Perhaps Sunday’s anniversary of Pearl Harbor made the FCC want to make this week one which concentrated on emergency communications issues, or perhaps it is just a coincidence.  But the FCC has been active in the past 7 days dealing with emergency communications related items for broadcasters.  On Wednesday, it issued a consent decree by which a broadcaster agreed to a $46,000 fine for the use of EAS tones in a commercial message. This decision follows on the heels of an investigatory letter sent to a satellite radio programmer about the apparent use of a simulated EAS tone in a commercial message when, of course, there was no real emergency.   On Monday, there were two fines for non-operational EAS receivers and EAS recordkeeping failures.  At the end of last week, comments were filed in an FCC proceeding looking at the retransmission of EAS alerts in non-emergency situations, such as when a tone is included in programming on a station, and what can be done to avoid those alerts being sent throughout the system.  Comments are also due by the end of the month on suggested best practices on security for the EAS system, in light of the many issues that have arisen with the hacking of EAS receivers.  Here is a quick look at each of these issues.

The two most recent decisions highlight the severity with which the FCC is treating the use of EAS tones – real or simulated – in non-emergency programming.  We have written about past cases where the FCC has issued very substantial fines for the use of such tones in nonemergency situations, here and here.  In the decision released on Wednesday, the licensee of a Michigan radio station admitted to having broadcast ads for a storm-chasing tour which contained the EAS warning tones.  The National Weather Service received complaints, and in turn filed a complaint with the FCC.  The Consent Decree does not provide much more information, but to indicate that the commercial containing the EAS tones was broadcast on only a single day.  A $46,000 fine for a one-day violation demonstrates the gravity with which the FCC views these violations.  And it is a sense of importance that attaches not just to licensees, but to programmers as well.

On Tuesday, the FCC issued an “Official Citation” to a radio program production company that allegedly produced a program for Sirius XM radio containing EAS tones.  As the company is not itself a licensee, the FCC did not issue a Notice of Violation, but instead this Official Citation.  According to the citation, the FCC cannot fine a company that is not a licensee before first giving them notice of the conduct at issue.  So this citation warns SM Radio Productions that if they use an EAS tone improperly in the future, the FCC can take action. 

Last Friday was the date on which initial comments were due on an Inquiry initiated by the Public Safety and Homeland Security Bureau of the FCC seeking technical information about how to avoid having improper EAS alerts transmitted throughout the EAS system.  The inquiry was triggered by the broadcast by one radio station of an EAS alert, without the proper termination code, which indicated that it was a Presidential alert.  The alert was picked up by other stations and cable systems which monitored the station.  Issues of whether others in the EAS chain should have recognized that it was not a true alert as there was a date-stamp in the alert that was in the past, the possible harms that such alerts can cause, and the ways to combat such false alerts were asked in the Inquiry.  The parties who commented suggested various technical fixes, and some, including the NAB, suggested that there be an industry working group to comprehensively look at these issues. The Broadcast Warning Working Group, which has been looking at ways to improve the overall functioning of the EAS system, suggested both a number of technical fixes to the alerts, and a series of standardization efforts within the entire EAS ecosystem (which includes cable as well as broadcasters) and education efforts to make sure that everyone is acting in the right way when an EAS alert is received.   Reply comments are due by December 19. 

The same Bureau of the FCC also has requested comments, due December 30, on the adoption of best practices to prevent security breaches of the EAS system.  This was triggered by the hacking of several stations’ EAS equipment last year, and the broadcast on the stations that were hacked of an alert about a zombie attack.  The comments are to address what stations and other EAS participants should be doing to insure that such security breaches do not occur in the future.

Finally, there were the actions early in the week fining stations for not having active EAS equipment in place.  In one case, the Commission rejected an appeal of a $6000 fine for not having operational EAS equipment for a station (mostly based on the late-filing of the appeal, but also noting that there was nothing to dispute the lack of operating equipment at the station).  The other decision released on Monday was one from an FCC regional office imposing a $7200 fine for not having working EAS equipment or EAS logs.  That case was interesting in that the FCC refused to reduce or cancel the fine because the licensee’s parent company was in bankruptcy as the licensee company itself had sufficient financial resources, in the FCC’s opinion, to satisfy the fine.

This flurry of activity on EAS shows the importance of these matters to the FCC.  Make sure that your entire staff – from the engineering department to the programming and advertising staff, know of the FCC’s concerns both with the technical aspects of the system and the improper use of the EAS alert tones in programs and commercials.  Education efforts now may prevent significant fines later.