The FCC is cracking down hard on the use of EAS tones in non-emergency situations, proposing more than $1.9 million in combined finesagainst Viacom, NBCUniversal, and ESPN (the “Companies”) based on complaints alleging that the Companies repeatedly broadcast a single movie trailer that included real or simulated EAS tones. These largest proposed fines to date for “transmission of false distress signals” appear to be part of a broader effort by the Commission to prevent the improper broadcast of EAS tones or similar sounds. The proposed fines should serve as an important warning to all content providers to strengthen or institute policies to avoid the transmission of EAS tones or sounds that sound similar to such tones in the future.
As we previously wrote, in November 2013, the FCC proposed to fine Turner Broadcasting System (“TBS”) $25,000 based on complaints that it used a sound effect to simulate an EAS signal in a promotion for the Conan show. The Commission also entered into a consent decree with Kentucky television station WNKY(TV) based on allegations that it broadcast a commercial for a sporting goods store that contained sounds similar to EAS tones. At the time, the FCC issued an enforcement advisory reminding entities that produce or transmit programming to the public that misuse of EAS signals or similar sounds can result in fines and other enforcement actions. Then, in January, the FCC proposed an additional $200,000 in fines against TBS for allegedly transmitting EAS tones as part of a Best Buy commercial that aired 14 times on Cartoon Network.
This most recent case involved a trailer for the film Olympus Has Fallen, which the FCC states contained “repeated uses of the EAS codes and Attention Signal throughout the trailer, accompanied by visual text stating ‘THIS IS NOT A TEST and ‘THIS IS NOT A DRILL’” along with “multiple visual images of ‘terrorists’ surrounding the White House, scenes of the White House and other Washington, D.C. landmarks engulfed in flames, and military aircraft and combat vehicles patrolling the city.” The trailer was supplied by independent film company FilmDistrict Distribution, LLC and its media agency, Horizon Media. The FCC stated that its investigation indicated that Viacom airied the trailer 57 times across seven Viacom-owned networks, that ESPN aired the trailer 13 times across three ESPN-owned networks, and that NBCUniversal aired the trailers 33 times on seven NBCUniversal-owned networks.
The Commission found that the Companies should have been aware of the FCC’s rules with respect to EAS violations and that the rules apply even to non-EAS participants (such as cable programmers). Further, the Commission found that, even if as cable programmers the companies did not directly transmit the tones, by knowingly including the trailers in their programming they caused multi-channel video program distributors to transmit the tones, which itself violates Section 11.45 of the Commission’s rules. The FCC rejected the argument that Section 11.45 does not apply to “non-deceptive” circumstances, concluding that “[t]he text of the rule does not provide or suggest that having intent to deceive is required, nor does it excuse ‘dramatic’ uses.” The Notice of Apparent Liability went on to analogize the use of EAS tones in a non-emergency to “crying wolf” or “yelling ‘fire’ when there is none,” identifying a “substantial risk of harm if audience members, inured to the sounds of the EAS Tones after misuse for promotional purposes, no longer react to the alarm when real danger is present.”
In an important lesson to any company that creates or transmits programming, the FCC expressed no sympathy for the fact that each company had reviewed the trailer for compliance with its internal guidelines. Instead, the Commission found that by reviewing the commercials and still including them in their programming, the Companies were directly responsible for causing the transmission of the EAS tones. Based on this discussion, any company that accepts programming from a third party source should reassess its internal review policies to ensure that advertisements and other third party programming are reviewed to determine whether they include EAS tones or similar sounds before accepting them.
Finally, it should be noted that the proposed fines — $1,120,000 against Viacom, $530,000 against NBCUniversal, and $280,000 against ESPN — greatly exceed the base forfeiture amount of $8,000 for false distress communications. In reaching these amounts, the FCC considered: “the number of transmissions at issue, the number of networks involved, the amount of time over which the transmissions took place, the nationwide scope of the Companies’ audience reach, the Companies’ ability to pay, and the serious public safety implications of the apparent violations.” Even considering these factors, the amounts are fairly staggering: $16,060 per transmission for NBCUniversal, $19,649 per transmission for Viacom, and $21,538 for ESPN. Thus, all content providers would be wise to take extra precautions to ensure that they are not the next targets of the Commission’s renewed interest in preventing false EAS transmissions.