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Proposed Rule

Emergency Alert System

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AGENCY:

Federal Communications Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

This document proposes various revisions to the rules regarding the Emergency Alert System (EAS) and also seeks comment on requested revisions to the rules set forth in petitions for rulemaking filed by the National Weather Service (NWS) and the Society of Broadcast Engineers (SBE).

DATES:

Comments are due June 11, 2001, and reply comments are due July 11, 2001.

ADDRESSES:

Send comments and reply comments to the Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. Comments may also be filed electronically using the Commission's Electronic Comment Filing System (ECFS). Comments filed through the ECFS can be sent as an electronic file via the internet to http://www.fcc.gov/​e-file/​ecfs.html.

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FOR FURTHER INFORMATION CONTACT:

Kathy Berthot, Enforcement Bureau, Technical and Public Safety Division, at (202) 418-7454.

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SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 01-88, in EB Docket No. 01-66, adopted on March 13, 2001, and released on March 20, 2001. The complete text of this NPRM is available for inspection and copying during normal business hours in the FCC Reference Information Center, 445 12th Street, SW., Room CY-A257, Washington, DC, and may be purchased from the Commission's copy contractor, International Transcription Services, Inc., 445 12th Street, SW., Room CY-B400, Washington, DC, (202) 857-3800. The complete text may also be downloaded from the Commission's internet site at http://www.fcc.gov.

I. Synopsis of the Notice of Proposed Rulemaking

1. In this NPRM, the Commission proposes revisions to part 11 of the rules regarding the EAS and also seeks comment on requested revisions to the part 11 rules set forth in petitions for rulemaking filed by the NWS and the SBE.

2. The Commission proposes to amend part 11 to: (1) Increase the relay window within which Required Monthly Tests of the EAS must be retransmitted from 15 minutes to 60 minutes; (2) reduce the required modulation level of EAS codes from 80% to 50% of full channel modulation limits; (3) delete references to the Emergency Action Notification network, which was eliminated in 1995 in accordance with a directive from President Clinton to the Director of the Federal Emergency Management Agency; and (4) eliminate the requirement that international High Frequency broadcast stations purchase and install EAS equipment.

3. The Commission seeks comment on requests that we amend the list of state and local EAS event codes to add new event codes for emergency conditions not included in the current list; amend the list of location codes to add new location codes to cover marine areas; and adopt a naming convention for state and local event codes. A complete listing of the requested additions to the lists of EAS event codes and location codes can be found in Appendix A and Appendix B of the NPRM. As an alternative to amending the lists of State and local event codes and location codes, the Commission seeks comment on whether we should amend part 11 to provide that any modifications to existing authorized EAS equipment that are necessary to implement revisions in EAS codes are Class I permissive changes which do not require a new application for and grant of certification by the Commission. Under this alternative, additional State and local event and location codes could be developed directly by State and local officials, broadcasters and cable operators, equipment manufacturers and other interested parties. The use of these additional codes and the equipment needed to access them would be implemented on a permissive basis as determined by the specific needs and interests of the local area participants.

4. The Commission also seeks comment on requests that we add a protocol for text transmission of EAS messages; permit the carriage of audio of Presidential EAS messages from non-EAS sources; and permit equipment manufacturers to include an optional feature in EAS equipment that would afford EAS users the capability to select only certain received EAS messages for processing. Start Printed Page 16898

II. Administrative Matters

A. Initial Regulatory Flexibility Analysis

5. This is a summary of the Initial Regulatory Flexibility Analysis (IRFA) in the NPRM. The full text of the IRFA can be found in Appendix C of the NPRM.

6. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this IRFA of the possible significant economic impact on small entities by the policies and rules proposed in this NPRM. 5 U.S.C. 603. The RFA, 5 U.S.C. 601 et seq., has been amended by the Contract With America Advancement Act of 1996, Public Law No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Fairness Enforcement Act of 1996. 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. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

7. Need for, and Objectives of, the Proposed Rules. In this NPRM, the Commission proposes various revisions to the part 11 rules governing the EAS and seeks comment on requested revisions to the part 11 rules set forth in petitions for rulemaking filed by the NWS and the SBE. The requested revisions are intended to enhance the capabilities of EAS equipment, reduce burdens on EAS participants, and improve the overall performance of the EAS.

8. Legal Basis. Authority for the actions proposed in this NPRM may be found in Sections 1, 4(i) and (o), 303(r), 624(g) and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (o), 303(r), 554(g) and 606.

9. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 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). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 percent) are small entities.

