The 21st Century Emergency Communications Act of 2006 (21CECA)

In response to Dan Farber's analysis of the Post-Katrina Emergency Management Reform Act of 2006, in particular his request that I examine Subtitle D, Emergency Communications, I offer this brief note.

Subtitle D establishes the 21st Century Emergency Communications Act of 2006 (21CECA). 21CECA establishes an Office of Emergency Communications within the Department of Homeland Security. Many of the details will await actual, on-the-ground implementation, but for now it's worth noting the most important of the 15 "responsibilities" that new § 1801(c) of the Homeland Security Act (as added by 21CECA) assigns to the new Director for Emergency Communications:

The Director for Emergency Communications shall . . .

(4) conduct extensive, nationwide outreach to support and promote the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man-made disasters;

(5) conduct extensive, nationwide outreach and foster the development of interoperable emergency communications capabilities by State, regional, local, and tribal governments and public safety agencies, and by regional consortia thereof;

(6) provide technical assistance to State, regional, local, and tribal government officials with respect to use of interoperable emergency communications capabilities; . . .

(8) promote the development of standard operating procedures and best practices with respect to use of interoperable emergency communications capabilities for incident response, and facilitate the sharing of information on such best practices for achieving, maintaining, and enhancing interoperable emergency communications capabilities for such response;

(9) coordinate, in cooperation with the National Communications System, the establishment of a national response capability with initial and ongoing planning, implementation, and training for the deployment of communications equipment for relevant State, local, and tribal governments and emergency response providers in the event of a catastrophic loss of local and regional emergency communications services; . . .

(11) establish, in coordination with the Director of the Office for Interoperability and Compatibility, requirements for interoperable emergency communications capabilities, which shall be nonproprietary where standards for such capabilities exist, for all public safety radio and data communications systems and equipment purchased using homeland security assistance administered by the Department, excluding any alert and warning device, technology, or system;

(12) review, in consultation with the Assistant Secretary for Grants and Training, all interoperable emergency communications plans of Federal, State, local, and tribal governments, including Statewide and tactical interoperability plans, developed pursuant to homeland security assistance administered by the Department, but excluding spectrum allocation and management related to such plans;

These provisions put heavy emphasis on the dissemination and deployment of interoperable emergency communications systems. Interoperability is an obvious goal, but its prominence in 21CECA serves as a reminder of how this ideal got buried in the shuffle of regulatory reform in communications law. Multiple technological conduits -- the legacy wireline network (known as PSTN, the public switched telephone network), various wireless platforms, VOIP, the E911 system, and emergency broadcasts via radio, television, and cable -- facilitate communications by alternate means. By the same token, this redundancy increases the difficulty of coordinating all these different systems. Add the basic principle that competition in telecommunications, a sine qua non of consumer protection during nonemergency situations, complicates coordination and interoperability during crises.

Subsection (11)'s endorsement of nonproprietary interoperable emergency communications capabilities also bears watching. Open source models seem ideally suited to the task of developing interoperable emergency capabilities, as is illustrated by this modest victory of open source telephony over conventional private branch exchange (PBX) technology in South Africa. It bears remembering that almost the entire logical layer of Internet-based communications, with the striking exception of the dominant Windows-based user interface, consists of code in the public domain or developed on an open source basis.

The other major provision of 21CECA is § 1802's creation of a National Emergency Communications Plan:

The Secretary, acting through the Director for Emergency Communications, and in cooperation with the Department of National Communications System (as appropriate), shall, in cooperation with State, local, and tribal governments, Federal departments and agencies, emergency response providers, and the private sector, develop not later than 180 days after the completion of the baseline assessment under section 1803, and periodically update, a National Emergency Communications Plan to provide recommendations regarding how the United States should --

(1) support and promote the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man-made disasters; and

(2) ensure, accelerate, and attain interoperable emergency communications nationwide.

Observe how sections 1801 and 1802 both contemplate an explicit role for private-sector emergency responders. Legal confusion over private-sector emergency responders -- lest we forget, nearly all communications infrastructure in the United States is privately owned -- proved costly during Katrina. See chapter 3, pp. 100-01, of Disasters and the Law: Katrina and Beyond.

Finally, it bears noting that many of the impediments to better coordination of emergency communications are technological rather than legal or organizational. Wireless telephony and VOIP, for instance, offer considerable advantages over the PSTN. But neither wireless nor VOIP works terribly well when electricity fails, and the very mobility that makes these technologies so attractive has the incidental and unfortunate effect of complicating the operation of the E911 program.