Articles Posted in Emergency Alert System

Published on:

The FCC has slowly but surely been striving to improve the nation’s Emergency Alert System (“EAS”) to improve safety warnings to the public. In its most recent effort to achieve this goal, the FCC issued an Order last week updating its rules to establish operational standards to be used during national EAS tests and emergencies. According to the FCC, the release of the Order is meant to “help facilitate the use of EAS in a way that maximizes its overall effectiveness as a public warning and alert system.” The FCC’s rule changes were made in part to respond to problems that occurred during the first nationwide EAS test, which took place in November of 2011.

The FCC’s actions should come as no surprise to those following our reporting on EAS both before and after the first nationwide test. As a refresher, in the Commission’s 2013 EAS Report Strengthening the Emergency Alert System (EAS): Lessons Learned from the Nationwide EAS Test, the FCC concluded that a number of technical changes could be made to improve EAS and the national alerting system. Among other things, the first nationwide EAS test revealed that many encoders/decoders did not receive or transmit the test because the “location code” sent was “Washington, DC”, which those encoders/decoders did not recognize as being relevant to their local area.

To address this error, the FCC will require EAS participants to be able to receive and process a national location code. Specifically, the Commission has adopted “six zeroes” (000000) as the national location code pertaining to every state and county in the U.S. in order to make EAS consistent with Common Alerting Protocol (“CAP”) standards. This requirement will kick in one year from the effective date of the new rules (the effective date is thirty days after the Order is published in the Federal Register). EAS Participants should be aware that the change to the “six zeroes” national code could make some older “legacy” EAS equipment obsolete, or require that existing EAS equipment software be updated.

The Order also adopted a new rule regarding the use of a National Periodic Test (“NPT”) event code for future EAS testing, which is designed to bring consistency to the operation of EAS equipment in future national, regional, state, and local activations. The FCC determined that using the NPT for national tests would be a less burdensome alternative to using the Emergency Alert Notification (“EAN”) code. This is because the EAN has characteristics that are different than standard event codes, which include having maximum authority to supersede any other live alert or event as well as having no definitive duration. In contrast, the NPT is treated just like other codes, has a duration of two minutes, is already included in Part 11 of the FCC’s Rules, and is therefore already programmed into most EAS equipment. Just like the “six zeroes” for the national location code, all EAS receivers will need to be able to receive the NPT code within one year from the effective date of the new rules.

The FCC is also creating a new and permanent “Electronic Test Reporting System” (“ETRS”) and is mandating that all EAS Participants use the ETRS to electronically file test results with the FCC immediately following any nationwide EAS test.  As many filers may recall, a number of problems occurred with the previous electronic filing system, including not providing filers with confirmation of having filed, and not allowing any updates or corrections to a report after it has been filed. These glitches will hopefully be corrected, and the FCC believes that data retrieved from its new ETRS will be usable to create a planned “FCC Mapbook” database that organizes stations and cable systems by their state, EAS Local Area, and EAS designation. EAS Participants are required to complete the identifying information initially required by the ETRS within sixty days of the effective date of the new ETRS rules, or within sixty days of the launch of the ETRS, whichever is later. 

Lastly, the FCC is requiring EAS Participants to comply with minimum accessibility rules to ensure that EAS visual messages are accessible to all members of the public, including those with disabilities. The Order discussed and adopted new requirements for the following three operational areas in particular: (1) display legibility; (2) completeness; and (3) placement. Regarding display legibility, the FCC amended its rules to require that displays be “in a size, color, contrast, location, and speed that is readily readable and understandable.” For completeness, the FCC amended its rules to require that the EAS visual message “be displayed in its entirety at least once during any EAS alert message.” Finally, for placement, the FCC reiterated its requirement that the EAS visual message “be displayed at the top of the television screen or where it will not interfere with other video messages,” and amended its rules to require that the visual message not “(1) contain overlapping lines of EAS text or (2) extend beyond the viewable display except for crawls that intentionally scroll on and off of the screen.” These new requirements will go into effect six months after their effective date, which is thirty days after their publication in the Federal Register.

Some of these deadlines may seem far in the future, but it is important that EAS Participants be certain that they are capable of processing the NPT and six zeroes location code sooner rather than later. Those unwilling to heed this advice should be aware that the Order specifically states that the Media Bureau will work closely with the Enforcement Bureau to ensure that the new national test rules are strictly followed. In other words, parties that failed to adequately perform (or even participate in) the last national EAS test can expect the FCC to be much sterner the next time around.

