National EAS Test Raises Interesting Issues for Participants

The Federal Emergency Management Agency (FEMA), along with the Federal Communications Commission (FCC) and the National Oceanic and Atmospheric Administration (NOAA), will conduct the first nationwide Emergency Alert System (EAS) Test on November 9, at 2:00 p.m. Eastern.

FEMA and the FCC have strongly urged EAS Participants to get advance word of the test out to the public in order to avoid an Orson Welles "War of the Worlds" type of panic when the national test is initiated. To that end, FEMA has produced a Public Service Announcement (PSA) that EAS Participants can use to forewarn the public of the national test. The FCC has indicated that it will soon be making scripts available on its website for EAS participants to use to warn the public.

An interesting issue that has arisen in connection with broadcasters and other EAS Participants using the PSAs is whether the spots require sponsorship identification under the FCC's sponsorship identification rules. Even though it is reasonable to argue that no "money, service or other valuable consideration [will be] directly or indirectly paid, or promised to or charged or accepted" for airing the PSA, recent FCC sponsorship identification decisions involving Video News Releases have fined parties for using spots (unrelated to EAS) provided free of charge by third parties (in this case, FEMA). Given the public service nature of the spot, and the fact that it is being provided by the Federal Government, it seems unlikely that the FCC will have an appetite for pursuing those who air the spot without adding sponsorship identification. However, in light of the FCC's decisions finding fault with airing even a portion of a third party Video News Release without including sponsorship identification, those airing FEMA spots might want to consider adding sponsorship ID tags to them.