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Both TV and radio stations are learning that medical marijuana can give you a bad headache. However, everyone, including the Department of Justice, currently seems uncertain as to the long-term prognosis for stations that aired medical marijuana ads. As I wrote here last week, leading to a number of articles on the issue in trade press and around the web this week, it is clear that the DOJ has abandoned any pretense of taking a restrained approach to the natural conflict between state laws permitting medical marijuana and federal laws prohibiting it as an illegal drug. The question I had raised back in May, and focused on in last week’s post, was whether the threat to media running medical marijuana ads had moved from theoretical to imminent.

When the DOJ sent letters to the landlords of medical marijuana dispensaries last week telling them to evict their dispensary tenants or risk imprisonment, forfeiture of their buildings and confiscation of all rent collected from those dispensaries, it became clear that media collecting ad revenues for promoting the sale of medical marijuana could just as easily be in the DOJ’s crosshairs. What I found interesting about the reaction to last week’s post, however, was an assumption by many that this is a radio-only issue, and that television stations “did not inhale” medical marijuana ad revenues these past few years. However, the first (and as far as I know, only) medical marijuana complaint pending at the FCC was lodged against a large market network TV affiliate.

The DOJ apparently doesn’t see it as a radio-only matter either. When the issue was raised by a reporter this week, U.S Attorney Laura Duffy caused a stir by announcing that her next target is indeed medical marijuana advertising, noting that she has been “hearing radio and seeing TV advertising” promoting the drug.

The good news for media in general is that, unlike the FCC, the DOJ is less concerned about past conduct, and more interested in reducing future medical marijuana advertising (and thereby reducing future medical marijuana sales). It was therefore in character when Ms. Duffy announced that her first step would be notifying media “that they are in violation of federal law.” The DOJ followed a similar approach in 2003 when it sent letters to broadcasters and other media threatening prosecution of those running ads for gambling websites on grounds that those media outlets were “aiding and abetting” the illegal activities. You can read a copy of the letter here. I note with a bit of irony that one of the arguments made by the DOJ in the 2003 letter is that stations should not be airing ads for online gambling “since, presumably, they would not run advertisements for illegal narcotics sales.”

While the DOJ later pursued some media companies for running ads for online gambling, including seizing revenue received from those ads, its efforts were principally aimed at making an example of those who failed to “take the hint” from the DOJ’s 2003 letter. It seems likely that the DOJ will follow a similar path with regard to medical marijuana ads, focusing primarily on putting an end to the airing of such ads as opposed to pursuing hundreds of legal actions against those who previously aired them.

Also providing at least a small sense of relief for media are more recent statements from the office of Ben Wagner, one of (along with Laura Duffy) California’s four U.S. Attorneys, indicating that he is not currently focusing on medical marijuana advertising. While that could obviously change at any time, it does suggest that any action against media for medical marijuana advertising is at the discretion of the individual U.S. Attorney, and not an objective of the DOJ as a whole.

If the DOJ remains true to its past practices, then broadcasters and other media can likely avoid becoming a target for legal action by ceasing to air medical marijuana ads now. Pursuing individual media outlets is resource-intensive for the DOJ, and raises some thorny legal issues. More to the point, there is little to be accomplished by such actions if media outlets have already stopped airing the ads.

With regard to the FCC, however, broadcasters are not so lucky. Unlike the DOJ, which can choose whether to pursue an action against a media outlet, the FCC will likely be forced to address the issue both in the context of adjudicating complaints against broadcasters for airing medical marijuana ads, and in considering whether a station’s past performance merits renewal of its broadcast license. Given the classification of marijuana as an illegal drug under federal law, and particularly in light of the government’s other attacks on components of the medical marijuana industry, it will be difficult for the FCC to avoid confronting the issue, even where a station stopped airing the ads years ago. As a result, print and online media outlets may be able to get the marijuana advertising out of their systems fairly quickly, but broadcasters could be suffering legal flashbacks for years to come.

