FCC Releases EAS and WEA R&O and FNPRM

On Thursday, June 17, 2021, the FCC released a Report and Order (“R&O”) and Further Notice of Proposed Rulemaking (“FNPRM”) (FCC 21-77) in the Amendment of Part 11 of the Commission’s Rules regarding the Emergency Alert System (PS Docket No. 15-94) and Wireless Emergency Alerts (PS Docket No. 15-91) proceedings.  The R&O implements Section 9201 of the National Defense Authorization Act for FY 2021 which requires the FCC to adopt rules to improve the efficacy of the nation’s various emergency alert systems.  The FNPRM seeks comment on several proposals to update the terminology used in the FCC’s rules relating to the emergency alert systems.  The R&O/FNPRM was unanimously adopted at the June Open Meeting and includes the following:

  • A new, non-optional class of “National Alerts,” previously called “Presidential Alerts,” which will include alerts from both the President and FEMA Administrator.   Mobile subscribers will not be permitted to opt out of receiving National Alerts.  The content of the alerts will indicate whether the alert was originated by the President or FEMA.
    • CMS providers that have opted to use WEA header displays and settings menus that read “Presidential Alert” must either discontinue the handset display of the words “Presidential Alert” or change the display to read “National Alert.”  Updated headings must be implemented by July 31, 2022, unless the provider’s network infrastructure is technically incapable of meeting this requirement (i.e. where legacy devices or networks cannot be updated to support header display changes).
  • An amendment to section 11.21 of the FCC’s rules covering State EAS Plans to include language encouraging the executive of each state to establish a State Emergency Communications Committee (“SECC”) or review its SECC’s composition and guidance.  The Public Safety and Homeland Security Bureau (“the Bureau”) is directed to contact the executives of states that do not currently have a SECC and encourage them to form one.  The State EAS Plan rule will be amended to require the SECC chairperson or vice-chairperson to certify that the SECC met at least once in the preceding twelve months to review and update their state EAS plan.
  • A 60-Day State EAS Plan approval deadline.  The Bureau will be required to review and send notice of approval within 60 days of receiving a state EAS plan.  If the Bureau finds a plan is defective and the state submits a new plan incorporating the Bureau’s recommendations, the 60-day deadline restarts upon submission of the amended report.  Approval dates of state EAS plans will be posted to the Bureau’s website along with a state EAS plan content checklist, which will also be incorporated into the Alert Reporting System (“ARS”) user manual.
  • A voluntary reporting system for FEMA, state, Tribal, local, and territorial government agencies to notify the FCC of false alerts transmitted over the EAS and WEA.  Such reports should be submitted by email at [email protected] and include details concerning the event.
    • The FCC declines to adopt a strict definition of “false alert,” however, governmental agencies are encouraged to report alerts that: (1) warn recipients of events that are not taking place or forecast to take place in the imminent future and that are not clearly identifiable as test message; (2) are taking place in a geographically remote area from where the alert recipient is located; or (3) are about security breaches and hacking instances where the alert is transmitted without authorization.  Reporting is not encouraged if: (1) the incorrect information is de minimis (i.e. the wrong address is provided); (2) there is geographic overshoot within reasonable parameters (i.e. a neighboring country receives a flood warning for the county next-door); or (3) warnings that do not materialize as predicted (i.e. a tornado does not touchdown after the warning was issued).
  • A new rule permitting alert originators to repeat alerts that had previously been sent.  The FCC will not require automated repetition of alerts by EAS Participants’ EAS devices, instead the originator of the alert will be required to distribute the repeated alert.  The FCC declined to adopt new national-security related originator codes or event codes, finding that the current codes adequately serve the needs at this time.

The FNPRM seeks comment on the following items:

  • Deleting the term “National Information Center” from the FCC’s rules, as there is no longer a National Information Center in federal and national emergency response plans.
  • Redefining or replacing the EAS Event Code for “Emergency Action Notifications,” because the term has no meaning or significance to the public and may create confusion and delay in taking proactive action to mitigate an emergency event.
  • Renaming the EAS Originator Code for “Primary Entry Point Systems” from “PEP” to “NAT,” which would stand for National Authority and would better serve the effectiveness of the National Public Warning System.
  • Updating EAS to support persistent display of alert information and/or persistent notification of emergencies that require immediate public protective actions to mitigate loss of life.

Comments on the FNPRM are due 60 days after publication in the Federal Register.

Reply comments are due 90 days after publication in the Federal Register.

On June 27, 2021, the FCC released a Draft Report and Order and Further Notice of Proposed Rulemaking (“Draft R&O” and “Draft FNPRM” respectively).  No substantial changes were made in the adopted version of the document.

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