FCC Proposes Emergency Alert Rule Changes

Intends to make system more responsive to local needs and ensure its security April 4, 2016

The FCC proposed changes to the Emergency Alert System at its January meeting to make it more responsive to local needs and ensure the security of the system. The commission focused on four goals and sought comment on new rules utilizing new technology to improve EAS.

An alerting image on the FEMA website.
Improving Alerting Organization at State and Local Levels: First, the FCC is proposing the adoption of uniform vernacular and designations of the various EAS participants to eliminate confusion. Also, the commission is proposing the adoption of a uniform template for state EAS plans and the creation of an electronic filing system for the submission of the state EAS plans. The FCC noted that the current paper-based state EAS plans are not uniform, which leads to inconsistent presentations. Instead, the FCC sought comment on the adoption of the model used by the state of Washington. It also sought comment on how to protect the information that is submitted through the new template-based system, suggesting that the use of the National institute for States and Technology Cybersecurity Framework might satisfy these concerns.

Building Effective Community-Based Public Safety Exercises: The FCC seeks comment on revisions to the rules to permit state and local testing of live EAS testing. Generally, the use of “live” EAS header codes is prohibited, but the FCC is considering the possibility of permitting such use, so long as the use of “live” EAS codes is not misleading and does not cause public confusion. The FCC is concerned that these tests are not too frequent so to cause “alert fatigue.” The commission is also seeking comment how to make the testing accessible with individuals with disabilities and those with limited English language skills.

Leveraging Advancements in Technology: Next, the FCC is considering rules to better leverage technology to expand the distribution of EAS alerts to the public. First, it is considering changes to existing rules that require multichannel video programming distributor systems to either direct viewers to a designated channel during EAS alerts or whether MVPDs retain the authority to override EAS alerts on a selective basis. In light of the use of “smart” television sets and over-the-top devices, the FCC sought comment on how to ensure that the public is informed, and how to distribute EAS alerts to mobile devices such as LTE-enabled tablets. As noted, the FCC is also concerned that EAS alerts are able to be accessed by those with disabilities, and sought comments on the use of new technology to distribute wireless emergency alerts.

Securing EAS: Finally, the FCC is considering rules to secure the emergency alert systems. As discussed in this column previously, the Enforcement Bureau has taken strong actions against incidents of EAS misuse, including the announcement of “zombie attacks” and audio clips that had imbedded EAS alerts triggering EAS alerts in multiple states. The FCC noted other false EAS alerts caused primarily through technical errors and inadvertent triggering of the system.

As a result, the FCC proposed rules that would require the adoption of the best practices established by the 2014 Communications Security, Reliability and Interoperability Council IV’s recommendations. The FCC would require EAS participants to provide annual certifications that they are complying with EAS best practices relating to (i) software patch management; (ii) account management; (iii) segmentation within the EAS system; and (iv) confirmation of compliance with common alerting protocol digital signatures that would prevent inadvertent EAS alerts. The FCC is also considering the rules to require EAS participants to report false EAS alerts and to take steps to prevent future false alerts. Finally, the FCC is looking whether software-defined network approaches could be developed to improve EAS security.

Commissioner O’Rielly dissented in part, raising concerns about the FCC’s proposed expansion of EAS rules into IP-based platforms, questioning whether the FCC has the requisite statutory authority, and in consideration of the costs of compliance with the new rules in light of the extremely rare initiation of national EAS alerts. The period for comments was not set at this writing.

Petro is of counsel at Drinker Biddle & Reath LLP. Email: lee.petro@dbr.com.

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