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In what became one of our more heavily circulated posts, I wrote a piece back in early May entitled “Will Marijuana Ads Make License Renewals Go Up in Smoke?” It noted that the Department of Justice was showing signs of abandoning its “live and let live” policy toward medical marijuana producers and dispensaries operating in compliance with state laws.

Because advertising by such dispensaries had become a significant revenue source for broadcasters in states where medical marijuana was legalized, the DOJ’s about-face placed broadcasters in an awkward position. While medical marijuana may be legal under state law, it has never been legal under federal law. This means that broadcast stations, which the law deems to be engaged in an interstate activity, and whose livelihood depends on license renewal by the FCC, are an easy target for a Federal Government intent upon suppressing the sale of medical marijuana. The takeaway from my post was that stations should think long and hard before accepting medical marijuana ads.

It became clear this morning that it was time to do an update on the subject when an article from the Denver Post came across my desk noting that “the last bank in Colorado to openly work with the medical-marijuana industry — Colorado Springs State Bank — officially closed down the accounts of dispensaries and others in the state’s legal marijuana business over concerns about working with companies that are, by definition, breaking federal law.” Like broadcasters, the banking industry is heavily regulated by the Federal Government, and it appears that Colorado bankers have collectively concluded that, despite the large sums of money involved, it is not worth the risk of dealing with medical marijuana dispensaries and incurring the wrath of the feds.

That development alone should concern broadcasters airing medical marijuana ads. However, late today, word got out that the DOJ, through its four U.S. Attorneys in California, sent letters threatening medical marijuana dispensaries in California with criminal charges and confiscation of their property if they do not shut down within 45 days. Of particular interest to broadcasters (and any other media running medical marijuana ads), these letters were sent not just to dispensaries, but to their landlords, effectively telling the landlords to evict their tenant or risk imprisonment, forfeiture of their building and confiscation of all rent collected for the period the dispensary was in business.

The DOJ’s willingness to threaten those who are not engaged in the sale of medical marijuana, but who merely provide services to those who are, should raise alarm bells for media everywhere. If landlords who collect rent from medical marijuana dispensaries are at risk, media that collect ad revenues from promoting the sale of medical marijuana could just as easily be in the DOJ’s crosshairs. More to the point, the Federal Government is in a much better position to exercise leverage over the livelihoods of broadcasters than over California property owners not engaged in any form of interstate activity.

Colorado bankers have apparently already reached a similar conclusion, and the DOJ’s stepped-up campaign in California against medical marijuana removes any doubt for broadcasters and other media as to which way the federal winds are now blowing. You can expect a heated legal and political battle between the states and the Federal Government over the DOJ’s efforts to nullify state medical marijuana laws. While that battle ensues, broadcasters and other media will want to do their best to stay out of the line of fire.

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Broadcasters don’t know it yet, but recent actions by the Department of Justice suggest that the federal government may be moving closer to raining on their upcoming license renewals. The reason? Medical marijuana advertising. While it seems like a recent phenomenon, the first state laws permitting medical marijuana go back some 15 years. The movement by states to permit the use of medical marijuana has grown steadily since then, with half the states in the U.S. (and the District of Columbia) now having medical marijuana laws on the books or under consideration.

Of course, when an entrepreneur sets up a medical marijuana dispensary, the next step is to get the word out to the public. In the past few years, these dispensaries began approaching broadcast stations in growing numbers seeking to air advertising. In the depths of the recent recession, medical marijuana dispensaries were one of the few growth industries, and many stations were thrilled to have a new source of ad revenue.

However, marijuana, medical or otherwise, is still illegal under federal law. When we first began receiving calls a few years ago from broadcast stations asking if they could accept the ads, the federal government’s position was ambiguous. Many stations, and in some cases, their counsel, concluded that as long as the activity was legal in the state in which the station was located, airing medical marijuana ads was fine. In 2009, the Department of Justice gave some comfort, if not support, to this school of thought when it internally circulated a memo to some U.S. attorneys suggesting that the DOJ was not interested in pursuing medical marijuana businesses as long as they operated in compliance with state law.

