EAS False Alerts in Radio Ads and Other Reasons to Panic

One of the great things about being a communications lawyer is the wide array of issues you deal with over the course of a day. Contract lawyers negotiate contracts, and litigators litigate, but communications lawyers negotiate contracts, litigate, argue government policy, and generally are thrown into the breach whenever a problem emerges affecting their clients. As a very senior communications practitioner said when I was a young lawyer, “if you want to be a communications lawyer, you better be very good at your trade or have a damn good smile!”
Because of the diversity of communications issues out there, you never know when you answer the phone what the issue will be. One question I have received on multiple occasions over the years is whether it’s true that radio stations are prohibited from airing the sound of a police siren. I have had broadcasters swear there is a flat prohibition on this and that they were taught about it early in their career. While there is no outright prohibition, this “old broadcaster’s tale” stems from a 1970 FCC proceeding where several complainants sought such a ban. The FCC declined to prohibit these sound effects, but basically told broadcasters to use common sense when airing them. Not coincidentally, 1970 was the year that R. Dean Taylor’s song Indiana Wants Me made it to Number 5 on the Billboard charts, complete with siren. A siren-free version of the song was also produced to appease nervous radio stations (take a listen to the “with sirens version“; go ahead, I’ll wait till you get back).

I was reminded of all this today when I received a client call asking about a radio ad from the oil company ARCO that includes the Emergency Alert System tone at the beginning of the spot. The Society of Broadcast Engineers has posted an MP3 of the ad here.

The EAS tone differs from police sirens in two important ways. First, the airing of the EAS tone or a simulation of the tone where no emergency or authorized EAS test exists is flatly prohibited by Section §11.45 of the FCC’s Rules (“No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.”). It could also potentially violate Section 73.1217, the FCC’s prohibition on broadcast hoaxes.

Second, unlike members of the public who usually can discern from context whether a siren or other emergency sound is a cause for concern (does Indiana really want them?), the electronics that monitor radio signals do not have this capability. As a result, the airing of the commercial has accidentally activated EAS receivers around the country, which hear the alert tone and activate the local emergency alert system as though an actual emergency is occurring. It appears the tone in the spot was tweaked to speed it up a bit, but apparently not enough to avoid fooling at least some EAS receivers.

Stations airing the spot, particularly where EAS activations have occurred, should get in touch with their communications counsel immediately. The FCC’s words from 1970 are still relevant here: “The selection and presentation of advertising and other promotional material are, of course, the responsibility of licensees. However, in this selection process, licensees should take into account, under the public interest standard, possible hazards to the public. Accordingly, in making decisions as to acceptability of commercial and other announcements, licensees should be aware of possible adverse consequences of the use of sirens and other alarming sound effects.” It may take 40 years, but what goes around, comes around.