Amendment of the Emergency Alert System

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Federal Communications Commission (FCC or Commission) revises its rules governing the Emergency Alert System (EAS) to add three new EAS event codes, covering extreme wind and storm surges, as well as revise the territorial boundaries of the geographic location codes for two offshore marine areas.

DATES:

Effective September 12, 2016.

FOR FURTHER INFORMATION CONTACT:

Lisa Fowlkes, Deputy Bureau Chief, Public Safety and Homeland Security Bureau, at (202) 418-7452, or by email at Lisa.Fowlkes@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Order (Order) in PS Docket No. 15-94, FCC 16-80, adopted on July 6, 2016, and released on July 11, 2016. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov.

Synopsis of the Order

1. The Order revises the Part 11 EAS rules to add three new EAS event codes, covering extreme wind and storm surges, as well as revise the territorial boundaries of the geographic location codes for two offshore marine areas. The Commission initiated this proceeding in response to a request from the National Weather Service (NWS) of the National Oceanic and Atmospheric Administration (NOAA) that the Commission adopt these revisions to harmonize the EAS with the NWS's weather radio system. Virtually all commenters addressing these revisions supported their adoption.

I. Background

2. The EAS is a national public warning system through which broadcasters, cable systems, and other EAS Participants deliver alerts to the public to warn them of impending emergencies and dangers to life and property. The primary purpose of the EAS is to provide the President with “the capability to provide immediate communications and information to the general public at the national, state and local levels during periods of national emergency.” The EAS also is used by state and local governments, as well as the NWS, to distribute alerts. According to NWS, about 90 percent of all EAS activations are generated by NWS and relate to short-term weather events. The Commission, the Federal Emergency Management Agency (FEMA), and NWS implement the EAS at the federal level. The EAS is a broadcast-based, hierarchical alert message distribution system through which an alert message originator at the local, state or national level encodes (or arranges to have encoded) a message in the EAS Protocol, which provides basic information about the emergency involved. The message is then broadcast by one or more EAS Participants and subsequently relayed from one station to another until all affected EAS Participants have received the alert and delivered it to the public. This process of EAS alert distribution among EAS Participants is often referred to as the “daisy chain” distribution architecture.

3. The EAS Protocol utilizes fixed codes to identify various aspects of the alert. Of particular relevance to the Order, the EAS Protocol utilizes a three-character “event code” to describe the nature of the alert (e.g., “TOR” signifies tornado). The EAS Protocol identifies “National” event codes, such as the EAN and National Periodic Test (NPT), which EAS Participants use as part of required Presidential alerts and tests, and which EAS Participants are required to disseminate, and “State and Local” event codes, such as Amber alerts and weather-related alerts issued by the NWS, which EAS Participants disseminate on a voluntary basis. In addition, the EAS Protocol utilizes six-digit numerical location codes to identify the geographic area(s) to which the alert applies. Unlike the state and territory geographic location codes, which are based on an American National Standards Institute (ANSI) standard, the codes assigned to the offshore marine areas were created by the NWS and adopted by the Commission in 2002 at NWS's request, following notice and opportunity for public comment.

II. Discussion

A. Proposed EAS Event Codes

4. NWS requested that the Commission add a new “Extreme Wind Warning” (EWW) event code to provide the public with advance notice of the onset of extreme sustained surface winds (greater than or equal to 115 miles per hour) associated with a major land-falling hurricane (Category 3 or higher). NWS also requested that the Commission add two new event codes covering storm surges: “Storm Surge Watch” (SSA) and “Storm Surge Warning” (SSW). NWS indicated that the “Storm Surge Watch/Warning will be issued when there is a significant risk of life-threatening inundation from rising water moving inland from the ocean.”

5. Decision. We grant NWS's request and revise Section 11.31 of the EAS rules to add the EWW, SSA and SSW event codes to the EAS Protocol. As we observed in the Notice of Proposed Rulemaking (NWS NPRM) in PS Docket No. 15-94, 80 FR 47886 (Aug. 10, 2015), there is considerable data attesting to the dangers posed to life and property by both high winds and, in particular, storm surges, associated with hurricanes. While the EAS Protocol currently contains event codes covering hurricanes, these codes only generally warn of an impending hurricane—they do not specifically cover extreme high winds associated with a Category 3 or higher hurricane or storm surges associated with a hurricane. The record demonstrates that existing event codes contained in the EAS Protocol are not adequate substitutes for the adoption of the EWW, SSA and SSW event codes. As NWS has observed, for example, use of the TOR event code during prior hurricanes led to confusion among the public and the dissemination of incorrect risk-avoidance advice. Monroe County Florida Emergency Management observes that “[c]oastal residents may know or have an anticipated expectation regarding the impact of flood warnings which may be due in part to wind, tide, or heavy rain[, and] that anticipation can be confused unless the wording used is completely different as proposed.” We do not find that the public interest would be served by relying on inadequate warnings that might provide incorrect or even opposite remedial advice to the public. Based on the record before us and the subject matter expertise of the NWS, we conclude that adoption of the event codes proposed by the NWS will improve the function of the EAS, enhance safety of life and property, and therefore is in the public interest.

