# Before the

# Federal Communications Commission

# Washington, D.C. 20554

In the Matter of )

)

Amendment of Part 11 of the Commission's Rules ) EB Docket No. 04-51

Regarding the Emergency Alert System ) RM 10619

)

# NOTICE OF PROPOSED RULEMAKING

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

**Comment Date: 30 days after Federal Register publication of this
Notice**

**Reply Comment Date: 45 days after Federal Register publication of this
Notice**

By the Commission:

**I. INTRODUCTION**

1\. In this *Notice of Proposed Rulemaking* (NPRM), we propose to adopt
revisions to the Part 11 rules governing the Emergency Alert System
(EAS)[^1] that will allow wireless cable television systems to provide
EAS alerts to their subscribers in a more efficient and less burdensome
manner. This proposal, set forth in a petition for rulemaking filed by
the Wireless Cable Association International, Inc. (WCA),[^2] requests
changes to our rules to allow wireless cable system operators to "force
tune" subscriber equipment to a system channel dedicated to EAS alerts
and messages in lieu of providing an EAS decoder for each and every
system channel.[^3]

**II**. **BACKGROUND**

2\. In 1997, the Commission adopted rules requiring cable system
operators to carry EAS messages on all program channels of a cable
system. By that same action and at the request of WCA, the Commission
included wireless cable systems in this requirement.[^4] The EAS affords
national, state and local authorities the capability to provide
emergency communications and information to the general public via
broadcast stations, cable systems and wireless cable systems.
Participation in national EAS alerts is mandatory for broadcast
stations, cable systems and wireless cable systems.[^5] These entities
participate in state and local area EAS plans on a voluntary basis.
Cable systems with 10,000 or more subscribers were required to install
EAS equipment by December 31, 1998. Cable systems with fewer than 10,000
subscribers and wireless cable systems were required to install EAS
equipment by October 1, 2002. The Enforcement Bureau, in response to
waiver requests, temporarily waived this deadline for qualifying
wireless cable systems pending the outcome of this proceeding.[^6]

3\. WCA filed its petition for rulemaking on October 31, 2002. The
Commission staff issued a public notice announcing the filing of WCA's
petition on December 18, 2002.[^7] Comments were filed by the WCA and
separately by REC Networks ("REC"). The WCA comments provide
clarification of its original proposal. The REC comments endorse the WCA
proposal without making any new requests or suggesting modification of
the WCA proposal. WCA requests that digital wireless cable systems, upon
receipt of an EAS alert or message, be allowed to use "force tune"
technology to switch subscribers from any programmed channel to a
specific system channel that will carry EAS messages. WCA represents
that modification of the rules to allow use of this technology will
provide EAS notices to subscribers while relieving system operators of
substantial financial burdens.

**III. DISCUSSION**

4\. Our EAS rules are designed to ensure that individual TV viewers,
including viewers of wireless cable TV systems, receive all EAS alerts,
no matter what channel the viewer may be watching. As these rules are
currently written, wireless cable providers serving more than 5,000
subscribers are required to install special equipment sufficient to
display the audio and video EAS message on every channel in their
systems.[^8] Systems serving fewer than 5,000 subscribers are required
to display the audio and video EAS message only on one channel, but must
provide a video interrupt and an audio alert on every channel.[^9] Under
the WCA proposal, a wireless cable operator would install EAS equipment
for one channel only at the headend of the system. In the event of an
EAS alert, the system would automatically force each subscriber set-top
box to tune to the channel carrying the EAS alert. WCA argues that
"force tuning" would allow wireless cable providers to deliver EAS
alerts to all viewers in a more technologically and economically
efficient manner. As proposed, the rule revision would provide the
greatest economic benefit to systems with over 5,000 subscribers by
obviating the need for special signal conversion for all channels, but
also would provide a benefit to those systems with fewer than 5,000
subscribers.

