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January 2014

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:

  • FCC Admonishes Television Stations for “Host-Selling” to Children
  • $7,500 Fine Imposed for Documents Missing From Public Inspection File
  • $17,000 Fine for Unauthorized Operation of a Radio Transmitter

Admonishment Issued for Program Characters Promoting a Product

The FCC continues to enforce its restrictions on commercial content during children’s shows. Section 73.670 of the FCC’s Rules restricts the amount of commercial matter that can be aired during children’s programming to 10.5 minutes per clock hour on weekends and 12 minutes per clock hour on weekdays. The Commission most often examines compliance with these limitations when acting on a television station’s license renewal application.

Earlier this month, the FCC issued identical admonishments to two commonly-owned Wisconsin TV stations for failing to comply with the limits on commercial matter in children’s programming. The stations disclosed in their license renewal applications that they had aired a commercial for cereal during a children’s program seven years ago, and the commercial contained “glimpses of characters from the program on the screen.” The licensee noted that the appearance was “small, fleeting, and confined to a small area of the picture,” and that the software used by the CW Network to prevent such appearances failed to catch this particular incident. Where a program character appears during a commercial in that program, the FCC’s approach is to treat the entire program as a commercial, which by definition exceeds the FCC’s commercial time limits in children’s programming.

The licensee argued that the images did not appear “during the commercial part of the spot but during a portion of the material promoting a contest.” The FCC disagreed, but only issued an admonishment to each of the stations because the violation was an isolated incident. Nevertheless, the FCC warned that it would impose more serious sanctions if the licensee committed any similar violations in the future.

License Assessed $7,500 Fine for Failing to Provide Quarterly Issues/Programs Lists for Seventeen Quarters

Earlier this month, the FCC imposed a $7,500 fine on a Pennsylvania station for willfully and repeatedly violating the Commission’s rule regarding the public inspection file. Under Section 73.3526(e)(12) of the FCC’s Rules, a licensee must create a list of significant issues affecting its viewing area in the past quarter and the programs it aired during that quarter to address those issues. The list must then be placed in the station’s public inspection file by the tenth day of the month following that quarter.

In April of 2010, an agent from the Enforcement Bureau’s Philadelphia office found during an inspection that the licensee was missing fifteen quarters of issues/programs lists. The licensee explained in response to a subsequent Letter of Inquiry that some of the lists had been stolen or removed from the public inspection file and promised to replace the missing lists. However, in February of 2011, a follow-up investigation revealed that the public inspection file contained only one issues/programs list, which meant that there was a total of seventeen quarters of missing lists. At the time of the follow-up, the licensee said that part of the roof of a neighboring building had collapsed and destroyed the records.

In June of 2011, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) for $15,000. In response, the licensee argued that the fine should be reduced because the missing records were outside his control and that he did not have the ability to pay such a fine. In January of 2014, the FCC determined that a reduction of the fine was warranted based on the licensee’s inability to pay, but noted that the failure to maintain issues/programs lists was not outside of the licensee’s control and that the licensee’s explanations as to the cause of the missing documents conflicted with each other. Although the FCC reduced the fine from $15,000 to $7,500, the Enforcement Bureau cautioned that it has previously rejected inability to pay claims for repeated or egregious violations and that in the event this licensee commits future violations, it may result in significantly higher fines that may not be reduced merely because of the licensee’s inability to pay.

Licensee Fined for Interfering with United States Coast Guard Operations

Last month, the FCC issued an NAL against a California licensee for operating a radio transmitter on a frequency not authorized by its license and failing to take precautionary measures to avoid causing interference. The base fine for operating on an unauthorized frequency is $4,000, and the base fine for interference is $7,000.

In January of last year, the United States Coast Guard complained to the FCC of interference with its operations in the 150 MHz VHF band. An agent from the Enforcement Bureau’s Los Angeles office used radio direction-finding methods to determine that the interference was coming from the licensee’s building. The agent located a transmitter at that location that was operating on a frequency different than that indicated on the transmitter’s label. After the Bureau contacted the licensee and informed it of the agent’s findings, the licensee turned off the transmitter, and the interference to the Coast Guard stopped.

