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See IAEM's letter of support.
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See APCO's letter of support.

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of                                                                                                    )
                                                                                                                                     )
Travelers’ Information Stations                                                                     )
Provision of Localized Public Safety and Emergency Information )
Pursuant to 47 C.F.R. Section 90.242 and 90.407                                )

To:  The Commission
Attention:  Chief, Public Communications & Outreach Division, Public Safety & Homeland Security Bureau, & Chief, Policy Division

PETITION FOR DECLARATORY RULING

         The American Association of Information Radio Operators (“AAIRO”), which includes State Departments of Transportation, City and County Departments of Public Safety/Emergency Management, Police and Fire, bridge authorities, airports and park districts,¹  through counsel, hereby requests a Declaratory Ruling, pursuant to 47 C.F.R. Sec. 1.2.² Specifically, AAIRO seeks a Commission declaration that any message concerning the safety of life or protection of property that may affect any traveler or any individual in transit or soon to be in transit, may be transmitted on Travelers’ Information Stations (“TIS”), at the sole discretion of officials authorized to operate such stations. The AAIRO further seeks, in the declaration, a clear directive that such messages, by definition, are expressly included in the permissible content categories defined by 47 C.F.R. Sec. 90.242(a)(7) (the “TIS Content Rule”).

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Notes:

          ¹ A list of participating agencies is attached at Exh. A.

          ² “The Commission may, in accordance with section 5(d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminating a controversy or removing uncertainty.”  See 5 U.S.C. Sec. 554(e).

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The Petitioners

          The petitioner, AAIRO, includes governmental agencies and organizations responsible for or licensed to operate TIS, together with a vendor/consultant, ISS, which provides expert management and operational support to licensees both in upkeep of their technical facilities and in assembling content for TIS.

Additional Support

          The International Association of Emergency Managers has formally endorsed AAIRO's efforts, here. Its letter of support is attached hereto at Exhibit B.

Need for Declaratory Ruling

          The plain language of the TIS Content Rule allows such TIS content as “. . . road conditions, traffic hazard and travel advisories . . . .” From the very genesis of the TIS Content Rule, the Commission has made clear that such information includes “emergency messages concerning natural disasters (e.g., forest fires, floods, etc.), traffic accidents and hazards, and related bulletins affecting the immediate welfare of citizens.” Transmission of Certain Kinds of Information to the Traveling Public, 67 FCC 2d 917 (FCC 1977) (“TIS Order”) at para. 16.³ Given this mandate, weather reports, Amber Alerts, notice of 911 outages, critical public health warnings, terrorist threat levels and other civil defense notices, fit within this particular message category that, by design, was incorporated into the TIS rubric.          

          Indeed, such an interpretation is entirely consistent with the intent and purposes of the “National Incident Response Plan,”⁴ administered by the Department of Homeland Security as part of the “National Response Framework.”⁵

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Notes:

          ³ Case law has consistently, albeit in separate decisions, distinguished between the narrow localized technical footprint that TIS must maintain (see Thomas M. Hall, 22 FCC Rcd 12816 (2007) (denying waiver for greater contour coverage to provide TIS to a wider service area), on the one hand, and the information content of TIS transmissions (which, as noted above, were not meant to be constrained when pertinent to travelers or relevant to the “immediate welfare of citizens.”), on the other hand.

          ⁴ Authorized by Homeland Security Presidential Directive No. 5 (Feb. 28, 2003).

          ⁵ Legislative and other authority for these efforts are discussed at the Department of Homeland Security web site, www.fema.gov/pdf/emergency/nrf/nrf-authorities.pdf (visited May 19, 2008).

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          In light of all the above-mentioned factors, common sense dictates that weather reports, such as NOAA Weather Radio retransmissions, are pertinent and, often, crucial to travelers. Likewise, Amber Alerts, issued as they are to aid in location of kidnapped local children, are pertinent, affecting as they do the welfare of citizens. Indeed, those on the road may well be best placed to spot an abductor and child on the run – and alert police.