5\. According to WCA, the financial impact of our current rules is
unnecessarily burdensome. EAS equipment provides outputs designed to be
inserted into analog signals. For digital wireless cable systems the
digital channels are received via a multiplexed digital feed. To insert
EAS information into each channel requires specialized equipment to
separate the digital feeds into individual program streams, convert each
program stream to analog format, insert the EAS video/audio into each
program stream, re-encode the program stream to digital format, and
recombine all of the streams into multiplexed feeds for further
transmission to subscribers. For a 128 channel digital system, WCA
represents that a reasonable cost estimate for this process is
\$1,848,250.00. Under the proposed software based "force tune" solution,
the video/audio output of the EAS equipment will be connected to an
encoder for a channel selected to carry EAS messages. Upon EAS
activation, the EAS equipment will send a trigger signal to the system
headend which then forwards the trigger to the subscriber's set-top box
as part of the control data included in every multiplexed program stream
transmitted by the system. The software in the set-top box will
recognize the trigger and "force tune" the set-top box to the selected
EAS message channel. WCA represents that a reasonable cost estimate for
this alternative is \$46,000.00 or about 2% of the cost of channel by
channel implementation.

6\. We propose to revise our rules to allow all wireless cable
television systems to comply with our EAS requirements by installing
only one set of EAS equipment at the headend of their systems. Under our
proposed rule revisions, these wireless cable television providers will
be able to "force tune" all channels in their systems to the channel
carrying an EAS alert. We seek comment on this proposal. Our proposal
responds to the WCA petition for small wireless cable systems, which
currently are required to display audio and video EAS messages on one
channel, and video interrupt and audio alert on all other channels. We
seek comment on how our proposal would affect these systems. We also
propose to expand WCA's proposal to allow "force tuning" for systems
with more than 5,000 subscribers, which currently are required to place
EAS messages on all program channels. We solicit comment on whether we
should adopt "force tuning" for all wireless cable systems, or whether
"force tuning" should be limited to systems of a certain size and, if
so, what size would be appropriate. We seek comment on the pros and cons
of "force tuning," as proposed by WCA and this NPRM, and whether there
is another approach which is a better alternative, technically and/or
financially, than the one proposed, or whether compliance with the
current requirements is most appropriate. We are requesting information
from system operators, industry associations, equipment suppliers and
all other interested parties.

7\. We also note that the Commission requires certification of EAS
equipment in accordance with the procedures set forth in Subpart J of
Part 2 of the Commission's Rules.[^10] It appears that the WCA proposal
is software driven, that it requires the use of approved EAS equipment
at the headend, and that no changes to approved equipment are required.
For these reasons we do not propose new authorization standards for
equipment used to implement the proposed "force tune" procedure. Rather,
we propose to require that the operators of systems using this "force
tune" technology develop procedures to ensure that the process works and
that subscriber equipment, such as set-top boxes, does, in fact, tune to
the EAS alert/message channel when instructed to do so by the headend
equipment. We seek comment on our proposal not to require new equipment
authorization. We also request recommendations as to procedures to be
followed by operators to ensure that required EAS notices are delivered
to subscribers. Finally, we invite comment on what effects the proposals
and issues addressed in this NPRM may have on consumer equipment.

**IV**. **CONCLUSION**

8\. In this NPRM, we propose to adopt the revisions to the EAS rules
requested in the petition for rulemaking filed by WCA. We seek comment
on all of the issues and proposals addressed in this NPRM and encourage
full participation from cable operators, wireless cable operators,
equipment manufacturers, state and local emergency management personnel,
and other interested parties.

**V. PROCEDURAL MATTERS**

9\. [Comments and Reply Comments]{.underline}. Pursuant to sections
1.415 and 1.419 of the Commission's Rules, interested parties may file
comments on or before 30 days after publication of this Notice in the
Federal Register, and reply comments on or before 45 days after
publication of this Notice in the Federal Register.[^11] All comments
should refer to EB Docket No. 04-51. Comments may be filed using the
Commission's Electronic Comment Filing System ("ECFS") or by filing
paper copies.[^12] For additional information on this proceeding, please
contact the FCC Office of Homeland Security at (202) 418-1199.