Subsequently, the Enforcement Bureau’s Los Angeles office issued a Notice of Violation (“NOV”) to the licensee for failing to operate in accordance with its authorization and not taking reasonable precautions to avoid interference to licensed services. The NOV noted that the licensee’s authorization specified operation on frequencies that included neither the transmitter’s labeled frequency nor the frequency on which the transmitter was actually operating. In response, the licensee argued that the transmitter was unstable and operating about .8 MHz on both sides of the designated frequency.

Under Section 1.903(a) of the FCC’s Rules, a licensee can only operate a station in compliance with a valid authorization granted by the Commission. The FCC rejected the licensee’s argument that the malfunctioning transmitter was operating on the licensee’s assigned frequency, finding that its agent’s investigation indicated otherwise. The FCC also noted that Section 90.403(e) of the FCC’s Rules requires that licensees take appropriate measures to avoid causing harmful interference, and that the licensee here failed to offer any evidence in response to the NOV that it had taken such precautions.

In determining the appropriate fine, the FCC considered the facts and circumstances and found that the violations warranted proposing a fine higher than the base amount for these violations. Because the licensee caused harmful interference to the Coast Guard’s operations and the licensee was not aware of its spurious signal until the FCC notified it, the FCC assessed a total fine of $17,000, increasing the fine by $6,000 over the base amount for such violations.

A PDF version of this article can be found at FCC Enforcement Monitor.

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Around this time every year, you typically see an abundance of articles in the trades making predictions about what the FCC will do in the coming year. It has become such a rite of the new year that I’ve even joked about it in past posts.

This year, however, I have noticed much less predictive commentary about the FCC, and it isn’t hard to understand why. 2014 is so far looking like a “to be continued” year, forcing FCC soothsayers to concede that it’s hard to say precisely how 2014 will differ markedly from 2013 at the FCC.

For example, 2014 was originally supposed to be the Year of the Broadcast Spectrum Incentive Auction. However, after the confusion surrounding the federal Affordable Care Act website demonstrated that “set a deadline to launch and it will surely be figured out by then” might not be the optimal approach to complex government projects, Chairman Wheeler agreed with much of the broadcast industry that it will take more time to get such a complicated undertaking right. As a result, he announced last month that the auction is now likely a mid-2015 event. While buying health insurance is indeed complicated, it is ditch-digging compared to designing the Broadcast Spectrum Incentive Auction (official motto: “The Broadcast Spectrum Auction–Making quantum mechanics look easy since 2010”).

Similarly, Chairman Wheeler also last month took media ownership proposals being considered internally at the FCC under the prior Chairman off the table in order to give a “fresh look” at the FCC’s media ownership rules. By statute, the FCC is required to review its media ownership rules every four years and eliminate any that are no longer in the public interest. The tabled proposals were part of the still-in-process 2010 quadrennial review, increasing the likelihood that the 2010 proceeding will now be rolled into the 2014 quadrennial review (official motto: “It’s 2014 already?”).

So does this mean 2014 will be boring for media watchers? Not at all. First, one reason for the dearth of breathless predictions is the relatively recent arrival of Chairman Wheeler. A new Chairman can bring many surprises, and as he has succeeded so far in holding many of his cards close to his vest, it’s too early to tell just what all may be on his 2014 wish list. What he will do in 2014 therefore remains more a matter of speculation than prediction, leading many prognosticators to hold back for the moment.

Second, even if 2014 ends up being a quiet year of incremental change at the FCC, there is plenty to keep things interesting on the media front outside of the FCC. First and foremost, last week’s announcement that the Supreme Court is jumping into the Aereo fray ensures that there will be some dramatic developments in 2014. Similarly, the 2014 elections promise to be a significant event for many media outlets, both in terms of bringing political ad dollars through the door while affecting the political balance of a Congress that has promised a rewrite of the Communications Act of 1934 in the next few years.

While such events will create an interesting 2014 regardless of what the FCC has on its menu, it’s meeting the daily deadlines that keeps media businesses going, and meeting the legal deadlines that keep broadcasters in particular operating. For example, while the state by state radio license renewal application filing cycle concludes in 2014, the TV renewal cycle continues on throughout this year and into 2015.

One way, however, that 2014 will differ from 2013 is that October 1, 2014 marks the every-three-years deadline for TV stations to send their must-carry/retransmission consent elections to cable and satellite carriers. Given the growing importance of retrans dollars for broadcasters, and the fact that, at least with regard to cable, a failure to make an election results in a default election of must-carry, these elections are critically important (in contrast, note that failure to send an election to DirecTV or Dish leads to the opposite result, a default election of retransmission consent, just to make it as confusing as possible).