Published on:

The FCC announced this afternoon that it has reached an agreement with iHeartCommunications resolving “an investigation into the misuse of the Emergency Alert System (EAS) tones….”  As we’ve noted before on numerous occasions, the federal government is very touchy about the use of an EAS alerting tone when there isn’t a test or actual emergency.

There are principally two reasons for this.  First, as the FCC noted (again) in today’s Public Notice, quoting Travis LeBlanc, Chief of the Enforcement Bureau, “[t]he public counts on EAS tones to alert them to real emergencies….  Misuse of the emergency alert system jeopardizes the nation’s public safety, falsely alarms the public, and undermines confidence in the emergency alert system.”

Second, the greatest advantage and disadvantage of the EAS system is that the tone contains digital data that automatically triggers EAS alerts by other stations monitoring the originating station.  This creates a highly efficient daisy chain that can distribute emergency information rapidly without the need for human intervention.

Unfortunately, that creates certain problems, one of which is that there is no human to intercede when an EAS warning of a zombie apocalypse occurs and there are no actual brain-eating creatures in the area (don’t laugh, this has actually happened already).  It is the electronic equivalent of Winston Churchill’s statement that “a lie gets halfway around the world before the truth has a chance to get its pants on.”

Compounding the harm is that while the originating station knows that the alert is false, and can so inform public safety personnel and the public itself when contacted about it, stations further down the automated distribution chain know only that they received and redistributed an EAS alert.  They have no knowledge of the facts surrounding the alert itself, potentially leading to a longer period of public panic before the EAS system locates its pants.

For reasons that are hard to discern, other than perhaps that the public has become more aware of EAS (resulting in more attention from advertisers and programmers seeking to leverage that familiarity), there has been a significant uptick in false EAS alerts in the past five years.  The result has been a growing number of FCC fines in amounts that previously only appeared in indecency cases.  Today’s Public Notice indicates that the FCC has “taken five enforcement actions totaling nearly $2.5 million for misuse of EAS tones by broadcasters and cable networks” in the past six months.

In today’s case (the Order for which has now been released), the FCC stated that “WSIX-FM, in Nashville, Tennessee, aired a false emergency alert during the broadcast of the nationally-syndicated The Bobby Bones Show.”  Delving into the details, the FCC noted that:

While commenting on an EAS test that aired during the 2014 World Series, Bobby Bones, the show’s host, broadcast an EAS tone from a recording of an earlier nationwide EAS test.  This false emergency alert was sent to more than 70 affiliated stations airing “The Bobby Bones Show” and resulted in some of these stations retransmitting the tones, setting off a multi-state cascade of false EAS alerts on radios and televisions in multiple states.

The FCC indicated that the station has formally admitted to a violation of the FCC’s EAS rules, and has agreed to (1) pay a $1,000,000 civil penalty, (2) implement a three-year compliance plan, and (3) “remove or delete all simulated or actual EAS tones from the company’s audio production libraries.”

While the size of the financial penalty is certainly noteworthy, the real first in this particular proceeding is the FCC’s effort to eradicate copies of EAS tones before they can be used by future production staffs.  Given the easy access to numerous recordings of EAS tones on the Internet, the FCC might be a bit optimistic that deleting the tone from a station’s production library will prevent a recurrence.  However, it is perhaps an acknowledgement that most false EAS tone violations are the result of employees unaware of the FCC’s prohibition rather than a producer bent on violating the rule.  It is also an acknowledgement that even a multi-year compliance program may not solve the problem if an EAS tone is lurking in the station library, seductively tempting and teasing that ambitious new staffer who just got a great idea for a funny radio bit….

Published on:

I wrote in March of last year that the FCC had proposed fines of $1,120,000 against Viacom, $530,000 against NBCUniversal, and $280,000 against ESPN for airing ads for the movie Olympus Has Fallen that promoted the movie with an EAS alert tone. Seven Viacom cable networks aired the spot a total of 108 times, seven NBCUniversal cable networks aired it a total of 38 times, and ESPN aired it a total of 13 times on three cable networks.