10\. Comments filed through ECFS can be sent as an electronic file via
the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one
copy of an electronic submission must be filed. In completing the
transmittal screen, commenters should include their full name, postal
service mailing address, and the applicable docket number, which in this
instance is EB Docket No. 04-51. Parties may also submit an electronic
comment by Internet e-mail. To obtain filing instructions for e-mail
comments, commenters should send an e-mail to ecfshelp@fcc.gov, and
should include the following words in the body of the message, "get form
\<your e-mail address." A sample form and instructions will be sent in
reply. Or you may obtain a copy of the ASCII Electronic Transmittal Form
(FORM-ET) at <http://www.fcc.gov/e-file/email.html>. Parties who choose
to file by paper must file an original and four copies of each filing.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S. Postal
Service mail).

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

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

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

12\. Comments and reply comments must include a short and concise
summary of the substantive arguments raised in the pleading. Comments
and reply comments must also comply with section 1.48 and all other
applicable sections of the Commission's rules.[^13] We direct all
interested parties to include the name of the filing party and the date
of the filing on each page of their comments and reply comments. All
parties are encouraged to utilize a table of contents, regardless of the
length of their submission. We also strongly encourage that parties
track the organization set forth in this *Further Notice* in order to
facilitate our internal review process.

13\. [*Ex Parte* Rules]{.underline}. These matters shall be treated as a
"permit-but-disclose" proceeding in accordance with the Commission's *ex
parte* rules.[^14] 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.[^15] Other
requirements pertaining to oral and written presentations are set forth
in section 1.1206(b) of the Commission's rules.

14\. [Initial Regulatory Flexibility Analysis]{.underline}. With respect
to this NPRM, an Initial Regulatory Flexibility Analysis ("IRFA") is
contained in Appendix A. As required by section 603 of the Regulatory
Flexibility Act, the Commission has prepared an IRFA of the expected
impact on small entities of the proposals contained in the NPRM. Written
public comments are requested on the IRFA. Comments must be identified
as responses to the IRFA and must be filed by the deadlines for comments
on the NPRM specified in paragraph 9 above. The Commission will send a
copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy
of the Small Business Administration.[^16]

15\. [Initial Paperwork Reduction Act of 1995 Analysis.]{.underline}
This NPRM does not propose a new or modified information collection.

**VI. ORDERING CLAUSES**

16\. Accordingly, IT IS ORDERED that pursuant to the authority contained
in sections 1, 4(i), 4(j), and 4(o), 303(r), 624(g) and 706 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
154(j), and 154(o), 303(r), 544(g) and 606, NOTICE IS HEREBY GIVEN of
the proposals described in this *Notice of Proposed Rulemaking*.

17\. IT IS FURTHER ORDERED that the Reference Information Center,
Consumer and Governmental Affairs Bureau, shall send a copy of this
*Notice of Proposed Rulemaking*, including the Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration in accordance with the Regulatory Flexibility
Act.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch Secretary

**APPENDIX A**

INITIAL REGULATORY FLEXIBILITY ANALYSIS

1\. As required by the Regulatory Flexibility Act ("RFA"),[^17] the
Commission has prepared this Initial Regulatory Flexibility Analysis
("IRFA") of the possible significant economic impact on small entities
by the policies and rules proposed in this *Notice of Proposed
Rulemaking* (NPRM). Written public comments are requested on this
*IRFA*. Comments must be identified as responses to the IRFA and must be
filed by the deadlines for comments on the NPRM provided above in
paragraph 9. The Commission will send a copy of the NPRM, including this
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration.[^18] In addition, this NPRM and IRFA (or summaries
thereof) will be published in the Federal Register.[^19]

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

2\. In this NPRM, the Commission solicits comment on a petition for
rulemaking filed by the Wireless Cable Association International, Inc.
requesting revisions to the Part 11 rules governing the Emergency Alert
System ("EAS").[^20] The requested revisions are intended to reduce
burdens on EAS participants and improve the overall performance of the
EAS.

