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In what has been a recurring theme at CommLawCenter, I’ve written about the FCC rule prohibiting the airing of Emergency Alert System codes and tones unless there is an actual emergency or EAS test. Despite the rule, the draw of using an EAS tone is apparently irresistible, and we’ve seen it used in movie ads, oil company ads, and even zombie alerts.

Unlike many FCC rules, the ambiguity of which can leave seasoned practitioners arguing over what is or isn’t prohibited, Section 11.45 of the FCC’s Rules has been a model of clarity:

“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.”

As a result, while advertisers might succumb to the temptation to slip an EAS tone (really, it’s more of a digital squeal) into their ads, the broadcaster’s duty was straightforward–try to catch the ad before it airs, and then let the advertiser know that the ad can’t be run unless it is modified to delete the tone.

Yesterday, however, life suddenly became more complicated for broadcasters when stations began receiving copies of a Public Service Announcement from the Federal Emergency Management Agency seeking to educate the public about the Emergency Alert System using the EAS tone to get that message across. Station operators were understandably confused, thinking that surely FEMA, as a fellow federal agency to the FCC (and an expert on all things related to EAS), wouldn’t be distributing a PSA that included an illegal EAS tone.

That was not, however, a safe assumption. On multiple occasions, federal and state agencies have, for example, distributed ads or PSAs that lack the sponsorship identification announcement required by the FCC, with one of the more famous examples leading to a 2002 FCC decision refusing to grant a waiver of its sponsorship identification rule to allow the White House Office of National Drug Control Policy to run anti-drug ads without disclosing that it was the sponsor.

As stations began to decline to run the PSAs for fear or incurring the FCC’s wrath, the FCC moved quickly (and quietly, I might add) to break from its prior approach, and today released a decision granting an unprecedented one-year waiver of Section 11.45, permitting FEMA spots to use the EAS tone as long as they make “clear that the WEA [Wireless Emergency Alert] 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.” The FCC also “recommend[s] that FEMA take steps to ensure that such PSAs clearly state that they are part of FEMA’s public education campaign.”

The good news today is that the FCC approached the problem head on by granting a waiver rather than trying to “interpret” its rule to somehow not cover the FEMA PSA tones. Such an interpretation would have left broadcasters scratching their heads every time an EAS tone pops up in a future spot, trying to figure out whether that use might also fit into such an exception. The bad news, however, is that broadcasters have now been told that fake EAS tones are sometimes okay, and they need to be watching the FCC’s daily releases to determine if a particular use has suddenly become acceptable. Hopefully, such spots will actually educate the public to better understand the purpose of EAS alerts, as opposed to merely acclimating them to hearing the tone on-air and learning to ignore it.

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May 2013

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:

  • FCC Establishes New Enforcement Policy for Student-Run Noncommercial Radio Stations
  • CB Radio Owner Receives Fine for Harmful Interference and Lack of Responsiveness

Student-Run Noncommercial Radio Stations Will Face Lighter Sanctions on Some FCC Enforcement Actions

In a recent Policy Statement and Order, the FCC established a new policy for certain first-time violations of FCC documentation requirements committed by student-run noncommercial radio stations. The new policy allows such stations the option of entering into a Consent Decree with the FCC that includes a compliance plan and a “voluntary” contribution to the government that is smaller than the typical base fines for these violations.

In justifying its more lenient policy toward student-run stations, the FCC noted that such stations are staffed by a continually changing roster of young students lacking experience in regulatory compliance. In addition, such stations function without any professional oversight other than that provided by over-worked faculty advisors, and often operate with budgets so small that they are exceeded by even the base fine for a public inspection file violation. In the past, the FCC has issued numerous fines of $8,000-$10,000 to licensees of student-run stations, and with this new policy, the FCC recognizes that continuing to impose such fines could result in schools selling their stations altogether, as has indeed happened.

In the past, the FCC rejected arguments that fines on student-run stations should be reduced solely because the stations are run by students. The FCC has also typically rejected “inability to pay” arguments for these types of stations, and instead looked at the financial resources of the entire university or college, rather than the financial resources of the station, when assessing a fine. However, the FCC now concludes that allowing the cost of a first-time documentation violation to be reduced in exchange for a consent decree with a compliance plan will actually improve compliance with the FCC’s rules. Specifically, the FCC believes that such compliance plans will assist in the training of students while contributing to the educational function of these stations.

In its Policy Statement, the FCC emphasized that the policy will apply only to student-run noncommercial radio stations where the station is staffed completely by students. Stations that employ any professional staff, other than faculty advisors, do not qualify. The policy is also limited to violations where a student-run station has failed to (a) file required materials with the FCC (e.g., an Ownership Report), (b) place required materials in the public inspection file, or (c) publish a notice in a local newspaper or broadcast an announcement on the air. This new policy will not change the FCC’s forfeiture policies for any other type of violation or licensee.

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A few minutes ago, the FCC issued a Public Notice granting a thirty-day extension of the deadlines for submitting comments and reply comments in response to the FCC’s April 1, 2013 Public Notice seeking input on whether the Commission should make changes to its current broadcast indecency policies. Comments and reply comments were originally due on May 20 and June 18, 2013, respectively, but have now been extended to June 19, 2013 (comments) and July 18, 2013 (reply comments). The extension was granted in response to a Motion filed by the National Association of Broadcasters on April 26, 2013.

Scott Flick of our office posted a detailed analysis of the Public Notice early last month. To refresh your memory, the Public Notice (jointly released by the FCC’s Enforcement Bureau and General Counsel’s Office) was issued in response to FCC Chairman Genachowski’s request that FCC staff review the “Commission’s broadcast indecency policies and enforcement to ensure they are fully consistent with vital First Amendment principles.”

With respect to guidance for parties planning to file comments, the quoted language below from the Public Notice describes the matters on which the FCC is seeking comment:

  1. [W]hether the full Commission should … treat isolated expletives in a manner consistent with our decision in Pacifica Foundation, Inc., Memorandum Opinion and Order, 2 FCC Rcd 2698, 2699 (1987) (“If a complaint focuses solely on the use of expletives, we believe that . . . deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.”)?
  2. Should the Commission instead maintain the approach to isolated expletives set forth in its decision in Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, Memorandum Opinion and Order, 19 FCC Rcd 4975 (2004)?
  3. As another example, should the Commission treat isolated (non-sexual) nudity the same as or differently than isolated expletives?

The Public Notice also states that parties are invited “to address these issues as well as any other aspect of the Commission’s substantive indecency policies.” As Scott pointed out in his analysis last month, this final question appears to open the door to a broader review of indecency doctrine than the FCC has engaged in for quite some time.

Given the controversy the FCC’s indecency policies have historically generated, you can expect to see plenty of comments filed on June 19 and reply comments on July 18 by parties on all sides of this issue. As the FCC moves toward new leadership with the departure of Chairman Genachowski, the FCC’s indecency enforcement policies could take some interesting turns.