According to the FCC, NBC elected to pay its $530,000 fine shortly thereafter and call it a day, but Viacom and ESPN challenged their respective fines, arguing that the fines should be rescinded or reduced because:

  • as programmers, Viacom and ESPN lacked adequate notice that Section 11.45 of the FCC’s Rules (the prohibition on false EAS tones) and Section 325 of the Communications Act (the prohibition on false distress signals) applied to them;
  • the prohibition on false EAS tones does not apply to intermediary program distributors, as opposed to broadcast stations and cable systems that transmit directly to the public;
  • the use of the EAS tone in the ad was not deceptive as it was clear from the context that it was not an actual EAS alert; and
  • Viacom and ESPN did not knowingly violate the prohibition on transmitting false EAS tones.

In an Order released earlier today, the FCC rejected these arguments, noting that Section 325 of the Communications Act and Section 11.45 of the FCC’s Rules are not new, and that they apply to all “persons” who transmit false EAS tones, not just to broadcasters and cable/satellite system operators. The FCC found that transmission of the network content to cable and satellite systems for distribution to subscribers constituted “transmission” of false EAS tones sufficient to trigger a violation of the rule. In reaching this conclusion, the FCC noted that both Viacom and ESPN had reviewed the ad before it was aired and had the contractual right to reject an ad that didn’t comply with law, but had failed to do so. The FCC also concluded that it was irrelevant whether the use of the EAS tone was deceptive, as the law prohibits any use of the tone except in an actual emergency or test of the system.

In line with many prior FCC enforcement decisions, the FCC found the violations to be “willful” on the grounds that it did not matter whether the parties transmitting the ads knew they were violating a law, only that they intended to air the ads, which neither party disputed. The FCC summed up its position by noting that it “has consistently held that ignorance or mistake of law are not exculpating or mitigating factors when assessing a forfeiture.”

While Viacom and ESPN also challenged the sheer size of the fines, the FCC noted that the base fine for false EAS tone violations is $8,000, and that in assessing the appropriate fines here, it took into account “(1) the number of networks over which the transmissions occurred; (2) the number of repetitions (i.e., the number of individual transmissions); (3) the duration of the violation (i.e., the number of days over which the violation occurred); (4) the audience reach of the transmissions (e.g., nationwide, regional, or local); and (5) the extent of the public safety impact (e.g., whether an EAS activation was triggered).” Because there were “multiple violations over multiple days on multiple networks, with the number of transmissions doubled on some networks due to the separate East Coast and West Coast programming feeds,” the FCC concluded the size of the fines was appropriate.

In describing more precisely its reasoning for the outsize fines, the FCC’s Order stated:

As the rule clearly applies to each transmission, each separate transmission represents a separate violation and Viacom cites no authority to the contrary. Moreover, the vast audience reach of each Company’s programming greatly increased the extent and gravity of the violations. Given the public safety implications raised by the transmissions, and for the reasons set forth in the [Notice of Apparent Liability], we find that the instant violations, due to their egregiousness, warrant the upwardly adjusted forfeiture amounts detailed by the Commission.

Finally, to buttress its argument for such large fines, the FCC pulled out its “ability to pay” card, noting the multi-billion dollar revenues of the companies involved and stating that “entities with substantial revenues, such as the Companies, may expect the imposition of forfeitures well above the base amounts in order to deter improper behavior.”

While today’s Order is not surprising in light of the FCC’s increasingly tough treatment of false EAS tone violations since 2010, it is not all bad news for the media community. To the extent that one of more of the Viacom, ESPN or NBCUniversal networks that transmitted the ads is likely carried by nearly every cable system in the U.S., the FCC could have elected to commence enforcement actions and issue fines against each and every system that failed to delete the offending content before transmitting the network programming to subscribers. Pursuing such fines would be expensive for all affected cable and satellite systems, but particularly devastating for smaller cable systems.

While it is always possible that the FCC could still commence such proceedings, it is notable that the FCC specifically rejected Viacom’s argument that it was unfair for the FCC to fine the networks while not fining the ad agency that created the ad or the cable and satellite systems that actually delivered the ad to subscribers. It therefore appears that, at least for now, the FCC is content to apply pressure where it thinks it will do the most good in terms of avoiding future violations. Should the FCC decide to broaden its enforcement efforts in the future however, we’ll be hearing a lot more about my last post on this subject–ensuring you are contractually indemnified by advertisers for any illegal content in the ads they send you to air.