To help broadcasters navigate the less-exciting but still critically important deadlines that keep their licenses intact, at the end of 2013 we published the 2014 edition of our annual Broadcasters’ Calendar. It can be found on the right side of the CommLawCenter main page, as well as at the Communications Publications section of Pillsburylaw.com.

Also, to stay up to date on industry events, keep an eye on our main page Interactive Calendar, as we upload numerous 2014 industry events, including NAB shows, state broadcasters associations conventions, and Pillsbury seminars and webinars on a variety of communications-related subjects. Predicting may be more fun, but knowing your regulatory deadlines keeps the lights on. Regardless, as 2014 reveals itself, I have little doubt that there will be a lot to talk about, and make predictions about, here at CommLawCenter.

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As I have noted on several occasions in the past, the FCC requires that certain video programming delivered online by television stations be captioned if that programming previously aired on television with captions (for a quick refresher you can view my posts “FCC Seeks Greater Clarity on IP Video Captioning Rules”, “Second Online Captioning Deadline Arrives March 30”, and “First Online Video Closed Captioning Deadline Is Here”).

All video programming that appeared on television with captions after April 30, 2012, is considered “covered Internet Protocol (IP) video” and is required to be captioned when shown online. In January of 2012, the FCC released an Order exempting “video clips” and outtakes while requiring that television stations display captioning for prerecorded full-length programming delivered via IP if the programming had aired on television with captions. Where a captioned TV program is streamed on the Internet in segments, it must be captioned if substantial portions of the entire program are shown via those segments.

However, in the latest turn, the FCC is now asking for updated information regarding whether it should remove the “video clip” exemption. It is seeking public comment on the issue, with comments due on January 27, 2014, and reply comments due on February 26, 2014. The FCC’s Public Notice asks commenters to answer a number of questions regarding the current state of captioning of IP-delivered video clips, including:

  • What portion of IP-delivered video clips generally, and of IP-delivered news clips specifically, are captioned?
  • Has the availability of captioned versions of such clips been increasing?
  • What is the quality of the captioning on IP-delivered video clips?
  • Should the FCC require captioning of IP-delivered video clips?
  • How are the positions of commenters consistent with the 21st Century Communications and Video Accessibility Act (CVAA), its legislative history, and the intent of Congress to provide video programming access to people with disabilities?
  • What are the potential costs and benefits of requiring captioning of IP-delivered video clips?
  • How have consumers been affected by the absence of closed captioning on IP-delivered video clips, particularly news clips?
  • To the extent that some entities have already captioned these clips, what technical challenges, if any, had to be addressed?
    How does the captioning of IP-delivered video clips differ from the captioning of full-length IP-delivered video programming?
  • What are the differences between captioning live or near-live IP-delivered video clips, such as news clips, and prerecorded IP-delivered video clips?
  • If the FCC imposes closed captioning obligations on IP-delivered video clips, should the requirements apply to all video clips, or only to a subset of such clips?
  • If only to a subset, what subsets would be most appropriate and what would be the rationale for excluding others?

The FCC also asks for comment on any additional issues relevant to its determination of whether closed captioning of IP-delivered video clips should be required.

TV stations have been making greater use of their websites over the last few years to deliver video programming, and that use is only likely to increase in the years ahead as TV stations expand their use of mobile applications to reach viewers. As a result, the FCC’s new proceeding raises important issues that will affect stations’ video streaming, online marketing, and bottom line. As the saying goes, you’re not entitled to complain about an elected official if you didn’t bother to vote, and broadcasters need to speak up now if they want to avoid having to complain later about any complex or burdensome online captioning requirements that might be adopted in this proceeding.

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December 2013

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:

  • FCC Cancels $20,000 Children’s Television Fine
  • Fine and Reporting Requirements Imposed for EEO Violations
  • Individual Fined $15,000 for Unauthorized Operation of a Radio Transmitter

$20,000 Kidvid Fine Rescinded Due to Timely Filing

The FCC has continued to impose fines on numerous licensees for failing to timely file their Children’s Television Programming Reports on FCC Form 398. The FCC’s rules require that full power and Class A television stations file a Children’s Television Programming Report each quarter listing the station’s programming that is educational and informational for children, and regularly notify the public as to where to find those reports. The base fine for failing to file a required form with the FCC is $3,000.

