David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

On the anniversary of September 11, it seems appropriate to highlight the upcoming October 4 Nationwide Test of the EAS system.  While EAS was not activated during the September 11 emergency, the events of that date have provided much impetus for federal emergency authorities to strengthen the EAS system.  Part of that effort has been the regular testing of the Nationwide EAS alert system.  As we wrote in August, the Federal Emergency Management Agency (FEMA) has scheduled a nationwide EAS test for October 4, 2023, at approximately 2:20 pm EDT, using the Internet-based Integrated Public Alert and Warning System (IPAWS) (with a back-up date of October 11 if necessary).  In a Public Notice released in August, the FCC set out steps that broadcasters should take to prepare for that test.

Just last week, the FCC’s  Public Safety and Homeland Security Bureau released a further Public Notice to remind Emergency Alert System participants of their obligation to ensure that EAS alerts are accessible to persons with disabilities.  For TV stations, to be visually accessible, the EAS text must be displayed as follows:

• At the top of the television screen or where it will not interfere with other visual messages (e.g., closed captioning),
• In a manner (i.e., font size, color, contrast, location, and speed) that is readily readable and understandable (see below),
• Without overlapping lines or extending beyond the viewable display (except for video crawls that intentionally scroll on and off the screen),
• In full at least once during any EAS message. Text should scroll at a speed that allows viewers to read the crawl as if they were going to read it aloud, and
• The background and text colors should sufficiently contrast to allow for readability. For example, a bright green background with white text may not provide sufficient contrast. Green and red should also be avoided as viewers who are color blind have difficulty seeing these colors.

In addition, the audio portion of an EAS message must be played in full at least once to ensure it is accessible to viewers who are blind or have low vision and should be spoken at a pace that allows for a listener to understand the content.

Last week’s Public Notice also reminded EAS Participants that they must file ETRS Form Two after the nationwide EAS test no later than the day after the test (October 5 if the test is held as scheduled).  This form provides immediate information to the FCC as to whether or not a station received the EAS alert.  ETRS Form Three must be filed on or before November 20, 2023, providing the FCC more details as to any issues that arose in the receipt of the test.

The most recent Public Notice did not remind broadcasters of their obligation, by September 15, to file any necessary updates to ETRS Form One, which provides general information about each EAS participant and the EAS equipment that they are using.  Form One was required to have been filed by all broadcasters by February 28, 2023 (with some limited exemptions for translators and satellite stations).  The FCC previously issued a reminder about that filing deadline, urging any broadcaster who did not timely file Form One to do so immediately.  This September 15 deadline is for updates that result from station sales, moves, or other changes since Form One was filed. So, if you acquired your station since the end of February or have changed locations, be sure to update that form by the end of this week.

As noted above, there is a back-up date of October 11 for the Nationwide Test in case there is a real or threatened emergency event that occurs around October 4.  None of these notices mention any potential delay of the test that could occur should there be no government funding bill in place by October 4, resulting in a full or partial federal government shutdown.  Watch for more information on how a shutdown would affect the test – but review all of the FCC Notices on the test and your EAS operations so that you are prepared to participate if all goes forward on time.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.