B. Legal Basis

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

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

4\. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that will be
affected by the proposed rules.[^21] The RFA generally defines the term
"small entity" as having the same meaning as the terms "small business,"
"small organization," and "small governmental jurisdiction."[^22] In
addition, the term "small business" has the same meaning as the term
"small business concern" under the Small Business Act.[^23] 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).[^24] A small organization is generally "any not-for-profit
enterprise which is independently owned and operated and is not dominant
in its field."[^25] The arts, entertainment, and recreations sector had
96,497 small firms.[^26]

5\. *Multipoint Distribution Systems.* The proposed rules would apply to
Multipoint Distribution Systems operated as part of a wireless cable
system. The Commission has defined "small entity" for purposes of the
auction of MDS frequencies as an entity that, together with its
affiliates, has average gross annual revenues that are not more than
\$40 million for the preceding three calendar years.[^27] This
definition of small entity in the context of MDS auctions has been
approved by the SBA.[^28] 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.

6\. MDS also includes licensees of stations authorized prior to the
auction. As noted, the SBA has developed a definition of small entities
for pay television services, Cable and Other Subscription Programming,
which includes all such companies generating \$12.5 million or less in
annual receipts.[^29] This definition includes MDS and thus applies to
MDS licensees that did not participate in the MDS auction. Information
available to us indicates that there are approximately 392 incumbent MDS
licensees that do not generate revenue in excess of \$11 million
annually. Therefore, we find that there are approximately 440 (392
pre-auction plus 48 auction licensees) small MDS providers as defined by
the SBA and the Commission's auction rules which may be affected by the
rules proposed herein.

7\. *Instructional Television Fixed Service.* The proposed rules would
also apply to Instructional Television Fixed Service facilities operated
as part of a wireless cable system. The SBA definition of small entities
for pay television services also appears to apply to ITFS.[^30] 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.[^31] However, we do not collect
annual revenue data for ITFS licensees, and are not able to ascertain
how many of the 100 non-educational licensees would be categorized as
small under the SBA definition. Thus, we tentatively conclude that at
least 1,932 ITFS are small businesses and may be affected by the
proposed rules.

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

8\. There are no reporting or recordkeeping requirements proposed in
this NPRM. The proposals set forth in the NPRM are, for the most part,
intended to enhance the performance of the EAS while reducing the burden
on digital wireless cable systems. We emphasize that participation in
state and local EAS activities remains voluntary and that we do not wish
to impose additional costs or burdens on entities that choose not to
participate in state and local area EAS plans. The NPRM seeks comment on
proposed implementation of new equipment capabilities and new policies
with regard to method of delivery of EAS messages to viewers for all EAS
alerts, national, state and local. These proposals would lessen cost and
operational burdens on digital wireless cable system EAS participants.

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

9\. The RFA requires an agency to describe any significant alternatives
that it has considered in reaching its proposed approach, which may
include the following four alternatives: (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.

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

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

11\. None.

[^1]: 47 C.F.R. §§ 11.1, et *seq*.

[^2]: WCA Petition for Rulemaking, RM-10619 (filed October 31, 2002).

[^3]: After the Media Security and Reliability Council and the
    Partnership for Public Warning make recommendations in the next few
    months, we intend to issue a comprehensive Notice of Inquiry (NOI)
    on public warning issues.

[^4]: *Amendment of Part 73, Subpart G, of the Commission's Rules
    Regarding the Emergency Broadcast System, Second Report and Order*,
    FO Docket Nos. 91-171/91-301, 12 FCC Rcd 15503 (1997) ("*Second
    Report and Order*"). For purposes of the EAS rules, a "wireless
    cable system" is a collection of Multipoint Distribution Service,
    Multichannel Multipoint Distribution Service or Instructional
    Television Fixed Service channels used to provide video programming
    services to subscribers. The channels may be licensed to or leased
    by wireless cable system operators. *See* 47 C.F.R. § 11.11(c)(1).