6. We do not find EAS equipment manufacturer, TFT, Inc.'s (TFT), arguments against adoption of the new event codes persuasive. The dangers posed by hurricane-induced extreme high winds and storm surges are well established, and the record in this proceeding establishes a need and desire for adoption of these codes to better address such dangers. The National Association of Broadcasters, for example, states that “[e]xplicit codes for storm surges and warnings would better reflect their rapid development and movement than the existing codes for a flood watch or warning, or other water-related situations.” Radio Hatteras states that “[t]he addition of EWW, SSA and SSW codes would significantly enhance public safety in coastal regions” TFT's objection that the public will not appreciate the nuances between the specific dangers posed by extreme winds and storm surges caused by a hurricane and the dangers posed generally by the hurricane itself has no support in the record. Monroe County Florida Emergency Management, for example, contends that “[s]tudies show, the public is more likely to follow protective action recommendation, such as evacuations or shelter in place, or limit travel, if the directives are clearly and concisely communicated to them.” Moreover, the NWS indicates that having the new codes become effective in the summer of 2016 will provide the NWS sufficient time to conduct outreach and education on the meaning of these new codes before the NWS begins to issue alerts using these codes for the 2017 hurricane season. The outreach and education that NWS intends to conduct will include a public education campaign, including “public service announcements over NWR; NWS News Releases; official NWS Service Change Notifications; advertising on NWS Web sites; updates to official preparedness brochures and pamphlets; briefings to emergency managers; presentations at federal, state and local hurricane conferences; concurrent outreach and partnering efforts with FEMA; and extensive community outreach efforts by the NWS Warning Coordination Meteorologist in every Weather Forecast Office impacted by tropical cyclones.”

B. Proposed Geographic Location Code Revisions

7. NWS also requested that the Commission revise the areas defined in the geographic location codes identified in Section 11.31(f) of the EAS rules as location codes 75 and 77, which cover offshore marine areas. Specifically, NWS indicated that it has changed the end point it uses for generating weather alerts for both of these areas from Bonita Beach, Florida, to Ocean Reef, Florida, and, accordingly, requested that the area covered by location code 75 be changed to “Western North Atlantic Ocean, and along U.S. East Coast, south of Currituck Beach Light, NC, following the coastline to Ocean Reef, FL, including the Caribbean,” and that the area covered by location code 77 be changed to “Gulf of Mexico, and along the U.S. Gulf Coast from the Mexican border to Ocean Reef, FL.” NWS stated that harmonizing the definitions for these areas in the EAS rules to match those used by the NWS would alleviate potential confusion among broadcasters, the emergency management community and the maritime commerce community that issue and monitor alerts for these areas. NWS again noted that it had checked with several EAS encoder/decoder manufacturers, and was informed that the cost and time to make the requested change would be nominal.

8. Decision. We grant NWS's request and change the defined areas identified in Section 11.31(f) of the EAS rules for location codes 75 and 77 to “Western North Atlantic Ocean, and along U.S. East Coast, south of Currituck Beach Light, NC, following the coastline to Ocean Reef, FL, including the Caribbean,” and “Gulf of Mexico, and along the U.S. Gulf Coast from the Mexican border to Ocean Reef, FL,” respectively. These definitional changes amount to minor modifications to location definitions created and used by the NWS. Further, harmonizing the Part 11 definitions for these locations with those used by the NWS is necessary to ensure that the SMW and other marine-specific alerts reach their intended audiences. Such action also should eliminate any potential for confusion that might otherwise exist among EAS Participants, the emergency management community and the maritime commerce community in the event that the EAS rules and NWS used different location definitions. We also observe that EAS equipment manufacturers have confirmed that these changes can be implemented by EAS Participants via software downloads with minimal effort.

9. We do not find TFT's arguments against adoption of the new location codes persuasive. Whether these codes are widely used or not, we do not see what public interest would be served by allowing continued disharmony between the EAS definitions and those used by the NWS, particularly as these could lead to marine alerts not reaching their intended audiences as well as confusion among the maritime users operating in these geographic areas, potentially placing the safety of vessels and their crews at risk. Further, EAS Participants may install and utilize the revised codes as they deem fit, and we find that the EAS Participants that actually use these codes are best situated to determine whether use of the revised location codes is necessary and meaningful to the areas they serve.