Published on:

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Sponsorship Identification Violation Yields $115,000 Civil Penalty
  • $13,000 Increase in Fine Upheld for Deliberate and Continued Operation at Unauthorized Location
  • FCC Reduces $14,000 Fine for EAS and Power Violations Due to Inability to Pay

FCC Adopts Consent Decree Requiring Licensee to Pay $115,000 Civil Penalty

Earlier this month, the FCC’s Enforcement Bureau entered into a Consent Decree with a Nevada TV station terminating an investigation into violations of the FCC’s sponsorship identification rule.

The FCC’s sponsorship identification rule requires broadcast stations to identify the sponsor of content aired whenever any “money, service, or other valuable consideration” is paid or promised to the station for the broadcast. The FCC has explained that the rule is rooted in the idea that the broadcast audience is “entitled to know who seeks to persuade them.”

In 2009, the FCC received a complaint alleging that an advertising agency in Las Vegas offered to buy air time for commercials if broadcast stations aired news-like programming about automobile liquidation sales events at dealerships. The FCC investigated the complaint and found that the licensee’s TV station accepted payment to air “Special Reports” about the liquidation sales. The “Special Reports” resembled news reports, and featured a station employee playing the role of a television reporter questioning representatives of the dealership about their ongoing sales event.

The licensee acknowledged the applicability of the sponsorship identification rule to the “Special Reports,” but asserted that the context made clear their nature as paid advertisements despite the absence of an explicit announcement. The FCC disagreed, contending that the licensee failed to air required sponsorship announcements for twenty-seven “Special Reports” broadcast by the station from May through August of 2009.

As part of the Consent Decree, the licensee admitted to violating the FCC’s sponsorship identification rule and agreed to (i) pay a civil penalty of $115,000; (ii) develop and implement a Compliance Plan to prevent future violations; and (iii) file Compliance Reports with the FCC annually for the next three years.

FCC Finds That Corrective Actions and Staffing Problems Do Not Merit Reduction of Fine

The FCC imposed a $25,000 fine against a Colorado radio licensee for operating three studio-transmitter links (“STL”) from a location not authorized by their respective FCC licenses.

Section 301 of the Communications Act prohibits the use or operation of any apparatus for the transmission of communications signals by radio, except in accordance with the Act and with a license from the FCC. In addition, Section 1.903(a) of the FCC’s Rules requires that stations in the Wireless Radio Services be operated in accordance with the rules applicable to their particular service, and only with a valid FCC authorization.

In August 2012, an agent from the Enforcement Bureau’s Denver Office inspected the STL facilities and found they were operating from a location approximately 0.6 miles from their authorized location. The agent concluded–and the licensee did not dispute– that the STL facilities had been operating at the unauthorized location for five years. A July 2013 follow-up inspection found that the STL facilities continued to operate from the unauthorized location.
Continue reading →

Published on:

For those of you following our numerous posts on EAS matters over the years, a new chapter starts today. After participating in EAS summits and meetings for such a long time, it’s hard to disagree that working to improve emergency alerts for all of us is one of the more important items before the FCC. The EAS summits hosted to address improvements to the alert system have been very useful toward achieving that goal, and many thanks should go out to the state broadcasters associations, the FCC, FEMA, the National Association of Broadcasters, Capitol Hill staff, and many others for working hard to save lives in emergencies, realizing in particular the vital role that local broadcasters play in that effort.

Today, the FCC’s latest EAS NPRM was published in the Federal Register, which means that parties will have 30 days to file comments and an addition fifteen days for reply comments. Comments are therefore due on August 14, and reply comments are due on August 29.

The NPRM is highly technical, but the proposed changes to Part 11 of the Commission’s Rules are a response to the nationwide EAS test held in November 2011. The FCC notes in the NPRM that since the national test, it has implemented CAP and the Wireless Emergency Alert system to standardize geographically-based alerts and interoperability among equipment. According to the Commission, the proposals in the NPRM are intended as first steps to fix the vulnerabilities uncovered in the national test.

A copy of the NPRM can be found here.

