Posted on March 28, 2011 by David Oxenford

Planning an On-Air April Fools Day Prank? - Remember the FCC's Rule Against Broadcast Hoaxes

With April Fool's Day only a few short days away, and with many articles running in the trade press about what stations should and shouldn't do on that day, we thought that we would weigh in with our own legal reminder - no matter what you do, be careful not to violate the FCC's rule against broadcast hoaxes.  That rule, Section 73.1217 of the Commission's Rules, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties."  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another case where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies.  In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  But the FCC rule is not the only reason to be wary on April 1. 

Beyond potential FCC liability in connection with any broadcast hoax, or even with a broadcast contest, there is always the potential for civil liability should someone get hurt because of false information broadcast by a station.  In these cases, had people been injured because first responders had been responding to the hoaxes instead of to real emergencies, stations could have faced potential liability.  We all remember the Sacramento contest-gone-wrong that resulted in multi-million dollar liability against a radio station for the death of a contestant during the station contest.  If some April Fools stunt by a station goes wrong, and someone is injured either because police, fire or paramedics are tied up responding to a false alarm, or if someone is hurt rushing to the scene of an event that is not real, those who are injured will be looking for a deep pocket to sue - and broadcasters may become the target.

So have fun, but think through your April Fools gags carefully.  Don't do anything that could make you look like a fool after the April 1 has come and gone.
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Posted on October 31, 2009 by David Oxenford

$16.57 Million Verdict in Hold Your Wee for Wii Case - What are the FCC Implications and What Should Broadcasters Learn?

A jury in Sacramento returned a $16.57 million verdict against Entercom Broadcasting's local subsidiary in the case involving the death of a contestant in a radio station-sponsored contest.  The contest - drinking water and waiting to see which contestant would win the Nintendo Wii by being the last to have to use the bathroom - led to the death of contestant Jennifer Strange by water intoxication.  The station had argued that water intoxication was not a readily known risk of the contest that could have reasonably been anticipated.  The plaintiff's case, to refute this argument, included testimony of warnings from on-air station callers of the risks, and health complaints from contestants themselves, which were apparently ignored or minimized by the station employees who were involved in supervising the contest.  This Blog does not purport to address negligence and personal liability questions, which we will leave to others.  Instead, we'll talk about the lesson to broadcasters and the FCC impact of this case.

First, the decision itself serves as a warning to broadcasters of the need to make employees aware of the ramifications of what goes on at a station.  In a Radio Ink Column today, Publisher Eric Rhoads suggests that broadcasters must be careful in what they do, but also submits that owners and managers cannot take the fun out of radio.  And while I wholeheartedly agree with the last sentiment, the fact that radio can be a fun business is all the more reason that owners and managers need to be careful about what goes on at a station.  While we hate to be the lawyers who ruin all the fun, management does need to make employees aware of the nature of the broadcast medium, and the fact that real people are impacted by whatever is done on the station - whether it be a "joke" on the air which some people find offensive, a dangerous contest, or simply putting off compliance with some FCC rule.  We are in a litigious time, and we have an FCC and a Congress with lots of pending matters that could determine the future of the industry.  While it may seem amazing, a single contest gone wrong or wardrobe malfunction can set the tone for the regulation of an entire industry.  So, while broadcast managers need to avoid being the heavies and playing it so safe that they take the fun out of broadcasting, they do need to impress on employees that they must be aware of the ramifications that their actions can have.  Broadcasting is still a powerful medium, and because of that fact, actions taken by broadcasters can have an impact that is magnified far beyond what might be the case in other media or other industries.  And because it is such a regulated industry, that impact can have huge consequences.

As for the FCC ramifications of the court decision, they will quite possibly will be none.  The verdict itself should not have any impact on FCC consideration of the matter.  Moreover, the FCC does not typically get involved in individual cases of negligence by a broadcast station.  If ice from a tower hits a passing vehicle, if there is a slip and fall at a studio, or a traffic accident involving a remote vehicle, there is typically no FCC ramification.  These cases are left to civil courts to sort out.  In the Sacramento case, while it was quite well publicized that the FCC had started an investigation into the contest when it was occurred, nothing more has been heard about the results of that investigation. 

The FCC does have certain rules that can be applied against broadcasters who endanger the public's safety, but these are not written in terms of potential harm to isolated individuals.  The FCC's hoax rule prohibits "a broadcast licensee or permittee from knowingly broadcasting false information concerning a crime or catastrophe if it is foreseeable that broadcast of the information will cause substantial public harm, and broadcast of the information does in fact directly cause substantial public harm."  In other words, that rule is applied in cases that involve the potential for mass disruptions to emergency responders or others which endanger the public's safety.  The rule was adopted in to apply in situations like the case where a April Fools Day prank which sent emergency responders to a non-existent emergency, or where a reported murder of a station employee tied up police, when in fact no such crime occurred.

The FCC once had a rule against dangerous or disruptive contests, but did away with it as part of their proceedings getting rid of "regulatory underbrush" in the 1980s, feeling that such issues were best left to civil lawsuits.  In fact, in a 2007 case denying an objection to a license renewal, the Commission's staff specifically cited to that repeal of the former policy in finding that it had no jurisdiction over claims of dangerous contests.

While the FCC can always create new precedent as to what is or is not in the public interest, one would think that the penalty imposed in this civil case has already driven the point home to the broadcasters involved in this case, and to all other broadcasters who have been observing the events in Sacramento, that care needs to be taken in any contest, or in any other situation where people may be endangered by a station event. And one would think that this case will also serve as a reminder to broadcasters of the life and death power that they have in so many facets of their operations, and how carefully they should handle that responsibility. 
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