10. Television and radio stations. The proposed rules would apply to television broadcasting licensees and radio broadcasting licensees. The SBA defines a television broadcasting station that has $10.5 million or less in annual receipts as a small business. Television broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by television to the public, except cable and other pay television services. Included in this industry are commercial, religious, educational, and other television stations. Also included are establishments primarily engaged in television broadcasting and which produce taped television program materials. There were 1,509 television stations operating in the nation in 1992. That number has remained fairly constant as indicated by the approximately 1,663 operating television broadcasting stations in the nation as of September 30, 2000. For 1992, the number of television stations that produced less than $10.0 million in revenue was 1,155 establishments.

11. The SBA defines a radio broadcasting station that has $5 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations, which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. The 1992 Census indicates that 96 percent (5,861 of 6,127) radio station establishments produced less than $5 million in revenue in 1992. Official Commission records indicate that 11,334 individual radio stations were operating in 1992. As of September 30, 2000, Commission records indicate that 12,717 radio stations were operating.

12. Thus, the rules may affect approximately 1,663 full power television stations, approximately 1,280 of which are considered small businesses. The proposed rules may also affect 12,717 full power radio stations, approximately 12,208 of which are small businesses. These estimates may overstate the number of small entities because the revenue figures on which they are based do not include or aggregate revenues from non-television or non-radio affiliated companies. There are also 2,395 low power television (LPTV) stations. Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the SBA definition.

13. Cable systems. The proposed rules would also affect small cable systems. The SBA has developed a definition of small cable entities, which includes all such companies generating $11 million or less in revenue annually. This definition includes cable system operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems and subscription television services. According to Census Bureau data from 1992, there were 1,788 total cable and other pay television services and 1,423 had less than $11 million in revenue.

14. The Commission has developed its own definition of a “small cable system” for purposes of the EAS rules. Cable systems serving fewer than 10,000 subscribers per headend are considered small cable systems and are afforded varying degrees of relief from the EAS rules. Based on our most recent information, we estimate that there are 8,552 cable systems that serve fewer than 10,000 subscribers per headend. Consequently, we estimate that there are fewer than 8,552 small cable systems that may be affected by the rules proposed herein.

15. The Communications Act also contains a definition of a small cable system operator, 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.” The Commission has determined that there are 67,700,000 subscribers in the United States. Therefore, we found that 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 of its affiliates, do not exceed $250 million in the aggregate. Based on available data, Start Printed Page 16899we find that the number of cable operators serving 660,000 subscribers or less totals 1,450. We do not request nor do we collect information concerning whether cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, and thus are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

16. Multipoint Distribution Systems. 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. This definition of small entity in the context of MDS auctions has been approved by the SBA. 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.

17. 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, which includes all such companies generating $11 million or less in annual receipts. 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 small MDS providers as defined by the SBA and the Commission's auction rules which may be affected by the rules proposed herein.

18. Instructional Television Fixed Service. The SBA definition of small entities for pay television services also appears to apply to ITFS. 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. 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.

19. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. There are no reporting or recordkeeping requirements proposed in the NPRM. The proposals set forth in the NPRM are, for the most part, intended to enhance the performance of the EAS during state and local emergencies. 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 broadcast stations and cable systems that choose not to participate in state and local area EAS plans. The NPRM seeks comment on suggested additions and revisions to the EAS digital header codes used in the transmission of state and local EAS alerts. In addition, the NPRM proposes to increase the time period for retransmitting Required Monthly Tests of the EAS system and to reduce the modulation level for EAS codes. These proposals would lessen operational burdens on EAS participants. The NPRM also seeks comment on various suggestions by NWS and SBE to revise EAS operational and equipment requirements.

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

21. 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.

22. Federal Rules that Duplicate, Overlap, or Conflict with the Proposed Rules. None.

B. Ex Parte Presentations

23. This NPRM is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission rules.

C. Filing of Comments and Reply Comments

24. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments on or before June 11, 2001, and reply comments on or before July 11, 2001. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.

25. 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. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. 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 ecfs@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.

26. Parties who choose to file by paper must file an original and four copies of each filing. If commenters want each Commissioner to receive a personal copy of their comments, they must file an original and nine copies. Also, if more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, D.C. 20554. Copies of all filings are available for public inspection and copying during regular business hours at the FCC Reference Information Center, 445 12th Street, SW., Room CY-A257, Washington, D.C. 20554.

D. Initial Paperwork Reduction Act Analysis

27. This NPRM does not propose a new or modified information collection. Start Printed Page 16900

E. Ordering Clauses

28. Pursuant to the authority contained in Sections 1, 4(i) and (o), 303(r), 624(g) and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (o), 303(r), 554(g) and 606, the NPRM in EB Docket No. 01-66 is adopted.

29. The FCC's Consumer Information Bureau, Reference Information Center, shall send a copy of this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with the Regulatory Flexibility Act.

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List of Subjects in 47 CFR Part 11

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Federal Communications Commission.

William F. Caton,

Deputy Secretary.

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[FR Doc. 01-7613 Filed 3-27-01; 8:45 am]

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