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As we all know, unsolicited spam email can be annoying and intrusive. In 2003, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act to curb spam. As required by the Act, the FTC and FCC adopted rules that prohibit sending unwanted commercial messages without prior permission. Among other things, the CAN-SPAM Act makes it “unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transaction or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading.”

On March 28, 2011, a U.S. District Court in California held for the first time that the CAN-SPAM Act’s restrictions on the transmission of unsolicited commercial e-mail extends beyond traditional e-mail to include communications to other electronic medium, including Facebook friends’ walls, news feeds, and home pages. As John Nicholson of Pillsbury’s Global Sourcing group describes in detail in a recent Client Alert found here, the ruling is the most expansive judicial interpretation so far regarding the types of messages that fall within the scope of the CAN-SPAM Act.

John’s Client Alert is definitely worth a read for companies using social media in marketing. As John points out, companies should verify that they (and any marketing services they engage) comply with CAN-SPAM’s requirements for commercial messages sent via social media platforms.

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I wrote last week about the FCC’s announcement that broadcasters must certify in their license renewal applications that their advertising contracts have, since March 14, 2011, had a nondiscrimination clause in them. Specifically, broadcasters must certify that their “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” The good news from last week’s announcement was that the FCC chose to apply the advertising nondiscrimination certification (which was originally announced in 2008), prospectively, rather than announcing that stations would have to certify their contracts included such language since 2008 or 2009.

That was the good news, and what government giveth with one hand, it can taketh away with the other. Today the FCC released an FCC Enforcement Advisory and News Release emphasizing how seriously it intends to treat that certification. The FCC’s Advisory states that broadcasters unable to make that certification will need to “attach an exhibit identifying the persons and matters involved and explaining why the noncompliance is not an impediment to a grant of the station’s license renewal application.”

The Advisory goes on to state that “Licensees must have a good faith basis for an affirmative certification” and notes that “a licensee that uses a third party to arrange advertising sales is responsible for exercising due diligence to ensure that the advertising agreement contains the nondiscrimination clause and does not discriminate on the basis of race or ethnicity.”

Lawyers are perhaps unique in their ability to acknowledge the validity of a legal requirement while still questioning the logic of it. Make no mistake–this new certification is the law and broadcasters need to make sure that they can truthfully make this certification at license renewal time. The goal itself is admirable. Indeed, as Univision’s Washington counsel during the time that it grew from only seven TV stations to 162 TV and radio stations, I saw first hand the challenges of persuading advertisers (and others) that Spanish-language viewers and listeners are an important group of consumers worthy of advertisers’ dollars.

However, as I noted in last week’s post, trying to use the FCC’s authority over broadcasters as a method to modify the conduct of advertisers (who are generally beyond the FCC’s authority) is a futile approach. Advertisers aren’t too worried about a broadcaster’s license renewal. As a result, the only one to be hurt here is the broadcaster, not the discriminatory advertiser.

The FCC can counter that preventing broadcasters from accepting ads of discriminatory advertisers ensures such advertisers will cease their discriminatory ad practices if they want air time. This assertion suffers, however, from two debilitating flaws. First, if the current FCC’s view is accurate that broadband,and not broadcasting, is the way of the future, then there will be plenty of non-broadcast venues for advertisers wishing to engage in discriminatory ad buys. Indeed, the FCC’s certification will not even prevent the same advertiser from making discriminatory ad buys in non-broadcast media while avoiding such discrimination on the broadcast side.

That brings us, however, to the bigger flaw in this approach, and that is the simple fact that clauses in a contract can generally only be enforced by the parties to that contract. As a result, a broadcaster can place the required nondiscrimination clause in its contract, and if the advertiser proceeds to purchase ads in a discriminatory manner (e.g., splitting its ad buying money among all of the broadcaster’s local radio stations except the one with the Spanish-language format), the FCC can’t really do anything about it. The only party in a position to enforce the nondiscrimination clause in the contract is the broadcaster, who will understandably be hesitant to spend precious resources suing an advertiser. There is no financial incentive to spend money on litigation, and there is obviously a huge disincentive for the broadcaster to sue a revenue source that can readily take its advertising dollars elsewhere (and who won’t care what happens to the broadcaster’s license renewal application).

