The recent $504,000 fine proposed to be levied on Fox for the use of simulated EAS tones in an NFL football promotion (see FCC’s Notice of Apparent Liability here) is obviously a message to broadcasters to remember that EAS tones can only be used for real alerts or authorized tests of the system – and not in any advertising, programming or promotions. This is consistent with past big fines for improper use of these simulated EAS tones (see, for instance, the cases we wrote about here, here, and here). This aspect of the Fox case – don’t use EAS tones except for real EAS purposes – has been well noted. What has received less attention are the small details that went into this big proposed fine.
The most obvious of these details was the short duration of the EAS tones that led to the violation itself – the use was only 3 seconds long. The Commission found that even a 3 second use of EAS tones was sufficient to confuse the public about a possible emergency or to contribute to possible desensitization of the public to the importance of these tones. But this is not the first situation where the FCC has imposed a very large fine for a violation that occurred only very briefly – one of the most obvious situations being a $325,000 indecency fine for a 3 second image of sexual organs in a corner of a TV screen when a station broadcast a screenshot of the homepage of an adult website to illustrate a news story about a former adult film star who became a local first responder (see our summary of that case, here). Both in the recent EAS case and in the case of the indecency violation, the issues were not caught in the production of the on-air segments or in any pre-broadcast review of the programming before it was broadcast. Both cases serve as a reminder that stations need to not take anything for granted in their pre-broadcast review of programming segments, reinforcing the need to carefully inspect everything that goes out over the air, as even 3 second violations can lead to fines that exceed $100,000 per second.