In July of this year, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) against a Louisiana licensee for failing to timely file its Children’s Television Programing Reports 18 times. After examining the facts and circumstances, including the licensee’s failure to disclose the late filings in its license renewal application, the FCC proposed a $20,000 fine.

In response to the NAL, the licensee asserted that the reports in question had been timely filed, and that the “late” dates the FCC was seeing in its filing database were merely amendments to the timely filed reports. Unfortunately, as those who have dealt with the FCC’s filing systems are aware, when an amendment to an existing report is filed, the FCC’s filing system changes the filing date shown from the original filing date to the filing date of the amendment. That is why it is important to print out evidence of the original filing when it is made, allowing the licensee to demonstrate that a timely filing was made if it is later questioned.

Based on the licensee’s ability to produce Submission Confirmation printouts showing that the reports were timely filed, the FCC agreed to rescind the NAL and cancel the $20,000 fine.

License Assessed $20,000 Fine and Reporting Obligations for Failing to Notify Job Referral Sources and Self-Assess Its EEO Performance

Earlier this month, the FCC imposed a $20,000 fine and detailed reporting requirements on an Illinois radio licensee. Under Section 73.2080(c)(1)(ii) of the FCC’s Rules, a licensee must provide notices of job openings to any organization that “distributes information about employment opportunities to job seekers upon request by such organization,” and under Section 73.2080(c)(3), must “analyze the recruitment program for its employment unit on an ongoing basis.”

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As our own Lauren Lynch Flick reported last month, the deadline for commercial broadcast stations to file their biennial ownership reports with the FCC, which the FCC in August moved from November 1st to December 2nd, and then in November moved from December 2nd to December 20th, has now been moved up, but just by a little.

In a Public Notice released today, the FCC announced that:

The Media Bureau previously issued an order granting requests to extend the 2013 biennial ownership report filing deadline to December 20, 2013. Subsequently, a power outage of the FCC headquarters building’s electrical systems, as required by the District of Columbia Fire Code, was scheduled. The Commission’s systems, including CDBS, will become unavailable after business hours on the evening of the filing deadline. The outage is scheduled to begin at 7 p.m. on December 20, 2013. Filers must complete electronic filing of their 2013 biennial Ownership Report for Commercial Broadcast Stations prior to that time to comply with the filing due date.

Because the FCC’s website has been known to struggle on days where large numbers of filings are due, broadcasters should generally avoid filing documents on their due date unless there is good reason to do so. However, one benefit of electronic filing has been the ability to file after normal business hours, when traffic on the FCC’s filing databases eases. That will not be possible this year, and for those on the West Coast, the 7 p.m. (Eastern) deadline means that they will need to get their ownership reports on file by 4 p.m. Pacific time, before their business day actually ends.

As a result, broadcasters will need to be extra vigilant this year to ensure that they don’t find themselves trying to file their ownership reports late in the day on December 20th, only to realize that the FCC’s filing system is moving at the speed of molasses from the high volume of filers. When the lights go out at the FCC on December 20th, so will your chance of a timely filing.

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If there had been any doubt that the Video Division of the FCC’s Media Bureau would check a television station’s online public inspection file to confirm the truthfulness of certifications made by the licensee in a pending license renewal application, that doubt has been eliminated.

In a Notice of Apparent Liability for Forfeiture released December 3, the Video Division has proposed a $9,000 fine against the licensee of two Michigan televisions stations on the grounds that (i) each station had filed their Children’s Television Programming Reports (“Kidvid Reports”) late, and (ii) the stations failed to report those violations in responding to one of the certifications contained in their license renewal applications.

According to the FCC, the licensee had filed each station’s Kidvid Report late for three quarters during the license term in violation of Section 73.3526(e)(11)(iii) of the Commission’s Rules.

The problem was compounded when the licensee failed to disclose those violations in responding to Section IV, Question 3 of the Form 303-S, which requires licensees to certify “that the documentation, required by 47 C.F.R. Section 73.3526…has been placed in the station’s public inspection file at the appropriate times.” That same certification requires the applicant to submit an exhibit explaining any violations.