Even today’s FCC Enforcement Advisory seems to overlook this, asserting that “a broadcaster that learns of a violation of a nondiscrimination clause while its license renewal application is pending should update its license renewal application so that it continues to be accurate.” However, whether an advertiser has proceeded to engage in discriminatory ad buying practices in violation of the contractual nondiscrimination clause would not necessarily affect the accuracy of the broadcaster’s certification that its “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” The broadcaster could certainly volunteer to the FCC that it had discovered an advertiser discriminating, but the FCC has no authority to punish the advertiser, and punishing the broadcaster who uncovered the advertiser’s discriminatory efforts doesn’t make much sense. As a result, the new certification adds to the regulatory thicket surrounding broadcasters, but leaves discriminatory advertisers free to roam.

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Pity the post office. Even its federal brethren have abandoned it. Today the FCC announced that, with the beginning of the broadcast license renewal cycle fast approaching, it will not be sending its traditional postcard reminders to broadcast licensees. It did say, however, that it would email reminders to broadcasters for which it has email addresses in an effort to minimize the number of enforcement actions it will need to take against those failing to file on time. The base fine for a late-filed renewal is $3,000, but because most stations that miss the filing deadline have their license expire before they realize their mistake, an additional $4,000 fine for unauthorized operation (for a total of $7,000 per station) is nearly automatic.

While those of us following the FCC’s enforcement actions have noticed a fairly dramatic upward trend in the size of FCC fines (noted in an earlier post), the Media Bureau is to be commended for taking steps to assist broadcasters in meeting their filing obligations rather than just fining those that don’t.

To accomplish this, the FCC today released a Public Notice announcing the availability of its new license renewal form, discussing the changes found in it, and providing a link to the state-by-state schedule of license renewal deadlines. The idea is to make the information readily available to broadcasters, though not by way of their mailboxes. Make no mistake, however, as the Public Notice reminds us, that broadcasters are responsible for meeting their own filing deadlines, and cannot defend a failure to timely file by claiming that the FCC didn’t remind them.

More importantly, the Public Notice is not just a procedural announcement. The FCC took the opportunity to address a critical question regarding its new requirement that license renewal applicants certify that their “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” This new certification was adopted as a way of preventing advertisers and ad agencies from engaging in “no urban/no Spanish” ad placement practices. In creating the certification requirement, the FCC once again used its authority over broadcasters to force a change in the conduct of those for which the FCC lacks jurisdiction (in this case, advertisers).

In an early February post, our own Dick Zaragoza raised a number of issues that broadcast license renewal applicants need to consider before making this new certification. An additional source of concern is that the FCC had not made clear how far back the certification must reach. The FCC adopted the requirement in 2008, but didn’t provide a specific date by which nondiscrimination clauses had to be incorporated into broadcasters’ advertising contracts. Many communications lawyers told their clients that the requirement had gone into effect in mid-2008, while others, including myself, noted that it could not go into effect until the FCC had taken some additional procedural steps to effectuate it, but when those steps would be completed was impossible to predict.

Thankfully, today’s Public Notice answers that three year old question, stating that the certifications must cover a period starting today, March 14, 2011, to the date a station files its license renewal application. Stations that successfully implemented this change anytime between 2008 and now will be able to make the necessary certification, and stations that were frozen by uncertainty need to implement it immediately or face the consequences at renewal time. While the license renewal process can be a stressful one, particularly for those who barely remember filing their last renewal application eight years ago, the Media Bureau today helped broadcasters by eliminating at least some of the uncertainty that can make it so stressful.

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The Office of Management and Budget is currently considering whether to approve a revised version of FCC Form 303-S, the “Application For Renewal of Broadcast Station License” that all commercial and noncommercial full-power radio and television stations will be required to use when they file for their next renewal of license. The FCC has made several modifications to the prior version of the form.

