The FCC seems to be making another statement – releasing one decision upholding two very large fines against major cable programmers for improper use of EAS tones in ads for a movie, while just two days later releasing another decision approving a consent decree with a broadcaster imposing a penalty and monitoring conditions for using those tones in a radio show. The first decision was by the full Commission. It upheld a preliminary decision by its staff that we wrote about here, imposing fines of $1,120,000 against Viacom and $280,000 against ESPN. The new case was against a Univision radio station in New York – agreeing in a consent decree to a $20,000 penalty.
The new case arose at a Spanish language station, where DJs in a comedy sketch on a morning radio show played the EAS tones repeatedly while joking about men who gain weight, and once even joking that playing the tone was illegal. The FCC was alerted to the use of the tones by a radio listener who apparently was scanning the radio band, heard the tones and tried to determine what the emergency was – eventually figuring out that the alerts were not really part of an emergency at all. The $20,000 penalty was combined with the FCC’s imposition of a requirement that the station prepare a compliance manual for its employees about the EAS system, conduct training programs, and report to the FCC about its compliance with the plan and the EAS rules for the next three years – including any EAS noncompliance at any of its stations.
The decision upholding the Viacom and ESPN fines arose from the broadcast of commercials for the movie Olympus Has Fallen, which contained simulated EAS tones. The FCC rejected arguments that the cable networks should not be liable as they were but intermediaries in providing programming to the public. They did not produce the ads, and they did not actually transmit the ads to the viewers (as the movie company produced the ads, and the local cable operators were the ones who actually sent them to the public). The FCC said, however, that a conduit like these networks was in fact liable – having reviewed the commercials before including them in their programming that was transmitted to the cable systems and on to the public. That someone else actually produced the ad with the EAS tone was no excuse to the FCC.
The FCC also rejected arguments that the companies had no notice that the broadcast of such tones was prohibited, and that the rules did not prohibit the use of EAS tones in a non-deceptive manner (i.e. it was clear that tones were used in a commercial were not alerts for any real emergency). The Commission found that the rules did not require deception and that, even if they did, the use of the tones in a commercial was inherently deceptive, as it caused people to pay attention to the commercial thinking that it might be an emergency announcement, only to find that it was a commercial message.
Each of these decisions was released with an accompanying public notice to signal its importance (the public notice on the full Commission decision here, and the one on the Univision case here). As with the simultaneous release of several fines on tower lighting issues about which we wrote here, it appears that the FCC is trying to send a message. These decisions reinforce the importance that the Commission places on safety issues and that it will not hesitate to enforce to their full extent its rules on such matters. So watch the creative instincts of your program producers, as the use of an EAS alert tone (or something that sounds like one), outside of a real emergency, is asking for trouble.