The Video Division of the FCC proposed that each station be assessed a fine of $3,000, the base forfeiture amount for failing to timely file Kidvid Reports, plus a fine of $1,500 for omitting from its renewal applications information regarding those violations. The Division suggested that it could have fined each station $3,000, rather than $1,500, for the reporting failure, but reduced the amount because each licensee “made a good faith effort to identify other deficiencies.”

Fortunately for the licensee in this case, it had checked the certification box with a “no,” and disclosed that its quarterly issues/programs lists had not been timely uploaded to the FCC’s online public file for the station. While the licensee did not mention anything about the late-filed Kidvid Reports, apparently the Video Division believed that the licensee’s failure to disclose was intentional enough to warrant a fine, but not deliberate enough to warrant a charge of misrepresentation or lack of candor that could have resulted in a much larger fine or worse.

The lessons learned from the Video Division’s action include: before signing off and filing a station license renewal application, (i) check the FCC’s online database to make sure that it has a record of all documents that were required to be timely filed, (ii) check the station’s paper (in the case of radio) and online (in the case of television) public inspection file to confirm (or not) that the file is complete and that the documents required to be in the file were placed there on a timely basis, and (iii) discuss with counsel what may need to be disclosed (or not disclosed) in response to certifications contained in a station’s application for renewal of license.

Of future concern is whether the Media Bureau will now be more inclined to impose even higher fines, claiming misrepresentation/lack of candor, where a license renewal applicant makes an unqualified affirmative certification that is not correct, or where the applicant states that it is unable to make an affirmative certification and provides an explanation, but does not fully disclose all material facts in its explanation. Recently the Media Bureau imposed a $17,000 fine against a station for violating Section 1.17 (misrepresentation/lack of candor) after having concluded that had the station “exercised even minimal due diligence, it would not have submitted incorrect and misleading material factual information to the Commission.” The Bureau made a point of the fact that the base statutory fine for misrepresentation or lack of candor is $37,500. Affirmative due diligence and caution are your best insurance policies in avoiding such a new and unbudgeted line item expense on your company’s next P&L.

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November 2013

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:

  • Multiple Indecency Complaints Result in $110,000 Payment
  • $42,000 in Fines for Excessive Power, Wrong Directional Patterns and Incomplete Public Inspection Files
  • Cable Operator Fined $25,000 for Children’s Programming Reports

Broadcaster Enters Into $110,000 Consent Decree Involving Allegations of Indecent Material

The FCC recently approved a consent decree involving a broadcaster with TV stations in California, Utah and Texas accused of airing indecent and profane content.

Section 73.3999 of the FCC’s Rules prohibits radio and television stations from broadcasting obscene material at all times and prohibits indecent material aired between 6:00 a.m. and 10:00 p.m.

The FCC received multiple complaints about the television show in question and sent Letters of Inquiry to the broadcaster asking it to provide a copy of the program and to answer questions about possible violations of the FCC’s indecency rule. The licensee complied with the requests but maintained that the program did not contain indecent content.

Earlier this month, the FCC entered into a consent decree with the broadcaster and agreed to terminate its investigation and dismiss the pending indecency complaints. Under the terms of the consent decree, the broadcaster is required to (a) designate a Compliance Officer within 30 days, and (b) create and implement a company-wide Compliance Plan within 60 days, which must include: (i) creating operating procedures to ensure compliance with the FCC’s restrictions on indecency, (ii) drafting a Compliance Manual, (iii) training employees about what constitutes indecent content, and (iv) reporting noncompliance to the FCC within 30 days of discovering any violations. The consent decree also requires the filing of a compliance report with the FCC in 90 days and annually thereafter for a period of 3 years. The requirements imposed under the consent decree expire after three years.

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A few minutes ago, the FCC released an Order extending the December 2, 2013 deadline for commercial broadcast stations to file their biennial ownership reports to December 20, 2013. The extension is meant to respond to the fact that the FCC took its website (including the Consolidated Database System used for preparing and filing reports and applications) offline during the October government shutdown. Because of this, broadcasters were prevented from preparing their voluminous ownership reports until the FCC reopened and the website was reactivated.

Since the biennial ownership report requires filers to provide their ownership information as it existed on October 1, 2013, broadcasters normally have sixty days after the October 1 reporting date to prepare and submit their reports. By extending the deadline to December 20, the FCC is seeking to maintain that sixty day preparation period.