10. Finally, we also revise footnote 1 of Section 11.31 to delete the reference to the past deadline and to clarify that the numbers assigned to the offshore marine areas listed in the table of geographic areas in Section 11.31(f), while consistent with the ANSI standard, are not a product of that standard, but rather were assigned by the NWS. No party commented on that proposed change, which in any event, is largely administrative in nature. We conclude that harmonizing the definitions in the EAS with those used by the NWS will eliminate the potential for needless confusion among EAS Participants, the emergency management community and the maritime commerce community as to the geographic application of these codes, and maintain the efficiency of marine operations and safety of vessels and their crews.

C. Cost Benefit Analysis

11. The Commission observes that EAS equipment manufacturers have indicated in the record that the new codes and code revisions can be implemented by EAS Participants via minimally burdensome and low-cost software downloads. Further, use of these codes is not mandatory for EAS Participants; EAS Participants are free to implement them if and when they see fit, thus reducing the overall costs to EAS Participants even further.

12. We observe that although EAS equipment manufacturers must make the new event and locations codes available to all EAS Participants, these manufacturers have indicated in the record that the codes can be implemented by EAS Participants via minimally burdensome and low cost software downloads. Further, use of these codes is not mandatory for EAS Participants; EAS Participants are free to implement them if and when they see fit, thus reducing the overall costs to EAS Participants even further. While some currently deployed legacy EAS device models may not be capable of being updated to accommodate these codes, we observe that any such equipment already is required to be replaced to accommodate the recently adopted NPT event code and “000000” geographic code for national testing no later than July 30, 2016, thus, no EAS Participant will be faced with the cost of obtaining new EAS equipment simply to use the new event codes and geographic locations code revisions adopted in this item.

13. Based on the record, we anticipate that the only cost to EAS Participants who elect to install these new event codes and geographic location code revisions will be whatever labor cost is involved in downloading the software patches into their devices and associated clerical work. We further anticipate that such installation would not on average take more than one hour. However, even using a worst case cost figure of $125.00 per device—which figure represents the labor cost estimate approved by the Office of Management and Budget for an EAS Participant to fill out the Commission's online reporting form for EAS National Tests at a total time expenditure of five hours—the cost of implementing these codes are far exceeded by the benefits they provide. At a per-unit cost of $125.00, even if all EAS Participants elected to implement these codes (an unlikely event in areas not prone to hurricanes), the aggregate cost of adopting these new codes would be approximately $3.5 million.

14. With respect to benefits, we have proposed that the benchmark for measuring these types of expected benefits should be the value of a statistical life (VSL), currently estimated at $9.1 million. Accordingly, the value of this risk reduction to the public, measured in terms of expected lives saved, is at least $9.1 million, which far exceeds the one-time, highly conservative $3.5 million aggregated cost estimate if each and every EAS Participant across the U.S. elected to implement these new codes and code revisions. Furthermore, this expected benefit is a conservative valuation because the EAS is likely to save more than just one life in the event of a storm surge or extreme high winds caused by a Category 3 or higher hurricane, will accrue annually, and does not include the benefits associated with reducing injuries and associated medical costs, mitigating property damage, and minimizing the disruption of our national economy. Accordingly, we conclude that the minor burdens associated with adopting these codes will be more than offset by the benefits to public safety that will accrue from the introduction of these new codes into the EAS alerting framework.

D. Implementation Schedule

15. Decision. We believe that the prompt deployment of alerts using these new codes is consistent with the safety of the public in affected areas. Accordingly, we require EAS equipment manufacturers to integrate these codes into equipment yet to be manufactured or sold, and make necessary software upgrades available to EAS Participants no later than six months from the effective date of the rule amendments adopted in this Order. We observe that EAS equipment manufacturers already have confirmed that these code changes can be implemented fairly easily in the field, and no manufacturer has indicated that implementing such changes on the production line would present any difficulties or require any more time than six months. We also allow EAS Participants to upgrade their existing EAS equipment to include the new event and location code revisions on a voluntary basis until their equipment is replaced. We observe that this approach is the same approach taken by the Commission the only other time that it adopted new event and location codes, and the record does not indicate that any problems arose as a result of that approach.

16. We will not mandate installation of these codes. First, the event codes and location code revisions adopted in this item are germane to only a relatively small subset of EAS Participants located in areas affected by hurricane high winds and storm surges. We believe EAS Participants in these areas already are highly motivated to install and use these codes, as demonstrated by NWS's surveys. Second, as indicated, this approach is consistent with the approach taken by the Commission the only other time it adopted event and location codes, and that time the Commission adopted codes that were germane to all EAS Participants. Third, the use by EAS Participants of these codes, like all State and local event codes, is and has always been voluntary, and no commenter has presented any arguments as to why that should not continue to be the case.

