FCC'S Latest Proposed EAS Fine Comes Amid Perceived Crackdown on False Tones

In a notice of apparent liability, the bureau proposed a $200,000 fine for Turner. The bureau received complaints from viewers that Turner transmitted a Best Buy commercial that used an EAS signal, said the NAL released in Wednesday’s FCC Daily Digest (http://bit.ly/1d7wIlZ). “Although Turner asserts that none of the material includes embedded EAS data ... a ’simulation’ need not be an exact copy or recording of the EAS codes.” The notice also referenced a previous notice proposing a $25,000 forfeiture to Turner for the TBS Network’s 2012 promotion of Conan. “The fact that Turner’s violations reached such a potentially vast audience greatly increases the extent and gravity of the violations,” said the new NAL. Turner had no comment.

The more recent notice suggests a higher fee due to a repeated violation, said Fletcher Heald attorney Raymond Quianzon, who works on enforcement issues for wireless and broadcast companies. The FCC is upset that Turner was well aware of the rule and violated it again, he said. “The first time the FCC was sending a warning shot and this time they are putting Turner right in the cross hairs.” The FCC probably wanted to set an example, said Donald Everist, president of Cohen Dippell, a broadcast engineering consulting firm. “Accidents will happen, but given the fact that they [Turner] had a problem in 2012, that heightened awareness by the commission.”

The FCC has taken a position that it has a repeat offender and obviously wants to make its displeasure known, said Scott Flick, a Pillsbury Winthrop broadcast attorney. “While the FCC might once have been willing to just admonish a violator and save the fines for repeat offenders, it appears that there will no longer be any free bites at the false EAS tone apple, and that each bite will be appreciably more expensive than the last,” he said in a blog post on the law firm’s website (http://bit.ly/1apzXs4). Separately Wednesday, two EAS equipment makers reported on meetings with Public Safety Bureau staff about ways the FCC and Federal Emergency Management Agency can proceed if the nationwide EAS is ever tested again. (See separate report below in this issue.)

The FCC generally hasn’t had to step into false EAS alert tones, because it’s been a pretty heavily self-regulated area, Flick said in an interview. If a would-be advertiser submits to a broadcaster an ad with an EAS tone in it, usually station staff will spot it and get the word out to other broadcast stations to watch out for the ad, he said. “Usually they're pretty quick about catching it before it airs.” In the case of cable TV, “it looks like there isn’t that same protection system going on because no other network not owned by Turner is going to be running promos for Conan, so they're sort of on their own and it’s up to their internal review system” to catch it, he said. “Given the national audience that you have for a programming source like this, the FCC wants to make very sure that the fine is large enough to sting,” so that industry is more careful, he added.

Compliance with the false EAS rule is usually easy for broadcasters, the attorneys said. An EAS tone is pretty clear to notice, Flick said. Broadcast employees have been trained to be careful around children’s programming, but with regard to non-kids’ programming, “it’s safe to say that commercials probably don’t get vetted as closely and if they are, it would be fairly clear that an EAS tone were in them,” he said.

Checking for simulated EAS signals could be challenging for some stations, said Joe Snelson, president of the Society of Broadcast Engineers. “The FCC holds the licensee accountable and the only way that a licensee can ensure that material didn’t have the EAS tones would be to evaluate every commercial or program that comes in to ensure it doesn’t,” he said. “The people in the production environment may or may not be trained in identifying or listening for those tones to know what could be a problem.” Perhaps additional training and awareness for those evaluating the material is needed, Snelson added.

Reviewing content for simulated EAS signals may be difficult for small broadcasters and cable programmers, “but a network the size of Turner has staff that is paid specifically to review this,” Quianzon said. The complaint for the Best Buy commercial was done using the online filing system at the FCC, he said. “Broadcasters and cable companies need to program with that in mind,” he added. “With a few keystrokes, listeners or viewers can easily file a complaint with the FCC.”