It’s that time again.  If you are planning any on-air pranks on Monday for April Fools’ Day, think twice.  As we do every year about this time, we need to play our role as attorneys and ruin the fun by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes. While issues under this rule can arise at any time, broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  Air a program that fits within this definition and causes a public harm, and expect to be fined by the FCC.
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This is the 75th anniversary of the Mercury Players broadcast of the Orson Welles production of the War of the Worlds – a radio broadcast that seemingly scared many Americans into thinking that the country was under attack by Martians, that my home state of New Jersey had been overrun, and that the rest of the country would be soon to follow.  PBS’s American Experience just ran a great documentary about the production – talking about Wells’ decision to delay an announcement that the program was a fictional production, not a real invasion, long after his network superiors ordered that announcement after the phone lines of the network were tied up.  Also tied up were the phone lines of emergency responders, and it supposedly even caused people to leave their homes to flee the path of the oncoming invaders.  The PBS program talked about how the FCC opened an investigation of the program, and how Congress demanded that laws be passed to prevent such a broadcast from happening again.  Essentially, through some well-publicized apologies by Welles and others involved in the program, and a promise by the network to take steps to prevent it from happening again, the FCC closed its investigation and no law was passed by Congress.  Even though the government did not act 75 years ago, it is interesting to look at how the FCC has changed since that time, and why such a broadcast would not fly under FCC rules today.

Most prominent among the FCC rules adopted since the famous broadcast is the FCC’s rule against “hoaxes.”  As we’ve written before (usually just before April Fools’ Day), this rule (Section 73.1217) forbids broadcasters from airing programs that are false where it is foreseeable that the broadcast will tie up the resources of first responders or that the broadcast will otherwise cause harm to people or damage to property, and where such harm is in fact caused.  Applying that rule to the War of the Worlds broadcast would mean that the radio network (and its affiliated stations) could likely be looking at big fines were such a broadcast to be made today. While a broadcaster could certainly argue (as was done at the time) that no rational person would believe that the Martians were really invading, the fact that the network was deluged with calls, and that the network warned its director to air a disclaimer (which was delayed for dramatic effect) would likely defeat any such arguments.
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With April Fool’s Day only a few days away, we need to repeat our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other jokes prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes – and, of any day in the year, April 1 is the day that the broadcaster is most at risk.  The FCC’s rule against broadcast hoaxes, Section 73.1217 of the Commission’s Rules, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties."  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another case where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies.  In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1. 


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With April Fool’s Day only a few short days away, and with many articles running in the trade press about what stations should and shouldn’t do on that day, we thought that we would weigh in with our own legal reminder – no matter what you do, be careful not to violate the FCC’s rule against broadcast hoaxes.  That rule, Section 73.1217 of the Commission’s Rules, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties."  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another case where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies.  In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  But the FCC rule is not the only reason to be wary on April 1. 


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A jury in Sacramento returned a $16.57 million verdict against Entercom Broadcasting’s local subsidiary in the case involving the death of a contestant in a radio station-sponsored contest.  The contest – drinking water and waiting to see which contestant would win the Nintendo Wii by being the last to have to use the bathroom – led to the death of contestant Jennifer Strange by water intoxication.  The station had argued that water intoxication was not a readily known risk of the contest that could have reasonably been anticipated.  The plaintiff’s case, to refute this argument, included testimony of warnings from on-air station callers of the risks, and health complaints from contestants themselves, which were apparently ignored or minimized by the station employees who were involved in supervising the contest.  This Blog does not purport to address negligence and personal liability questions, which we will leave to others.  Instead, we’ll talk about the lesson to broadcasters and the FCC impact of this case.

First, the decision itself serves as a warning to broadcasters of the need to make employees aware of the ramifications of what goes on at a station.  In a Radio Ink Column today, Publisher Eric Rhoads suggests that broadcasters must be careful in what they do, but also submits that owners and managers cannot take the fun out of radio.  And while I wholeheartedly agree with the last sentiment, the fact that radio can be a fun business is all the more reason that owners and managers need to be careful about what goes on at a station.  While we hate to be the lawyers who ruin all the fun, management does need to make employees aware of the nature of the broadcast medium, and the fact that real people are impacted by whatever is done on the station – whether it be a "joke" on the air which some people find offensive, a dangerous contest, or simply putting off compliance with some FCC rule.  We are in a litigious time, and we have an FCC and a Congress with lots of pending matters that could determine the future of the industry.  While it may seem amazing, a single contest gone wrong or wardrobe malfunction can set the tone for the regulation of an entire industry.  So, while broadcast managers need to avoid being the heavies and playing it so safe that they take the fun out of broadcasting, they do need to impress on employees that they must be aware of the ramifications that their actions can have.  Broadcasting is still a powerful medium, and because of that fact, actions taken by broadcasters can have an impact that is magnified far beyond what might be the case in other media or other industries.  And because it is such a regulated industry, that impact can have huge consequences.


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