Lots of very specific questions are posed in the NPRM, but the principal proposals are:

  • The FCC proposes that all EAS participants have the capability to receive a new six zero (000000) national location code. The national test used a location code for Washington, DC, but many EAS units apparently rejected it as outside their local area. The FCC says that the proposal is intended to remedy this problem by providing a code that will trigger EAS units regardless of location.
  • The second major proposal is to amend the rules governing national EAS tests. The FCC proposes to amend the rules to create an option to use the National Periodic Test (NPT) for regular EAS system testing and seeks comment on the manner in which the NPT should be deployed.
  • The Commission is also proposing to require that all EAS Participants submit test reports on an electronic (as opposed to paper) form. The information in the electronic reports that identifies monitoring assignments would then be integrated into State EAS Plans. The FCC proposes to designate the EAS Test Reporting System (ETRS) as the primary EAS reporting system and to require that all EAS Participants submit nationwide EAS test results data electronically via the ETRS for any future national EAS test.
  • The NPRM also asks whether the FCC should require that emergency crawls be positioned to remain on the screen (and not run off the edge of the screen) and be displayed for the duration of an EAS activation.

Finally, although not a primary topic of the NPRM, the FCC proposes that a reasonable time period for EAS Participants to replace unsupported equipment and to perform necessary upgrades and required testing to implement the proposed rules be six months from the effective date of any rules adopted as a result of the NPRM.

The NPRM attempts to tackle some difficult technical issues and is a tough read. However, given what is at stake, and the challenges of implementing a more nationwide approach to EAS, it is worth the effort.

Published on:

June 2014

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Bad Legal Advice Leads to Admonishment for Public File Violations
  • $10,000 Fine for Tower Violation
  • Missing Emergency Alert System Equipment Results in $6,000 Fine

Licensee’s Poor Financial Condition and Reliance on Bad Legal Advice Fend Off Fines

Earlier this month, the FCC’s Enforcement Bureau issued an order against the former licensee of a Texas radio station admonishing the licensee but declining to impose $40,000 in previously proposed fines relating to public inspection file violations.
In December of 2010, agents from the Enforcement Bureau’s local office reviewed the station’s public inspection file and determined that, among other things, the file did not contain any quarterly issues-programs lists. In response, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”), and ultimately a Forfeiture Order, imposing a fine of $25,000, which the licensee subsequently paid.

After the original NAL was issued, the station hired an independent consultant to assist it in ensuring that the station’s public inspection file was complete. In August of 2011, the licensee submitted a statement to the FCC in which it certified that all of the required documents had been placed in the station’s public inspection file. However, field agents visited the station again in October of 2011, and found that the public inspection file still did not contain any issues-programs lists. In response, the FCC issued two more NALs in June of 2012 (the “2012 NALs”) for the still-incomplete public inspection file and for the false certification submitted in response to the original NAL. The 2012 NALs proposed a $25,000 fine for providing false information to the FCC and a $15,000 fine for the still-missing issues-programs lists.

In this month’s order, the FCC analyzed the now-former licensee’s claim that it had engaged an independent consultant to assist it in responding to the original NAL and that it had subsequently placed documentation regarding issues-programs in its public inspection file. The FCC noted that the outside consultant’s advice that placing copies of the station’s daily program logs in the file would be adequate to meet the requirement was erroneous. However, since the licensee had sought to fix the problem by hiring a consultant and had relied on the consultant’s advice, the FCC concluded that the licensee had not negligently provided incorrect information to the Enforcement Bureau, and therefore the FCC did not impose the originally-proposed $25,000 fine for false certification.

In contrast, the FCC concluded that the former licensee had indeed willfully violated Section 73.3526 of the FCC’s Rules by not including issues-program lists in its public inspection file. The former licensee had, however, submitted documentation of its inability to pay and asked that it not be required to pay the proposed $15,000 fine. The FCC agreed that the former licensee had demonstrated its inability to pay, and therefore declined to impose the $15,000 fine.

In doing so, the FCC also noted that while “[r]eliance on inaccurate legal advice will not absolve a licensee of responsibility for a violation, [it] can serve as evidence that the licensee made an effort to assess its obligations, that its assessment was reasonable, if erroneous, and was made in good faith.” In light of all the facts, the FCC elected to formally admonish the former licensee, and warned that, should the former licensee later acquire broadcast licenses, it could face substantial monetary penalties, regardless of its ability to pay, for future rule violations.
Continue reading →

Published on:

Just two months after assessing nearly $2 million in fines to cable operators for airing ads for the movie Olympus Has Fallen containing false EAS tones, the FCC today granted an 18-month extension of its 2013 waiver allowing the Federal Emergency Management Agency to continue to use false emergency tones in Public Service Announcements.