One of the modifications is a new renewal certification which will constitute a material representation to a government agency. For that reason, every renewal applicant will want to be doubly sure that it has a reasonable, good faith basis for responding to the certification with an unqualified “Yes” and adequate documentation to support such response. Specifically, the revised renewal form seeks a “Yes” or “No” response to the new certification that the licensee’s “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” According to the FCC, this new certification is needed to combat “no urban/no Spanish dictates” that have turned up in some broadcast advertising arrangements. The FCC believes that those “dictates” discriminate against broadcast stations which target African American and Hispanic audiences and the businesses they support.

When it adopted the “nondiscrimination clause” requirement, the FCC chose not to provide specific, or even illustrative, language to be included in advertising contracts. Such language would have given applicants a better idea of what the FCC actually believes qualifies as an adequate “nondiscrimination clause.” As a result, licensees have been left to rely upon their own interpretations of what constitutes compliance.

One question of interpretation relates to the scope of the nondiscrimination clause: is it adequate if only two types of prohibited discrimination are identified, namely race and ethnicity, or must the clause include all other types of discrimination prohibited under federal, state and local law? We know that the rule making from which the nondiscrimination clause arose focused only on “no urban/no Spanish dictates,” and that the FCC’s later issued “Erratum” substituted “ethnicity” for “gender” without retaining “gender.” From this it can be argued that the FCC did not intend to require stations to include in their nondiscrimination clauses other forms of discrimination prohibited by federal, state and local authorities, although stations are free to include them.

Additional interpretation is required to answer this question: is the nondiscrimination clause sufficient if each sales contract in effect proclaims (i) that no advertiser may use the station to discriminate on the basis of race or ethnicity and (ii) that any contract entered into with an advertiser whose intent is to use the station to unlawfully discriminate shall be null and void? Or must the nondiscrimination clause also include from the advertiser some type of certification or representation to the station disclaiming any intent to discriminate on the grounds of race or ethnicity? It is my experience that the approaches used by stations vary considerably. That fact may suggest that there are a number of interpretations that may be regarded as reasonable.

The third instance requiring interpretation relates to those stations that do not use formal sales contracts: how are they expected to comply with the nondiscrimination clause requirement? The answer to this question will turn on how flexible the FCC intends to be. We know that noncommercial educational stations filing their license renewal applications will not be asked to respond to this particular certification because such stations do not “sell” time, although they do enter into on-air and production relationships with their underwriters. Certainly a starting point for commercial stations that do not use formal sales contracts is to ensure they can adequately demonstrate to the FCC that their advertising sales arrangements with third parties in fact alert such parties to the station’s nondiscrimination policy and do not discriminate on the basis of race or ethnicity, e.g., website postings, standard email disclaimers, invoice/statement disclaimers.

The three questions posed above are not intended to deal with all of the issues raised by the new renewal certification. My observation is that if the FCC had been more clear when it adopted the nondiscrimination clause requirement, licensees would be able to make a more informed judgment in deciding whether they may responsibly respond to the new certification requirement with an unqualified “Yes,” or whether they will be required to answer “No” with an explanation, understanding that a “No” answer will likely result in the licensee’s application being pulled out of line and deferred for further scrutiny. Stations should consult with communications counsel now to assess whether, based on current practices, they will have a reasonable basis to respond “Yes” to the new renewal certification when it comes time to file their application for renewal of license.

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No, the FCC has not instituted an early-filing program so licensees can get that pesky license renewal out of the way. Instead, in 2010 it cleaned up television license renewal applications that had been hanging around since the last renewal cycle, issuing nearly $350,000.00 in children’s television fines to some 20 licensees. So, like the year-end EEO self-assessment we recently reminded stations to undertake here, today we tee up a kidvid requirement that stations often overlook, but which the FCC does not.

The FCC’s rules require that television stations “publicize in an appropriate manner the existence and location of” their quarterly Children’s Television Programming Reports on FCC Form 398. While the FCC’s rules do not actually say that stations must publicize the existence of the reports on-air, the FCC’s staff has advised since the rule was adopted that some on-air announcements must be made to fulfill this “publicizing” obligation. The FCC’s enforcement actions bear out this admonition.

