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Earlier today, the FCC released a Notice of Apparent Liability for Forfeiture against CBS for false EAS alerting, which is FCC-speak for “CBS, tell us why we shouldn’t fine you $272,000 for airing a fake EAS alert tone.”  We’ve written on a number of occasions about FCC fines for airing false EAS alert tones (see, for example, here, here and here).  We’ve also written about false EAS alerts that were unintentionally aired, with my personal favorite in that category being EAS Alerts and the Zombie Apocalypse Make Skynet a Reality.  However, fines for airing false EAS tones have become sufficiently common in recent years that we have largely stopped writing about them.

Today’s decision was a bit different, however.  Section 11.45 of the FCC’s Rules provides 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….” False EAS alerts have typically popped up in commercials as a way of getting jaded viewers’ and listeners’ attention, which makes them challenging to successfully defend.  After all, the advertiser in that scenario is typically counting on the alert tone to draw attention to the ad for reasons entirely unconnected to public safety.  While the advertiser might claim that this prohibition violates its First Amendment rights, that’s not likely a winning argument since commercial speech receives reduced First Amendment protection (which is why, for example, the Federal Trade Commission can prohibit false advertising).

But what happens when the use of the alert tone is not in an ad?  In the case of CBS, the FCC succinctly describes the offending content (which you can also view here) as:

CBS admits that it transmitted the program Young Sheldon on April 12, 2018, which included a “tornado warning sound effect integral to a story line about a family’s visceral reaction to a life‐threatening emergency and how surviving a tornado changed family relationships.”

While the FCC acknowledged that CBS made efforts to ensure the tone was a simulation that did not trigger EAS equipment, the FCC noted that Section 11.45 still prohibits simulations of an EAS tone.  Among other defenses CBS raised in response to the FCC’s assertion that the broadcast violated Section 11.45, it argued that no viewer would be so confused as to think it was a real emergency, and that the broadcast is protected by the First Amendment to boot.  That’s where this case gets interesting.

The FCC is effectively claiming that CBS falsely yelled “fire” in a crowded theater, which is the well-established exception to First Amendment protections.  CBS, on the other hand, is countering that it only yelled “boogeyman”, and that any reasonable viewer isn’t going to panic, because the public knows the difference between real and fictional things.

For students of the First Amendment, the part that first catches the eye is the absolutism of the Commission’s decision.  Only very rarely does the First Amendment permit blanket bans on particular speech in all circumstances.  While you may be prosecuted for yelling “fire” in a crowded theater, you can, for example, say it if you are in command of a firing squad.

The FCC’s treatment of the EAS tone as sacrosanct admittedly makes it difficult for a drama to realistically depict an emergency and people’s reaction to it.  Whenever a particular type of content is forbidden in all circumstances except where the government specifically authorizes it, First Amendment issues inevitably arise.

In today’s decision, the FCC presented three reasons to justify the blanket prohibition.  These would be to “(1) prevent consumer confusion at the moment of a broadcast of the Tones, (2) prevent the inadvertent technical triggering of additional EAS warnings, and (3) prevent the accretion of non-emergency uses of the Tones that will dull consumers’ attentiveness to the public-safety import of the sounds.”  While the FCC had to concede that CBS’s efforts to modify the tone had been successful in preventing the triggering of additional EAS warnings, it was not convinced that consumer confusion could not have occurred, and was certainly concerned about the public getting alert fatigue.

But it’s not really the fact that the FCC rejected CBS’s arguments that is of interest to broadcasters, but how it was done.  First, the Commission noted the now archaic (but admittedly not yet overruled) court precedent that content on broadcast stations receives a lower level of First Amendment protection than all other media.  Whether that still makes sense in the modern era, the FCC’s argument creates the very real possibility that false EAS alert tones could be forbidden on broadcast TV, where the legal standard of First Amendment review is “intermediate scrutiny”, but be constitutionally protected on cable TV, where restrictions on content must meet the far tighter “strict scrutiny” standard.  Since EAS alerts are also transmitted by cable systems, however, the risk of public confusion and alert fatigue is the same on cable as it is on broadcast TV.  That raises the question of how strong the government’s interest in prohibiting false EAS alert tone simulations on broadcast TV can be if those same false alert tones might be constitutionally protected on cable TV programs.

Seeing that trap, the FCC tried to avoid it by arguing that even though First Amendment protections are reduced for CBS as a broadcaster, it doesn’t matter, because the government’s interest in preventing public confusion and alert fatigue is so compelling as to survive strict scrutiny under the First Amendment, allowing the rule to also be enforced against cable TV providers.

Public safety can certainly be a compelling government interest.  However, to survive strict scrutiny, a regulation must also be “narrowly tailored” to further the government’s compelling interest, and be the “least restrictive means” for doing so.  A blanket government ban on using even a simulation of the EAS tone would probably have a tough time surviving strict scrutiny under the First Amendment, but if the FCC could argue to a court that there is something uniquely valuable about the public hearing the tone only when there is an actual emergency, a court might well agree.

But that’s where the FCC may have undercut its own argument.  In July 2018, the FCC modified its rules to allow the airing of “the EAS Attention Signal and a simulation of the EAS codes as provided by FEMA” where they are used in EAS Public Service Announcements provided by “federal, state, and local government entities or non-governmental organizations, to raise public awareness about emergency alerting.”  To avoid confusion, such messages must state that the tone is being presented in the context of a PSA for the purpose of educating the public about EAS.

It would be challenging for the FCC to successfully argue in court that a single use of a simulated EAS tone creates listener fatigue when it has just authorized unlimited use of the actual tone in PSAs.  Similarly, the FCC weakened its argument that any non-emergency use of the tone inevitably leads to public confusion, when, by requiring the PSAs to contain a disclaimer letting the public know it is not an emergency, the FCC concedes that it is possible to present the tone (or a simulation thereof) in a manner that does not confuse the public.

That would seem to make it a a finding of fact as to whether a particular use of a simulated tone is likely to cause public confusion versus public education, and to be candid, a dramatic representation of a family reacting to an EAS tone probably conveys the importance of the tone far better than a PSA that most viewers will fast-forward past (or miss while getting a sandwich).  Admittedly, that is a slippery slope, but First Amendment analysis perpetually lives on that slope.

Regardless of how a court might balance these competing interests, the real irony of the whole affair is that Young Sheldon is set in Texas circa 1989-90.  The Emergency Alert System was not activated until 1997, meaning that a realistic portrayal of a tornado watch in 1990 would have featured the much different twin-frequency monotone Attention Signal of the earlier Emergency Broadcast System.  What’s the irony, you say?  The FCC’s restrictions on using the EBS tone outside of an emergency were eliminated twenty years ago.  Young Sheldon could have been both historically accurate and FCC-compliant had it just used the EBS tone instead.