In this case, the tone being used is not the “broadcast” EAS tone, but the Wireless Emergency Alert (WEA) tone transmitted to cell phones and other wireless devices in an emergency. In the words of the FCC, “[t]he WEA Attention Signal is a loud, attention-grabbing, two-tone audio signal that uses frequencies and sounds identical to the
distinctive and familiar attention signal used by the EAS.”

According to the FCC’s waiver extension order, the FEMA PSAs are a reaction to the public being “startled or annoyed” when hearing the WEA tone for the first time, and then seeking to turn off all future alerts. The PSAs are aimed at teaching the public how WEA works and how their mobile devices will behave when receiving a WEA alert.

Given these facts, on May 31, 2013, the FCC granted an unprecedented waiver of the prohibition on airing false emergency tones to permit FEMA PSAs containing the WEA tone to be aired. However, that waiver was limited to one year. Since that year is about up, FEMA recently sought an extension, and by today’s order, the FCC has extended the waiver for an additional 18 months.

While FEMA indicates that it believes the announcements have been a success, it continues to receive negative media coverage and individual complaints about the WEA alerts. As a result, it wishes to continue distributing the PSAs for airing and needed today’s waiver to accomplish that.

Of course, while FEMA is the party that sought the waiver, it is broadcasters and cable operators that are typically found liable when a false emergency tone airs. Both of those groups should therefore be concerned that the FCC did not grant an unconditional waiver, but instead extended the waiver only to announcements that “mak[e] it clear that the WEA Attention Signals are being used in the context of the PSA and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program.” As a result, the FCC warned that “leading off a PSA with a WEA Attention Signal, without warning, may be an effective attention-getting device, but it would violate the conditions of this waiver because of the effect that it could have on the listening or viewing public.”

Broadcasters and cable operators will therefore need to screen all FEMA PSAs containing an emergency tone to ensure it is a WEA (and not an EAS) tone, and that the PSA meets the FCC’s waiver conditions and therefore does not pose a risk of confusing the public as to whether an emergency is actually occurring. In other words, if FEMA runs afoul of this requirement in a future PSA, it is the broadcasters and cable operators airing it who will be facing the emergency.

Published on:

Back in March, the FCC’s Public Safety and Homeland Safety Bureau (PSHSB) issued a Public Notice seeking to update the record on a 2005 Petition for Immediate Interim Relief regarding proposals to make fundamental changes to the FCC’s EAS Rules with respect to requiring broadcast stations to air multilingual EAS alerts. Yesterday, the PSHSB released a Public Notice extending the comment deadlines in the proceeding. Comments are now due by May 28, 2014 and replies are due by June 12, 2014.

The March Public Notice seeks comments on a number of issues, but the most-discussed issue is the Petitioner’s proposal to have the FCC adopt a so-called “designated hitter” requirement for multilingual EAS.

The Public Notice quotes the Petitioner in describing the proposal:

Such a plan could be modeled after the current EAS structure that could include a “designated hitter” approach to identify which stations would step in to broadcast multilingual information if the original non-English speaking station was knocked off air in the wake of a disaster. Broadcasters should work with one another and the state and/or local government to prepare an emergency communications plan that contemplates reasonable circumstances that may come to pass in the wake of an emergency. The plan should include a way to serve all portions of the population, regardless of the language they speak at home. One market plan might spell out the procedures by which non-English broadcasters can get physical access to another station’s facilities to alert the non-English speaking community – e.g. where to pick up the key to the station, who has access to the microphones, how often multilingual information will be aired, and what constitutes best efforts to contact the non-English broadcasters during and after an emergency if personnel are unable to travel to the designated hitter station.

The March Public Notice asked for comment on a number of questions related to this proposal. The Commission also acknowledged in the March Public Notice that broadcasters have raised concerns that a multilingual EAS requirement using the designated hitter approach would require them to hire additional personnel capable of translating emergency alert information into one or more additional languages.

Given that there is a nine year record in this proceeding and that any multilingual EAS requirements will have wide-ranging implications, those wishing to file comments in the proceeding now have some additional time to make that happen.

