The FCC is cracking down hard on television stations and cable companies who use EAS alerts – or even simulations of such alerts – in advertising, promotions, and programming.  In two orders released this week, the FCC imposed big penalties on video companies who used fake EAS alerts in commercial messages.  In one case, it fined a cable programmer (Turner Broadcasting) $25,000 for the use of a simulated EAS tone (not using the actual tone, but just a set of tones that sounded like the EAS alert) in a promotion for the Conan O’Brien program.  In a consent decree with a TV broadcaster, in exchange for a $39,000 voluntary payment to the FCC and the adoption by the station of a series of policies to avoid similar problems in the future, the Commission agreed to dismiss a complaint against a station that had used simulated EAS tones in a commercial for a local store.  These decisions were coupled with two other announcements to make the point that the FCC wanted to demonstrate the importance that it places on EAS and its lack of tolerance for any non-emergency use of anything sounding like the EAS tones that could possibly confuse the public.

At the same time as the two decisions were released, the FCC issued a press release emphasizing the importance of EAS and how such actions trivialized the alert system.  A Fact Sheet was also released, making four documents all emphasizing the importance of EAS, and the threat posed to real warnings by any sort of use of sounds that could be confused for the EAS alerts.  Where does the FCC get its authority to impose such fines?

The Commission relied on Section 11.45 of its rules, which states: “[n]o person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.”  Note the specific language in the rule that prohibits not only the use of real EAS tones in situations that are not an emergency, but also any “simulation thereof.”  That language was heavily relied on by the FCC in the Turner decision.

We have written about these concerns before.  In fact, we noted in the past cases where the tones were used in on-air announcements or commercials, where they actually triggered alerts on stations that had EAS receivers tuned to monitor the stations on which the commercials with the alerts were aired.  Those cases involved tones that were real enough to trigger alerts.  The cases from this week go one step further to make clear that even simulations of the tones are prohibited.

We wrote last week about the War of the Worlds broadcast by Orson Welles 75 years ago, and asked how the FCC would treat such a broadcast today.  These decisions perhaps answer that question, making clear that the FCC does not tolerate any fake broadcasts that could imperil anyone – even those not paying close enough attention to hear the context of an announcement.  If a station airs something that sounds like an alert that could fool a casual listener – even when used in the context of a clothing commercial or a promo for a talk show – the FCC may well be coming after the broadcaster who airs that announcement.