FCC Enforcement Monitor January 2023
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:
- TV Network Draws Proposed Fine of $504,000 for Transmitting False EAS Tones
- FCC Cites Equipment Supplier for Marketing Unauthorized Devices
- FCC Proposes $62 Million Penalty Against Wireless Provider for Excessive Connected Devices Reimbursement Claims
FCC Proposes $504,000 Fine Against TV Network and Its O&O Station Group for EAS Rule Violations
The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to a TV network and its O&O station group, asserting violations of the Commission’s Emergency Alert System (EAS) rules. Specifically, the FCC alleged violations of Section 11.45 of its rules, which prohibits the transmission of false or deceptive EAS tones.
The EAS is a nationwide public warning system designed to alert the public in case of emergencies, such as severe weather warnings or AMBER alerts. In order to maintain the effectiveness of such alerts, EAS tones may only be aired in actual emergencies, authorized tests, and qualified public service announcements (PSAs). Section 11.45 strictly prohibits airing the EAS tones, or simulations thereof, except in connection with one of these permitted uses.
The FCC received information from several sources alleging that during the television broadcast of a promotional segment in November 2021, the network transmitted EAS tones that were not connected to an emergency, authorized test, or qualified PSA. In January 2022, the FCC’s Enforcement Bureau sent a Letter of Inquiry seeking information regarding the potential violation and requesting, among other things, recordings of the promotional segment. The network responded, admitting that it aired a three-second excerpt of the EAS Attention Signal, and admitting that it was not aired in connection with any permitted use.
The network also acknowledged that it broadcast the promotional segment over 18 owned-and-operated TV stations and transmitted it to 190 network-affiliated TV stations, as well as transmitted it on its sports radio network, which has a nationwide reach of nearly 15 million listeners. Based on the network’s admissions and the FCC’s review of the segment, the Commission found that the network willfully violated Section 11.45(a) of the Commission’s Rules in its capacity as a broadcast TV programming network, as the licensee of multiple television stations, and by transmitting the segment via radio stations. The FCC explained that although it was shorter than the full EAS Tones, the three-second clip used in the segment had the same dual-tone frequency, pitch, and timbre as the actual EAS Tones, and was recognizable by viewers or listeners as substantially similar to the EAS Tones.
Pursuant to 47 U.S.C. § 503(b)(2)(A), which governs broadcast station licensees, the FCC is authorized to issue fines of up to $59,316 per violation, but the total amount for a single act may not exceed $593,170. The FCC noted that while the base fine for violations of the EAS rule is $8,000, it looks at the particular facts of each case and may upwardly adjust that amount based on a number of specific factors, including the number of transmissions at issue, the network’s large nationwide audience reach, the gravity of the violation, the violator’s degree of culpability, ability to pay, and the serious public safety implications of the apparent violation.