[EAS] new legislative activity on EAS/WEA

[Ed Czarnecki]

There are a number of complicated issues raised here.  So, just as a thought experiment, 

When an applicant for a broadcast facility signs the application to be a licensee - under the Communications Act - they assent to certain public service responsibilities.  That's a quid pro quo for access to a public good (the airwaves).  Fair enough, nobody compels anyone to take a license, so with the rights of access to this public good come certain responsibilities.  In this case being part of EAS.

At the same time, the government cannot compel speech.  The First Amendment cuts both ways - it cannot restrict speech (except for certain defined circumstances), and it cannot compel speech (also under certain defined circumstances).  Compelling national EAS (NPT/EAN) is just such a defined circumstance, and leans on specific language in the Communications Act. 

Compelling other types of alerts?  The question is whether the Federal Government can compel speech (lets take Blue Alerts as a thorny example), that is made by state/local government (1st and 10th amendment issues).  And, perhaps for a purpose that fits uneasily under the scope of the EAS (like Blue alerts).   Since BLU  is voluntary, there been relatively light squawking about the creation of BLU.  However (again, thought experiment), what if BLU and some other alerts became compulsory across the board - TOR, TSW, EVI, BLU.  I would wager that NYC OEM would love BLU to be compulsory, just as one example.  That's an easy bet, as they have all but said it outright in their filings (the certainly want mandatory blue alert participation in WEA).  What then?

The Canadians have a "broadcast immediate" parameter in their CAP messages - if that parameter is "yes" then the alert is expected to be aired.  There are similar boolean parameters in other national alert systems.  Would use of such a parameter be of value in the US?  Would that get us to a happy middle, where the emergency manager can see a better hope of their alert messages being transmitted, while the broadcaster could take some additional assurance that such a parameter means that the alert is really, really urgent for the community?

Finally (for now), the idea that "national call to action messages should be across all media and systems with no opt-out" raises the challenge that all media and systems do not fall under the Communications Act, or even the scope of the FCC.  The Schatz bill includes a "passive" concept of making FEMA "offer" alerts to digital media (like Pandora).  The bill apparently does not compel digital media companies to take up that offer.  But such legislation flirts around that slippery slope.  Congress has told the FCC hands off broadband, so this bill is awkwardly dancing around that by telling another agency (FEMA) to offer alerts.  And - crystal ball prediction - if the digital media companies to do act on that offer, one could easily foresee the inevitable hearings and political pressure to do so.

Just academic thoughts and questions here - they do not represent the views of my employer.  They may not even represent my own views, for that matter.

On Fri, Jul 20, 2018 at 6:57 AM, Mike McCarthy <towers at mre.com> wrote:
>When an applicant for a broadcast facility signs the application to be a
>licensee, they waive certain "rights" and commit to serving the public.
>Similarly to shouting "Fire" in a crowded building, the First Amendment
>doesn't shield licensees from their responsibility to serve the public.

>While I don't agree with Bill that ***all*** public emergency information
>should be compulsory, the national call to action messages should be
>across all media and systems with no opt-out.

>MM

>On Thu, July 19, 2018 10:10 pm, Suzanne Goucher wrote:
>> Lots of great ideas, Bill.  But I'm not willing to give up the First
>> Amendment.  Even the notion of a presidential mandatory alert is
>> constitutionally suspect.

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