By Burt Braverman and Jennifer Toland Frewer
On March 3, 2014, the Federal Communications Commission (FCC) issued an omnibus Notice of Apparent Liability (NAL) that proposes substantial fines totaling more than $1.9 million against Viacom, ESPN, and NBCUniversal (the Companies) for unlawfully transmitting advertisements that misused actual warning sounds of the Emergency Alert System (EAS). The total dollar amount of the proposed fines is among the highest ever imposed by the FCC in connection with content-based violations.
The EAS is a national public warning system that requires broadcasters, cable, wireline and satellite programming distributors (EAS Participants) to provide the President of the United States the capacity to address the American Public during a national emergency, and to enable federal, state and local authorities to deliver important emergency information, such as tornado warnings, to specific areas. Among other things, the FCC EAS rules prohibit the transmission of actual, simulated or recorded EAS Attention Signals or tones unless there is a real emergency alert or an authorized test of the EAS system.
The recent fines come in the wake of an extensive investigation conducted by the FCC’s Enforcement Bureau in response to a flurry of consumer complaints regarding an advertisement promoting the release of the film “Olympus Has Fallen.” The FCC’s investigation revealed that actual EAS codes and the Attention Signal were used during action scenes from the movie’s trailer, and that collectively the Companies aired the commercial a total of 159 times on national and regional networks under their control, creating a false sense of emergency among certain members of the viewing public. The FCC reasoned that frivolous or casual use of the EAS tones, regardless of whether there was any intent to deceive, can desensitize viewers of their importance, and thereby undermine the effectiveness of the EAS in the event of an actual emergency.
The FCC has been working since 2007 to modernize the EAS network and increase its reliability, including by revising its rules to specify the manner in which EAS Participants receive alert messages formatted in the Common Alerting Protocol (CAP). On Nov. 9, 2011, the FCC conducted the first ever National EAS Test in conjunction with Federal Emergency Management Agency (FEMA) and the National Oceanic and Atmospheric Administration’s National Weather Service (NWS). In April 2013, the FCC released its report, “Strengthening the EAS: Lessons Learned from the Nationwide EAS Test,” in which it evaluated equipment performance and issued a number of recommendations for continued performance improvements, including conducting additional tests and EAS reporting.
While the FCC’s broader efforts to reform EAS have focused largely on the EAS Participants, its recent activities suggest that it is equally concerned with actions taken by content providers, such as cable networks, which generally are only indirectly responsible for FCC compliance efforts through their distribution agreements. Significantly, the FCC has taken the position that it can act directly against networks in the case of EAS violations, although there is some dispute as to whether the FCC’s authority actually reaches that far.