Noncommercial broadcasters whose biennial ownership reports are due on December 2, 2013 (radio stations licensed to communities in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Vermont, and Rhode Island and noncommercial television stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota) should be aware that this extension does not apply to noncommercial ownership reports. Barring further action by the FCC, noncommercial stations in the listed states should continue to plan on filing their ownership reports by the current December 2, 2013 deadline.

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This morning, the FCC’s proposal to eliminate the UHF Discount was published in the Federal Register, establishing the comment and reply comment dates for that proceeding. Comments are due December 16, 2013, and reply comments are due January 13, 2014.

Under current law, no individual or entity is permitted to hold an interest in broadcast TV stations that, in the aggregate, reach more than 39 percent of U.S. television households. While this if often shorthanded as “no broadcast group can reach more than 39% of the population”, the rule is actually more restrictive than that. Since it applies not just to broadcast groups but to individuals, the rule prohibits an investor from holding 5% of the voting stock of two different TV groups if those otherwise unconnected groups’ stations together reach more than 39% of the population. Similarly, the rule would be violated if an individual served as a director for both companies.

Fortunately, the rule’s impact on broadcast investment has been lessened by the FCC’s UHF Discount, under which the FCC counts only half of the population in a station’s market towards the 39% cap if the station operates on a UHF channel (14-51) rather than on a VHF channel (2-13). Because most digital television stations operate on UHF channels, the practical effect has been to permit a group or individual to hold interests in TV stations located in markets representing more than 39% of the population (note, however, that the rule still counts every TV household in the market against the 39% cap, even where the station does not actually serve those households with an over-the-air signal).

The FCC’s Notice of Proposed Rulemaking (NPRM) proposes to eliminate the UHF Discount on the theory that while UHF stations had weaker coverage than VHF stations in an analog world, VHF frequencies are not well suited to digital transmissions, and it is now VHF stations that are suffering from poor coverage. That is accurate, but it would seem to be an argument for also creating a VHF Discount rather than eliminating the UHF Discount. While it is true that the FCC provided UHF stations with an opportunity to increase their operating power in transitioning to digital television if they could do so without creating interference to other stations, the guiding principal of making channel allotments in the DTV transition was replicating analog service areas, meaning that UHF analog stations were given digital allotments replicating their flawed analog coverage.

Oddly, however, the NPRM looks past that history, focusing instead on the fact that UHF stations and VHF stations are now much more equivalent because of VHF’s digital woes. While the 39% ownership cap, and how it is calculated, may well merit revisiting, the NPRM explicitly makes the decision to forego an examination of the 39% cap and how compliance with that cap should be calculated, and instead limits the FCC’s review to whether the UHF Discount should be eliminated.

In his dissent to the NPRM, FCC Commissioner Pai noted this fact, chiding the FCC for putting on its regulatory blinders while plunging ahead on the UHF Discount:

[B]ecause we are proposing to end the UHF discount, we should ask whether it is time to raise the 39 percent cap. Indeed, this step is long overdue notwithstanding any change to the UHF discount. The Commission has not formally addressed the appropriate level of the national audience cap since its 2002 Biennial Review Order, and it has been nearly a decade since the 39 percent cap was established. The media landscape has changed dramatically in the many years since. I’ve spoken a lot about the importance of reviewing our rules to keep pace with changes in technology and the marketplace, and I wish today’s item had done so with respect to this issue in a comprehensive manner.

Like the story of the blind men and the elephant, the FCC’s NPRM thrusts out its hand, touching only one aspect of the FCC’s ownership rules, and risks discovering later that there is much more to the elephant than its tail.

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Over the years, I’ve written a number of times of the FCC’s concern about airing emergency sounds, from the siren blare telling you that Indiana Wants Me, to Emergency Alert System tones promoting the movie Skyline, to an actual EAS alert warning of the Zombie Apocalypse.

Section 11.45 of the FCC’s Rules states that “[n]o 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.” As a result, every time that annoying EAS digital squeal slips onto the airwaves during a commercial rather than in an EAS test, it is guaranteed that the employee charged with screening ads is going to have a very bad day.

Fortunately, most broadcasters and cable operators are well aware of the restriction and go to great lengths to screen out such content. Unfortunately, advertisers and ad agencies are often not so attuned, and given the sheer amount of ad content being aired, an EAS-laden ad will slip through sooner or later.

