Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.
The FCC has recently staked out a policy that the any use of EAS tones, or tones that sound like those alerts, outside of a real emergency, will lead to big fines. Since the beginning of the year, the FCC has issued notices proposing fines totaling over $2.2 million against some of the biggest media companies in the country for such violations (see this decision proposing a $300,000 fine against Turner Broadcasting System Inc. for tones mimicking the EAS alerts that were included in a commercial transmitted nationwide in cable network programming, and this decision imposing cumulative fines of over $1.9 million on 3 cable network programmers for transmitting ads for the movie Olympus Has Fallen that included portions of the EAS alert tones). Only days after the latter decision, a new warning about EAS tones or sound effects made to mimic those tones was sent out by the Southern California Broadcasters Association alerting broadcasters to a commercial for a charcoal briquettes company that seemingly contained such tones. Given the strict liability that the FCC has been imposing for such commercials, watch for this recent ad and any other programming that might contain EAS tones or anything that sounds like them – and keep them off the air.
With past warnings on this issue (see our article from November about another set of FCC fines for similar broadcasts, and the release of an FCC press release warning media companies about the issue) and the recent large fines imposed on major media companies – both broadcast and cable – it is clear that all media companies need to be on the alert to monitor their broadcast material for the any content sounding like EAS alerts, and advertisers and program producers need to be aware that anything they produce that contains the alert tones is likely to cause problems at the FCC. Note that these recent decisions imposed penalties on cable networks – so it is not just licensees who need to be vigilant. In these decisions, the FCC has rejected any arguments that the media companies that transmitted the advertising containing the alert tones should be excused from liability as they did not themselves produce the ads. So watch for these tones – even if they are packaged in someone else’s programming.
Continue Reading Be on the Alert for EAS Tones in Non-Emergency Situations – Big FCC Fines for These Violations and Other EAS Issues
In the last two days, several radio and television stations across the country had their station’s EAS systems hacked – and ended up broadcasting alerts dealing with zombie attacks that went out using the standard EAS systems and appeared or sounded to the viewer or listener to be real alerts. The FCC and others involved in the EAS program fear that other fake alerts have already been inserted into stations’ systems and may be broadcast soon – perhaps during events like the State of the Union address or other widely-viewed programs. To combat these issues, the FCC has issued the following advice to all stations:
All EAS Participants are required to take immediate action to secure their CAP EAS equipment, including resetting passwords, and ensuring CAP EAS equipment is secured behind properly configured firewalls and other defensive measures. All CAP EAS equipment manufacturer models are included in this advisory.
All Broadcast and Cable EAS Participants are urged to take the following actions immediately
1. EAS Participants must change all passwords on their CAP EAS equipment from default factory settings, including administrator and user accounts.
2. EAS Participants are also urged to ensure that their firewalls and other solutions are properly configured and up-to-date.
3. EAS Participants are further advised to examine their CAP EAS equipment to ensure that no unauthorized alerts or messages have been set (queued) for future transmission.
4. If you are unable to reset the default passwords on your equipment, you may consider disconnecting your device’s Ethernet connection until those settings have been updated.
5. EAS Participants that have questions about securing their equipment should consult their equipment manufacturer.Continue Reading Hackers Use EAS to Send Alert of Zombie Attack – FCC Issues Urgent Warning to Broadcasters to Secure Their EAS Systems
With less than a week to go before the first ever Nationwide Test of the Emergency Alert System ("EAS"), changes are being made for the November 9 test. In a Public Notice released today, the FCC announced that the EAS message that will be conveyed will be only 30 seconds long, not the two or three minutes that were originally planned. There were some concerns expressed by certain groups, include groups representing cable television operators, that while the test was underway, certain automatic systems would kick in, overriding the visuals from the programming channel being broadcast. The automatic EAS alerts that would be transmitted in a textual format would not specifically say that they were being conveyed as part of a test. While the audio accompanying the test would provide that information, representatives of the hearing-impaired community were concerned that some people might believe that a real emergency was taking place. While the FCC and FEMA had initially indicated that a two or three minute test was necessary to make sure that the message could be conveyed throughout the whole daisy chain system and that the system would be capable of conveying a long message that might be necessary in the event of a real emergency, it appears that they have now agreed that a 30 second message will be sufficient, and less likely to start a "War of the Worlds" panic among those who don’t hear the audio message from the test.
