Don't Mess With EAS
March 11, 2014
The recent very large forfeitures against Viacom, ESPN, NBC Universal and Turner Broadcasting for misuse of the Emergency Alert System (EAS) warning sounds should come as no surprise to broadcasters. Perhaps another "wake-up call" was needed. Simply put:
You don't MESS with EAS
...or, with its alert tones or warning system.
The EAS is there strictly as a public warning system for listeners and viewers to be activated and used only in times of emergency or crisis. Therefore, the forfeiture notices as high as $1,120,000 should come as no surprise.
In spite of these recent, high-profile fines, as recently as this week I was asked to review a proposed ad that contained an EAS warning sound.
Periodically, ad agencies or broadcasters come up with the idea to attract attention to an advertisement by using the EAS warning tones, or police sirens or other emergency sound effects. The FCC has frequently warned that this practice is off-limits. It has made clear that the EAS is a national public warning system to be used only during a national emergency or to deliver important emergency information such as Amber Alerts and weather information, like tornado warnings, targeted to specific areas. The Commission has long prohibited the broadcast of actual or simulated EAS attention signals or tones for any other reason. Even conducting a legitimate test of the system to be sure it will operate correctly in times of emergency requires advance notice and specific permission from the Commission.
Even the use of non-EAS alert signals or sirens must be avoided. In 1970 the FCC issued a Public Notice warning that broadcasters must act responsibly in the use of sirens and other devices that might pose a hazard to the public – and that broadcasters are charged with being aware of possible adverse consequences.
While recognizing that the selection and presentation of advertising and other promotional material is left to the editorial discretion of licensees, the FCC has emphasized that with that authority comes responsibility, and that responsibility extends to commercial matter as well as entertainment programming. In 1991 a station was fined for on-air talent using an air-raid sound effect followed by two explosions and then an EAS tone. That prank was not a case of trying to draw attention to a commercial. However, the FCC used it to make its point about the prohibition on any device used as a signal of distress or emergency, reminding broadcasters that Section 325(a) of the Communications Act prohibits any person from knowingly causing any false or fraudulent signals of distress, or communication relating to them.
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 the possibility of terrorism attack, the Commission will not be tolerant of any misuse of sirens or other sounds that resemble the nationwide EAS alert system.
Broadcasters must find other ways to attract audience to commercial messages.
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.