Published on:

There was quite a stir today when the FCC, despite being closed for a snow day, issued a Notice of Apparent Liability proposing very large fines against Viacom ($1,120,000), NBCUniversal ($530,000), and ESPN ($280,000) for transmitting false EAS alert tones. According to the FCC, all three aired an ad for the movie Olympus Has Fallen that contained a false EAS alert tone, with Viacom airing it 108 times on seven of its cable networks, NBCUniversal airing it 38 times on seven of its cable networks, and ESPN airing it 13 times on three of its cable networks.

The size of the fines certainly drew some attention. Probably not helping the situation was the ad’s inclusion of the onscreen text “THIS IS NOT A TEST” and “THIS IS NOT A DRILL” while sounding the EAS tone. The FCC launched the investigation after receiving complaints from the public.

All three entities raised a variety of arguments that were uniformly rejected by the FCC, including that “they had inadequate notice of the requirements and applicability of the rules with respect to EAS violations.” What particularly caught my eye, however, was that all three indicated the ad had cleared an internal review before airing, and in each case, those handling the internal review were apparently unaware of Section 325 of the Communications Act (prohibiting transmission of a “false or fraudulent signal of distress”) and Section 11.45 of the FCC’s Rules, which states that “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.”

Back in 2010, I wrote a post titled EAS False Alerts in Radio Ads and Other Reasons to Panic that discussed the evolution of the FCC’s concerns about false emergency tones in media, which originally centered on sirens, then on Emergency Broadcast System tones, and now on the Emergency Alert System’s digital squeals. Two months later, I found myself writing about it again (The Phantom Menace: Return of the EAS False Alerts) when a TV ad for the movie Skyline was distributed for airing with a false EAS tone included in it.

That was the beginning of what has since become a clear trend. Those initial posts warned broadcasters and cable programmers to avoid airing specific ads with false EAS tones, but were not connected to any adverse action by the FCC. After three years of EAS tone tranquility, the issue reemerged in 2013 when hackers managed to commandeer via Internet the EAS equipment of some Michigan and Montana TV stations to send out false EAS alert warnings of a zombie attack. The result was a rapid public notice from the FCC instructing EAS participants to change their EAS passwords and ensure their firewalls are functioning (covered in my posts FCC Urges IMMEDIATE Action to Prevent Further Fake EAS Alerts and EAS Alerts and the Zombie Apocalypse Make Skynet a Reality), but no fines.

From there we moved in a strange direction when the Federal Emergency Management Agency distributed a public service announcement seeking to educate the public about the Emergency Alert System, but used an EAS tone to get that message across. Because it did not involve an actual emergency nor a test of the EAS system, the PSA violated the FCC’s rule against false EAS tones and broadcasters had no choice but to decline to air it. The matter was resolved when the FCC quickly rushed through a one-year waiver permitting the FEMA ad to be aired (Stations Find Out When Airing a Fake EAS Tone Is Okay).

Late last year, however, the evolution of the FCC’s treatment of false EAS alerts turned dark (FCC Reaches Tipping Point on False EAS Alerts) when the FCC issued the first financial penalties for false EAS alerts. The FCC proposed a $25,000 fine for Turner Broadcasting and entered into a $39,000 consent decree with a Kentucky radio station for airing false EAS alert tones. The FCC indicated at the time that other investigations were ongoing, and more fines might be on the way.

We didn’t have to wait long, as just two months later, the FCC upped the ante, proposing a fine of $200,000 against Turner Broadcasting for again airing false EAS alert tones, this time on its Adult Swim network. The size of the fine was startling, and according to the FCC, was based upon the nationwide reach of the false EAS tone ad, as well as the fact that Turner had indicated in connection with its earlier $25,000 fine that it had put in place mechanisms to prevent such an event from happening again. When it did happen again, the FCC didn’t hesitate to assess the $200,000 fine.

Today’s order, issued less than two months after the last Turner decision, ups the ante once again, proposing fines of such size that only some of the FCC’s larger indecency fines compare. The FCC is clearly sending a signal that it takes false EAS tones very seriously, and the fact that the ads containing the EAS tones were produced by an independent third party didn’t let the programmers off the hook. In other words, it doesn’t matter how or why the ads got on the air; the mere fact that they aired is sufficient to create liability.