The EAS Handbook for this Nationwide test (which we wrote about last week, here) is supposed to be at the control point of all stations and has been revised to take into account the new length of the test. The revised handbook is available here. Also, the Commission has made heard complaints about Form 1 on its on-line reporting system for this test, which we also wrote about last week. One complaint was that the form required information about the location of the station in geographical minutes in decimal format, not in the minutes and seconds as expressed on the face of FCC licenses and in most FCC databases. Many broadcasters had complained about that requirement – not knowing how to convert from minutes and seconds to minutes in a decimal format. In response to those complaints, the Form has been revised to provide a link to a decimal converter program – where you can put in the minutes and seconds as expressed on your license and get the decimal expression of the transmitter site location. Other minor changes in the form have also been made – including making some information (like a cell phone number for someone at the station) optional.Continue Reading Revisions to Nationwide EAS Test Plans – Shorter Message and Changes in the FCC Handbook and Forms
If a broadcaster is looking to maximize the fine that they receive for FCC violations, one would be hard pressed to pick three violations more likely to draw the ire of the FCC than those that were found after a field inspection of a North Carolina AM station, leading to a Notice of Apparent Liability proposing to fine the station $25,000. The inspection found a tower site with an unlocked fence (a fence which was also observed to be in disrepair) around areas of high RF radiation, and no evidence of either an EAS receiver or a public file at the station’s main studio. In the FCC’s estimation, that public file violation was the most serious, warranting a $10,000 fine. Those pesky violations that could lead to actual harm to real people if someone wandered onto the tower site or if an emergency message did not reach its intended audience – drew fines of $7000 (for the unlocked fence) and $8000 (for the missing EAS receiver).
A number of excuses were provided by the licensee, and rejected by the Commission. The fact that subsequent remedial actions were taken did not reduce the severity of the violations found during the inspection. An excuse offered after the inspection, that the studio was in the process of being moved to another location at the time of the inspection, meaning that the public file and EAS system were in transit, was also rejected – as the move was not mentioned to the FCC inspectors as a reason for the violation at the time of the inspection, and as the fact was that the station was in violation at the time of the inspection – during normal business hours, no public file or EAS equipment was at what was then the main studio. The fact that no EAS outage were noted on any station log was also taken into account by the FCC.Continue Reading $25,000 Fine for Unlocked Tower Fence and Missing EAS Receiver and Public File
In yet another example of the importance that the FCC places on emergency communications and safety issues, an FCC Enforcement Bureau District Field Office issued a Notice of Apparent Liability, proposing to fine a radio station $25,000 for violations including an EAS system that was not operational, as well as a tower that needed repainting and with lights that were not functioning properly. Together with various other issues – including missing quarterly issues programs lists – the FCC found that a $25,000 fine was appropriate. This is another in a series of recent notices of apparent liability from FCC District Offices, demonstrating the high cost of noncompliance with technical and operational issues at broadcast stations.
On the tower issues, the FCC found that the tower lights, which were required to be flashing, were in either not operational at all or not flashing, and that the licensee admitted that no visual inspection of the lights had occurred in at least a week. Citing Section 17.47 of the FCC rules, which require a visual inspection of tower lights every 24 hours unless there is an automatic inspection system (which was not present at this tower), the FCC found that there was a violation here. In addition, the inspection revealed that the tower paint was faded and, in some places, had peeled to reveal bare steel, as the tower had not been painted since 1996. Towers must be cleaned and painted "as often as necessary to maintain good visibility" under Section 17.50 of the FCC Rules. The failure of the tower owner to monitor the tower lights resulted in a $2000 fine, and a $10,000 fine was imposed for the failure to repaint the tower.Continue Reading $25,000 FCC Fine for Safety Related Issues – No EAS, Tower With Painting and Lighting Issues
Earlier this week, I posted a Top Ten list of legal issues that should keep a broadcast station operator up at night. In two orders released today, the FCC found stations where these issues apparently had not been keeping their operators awake, as the FCC issued fines for numerous violations. At one station, the FCC found that the EAS monitor was not working, the fence around the AM tower site was unlocked, and the station had no public inspection file, resulting in a $5500 fine (see the FCC’s Enforcement Bureau order here). At another station, the FCC inspectors were told that the station had no public file, and they also found the AM tower site fence unlocked, resulting in a $3500 fine (see the order here). These cases are one more example that, while broadcasters have plenty of big-picture legal and policy issues that they need to be concerned about, they also need to worry about the nuts and bolts, as the failure to observe basic regulatory requirements like tower fencing, EAS, and public file requirements can bring immediate financial penalties to a station.
