Broadcaster Access to Disaster Areas Becomes the Law of the Land

by Pillsbury - CommLawCenter
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The enactment of the Consolidated Appropriations Act, 2018 (feel free to read it, it’s only 2232 pages) was welcomed by broadcasters.  If you’ve been following the trade press, you’ll know that’s largely because it not only added a billion dollars to the FCC’s fund for reimbursing broadcasters displaced by the spectrum repack, but for the first time made FM, LPTV, and TV Translator stations eligible for repack reimbursement funds.

At a time when trust in government has hit historic lows, Chairman Walden of the House Energy and Commerce Committee and other congressional leaders stepped up, making sure the government lived up to it original promise that broadcasters retaining their spectrum in the Spectrum Incentive Auction would be “held harmless” in the post-auction repack.  Of course, a spirited lobbying campaign by NAB and state broadcasters associations across the country didn’t hurt.

What few seem to have noticed, however, is while that short term influx of reimbursement dollars is certainly welcome for stations being involuntarily relocated in the repack, the Consolidated Appropriations Act had other language in it that will bring a longer-term benefit to broadcasters and the public they serve.

One of the lessons Hurricane Katrina and subsequent disasters brought home is that in the modern age, communications is every bit as vital to saving lives as disaster relief supplies and helicopters.  A blaring warning siren may be fine for telling the public to dive into the nearest bomb shelter, but weather-related catastrophes require more precise communications, such as telling people where they need to go to avoid or ride out the disaster, as well as where those disaster relief supplies can be found.

These lessons were originally hard won in Florida, where dedicated broadcasters stayed at their stations rather than protect their homes in a hurricane, only to find their transmissions halted when the station generator ran out of fuel and government officials prevented fuel trucks from entering the disaster area to resupply stations.  Quick and cooperative action between government officials and the Florida Association of Broadcasters often cleared the way for specific resupply missions, but everyone realized this ad hoc approach was less than ideal.

For that reason, state broadcasters associations in numerous states pushed for, and in many cases obtained, state legislation granting broadcast station personnel “First Informer” status, allowing them access past police lines to keep information flowing to the public in a disaster area.  The result was a significant improvement, particularly in disaster-prone states, but it still resulted in a patchwork approach, with some states issuing disaster credentials to broadcast personnel, other states taking a variety of approaches as to how broadcasters identify themselves to emergency personnel with swiftness and certainty, and still other states simply having no reliable disaster area access for broadcasters at all.

Which brings us back to the Consolidated Appropriations Act.  Hidden in over 55,000 lines of text are just 20 lines that change the definition of “essential service provider” at a disaster site.  Those twenty lines of text expand the definition of an essential service provider to include “wireline or mobile telephone service, Internet access service, radio or television broadcasting, cable service, or direct broadcast satellite service.”

As essential service providers, these entities are now empowered to access disaster areas under the provisions of an existing law, which provides that:

Unless exceptional circumstances apply, in an emergency or major disaster, the head of a Federal agency, to the greatest extent practicable, shall not—

(1) deny or impede access to the disaster site to an essential service provider whose access is necessary to restore and repair an essential service; or

(2) impede the restoration or repair of the [essential] services . . . .

Note that the change only affects Federal officials, meaning that state laws providing broadcasters with First Informer status are still needed for areas that are not Federal disaster areas.  However, creating a Federal First Informer status for broadcasters is likely to expedite the adoption of similar laws in states that do not yet have them, and will likely serve to help standardize those laws, as the Federal government implements nationwide standards for how broadcast personnel can quickly identify themselves to government officials in order to gain access to a disaster area.

So while you may not be reading much about it in the trades (after all, “one BILLION dollars in additional repack funds” will always draw the headline), after the repack is done and reimbursements made, granting First Informer status will be the more lasting impact of the Consolidated Appropriations Act for broadcasters and the public that depends on them for rapid and accurate information in a disaster.

Make sure to spread the word.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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