Enforcement Bureau sends its own warning signal about improper use of EAS (or EAS-like) attention-getting tones.
The lesson of the day: it is illegal to broadcast EAS attention signal tones, or simulations of EAS tones, except in connection with a genuine alert or an authorized test of the EAS system. Write that down, share it with others, commit it to memory. If you want to see it in black and white, check out Section 11.45 of the Commission’s rules.
Many – probably the vast majority of – broadcasters learned this rule a long time ago and have had no problem complying with it. Indeed, just last June the FCC was confronted by broadcasters skittish about getting crosswise with that very rule. (In response the Commission went out of its way to assure the broadcasters that it really is OK to broadcast one particular FEMA-produced PSA that contains an alert tone that sounds like the EAS signal.)
But according to the Enforcement Bureau, recently it’s been receiving “numerous consumer complaints” about the use of EAS-like tones in ads and promotions. And sure enough, the Bureau has now brought the hammer down on two culprits who used simulations of EAS tones to promote, in one case, an upcoming program and, in the other, one of its advertisers (that would be the Fan Wear and More Store). The former got spanked to the tune of $25,000 in a notice of apparent liability (NAL); the latter copped a plea and entered into a Consent Decree that will cost it a “voluntary contribution” of $39,000.
The rationale for the rule is obvious.
Broadcasters who air fake EAS attention signals are, in effect, “crying wolf” and thereby undermining the integrity and effectiveness of the EAS system. If the public can’t be sure whether a particular announcement is real or fake, the public may not recognize truly dangerous situations until it’s too late.
Additionally, as our friends at the Society of Broadcast Engineers warned us all several years ago, the use of EAS header tones can cause EAS gear to lock-up at stations downstream in the EAS system. This can occur even when the tones are used merely as sound effect in a commercial spot. The result could place the public in unnecessary danger.
The bottom line: Don’t broadcast EAS attention signal tones, or anything that might be confused with such tones, except in connection with an actual emergency or an authorized EAS test. As irresistible as the impulse to use EAS tones might on occasion be – since those tones are designed to get the audience’s attention, an effect that advertisers, in particular, crave – it must be resisted.
While the rule is simple and, from our perspective, completely justified, the recent flurry of activity gives rise to a couple of questions.
First, how similar does a tone have to be to constitute a “simulation” worthy of enforcement action? Section 11.31 of the rules says the EAS “Attention Signal” must be “made up of the fundamental frequencies of 853 and 960 Hz. The two tones must be transmitted simultaneously.” But it’s presumably still possible, and maybe even easy, to generate tones that sound like the real deal without meeting those particular standards. Here it’s probably best to use a conservative rule of thumb: if a reasonably nervous and inattentive listener might conclude that a particular tone is an EAS tone, then that tone should not be broadcast.
Second, take a look at the NAL and the Consent Decree.
The NAL was issued to Turner Broadcasting for a promo inserted into the Conan show. According to the NAL, the promo was transmitted on both feeds (East Coast and West Coast) and reached a potential audience of nearly 100 million viewers. Turner is part of Time Warner, which last year reported revenues in excess of $14 billion. In response to the FCC’s inquiry, Turner apparently quibbled that one element of the tone that was transmitted was really more akin to the sound associated with color bar test patterns. (The Bureau did not agree.)
The Consent Decree, on the other hand, involved a single TV station in Bowling Green, Kentucky. The licensee acknowledged that it had broadcast a simulated EAS tone.
But when the dust settled, the resistant and well-heeled Turner was issued a $25K fine for a violation that could have had nationwide repercussions, while the other guy – who readily admitted the violation and sought to cooperate with the Bureau – is being forced to pay more than 50% more ($39K) for an incident that affected only greater Bowling Green. Doesn’t this send the wrong message on a number of levels?
[Final note: The items described above relate only to the transmission of EAS alert tones (or simulations thereof); they do not involve general alarms or other loud noises, including “bells, claxons, and police, fire or civil defense sirens” that don’t resemble EAS tones. But the transmission of such sounds could separately violate Section 325 of the Communications Act, which prohibits the transmission of “any false or fraudulent signal of distress, or communication relating thereto.” The goal, again, is to prevent the transmission of sounds that could cause disruption and peril.]