          It is also self-evident that traveler safety is affected when local 911 systems fail – and it is certainly pertinent to announce alternate phone numbers or contact methods on TIS transmissions. Similarly, in this post 9-11 era, terror threat alert levels are of great, and often immediate, importance to travelers – both for their own safety and for trip planning; when threats are high, travelers would be encouraged to leave extra time or perhaps alter routes, much as they would after learning of an accident blocking their usual highways of choice.⁶

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Notes:

          ⁶ Examples abound. Post-9-11 travel restrictions, for instance, have barred certain types of vehicles from particular sensitive roadways, as well as limited transport of explosives via many bridges and tunnels. The declaration sought here would reassure TIS licensees that they will not face sanctions for ongoing notice of such matters (as described on the next page and in footnote 8). It would allow, for instance, a Department of Transportation (such as Arizona or Nevada) to use TIS to advise trucks and recreational vehicles of prohibitions on crossing Hoover Dam - and how they must take alternate routes due to their size and other vehicle characteristics. TIS could be utilized to transmit specific descriptions of prohibited vehicle types and other aspects of the restrictions as they relate to travelers. Such information is critical to travelers well in advance, as there is no efficient bypass around the dam, and the detour route takes drivers many hours out of their way. Similarly, the Chesapeake Bay Bridge-Tunnel could transmit a list of the prohibited chemicals, such as explosives, various gases and other ignition sources. Some Midwestern and western states could transmit information to people entering the state regarding other hazardous practices that could endanger life, property and the local environment. The state of Minnesota, for example, could inform motorists on westbound I-90 that Zebra mussels attached to pleasure boats endanger inland lakes, fish populations and city water intakes. They could advise travelers on how to clean their boats before setting sail. Similarly, Michigan could advise travelers going across the Mackinac Bridge not to transport firewood to prevent distant infestation by a timber-destroying beetle, the Emerald Ashe Borer, which has been spreading rapidly across U.S. northern woodlands. All of these are measures that will protect people and property. While not as immediate as an Interstate ice slick, they affect travelers as to how, where and what they transport – at the same time they present threats sufficient to public health, welfare and safety to warrant special notice and action. Issuance of the declaratory ruling sought here would allow TIS operators to transmit such information to travelers without fear of sanction.

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          Public health warnings and all manner of civil defense announcement would, logically, be likewise pertinent to travelers. Travelers, whether in transit at the moment or soon to be in transit, need to know so they can decide how, when and even whether to proceed.⁷ Yet, TIS licensees have received notices of violation for transmitting such pertinent content. Most notably, FCC Field Offices have issued Notices of Violation to TIS licensees providing retransmissions of NOAA Weather Radio.⁸ This has occurred despite guidelines set forth in the TIS order. These citations complained that during the time the particular TIS channels were monitored, the NOAA content being retransmitted was not “pertinent” to the TIS Content Rule. This, despite the self-evident truth that messages about weather conditions and forecasts “pertain[s] to traffic and road conditions, traffic hazard and travel advisories,” because ever-changing weather affects travel conditions and resulting traffic safety instantly and more often than any other regularly occurring circumstance.⁹          

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Notes:

          ⁷ The number of registered motor vehicles in the United States increased by more 70 percent, since the FCC established TIS. During this period, the number of vehicle miles driven about doubled. This added traffic and congestion makes TIS even more crucial a tool to assist a traveling public facing ever greater obstacles. Statistical Source: Federal Highway Administration at http://wwwcf.fhwa.dot.gov/policy/ohpi/hss/hsspubs.htm (visited May 19, 2008).

          ⁸ Notable examples have arisen from TIS retransmission of NOAA weather radio reports – despite NOAA’s express authorization of such relays, and the obvious traveler safety implications of weather knowledge when passing through a distant place. E.g., City of Richmond, Notice of Violation, EB-07-SF-237 (citing TIS licensee, inter alia, for transmission of NOAA weather reports, based on the theory that such weather information does not “pertain to traffic and road conditions, traffic hazard and travel advisories . . . .”); City of Santa Monica, EB-07-LA-216 (similar “violation” cited).

          ⁹ TIS facilities are often configured with battery backups so that they continue to provide information even if local power is cut by storm, sabotage or utility failure.

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          Many NOAA Weather Radio stations provide the aptly named “Travel Weather Forecast,” specifically targeted to people on the road. It includes specific, localized highway and other travel advisories. Such information clearly falls within the scope of TIS.

