The SAFE PORT ACT of 2006, P.L. 109-347 (2006) added new Section 425 to the Disaster Relief and Emergency Assistance Act of 1974 (also known as the Robert T. Stafford Disaster Relief and Emergency Assistance Act), codified at 42 U.S.C. § 5189e, providing for essential services disaster assistance. The provision defines a number of entities that are to be deemed “essential service providers” in a national emergency. According to the Conference Report accompanying the SAFE PORT ACT, H.R. Conf. Rep. No. 711, 109TH Cong., 2ND Sess. (2006), at *106, the provision:
prohibits Federal agencies, to the greatest extent practicable, from denying or impeding essential service provider access to a disaster site for the purpose of restoring essential services or impeding the repair or restoration of essential services by such providers, unless exceptional circumstances apply. This provision does not waive any Federal laws, regulations or policies.
Section 5189e includes as essential service providers, any entity that provides: electrical power, natural gas, water and sewer services, or any other essential service, as determined by the President, or is a municipal, nonprofit or a for profit private entity that is contributing to efforts to respond to an emergency or major disaster. While not reflected in the current version of the U.S. Code, Section 302 of RAY BAUM’s ACT of 2019 (enacted as Division P of The Consolidated Appropriations Act, 2018), added to the provision, in place of providers of telecommunications services, providers of wireline and mobile telephone services, Internet access service, radio and television broadcasting, cable service, and DBS, as well as tower owners and operators.
Pursuant to Section 5189e, the Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA), in connection with the COVID-19 emergency, has made available two generic assistance letters for the communications sector, asking that the bearer be “extended any courtesy” covering (1) access to facilities and (2) the provision of fuel.
In describing these letters, one broadcast industry association noted that:
These may be used to help facilitate access to your studios and transmitters. . . . Please note that the NCC [CISA National Communications & Coordination Branch] provides these letters as a courtesy to help communications providers access their facilities as needed to maintain continuity of service. That said, according to the NCC, state/local authorities retain final discretion on matters of local public safety, access and related issues. Also, the COVID situation is unprecedented so the reaction of local emergency authorities to the letters may be difficult to predict, particularly in states with few hurricanes and other emergencies for which DHS has issued similar letters, and states where broadcasters have not yet been designated as a “first informer.”