So what lesson should broadcasters and cable networks take away from this? Well, the all too obvious one is to do whatever it takes to prevent false EAS tones from making it on air. However, an equally useful lesson is to make sure that your contracts with advertisers require the advertiser to warrant that the spots provided will comply with all laws and to indemnify the broadcaster or network if that turns out not to be the case. That won’t save you from a big FCC fine and a black mark on your FCC record, but it will at least require the advertiser to compensate you for the damages you suffered in airing the ad and defending yourself. Unfortunately, many advertising contracts are not particularly well drafted (and some are just a handshake), which can expose you to a variety of liabilities like this unnecessarily.

It is therefore wise to have both your ad contracts and your advertising guidelines carefully reviewed by counsel experienced in this area of the law. Vigilant review of ads submitted for airing is an excellent first line of defense, but as demonstrated in today’s decision, it won’t do much good if the individuals reviewing the ads don’t know what to look for.

Published on:

Over the years, I’ve written numerous times about the FCC’s adverse reaction to advertisers seeking to make their ads more attention-getting through inclusion of an Emergency Alert System tone. The most recent was this past November, when the FCC proposed a $25,000 fine against Turner Broadcasting System, Inc. for an EAS tone-laden Conan promo, and announced a $39,000 consent decree with a Kentucky TV station for a local sports apparel store ad containing an EAS alert tone.

I titled the post FCC Reaches Tipping Point on False EAS Alerts, and noted at the end of it that

ominously, today’s FCC Enforcement Advisory notes that “[o]ther investigations remain ongoing, and the Bureau will take further enforcement action if warranted.” Given today’s actions by the FCC, everyone whose job it is to review ad content before it airs is having a very bad day.

Today, the FCC fulfilled that prophecy, proposing an additional $200,000 fine against Turner Broadcasting System, Inc. for distributing another ad containing EAS tones. According to the FCC, Turner’s Adult Swim Network aired ads produced by Sony Music Group promoting an album by rap artist A$AP Rocky and the album’s availability at Best Buy stores. While the ad did not contain any digital data from an EAS tone, it did simulate the EAS audio tone itself. The ad aired seven times over the network’s East Coast feed, and then was repeated seven more times in the West Coast feed three hours later.

The FCC’s decision is “spirited” (at least by FCC standards), managing to convey a fair degree of exasperation, principally because of Turner’s prior violation and the fact that

In response to those [earlier] complaints, which also emphasized the potential impact on public safety of the transmission of such material, Turner represented to the Commission that it had changed certain of its internal review practices. Nevertheless, another Turner-owned channel, less than one year later, transmitted the A$AP Rocky/Best Buy advertisement 14 times over a six day period, which also contained simulations of the EAS codes. Thus, despite its experience with the problem of misusing EAS codes and Attention Signals, Turner continued to violate Section 11.45 of the Commission’s rules and Section 325(a) of the Act, indicating a higher degree of culpability in this instance. Therefore, based on the number of transmissions at issue, the amount of time over which the transmissions took place, the nationwide scope of Adult Swim Network’s audience reach, Turner’s degree of culpability, Turner’s ability to pay, and the serious public safety implications of the violations, as well as the other factors as outlined in the Commission’s Forfeiture Policy Statement, we find that a forfeiture of two hundred thousand dollars ($200,000) is appropriate.

Beyond the unprecedented size of the fine for such a violation, today’s decision is also notable because, unlike the self-inflicted wound of putting an EAS tone in a program promo, this case involved a spot produced by a third party. While the FCC has appeared in the past to have had at least some sympathy where a problem in a third-party ad “slipped through”, the FCC’s sympathy seems to be exhausted at this point. Having said that, it is worth noting that the FCC went after the program network rather than the individual cable and satellite systems that actually transmitted the spots to the public. Cable and satellite providers can take at least some solace in that.

While the nationwide audience and prior violation may have made the size of this fine somewhat unique, it is safe to say that the FCC has reached the point that it is unlikely to find a false EAS tone, no matter the circumstances, to be an excusable “oops” on the part of a program distributor. While the FCC might once have been willing to just admonish a violator and save the fines for repeat offenders, it appears that there will no longer be any free bites at the false EAS tone apple, and that each bite will be appreciably more expensive than the last.

Of course, if the FCC is hoping that steadily escalating fines will cause violators to lose their taste for the forbidden fruit of false EAS tones in ads, the question is whether advertisers will also hear that message, or are broadcasters, cable operators and satellite TV providers forever doomed to play a game of whack-a-mole (whack-a-tone?) with third-party ads?