          Travelers find the service especially useful, yet only a fraction of the population actually owns NOAA Weather Radio receivers. TIS retransmissions make wider access possible. NOAA provides such reports only on dedicated VHF frequencies, which are, unfortunately, unavailable to most drivers. Cars typically have FM and AM receivers on board – and NOAA weather radio VHF simply operates on much shorter wavelengths than typical on board car radios. Above all, NOAA permits – even encourages – retransmission of its radio content, as such retransmission clearly serves the public interest. Therefore, AAIRO believes that NOAA weather retransmissions are pertinent and unquestionably provide the type of traveler-relevant information envisioned in the TIS Order and permitted by the TIS Rule.¹⁰

          This is true for many reasons. NOAA reports provide depth, detail and focus unlikely duplicated by AM and FM broadcast stations. Unlike most AM and FM weather reports, which are abbreviated summaries of sky conditions and temperatures, NOAA content typically provides detailed, localized forecasts and conditions that pertain in real time to a driver’s actual location. This information includes: road surface traction conditions when affected by moisture and freezing; projections detailing exact areas and times when flooding is expected over precisely named roadways; traveler forecasts for a region’s major roadways; seven-day extended forecasts helpful in return-route planning; detailed current information and forecasts on wind force and direction, which could prove crucial to travelers in high-profile vehicles; down-to-the-minute predictions detailing weather changes by geographic sector; precise weather data for different altitudes in mountainous regions, providing critical information given the vast climatic differences that may be experienced as drivers ascend and descend.

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Notes:

          ¹⁰ Many TIS Licensees have been transmitting NOAA Weather Radio for nearly 30 years. This is particularly true along inland waterways and seafronts where watercraft and recreational visitors are particularly in need of traveler weather advisories to protect life and property.

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          Also unique to NOAA Radio are “All-Hazard” information segments. These clearly provide pertinent lifesaving information to travelers. Topics include: marine conditions affecting travel on and in proximity to oceans and lakes, sunrise and sunset times allowing motorists to choose optimum driving times to avoid glare or difficult-to-navigate lighting, visibility data when airborne smoke, sand or dust is present in the area, as well as tips and lessons to help the traveling public identify and avoid hazardous weather conditions and to prepare for the unexpected from nature. For instance, the All-Hazard service offers checklists for in-car safety items and instructions on their use – information that could save lives should a motorist get caught in an unexpected snowstorm, hurricane, earthquake, mudslide, wildfire, volcano eruption, or flash flood. The information distributed even includes notices regarding regional power, communications or utility outages, again helping travelers better plan and execute their journeys.

          TIS licensees, by retransmitting NOAA material, make “all hazard” information available to the travelers with car radios, boom boxes or any portable devices that include a standard band radio tuner. Moreover, travelers may not know where to find local news and information – nor will they necessarily find immediate relevant information even if they could locate the local news or talk leader’s dial position while traveling through an unfamiliar area. NOAA weather radio retransmissions fill this crucial gap by providing extremely pertinent traveler information precisely to the travelers, who are the group which TIS was designed to serve – and provides service in an instant. On the road, an instant can make the difference between safety and disaster. The TIS service is meeting its most important role when it helps tip the scales toward safety.¹¹

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Notes:

          ¹¹ In the face of global warming and the well-documented recent increases in severe weather events, access to NOAA Weather Radio has become even more crucial. This is especially true as adoption of digital technology has allowed for localized micro-forecasts providing travelers with data of previously unprecedented localized precision. This reality is evident, even as this document is filed with the Commission amidst this 2008 hurricane season, which has already seen mass evacuations and damage from Gustav, Hanna and Ike.

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          Furthermore, TIS public safety licensees augment NOAA “all hazard” information with precise local content to further tailor critical information to the needs of travelers in their areas. Such direct communication efficiently and precisely delivers traveler-critical information to travelers where they are on their routes.

          But enforcement actions have raised uncertainty that could cast a chill over the TIS community and its provision of such crucial traveler-pertinent information. Public agency licensees, local municipalities and other public safety officials want to transmit pertinent, potentially lifesaving, information – but have become wary, lest their agencies be sidetracked and embarrassed by FCC enforcement action. TIS is not their main business – but is simply a tool to assist in the protection of lives and property, in this instance the lives and property of travelers. If TIS efforts lead to sanctions, many reasonable agency administrators may hesitate to transmit useful information for fear of being sanctioned or may curtail TIS activities altogether. The big loser will be the traveling public – which will be deprived of an important source of pertinent and often urgent information.

