DON’T MESS WITH EAS – 2.0 By: Gregg P. Skall

In November 2021, FOX aired a three-second excerpt of the Emergency Alert System alert tones as part of a comedic, promotional segment during its FOX NFL SUNDAY pre-game show.  Last month, the FCC issued a Notice of Apparent Liability (“NAL”) against FOX and its subsidiaries, finding that FOX had violated the FCC’s Emergency Alert System (“EAS”) rules and concluding that FOX was apparently liable for a hefty forfeiture of $504,000.  This should come as no surprise to broadcasters.  In the past the FCC has imposed large forfeitures (of up to $1.12 million) against Viacom, ESPN, NBC Universal, and Turner Broadcasting for misusing the EAS warning tones by airing a commercial for a movie that included the EAS tones.  Given the recent NAL, however, perhaps another reminder is needed.  Simply put:

You don’t MESS with EAS or, with its alert tones or warning system.

The FCC’s rules prohibit broadcasters and cable systems from airing the EAS alert tones except for during times of emergency or crisis.  The FCC has issued a number of warnings and fines on this issue, concerned that if the tones are used for purposes other than emergencies then consumers will develop “alert fatigue” and ignore potentially life-saving warnings and information. Therefore, forfeitures as high as $504,000 and even $1,120,000 should come as no surprise.

Despite the number of high-profile fines, broadcasters still run afoul of the EAS rules.  Periodically, ad agencies or broadcasters come up with the idea to attract attention to an advertisement by using the EAS warning tones or sounds that mimic or are similar to the EAS tones.  The FCC has frequently and consistently warned that this practice is off limits.  It doesn’t matter if they were aired in jest, it was only a few seconds of airing, or if it wasn’t the actual tones, but something that sounded similar.  If a reasonable consumer would identify the tones as the EAS alert tones, then airing the sound is prohibited unless there is a national emergency, other important emergency information (such as Amber Alerts or weather warnings), or an authorized test of the EAS system (which require advance notice and specific permission from the FCC).    While recognizing that the selection and presentation of advertising or other promotional material is left to the editorial discretion of licensees, the FCC has emphasized that with that discretion comes responsibility to avoid misusing EAS tones.

That discretion applies to programming as well.  The FCC has held that EAS tones used in programming are equally dangerous and can cause the entire EAS system to be undermined.  In 1991, after a station aired a prank that opened with the EAS tones, followed by an air-raid siren, a statement that the United States was under nuclear attack, and closing with the sound of explosions, the FCC reiterated that the program violated the FCC’s rules regarding EAS tones and undermined the purpose of the EAS system.  Though the sound was aired as part of the station’s programming, and not as a part of a commercial, the FCC found no distinction, concluding that listeners associated the tone with the EAS tones and that the program undermined the integrity of the EAS system.

Broadcasters have more flexibility when dealing with advertisements, programs, or music that contains general alarms or other loud noises, including bells, klaxons, and police, fire, or civil defense sirens.  The FCC’s rules do not strictly prohibit utilizing these sounds, but the FCC has warned broadcasters that they must act responsibly when airing sirens or other sounds that might pose a hazard to the public.  Section 325 of the Communications Act prohibits the broadcast of false or misleading communications of distress, and the broadcast of sirens or similar sounds could potentially violate this statute.  Broadcasters are responsible for being aware of the possible adverse consequences of their broadcasts and should be very cautious in airing advertisements, programming, or music that contains sirens or similar sounds.  Radio broadcasters in particularly should be cautious in airing such sounds as the FCC would likely disapprove of programs or advertisements that could be considered distracting to drivers or could arguably cause an accident.

With a history dating back more than 40 years, it should come as no surprise that now, when our nation is ever more sensitive to the potential of weather disasters and other attacks, the Commission will not be tolerant of any misuse of the nationwide EAS alert system or broadcasts that mislead the public about their safety.

Broadcasters must find other ways to attract audience attention.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.