When confronted by the FCC, some broadcasters have argued that they fulfilled the “publicizing” obligation by placing the reports themselves on their website. Others have argued that they aired announcements publicizing the existence of their public inspection file (which contained the reports). None of these broadcasters liked the outcome of their encounters with the FCC. The FCC rejected the suggestion that posting the reports is an adequate substitute for publicizing their existence in the first instance or that advertising the location of the public inspection file is adequate to inform viewers that the Children’s Television Programming Reports will be found there. It is only where the broadcaster changed its practice and began airing announcements publicizing both the existence and location of the public file and noting that the Children’s Television Programming Reports are located in it that the FCC was satisfied.

So why is now a particularly good time to think about this? Many television broadcasters schedule a year-long contract in their traffic system as a mechanism for ensuring that announcements about the existence and location of the Children’s Television Programming Reports are regularly aired. However, as reflected in the FCC’s enforcement actions, many stations forget to “renew” those contracts at the beginning of a new year, or fail to reinstate the contracts after installing new traffic equipment. Also, stations sometimes overlook educating new employees about the requirement, which increases the likelihood that reinstatement of the spot schedule for the next year will be missed.

The problem is then compounded when stations continue to certify in their quarterly Children’s Television Programming Reports that they are airing the announcements when they are not. The result is that at license renewal time, stations discover too late that they failed to air the announcements for a considerable period of time, and falsely certified to the FCC that they had complied with the requirement.

Fines of $10,000.00 and even $20,000.00 have been levied for this violation. To avoid a similar fate, stations should take the time now to verify that they have renewed the spot schedule in their traffic systems, and are running the required announcements, with the required content, on a regular schedule. Renew that annual contract. You’ll be glad you did at license renewal time.

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In what has become one of our most popular posts at CommLawCenter, a few months ago I discussed a radio ad that contained an “attention getting” Emergency Alert System tone that was activating broadcast stations’ EAS equipment around the country. The post noted that airing the commercials violated 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.”).

The earlier post also noted that these ads potentially violated Section 73.1217 of the FCC’s Rules, which is the FCC’s prohibition on airing broadcast hoaxes. These rules are the result of the FCC’s longstanding concern with the airing of material that could cause public panic, dating all the way back to the Orson Welles Halloween broadcast of War of the Worlds in 1938, just four years after the FCC was created by Congress.

Television stations have now joined their radio brethren in unintentionally airing Emergency Alert System tones. The Society of Broadcast Engineers disclosed yesterday that a television ad for the new movie Skyline, which hits theaters tomorrow, began airing earlier this week with an EAS tone repeated six times throughout the length of the spot. A copy of the spot can be found on the SBE website here, with the EAS tones being very audible in the background.

Stations airing such spots put themselves at risk of adverse action by the FCC, particularly for any airings that occur after the station has learned of the issue. However, stations that aired the spot before SBE’s announcement yesterday are not off the hook, as the FCC holds broadcasters liable for the content they air, and normally takes the position that stations should have checked the spots before they aired for problematic content.

While an EAS tone sounds like digital hash to the human ear, it contains a lot of information that is used to trigger the EAS receivers of stations in a “daisy chain” fashion to quickly spread emergency information. In that regard, each signal is like human DNA, containing information that allows you to determine its origin. In this case, the EAS signal being used is a recording of a Pennsylvania statewide monthly test that fails to include the normal “End of Message” tone. As a result, stations whose EAS equipment is activated by another station airing the false tone could suddenly find themselves retransmitting the content of the other station for a couple of minutes after the tone airs.

Unfortunately, because it is generally the broadcast station and not the creator of the ad that will be held liable, advertisers are not always adequately incentivized to make sure their ads comply with FCC regulations. That means it is up to broadcasters to check each and every ad they run for violations of the law, including violations of the FCC’s sponsorship identification rule, the FCC’s rules involving ads in children’s programming, and ads with questionable content, whether it be indecency, defamation, false product claims, or, in this case, false EAS alerts.

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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.