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).

[^231]: 15 U.S.C. § 632.

[^232]: 5 U.S.C. § 601(4).

[^233]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^234]: 5 U.S.C. § 601(5).

[^235]: U.S. Census Bureau, Statistical Abstract of the United States:
    2000, Section 9, pages 299-300, Tables 490 and 492.

[^236]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, 40
    (Jul. 2002).

[^237]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 515120.

[^238]: Office of Management and Budget, 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. *Id*. at 502-05, NAICS code
    512120, Motion Picture and Video Production; NAICS code 512120,
    Motion Picture and Video Distribution; NAICS code 512191,
    Teleproduction and Other Post-Production Services; and NAICS code
    512199, Other Motion Picture and Video Industries.

[^239]: "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).

[^240]: "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).

[^241]: *Broadcast Station Totals as of September 30, 2002*, FCC News
    Release (rel. Nov. 6, 2002).

[^242]: *See* [13 C.F.R. §
    121.201](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=13CFRS121.201&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.09),
    NAICS code 515112.

[^243]: *Id*.

[^244]: *Id*.

[^245]: *Id*.

[^246]: *Id*.

[^247]: 13 C.F.R. § 121.201, NAICS code 517510.

[^248]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, *Establishment and Firm Size (including Legal Form of
    Organization)*, Table 4, NAICS code 513220.

[^249]: *Id*.

[^250]: *See* U.S. Census Bureau, 2002 Economic Census, Industry Series:
    "Information," Table 2, Comparative Statistics for the United States
    (1997 NAICS Basis): 2002 and 1997, NAICS code 513220 (issued Nov.
    2004).

[^251]: 47 C.F.R. § 76.901(e). The Commission developed this definition
    based on its determination that a small cable system operator is one
    with annual revenues of \$100 million or less. *Implementation of
    Sections of the 1992 Cable Act: Rate Regulation*, Sixth Report and
    Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393 (1995),
    60 FR 10534 (February 27, 1995).

[^252]: Paul Kagan Associates, Inc., Cable TV Investor, February 29,
    1996 (based on figures for Dec. 30, 1995).

[^253]: 47 U.S.C. § 543(m)(2).

[^254]: *See* *FCC Announces New Subscriber Count for the Definition of
    Small Cable Operator*, Public Notice, 16 FCC Rcd 2225 (2001) ("*Jan.
    24, 2001 Public Notice*").

[^255]: 47 C.F.R. § 76.901(f).

[^256]: *See Jan. 24, 2001 Public Notice*.

[^257]: The Commission does receive such information on a case-by-case
    basis if a cable operator appeals a local franchise authority's
    finding that the operator does not qualify as a small cable operator
    pursuant to section 76.901(f) of the Commission's rules. *See* 47
    C.F.R. § 76.909(b).

[^258]: 47 C.F.R. § 21.961(b)(1).

[^259]: *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).

[^260]: 13 C.F.R. § 121.201, NAICS code 515210.

[^261]: *See* supra note Error: Reference source not found.

[^262]: 13 C.F.R. § 121.201, NAICS code 515210.

[^263]: 5 U.S.C. § 601(3).

[^264]: 15 U.S.C. § 632.

[^265]: 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).

[^266]: 13 C.F.R. § 121.201, NAICS code 517110.

[^267]: *Trends in Telephone Service,* Table 5.3.

[^268]: 13 C.F.R. § 121.201, NAICS code 517110.

[^269]: *Trends in Telephone Service,* Table 5.3.

[^270]: 13 C.F.R. § 121.201, NAICS codes 517410 and 517910.

[^271]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, *Establishment and Firm Size (Including Legal Form of
    Organization)*, Table 4, NAICS code 513340.

[^272]: Office of Management and Budget, North American Industry
    Classification System, 513 (1997) (NAICS code 517910.

[^273]: 5 U.S.C. § 603(c)(1) -- (c)(4).

[^274]: *See* 5 U.S.C. § 801(a)(1)(A).

[^275]: *See* 5 U.S.C. § 604(b).

[^276]:

[^277]:

[^278]:

[^279]:

[^280]:

[^281]:

[^282]: *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).

[^283]: *See* 5 U.S.C. § 603(a).

[^284]: *Id.*

[^285]: *See* Appendix B at ¶ 2 for description of rules the Commission
    adopted in the *Second Report and Order*.

[^286]: *See Further Notice* at ¶¶ 71-74 for a more detailed discussion
    of these four subject matter areas.

[^287]: 5 U.S.C. § 604(a)(3).

[^288]: 5 U.S.C. § 601(6).

[^289]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), 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).

[^290]: 15 U.S.C. § 632.

[^291]: 5 U.S.C. § 603(c)(1) -- (c)(4).