[^5]: Although all broadcast stations, cable systems and wireless cable
    systems are required to install EAS equipment, they have the option
    of requesting FCC authorization to be Non-participating National
    ("NN") sources. In the event of a national EAS alert, NN sources are
    required to transmit a sign-off announcement and then go off the
    air. *See* 47 C.F.R. §§ 11.19, 11.41 and 11.54. In addition, Class D
    noncommercial FM, low power FM and low power TV stations are
    required to install EAS decoders, but are not required to install or
    operate EAS encoders. *See* 47 C.F.R. § 11.11(b).

[^6]: *See Request of W.A.T.C.H. TV and Benton Ridge Telephone Co. for a
    Waiver of Section 11.11(a) of the Commission's Rules,*
    EB-02-TS-510*,* Order, DA-02-2398, 17 FCC Rcd, 18329 (Enforcement
    Bur. 2003); s*ee also Request of Craig Wireless Honolulu Inc for a
    Waiver of Section 11.11(a) of the Commission's Rules*, EB-03-TS-101,
    Order, 18 FCC Rcd 20099, DA 03-3060 (Enforcement Bur. 2003),
    *Request of Youngsville Television Corporation for a Waiver of
    Section 11.11(a) of the Commission's Rules*, EB-02-TS-266, Order, 18
    FCC Rcd 20096, DA-30-3059 (Enforcement Bur. 2003).

[^7]: Public Notice No. 2589 (December 18, 2002).

[^8]: 47 U.S.C. § 11.11(a).

[^9]: *Id.*

[^10]: 47 C.F.R. § 11.34; *see also* 47 C.F.R. Part 2, Subpart J.

[^11]: 47 C.F.R. §§ 1.415 and 1.419.

[^12]: *See* *Electronic Filing of* Documents *in Rulemaking
    Proceedings*, 13 FCC Rcd 11322, 11326 (1998).

[^13]: *See* 47 C.F.R. § 1.48.

[^14]: 47 C.F.R. §§ 1.200, *et seq*.

[^15]: *See* 47 C.F.R. § 1.1206(b)(2).

[^16]: *See* 5 U.S.C. § 603(a). In addition, the *NPRM* and IRFA (or
    summaries thereof) will be published in the Federal Register.

[^17]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601, *et seq.*,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) ("CWAAA"). Title II
    of the CWAAA is the Small Business Regulatory Fairness Enforcement
    Act of 1996.

[^18]: *See* 5 U.S.C. § 603(a).

[^19]: *See id*.

[^20]: 47 C.F.R. §§ 11.1, *et seq*.

[^21]: 5 U.S.C. §§ 603(b)(3), 604(a)(3).

[^22]: Id. § 601(6).

[^23]: *Id.* § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies "unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." 5 U.S.C. § 601(3). While we
    tentatively believe that the SBA's definition of "small business"
    greatly overstates the number of radio broadcast stations that are
    small businesses and is not suitable for purposes of determining the
    impact of the proposals on small radio stations, for purposes of
    this Notice, we utilize the SBA's definition in determining the
    number of small businesses to which the proposed rules would apply,
    but we reserve the right to adopt a more suitable definition of
    "small business" as applied to radio broadcast stations subject to
    the proposed rules in this Notice and to consider further the issue
    of the number of small entities that are radio broadcasters or other
    small media entities in the future. *See Report and Order* in MM
    Docket No. 93-48 (*Children's Television Programming*), 11 FCC Rcd
    10660, 10737-38 (1996), *citing* 5 U.S.C. § 601(3).

[^24]: Small Business Act, 15 U.S.C. § 632 (1996).

[^25]: 5 U.S.C. § 601(4).

[^26]: *Id.*

[^27]: 47 C.F.R. § 21.961(b)(1).

[^28]: *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).

[^29]: 13 C.F.R. § 121.201, NAICS Code 515210.

[^30]: Id.

[^31]: 5 U.S.C. § 601(3).