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.