The Federal Communications Commission last year broke with tradition and said broadcasters could use simulated Emergency Alert System tones as part of public education efforts about EAS. But the FCC is getting tough with its rule that simulcast tones cannot be used outside of Public Service Announcements. The result is CBS has become the latest company to be hit with a fine for what the FCC calls a misuse of the sound after it broadcast simulated tones during an episode of the sitcom “Young Sheldon” on April 12, 2018. The episode aired on at least 227 television stations around the country, including 15 owned-and-operated by CBS.
“Today we continue our ongoing effort to protect the integrity of the EAS by proposing a penalty of $272,000,” the FCC said in an order released Monday. “The prohibition on such transmissions has been in place for many years and industry participants have long been on notice of the seriousness of such violations.” The proposed fine is well above the base $120,000 penalty under the agency’s rules. The Commission explains it believes the upward adjustment takes into account the CBS show reached “potentially vast audiences” which it says “increases the extent and gravity of the violations.”
In its defense, CBS doesn’t deny that it aired an EAS warning sound effect as a “dramatic portrayal” of the EAS tones, saying it was an “integral part of the storyline about a family’s visceral reaction to a life‐threatening emergency.” The producers of the show achieved the effect by downloading an EAS tone from YouTube and then altering it for the program. CBS also says it passed the edited tone through three quality control rooms equipped with EAS decoders to prescreen the episode to make sure it didn’t trigger a real alert. And the show’s dialogue was also used to obscure some elements of the supposed alert.
But the FCC says the modified tone still sounded too much like an actual EAS alert, despite being softer in volume and shorter in duration. It also said the prescreening process doesn’t excuse a prohibited use. CBS’s suggestion that an average viewer would clearly differentiate its ‘modified’ EAS Tones from real EAS Tones because it was 3.4 seconds instead of 8 seconds is untenable," the order says. The FCC is also rejecting the CBS assertion that a fine could violate the company’s First Amendment free speech rights, arguing the agency’s rules are “narrowly tailored to the “least restrictive means” available to protect the EAS.
CBS now has 30 days to either pay the fine or tell the FCC why it shouldn’t be required to pay the $272,000 penalty or make a case for a reduction.
Four Other Companies Hit With EAS Fines
CBS is the fifth company in two months to be targeted by the Enforcement Bureau for alleged misuse of EAS tones. Southern California radio owner Meruelo Media last month agreed to pay what amounts to a $67,000 fine and follow a compliance plan to settle a case brought against two stations. The FCC said Meruelo’s classic Hip-Hop simulcast on KDAY Los Angeles (93.5) and KDEY-FM Riverside (93.5) included a simulation of an EAS attention signal in a promotion for its morning show. According to the FCC, the promo aired 106 times on KDAY and 33 times on KDEY.
The FCC also slapped ABC’s “Jimmy Kimmel Live,” AMC’s “The Walking Dead” and Discovery’s “Lone Star Law” for airing actual or simulated EAS or Wireless Emergency Alert (WEA) tones. In each case, the companies agreed to settle with the FCC for a combined $300,000 in penalties.
FCC Commissioner Geoffrey Starks, who previously worked in the Enforcement Bureau, said he would have supported an agency conclusion that CBS violated other rules, including the section of the Communications Act that prohibits the broadcast of false distress communications. “Given the facts presented, I believe that such a finding would have been amply supported by Commission precedent and Enforcement Bureau guidance,” said Starks. Such a finding would presumably have cost CBS more in fines.
“The only times a consumer should hear these actual or simulated tones blaring out of a television, radio, or wireless device are in the midst of an actual emergency, to be shortly followed by critical public safety information, or during a clearly defined test of the systems or Public Service Announcement about the systems,” said Starks. “Should broadcasters continue to run afoul of the clear and simple requirements imposed upon them by the Act and our rules regarding the use of EAS tones, I would welcome additional enforcement action.”
In hoping to clear up any confusion broadcasters have about what’s allowed—and prohibited—under the FCC’s rules governing the EAS and Wireless Emergency Alerts system, the Enforcement Bureau last month issued an advisory. Read it HERE.