The tower fencing issue is one that we have written about before. FCC rules require that public access be restricted to areas of high RF radiation, which are likely to occur at ground levels near AM stations. The FCC has many times issued fines for fences with unlocked gates, holes, or areas where there are gullies where a child could climb under the fence into the tower area. The FCC has been unwilling to accept excuses that the fence was locked "yesterday" or "last week" or at some other less defined time in the absence of proof, as they’ve heard that excuse many time. If the fence is open when they arrive, expect a fine.Continue Reading Non-Functioning EAS, An Unavailable Public File and Open Tower Site Gates Result in FCC Fines of $5500 and $3500
The FCC recently fined a station $8500 for not having an operational EAS system for almost two years, and for not having a main studio that was manned during normal business hours. The EAS fine was evident, as the station did not dispute that it did not have an operational EAS system in place. It did, however…
In two separate Orders today, the FCC issued monetary forfeitures against a cable operator for failure to install Emergency Alert System (EAS) equipment and for various tower violations. These same violations could have been cited against a broadcaster, so these cases are instructive to both broadcasters and cable operators. The FCC issued monetary forfeitures of $20,000 and $18,000 against two Texas cable systems owned by the same company. In both cases, the cable operator failed to install EAS equipment, failed to notify the FAA of a tower lighting outage and failed to exhibit red obstruction tower lighting from sunset to sunrise. The higher fine related to a system’s failure to display a tower’s Antenna Structure Registration (ASR) number "in a conspicuous place so that it is readily visible near the base of the antenna structure."
These same requirements apply equally to broadcast stations that have their own towers. While most broadcasters are aware of the requirement to maintain working EAS equipment, many may not know that FCC rules require a tower’s ASR to be conspicuously displayed at the base of the tower. To be compliant, the ASR must be displayed on a weather-resistant surface and of sufficient size to be easily seen at the base of the tower.Continue Reading FCC Fines for No EAS Equipment, Unreported Tower Light Outage, and No Posting of ASR
Last week, the FCC issued several fines to broadcasters for failure to observe some basic FCC rules. As there many FCC rules to observe, broadcasters should use the misfortune of others who have suffered from these fines as a way to check their own operations to make sure that they meet all of the required Commission standards. In the recent cases, fines were issued for a variety of violations, including the failure to have a manned main studio, the failure to have a working EAS system, incomplete public files, operations of an AM station at night with daytime power, and the failure to have a locked fence around an AM tower. This post deals with the issues discovered at the studios of stations – a separate post will deal with the issues at the transmitter sites.
The main studio rule violation was a case that, while seemingly obvious, also should remind broadcasters of their obligations under the requirement that a station have a manned main studio. In this case, when the FCC inspectors arrived at the station’s main studio, they found it locked and abandoned. Once they were able to locate a station representative to let them into the studio, they found that there was some equipment in the facility, but it was not hooked up, nor was there any telephone or data line that would permit the station to be controlled from the site. The Commission’s main studio rules require that there be at least two station employees for whom the studio is their principal place of business (I like to think of it as the place where these employees have their desks with the pictures of their kids or their dog, as the case may be, and where they show up in the morning to drink their morning cup of coffee before heading out to do sales, news or whatever their job may be). At least one of the two employees who report to the studio as their principal place of business must be a management level employee, and at least one of those employees must be present during all normal business hours. Thus, the studio should never be devoid of human life. The studio must be able to originate programming, and the station must be able to be controlled from that location so that the employees there could originate programming in the event of a local emergency. In light of these violations and others, the station in this case was fined $8000.Continue Reading FCC Inspections – Fines for Violations of Rules on Main Studio, EAS, and Public File