Aggravating the situation is that while airing the tone from the old Emergency Broadcast System could cause public confusion, the EAS squeal contains digital information that is relayed to other media entities, whose EAS equipment then reads that data and automatically transmits the alert on down the alert chain. The farther the alert travels from the original source (where observant viewers or listeners might have figured out it was just part of a commercial), the greater the likelihood of public confusion and panic.

While the FCC certainly takes EAS false alerts seriously, it has seemed to recognize that the media entity airing the ad is usually as much a victim of the false alert signal as anyone, and as long as prompt action was taken to prevent a recurrence, has not been particularly punitive in its enforcement actions. Its strongest reaction to false EAS alerts up till now has been to issue an Urgent Advisory after the Zombie Apocalypse telling EAS participants to change the default password on their EAS equipment to prevent hackers from commandeering the equipment over the Internet to send out false alerts.

That changed late today, when the FCC issued a News Release and an FCC Enforcement Advisory warning against “False, Fraudulent or Unauthorized Use of the Emergency Alert System Attention Signal and Codes”, along with a Notice of Apparent Liability (NAL) for $25,000 against Turner Broadcasting System, Inc. and a $39,000 consent decree against a Kentucky TV station.

According to the NAL, Turner aired a promo for the Conan show that contained a simulated EAS tone in connection with an appearance by comic actor Jack Black. The FCC was not amused. While the base fine for violating Section 11.45 is $8,000, the FCC found that the seriousness of the violation, particularly given the nationwide transmission of the false alert signal, as well as Turner’s ability to pay, justified increasing the proposed fine to $25,000. While not specifically addressed in the NAL, the fact that Turner produced the promo itself, rather than this being a case of a third party advertiser slipping it past Turner, appears to have drawn the FCC’s ire.

More interesting still is the $39,000 consent decree, where the Kentucky station did not contest that it aired an ad for a sports apparel store that “stops in the middle of the commercial and sounds the exact tone used for the Emergency Alert warnings.” Besides the eye-opening $39,000 payment, the consent decree requires extensive further efforts by the licensee, including implementing a Section 11.45 compliance program for its staff, creating and distributing a compliance manual to its staff, implementing a compliance training program, filing annual compliance reports for the next three years, reporting any future violations to the FCC, and developing and implementing a program to “educate members of the public about the EAS alerts, the limits of public warning capabilities, and appropriate responses to emergency warning messages.” With regard to this last requirement, the educational program must include:

  • Airing 160 public service announcements (80 on the station’s primary channel and 80 on its multicast channel).
  • Interviewing local emergency preparedness officials and including vignettes on emergency awareness topics at least twice a month on the station’s morning program.
  • Expanding the station’s website to include links to local emergency agencies, banner messages with emergency-related information, and video messages from the Federal Emergency Management Agency and local emergency preparedness agencies.
  • Installing an additional SkyCam at its tower site and using “special radio equipment” to communicate with local emergency management officials and which will relay alerts to the station’s master control personnel.
  • Leasing tower space to the local emergency management agency for a “new modernized communications system” linking local agencies and organizations.
  • Using social media and digital technologies to promptly disseminate emergency alerts, including posting information culled from the station’s public service announcements, vignettes, and the local emergency management agency on the station’s Facebook page weekly, and including timely late-breaking news coverage of severe weather conditions and forecasts on the station’s smartphone app.
  • Utilizing specific computer hardware and software to render weather data and maps for use on-air, online, and in mobile applications, as well as to track severe weather events.
  • Periodically reviewing and revising the station’s educational program to improve it and ensure it is current and complete, including conferring with the National Weather Service and state, county and federal emergency preparedness managers and public safety officials.

The consent decree does not indicate how many times the offending ad aired, or if the station produced it, but the severity of the consent decree terms is startling. Also noteworthy is the FCC Enforcement Advisory’s admonition that not just broadcast stations and multichannel video programming distributors are on the hook, but that “[t]he prohibition thus applies to programmers that distribute programming containing a prohibited sound regardless of whether or not they deliver the unlawful signal directly to consumers; it also applies to a person who transmits an unlawful signal even if that person did not create or produce the prohibited programming in the first instance.”

The FCC has therefore decided that it is time to crack down on violations, and ominously, today’s FCC Enforcement Advisory notes that “[o]ther investigations remain ongoing, and the Bureau will take further enforcement action if warranted.” Given today’s actions by the FCC, everyone whose job it is to review ad content before it airs is having a very bad day.