One million dollars is still a big fine, even though the FCC has been handing out fines for that amount, or more, many times in recent months. But fines rarely hit these levels for broadcasters. But, yesterday, the FCC issued such a fine – hitting iHeart Media with a $1 Million fine as part of a Consent Decree imposed for the inappropriate use of EAS tones in the Bobby Bones syndicated radio program. The program was being run on 82 stations across the country. According to the FCC’s order approving the Consent Decree and imposing the associated fine and compliance plan, the broadcast of those tones triggered EAS alerts across several states – principally at stations and cable systems that had not activated the ability of the EAS system to recognize the date of an alert (the program rebroadcast the FCC’s first national EAS test, a test that was conducted almost 3 years before the Bones broadcast).
As with many other recent cases where the FCC has imposed heavy fines on broadcasters and cable programmers for use of EAS tones in entertainment broadcasts (see our articles here, here, here, and here tracing the history of the FCC’s escalating penalties for this kind of violation over the last few years), the FCC sees these matters as threats to public health and safety, as the public could react adversely to these EAS alerts that were not tied to real emergencies (or be desensitized by repeated false alerts to the importance of real alerts). The FCC’s News Release announcing the adoption of the Consent Decree makes exactly this point – the misuse of EAS alerts are threats to the public safety.
Clearly, the amount of the fine was prompted by the number of stations carrying the program and the impact that it had on broadcasters and cable systems which monitor those stations for EAS purposes. But the consent decree, in addition to the striking amount of the fine, also imposed conditions on iHeart. As with any such consent decree, the FCC signals through these conditions what it sees as best practices to avoid this kind of issue in the future. Here, among the conditions, is the requirement that iHeart delete all EAS tones from its computerized programming libraries so that these tones don’t make their way into advertising or entertainment programming. While all aspects of the compliance plan don’t make sense for all broadcasters (e.g. it would not seem feasible for a small radio station to have to appoint a “compliance officer” to monitor compliance with this issue), ideas like the deletion of EAS tones from production libraries and the education of production and programming personnel on the issues identified in this Consent Decree are ones that all stations should consider.
The fine also notes that the EAS tones broadcast by the Bobby Bones show were rebroadcast by other EAS participants with EAS equipment that did not use a “strict time” setting meaning that those participants “failed to recognize that the EAN Event code, which included the date codes for November 9 (2011), did not correspond with the then-current date.” Again, this suggests that EAS participants make sure that their equipment utilize the time setting functionality to avoid passing on any old EAS alert that somehow makes its way into a monitored station’s program stream. Having such strict time settings is also part of the compliance plan included in the Consent Decree.
The fine also reflects what seems to be a more aggressive stance in recent months by the FCC’s Enforcement Bureau, imposing big fines, particularly on big companies. While many of these fines don’t relate to broadcast matters, some do, and the trend is instructive. Many relate to issues that were seemingly stupid mistakes (like the big indecency fine we wrote about here). Others are imposed to make a point (see our article here about an enhanced tower lighting fine imposed on a big company so that the fine would not be just a cost of doing business). These big fines highlight issues that the FCC considers to be important. So watch these big fines as they provide an indication of areas where the FCC is likely to be concentrating its enforcement efforts – areas in which you could get caught if your operations don’t live up to the FCC’s standards.