          If information is kept from reaching travelers, even when FCC staff is well-intentioned in its erroneous interpretation of the TIS Content Rule, people can be hurt – even killed – and property will be put at risk. This is why the Commission must issue the declaratory ruling requested here. Ultimately, nothing is more important to a traveler than arriving and returning safely. Information makes realization of those goals more likely.¹²

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Notes:

          ¹² It is odd that the FCC would hinder such efforts. Clearly, the Federal Government recognizes the importance of such traveler-directed information, because federally-owned TIS facilities, coordinated by the National Telecommunications and Information Administration (“NTIA”) rather than the FCC, transmit exactly this type of information in such places wholly under Federal Jurisdiction as National Parks and Forests, military bases, US Border Crossings and such federal campuses as the National Institutes of Health (“NIH”) near Washington, DC. The NTIA’s Government Master File Database (US Navy TIS 1610 kHz at China Lake, CA) specifically notes that the station is tasked to transmit "pertinent base status information to the military and local communities." Are travelers in areas under non-federal jurisdiction any less entitled to information that protects health, safety and property?

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Crucial Protection to Save Lives, Prevent Injury and Protect Property

          47 C.F.R. Sec. 90.407 (“Emergency Information Provision”), explicitly allows for TIS to communicate emergency information “during a period of emergency in which the normal facilities are disrupted as a result of a hurricane, flood, earthquake or similar disaster.” Unquestionably, TIS licensees may provide emergency evacuation and other relevant information during the period of a natural disaster, hazardous materials spill, or terrorist attack and or similar emergencies.

          Indeed, the “permissible communications” for all services authorized under Part 90 of the Commission’s Rules, include “[any] communication related directly to the imminent safety-of-life or property. “ 47 C.F.R. Sec. 405(a)(1). It is a mission TIS operators take to heart – and, through this petition, wish to ensure.

          AAIRO believes that TIS’s single most important role is to save lives, prevent injury and protect property. Ultimately, no reason exists to limit the public safety role TIS plays; proactive announcements are as important to lives and property as are instanteous warnings. To protect people and property, TIS licensees need a robust TIS service – and the Commission must state as much, lest the effectiveness of a crucial public safety and civil defense tool be curtailed.

          No reason exists to prevent full use of the TIS service. The Commission must act, before additional enforcement actions undermine this important public interest and safety service.¹³ In establishing TIS regulations, the Commission paid homage to a pilot project in Wyoming that provided "road conditions, travel restrictions, and weather forecasts to motorists." TIS Order at para. 15. It seems inexplicable that similar transmission of weather information today has led to enforcement action.

          The Commission must act, before additional enforcement actions undermine this important public interest and safety service.

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Notes:

          ¹³ In establishing TIS regulations, the Commission paid homage to a pilot project in Wyoming that provided “road conditions, travel restrictions, and weather forecasts to motorists.” TIS Order at para. 15. It seems inexplicable that similar transmission of weather information today has led to enforcement action!

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Conclusion

          No logical reason exists to hinder public safety and civil defense functions that were intended to be part of TIS. It would be illogical to engage TIS public safety tools only after an emergency situation has developed to prevent further harm when people and property could be proactively protected by provision of crucial information at all times. Therefore, the Commission must unequivocally state that proaction will NOT lead to sanction, citation or forfeiture. The rules need no rewriting – just a simple declaration to prevent confusion among regulatory personnel that public safety comes first.

          Therefore, the Commission should issue a declaration that any message concerning the safety of life or protection of property that may affect any traveler or any individual in transit or soon to be in transit, may be transmitted on Travelers' Information Stations (TIS), at the sole discretion of officials authorized to operate such stations.

          Specifically, AAIRO seeks a declaration that (1) weather reports, forecasts and similar forward looking information affecting traveler journeys is permissibly transmitted by TIS and (2) any emergency and safety information that has been, in good faith, determined by government officials in charge of TIS stations and to provide traveler-relevant information, may be transmitted on TIS in the normal course.

          Failure to clarify this principal, as stated, would put the Commission at odds with the Communications Act, which established the FCC, in part, “for the purpose of promoting safety of life and property” through radio communication, 47 U.S.C. Sec. 151, as well as its own findings in establishing TIS services.
 

Respectfully submitted,

Joseph M. Di Scipio
Michael W. Richards
Counsel to American Association
of Information Radio Operators

Fletcher, Heald & Hildreth, P.L.C.
1300 North 17th Street
11th Floor
Arlington, VA 22209
(703) 812-0400

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EXHIBIT A – PARTICIPATING AGENCIES

[Compiled from sign-up data that appears at the bottom of the sign-up page. Letters of support were also attached.]

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