At its March 17 monthly Open Meeting, the FCC will consider a Notice of Proposed Rulemaking seeking to modify certain aspects of the Emergency Alert System used by many of those regulated by the FCC including broadcasters, cable companies, and wireless communications devices such as mobile phones. The FCC is reviewing these issues as required by the National Defense Authorization Act, passed by Congress at the end of 2020. As part of its mandate, Congress also asked that the FCC review whether it would be possible to require “streaming services” to become EAS participants. A Notice of Inquiry asking that question is included with the Notice of Proposed Rulemaking, asking specific questions about the feasibility of that extension of EAS requirements. A draft of the proposals to be considered by the FCC at the March meeting is available here (the draft is subject to change before the meeting).
The proposed changes include some that may be relevant to broadcasters. These include the requirement that State Emergency Communications Committees meet at least yearly to review state EAS plans and certify to the FCC each year that they have in fact met. The FCC will consider and approve all changes to state EAS plans but will no longer make those plans public on the FCC website, as there is a fear that publication of these plans could be used to subvert the emergency alerts.
The proposals also include the ability of national, state and local emergency officials to notify the FCC of any improper activation of the EAS system. Right now, only EAS participants, including broadcasters, have that obligation (see our article here). The FCC also asks interested parties for suggestions as to how to define what kinds of misuses of the EAS system constitute “false alerts” that must be reported to the FCC.
The questions that are perhaps the most interesting are those that ask whether EAS should be extended to “streaming services.” The initial question is just what is a “streaming service” that would be covered? The legislation defines such a service as “the ability of an application to play synchronized media streams like audio and video streams in a continuous way while those streams are being transmitted to the client over a data network.” But just what services would that include? The FCC also asks many technical issues as to whether streaming services have the ability to pass through EAS alerts, and whether those alerts would be ones like those that broadcasters convey (with audio messages) or just through text (like the wireless services provide). Practical issues are also asked. For instance, as most streaming services are national, can they possibly monitor all sources of EAS alerts in all the jurisdictions that they serve? And are they able to direct relevant messages to people in a given area, both on a technical level and without invading the privacy of those individuals?
Note that this is not the first time that the FCC has considered including Internet-based services in an EAS context. When the FCC adopted rules about false EAS alerts, there was language suggesting that even online services that used EAS alert tones for nonemergencies might be subject to FCC rules. See our article here for more information on that consideration. As online and broadcast services become more and more alike, it appears that questions as to whether they should be subject to similar regulatory obligations will be arising more and more often.
There are other issues that will be raised by this proceeding if it is adopted by the FCC at its upcoming open meeting. Broadcasters, streaming services, and others currently in the EAS universe, or with the potential of being included, should carefully review the proposals and weigh in on those that may affect your operations.
Courtesy Broadcast Law Blog
