On the anniversary of the events of September 11, 2001, we should all be thankful for the work of the nation’s first responders. Broadcasters and other members of the electronic communications industries play a part in the response to any emergency – including through their participation in the Emergency Alert System (EAS). In recent weeks, the FCC has been aggressively prosecuting parties who it has found to have transmitted false or misleading EAS alerts. This was exhibited this week through the Notice of Apparent Liability issued to CBS for an altered and shortened version of the EAS tones used in the background of a “Young Sheldon” episode, leading to a $272,000 proposed fine. Consent decrees were announced two weeks ago with broadcasters and cable programmers for similar violations (see FCC notices here, here, here and here), with payments to the US Treasury reaching $395,000. These follow past cases that we have written about here, here, here, here, and here, where fines have exceeded $1 million. The CBS case raised many interesting issues that have received comment elsewhere in recent days, including the First Amendment implications of restrictions on the use of EAS tones in programming, and whether an altered tone in the background of an entertainment program, where audiences would seemingly realize there was no actual emergency, should really be the subject of an enforcement action. But the question that has not received much attention is one raised by the FCC’s Enforcement Advisory released last month addressing the improper use of EAS alert tones and the Wireless Emergency Alert tones used by wireless carriers (known as WEA alerts), and simulations of those tones. That advisory raises questions of just how far the FCC’s jurisdiction in this area goes – could it reach beyond the broadcasters and cable programmers to which it has already been applied and extend to online programming services?
This question arises because the FCC’s Enforcement Advisory addresses not only EAS tones used by broadcasters and cable systems, but also the WEA alert tones voluntarily deployed by most wireless providers. The advisory makes clear that the use of either EAS or WEA tones without a real emergency is a violation of the FCC rules. The Advisory states:
The use of simulated or actual EAS codes or the EAS or WEA Attention Signals (which are composed of two tones transmitted simultaneously), for nonauthorized purposes—such as commercial or entertainment purposes—can confuse people or lead to “alert fatigue,” whereby the public becomes desensitized to the alerts, leading people to ignore potentially life-saving warnings and information.
The FCC goes on to state:
the use of the WEA common audio attention signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency, authorized test, or except as designed and used for PSAs by federal, state, local, tribal and territorial entities, is strictly prohibited.
Going even further, the Advisory sets out this prohibition:
We remain concerned about the misuse of the EAS codes and EAS and WEA Attention Signals, or simulations thereof, to capture audience attention during advertisements; dramatic, entertainment, and educational programs.
The FCC cites Section 10.520(d) of its rules which prohibits the use of the WEA attention tones when there is no real emergency, as well as noting that Section 326 of the Communications Act prohibits false or fraudulent distress signals (a prohibition that, in the CBS case, Commissioner Starks suggested should have been used for further sanctions in the CBS case).
The Commission notes the broad application of its prohibition, stating:
The prohibition thus applies to entities that distribute programming containing a prohibited signal intended for subsequent or simultaneous transmission to the public, regardless of whether or not they deliver the unlawful signal directly to consumers; it also applies to a person who transmits an unlawful signal, even if that person did not create or produce the prohibited signal in the first instance. Therefore, the prohibition also applies to a broadcaster, cable operator, or satellite carrier that transmits programming containing a prohibited signal, even if the programmer that embedded the sound is not under common ownership or control with the respective broadcaster, operator, or carrier.
As noted in the Enforcement Advisory, FCC rules require that any broadcaster or wireless carrier who becomes aware of the transmission of a false alert must notify the FCC of that fact within 24 hours (see our article here on the adoption of the rule for such reporting). The Enforcement Advisory goes further in asking the public to report on any false use of an attention signal on a broadcast station, “wireless handset” or other transmission system. Together with notes in some of the consent decrees that the cited programming was not only broadcast or cablecast but also made available on streaming services, these warnings raise the question of whether Internet programmers – including those providing programming to streaming services and podcasters – should be cautioned against the use of EAS or WEA signals in any programming they produce. As their programming is accessible through a “wireless handset,” a false alert, under the terms of this advisory, would seem to cover their operations, even if Internet programmers are not otherwise subject to FCC rules.
While the FCC has not acted against any Internet-only provider yet, and such an action would likely raise many of the First Amendment issues raised by CBS, as well as issues about the limits of the FCC’s jurisdiction, these warnings suggest that online programmers should be warned that use of EAS or WEA tones in their programming could receive the unwanted attention of the FCC. As the FCC notes, using other emergency sound effects (sirens, klaxon horns, alarm bells, etc.) are not a violation of the rules (as long as it is clear that they are not meant to convey a false or fraudulent distress signal). Using these alternatives in program production sure seems like the safest route given the FCC’s broad language in the Enforcement Advisory.