17. Although we are not mandating that EAS Participants upgrade their existing EAS equipment to incorporate the new event codes and location code revisions, we will require EAS Participants who replace their EAS equipment after one year from the effective date of this Order to install EAS equipment that is capable of receiving and transmitting the new event codes and revised location codes. Thus, after this deadline, EAS Participants may not replace their existing EAS equipment with used equipment or older models of equipment that has not been upgraded to incorporate the new codes. This will ensure that all EAS Participants have the capability to receive and transmit the new codes when their EAS equipment is replaced. We observe that this approach is consistent with that taken by the Commission in the Report and Order in EB Docket No. 01-66, 67 FR 18502 (April 16, 2002), and allows for a transition of deployed equipment that mirrors ordinary equipment replacement cycles for those EAS Participants that do not have an immediate need to install the new codes.

18. With respect to transitioning to the new codes, NWS has indicated that it will not initiate alerts using any of the proposed codes until the 2017 Atlantic Hurricane season. The NWS states that focusing on the 2017 Atlantic Hurricane season will allow the NWS to deploy the codes in a uniform manner, and will allow for an extensive public outreach program. The 2017 Atlantic Hurricane season falls well outside of the six month deadline we adopt today for equipment yet to be manufactured or sold and the one year deadline we require for EAS Participants who replace their EAS equipment. Thus, EAS Participants will have sufficient time to install the codes or purchase compliant equipment in time for the NWS actual adoption of the codes. Because the NWS implementation dates for the proposed codes fall outside of our deadlines, and because the NWS will only deploy the codes after an extensive education and outreach program, we believe that the NWS will be able to deliver the appropriate alerts to all recipients without the need for any transition period where it issues alerts using both codes. We also believe that the deadlines we adopt today are consistent with the NWS schedule, as any extra time between our deadline and the NWS's actual use of the codes in an alert will allow EAS equipment manufacturers and EAS Participants time to resolve any technical issues that may arise.

III. Procedural Matters

A. Accessible Formats

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

B. Regulatory Flexibility Analysis

20. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 603, 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.

C. Paperwork Reduction Act Analysis

21. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

D. Congressional Review Act

22. The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act (“CRA”), see 5 U.S.C. 801(a)(1)(A).

E. Final Regulatory Flexibility Analysis

23. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was included in the NWS NPRM. The Commission sought comments on the IRFA. Because the Order amends the Commission's rules, this Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

1. Need for, and Objectives of, the Order

24. This Order adopts changes to the Commission's Part 11 rules governing the Emergency Alert System (EAS). Specifically, the Order adds three new EAS Event Codes, covering extreme wind (“Extreme Wind Warning”) and storm surges (“Storm Surge Watch” and “Storm Surge Warning”), and revises the territorial boundaries of geographic location codes 75 and 77 used by the EAS. These rule revisions improve the capacity of the EAS to warn the public of impending threats to life and property, and ensure that the geographic definitions of location codes 75 and 77 utilized by the EAS are harmonized with those employed by the National Weather Service (NWS).

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

25. The Small Business Administration (SBA) filed no comments in this proceeding, and there were no other comments specifically addressed to the IRFA.

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

26. 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. 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 SBA. The following are categories of small entities that may be affected by the rules adopted in the Order: Small Businesses, Small Organizations, and Small Governmental Jurisdictions; Television Broadcasting (including commercial television stations; licensed noncommercial educational stations; licensed Class A stations; licensed low power television stations; and licensed TV translators); Radio Stations (including low power FM stations); Wired Telecommunications Carriers; Incumbent Local Exchange Carriers (Incumbent LECs); Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers; Satellite Telecommunications; Direct Broadcast Satellite (“DBS”) Service; and “All Other Telecommunications” (comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation).

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

27. None.

5. Steps Taken To Minimize the Significant Economic Impact on Small Entities and Significant Alternatives Considered

28. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its conclusions, 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 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.”

29. The rule changes adopted in this Order implement certain EAS warning codes and location code definitional changes that are unique, and implemented by small entity and larger-sized regulated entities on a voluntary basis. Thus, the Order does not mandate burdens on regulated entities of any size. Moreover, the record in this proceeding indicates that the costs associated with voluntarily implementing the codes contained in the Order should be de minimis or non-existent.

30. Report to Congress: The Commission will send a copy of the Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. A copy of the Order and FRFA (or summaries thereof) will also be published in the Federal Register.

IV. Ordering Clauses

31. 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), 154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, this Order IS ADOPTED.

List of Subjects in 47 CFR Part 11

• Radio
• Television

Final Rules

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 11 as follows:

PART 11—EMERGENCY ALERT SYSTEM (EAS)

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. Section 11.31 is amended by revising paragraphs (e) and (f) to read as follows: