NBCUniversal, Viacom and ESPN whacked for “Olympus Has Fallen” spot.
Last November we reported on a Commission crack-down on the broadcast of EAS (or EAS-like) tones in non-emergency situations. Heads up: the Commission is still cracking down – not only on broadcasters, but also on cable networks.
If you don’t believe us, just ask your friends at NBCUniversal, or Viacom, or ESPN. They are all looking down the wrong end of a Notice of Apparent Liability doling out a total of nearly $2 million dollars in fines for the transmission of EAS attention signals in non-emergency situations. Q.E.D.
The circumstances here track last November’s: a spot produced by an advertiser happened to contain EAS-like sounds. It didn’t help that the spot also included images of terrorists and violence and visual text reading “THIS IS NOT A TEST” and “THIS IS NOT A DRILL”. Sure, in the context of this particular ad – for the action-adventure flick “Olympus Has Fallen” – that kind of excitement might seem normal and to-be-expected, but everyone agreed that (a) the tones included in the spot either were EAS tones or sounded a lot like them and (b) there was no emergency. And that’s all that matters.
According to what they told the FCC, Viacom’s “Standards and Practices and Advertising Standards” reviewed and approved the spot; staff at the other nets similarly OK’d it. As a result, the spot ran on various cable networks owned by them for a couple of days before word started circulating through the broadcast and cable universe that this particular spot was bad news. Several days after the first telecast of the spot, the agency that had produced it notified everybody that they should stop running it, but by then it was too late for NBC, Viacom and ESPN. (All three companies have now locked, or are in the process of locking, the barn door by tightening up their internal review standards, but in this case the horse has already scampered off.)
All told, Viacom ran the spot a total of 108 times across seven of its networks; NBC was in for 38 (across seven nets, including several regional sports nets); ESPN showed it 13 times on three nets. (In cases where the network provided dual East Coast/West Coast feeds, inclusion of the spot in each separate feed counted as a separate transmission.) Bottom line: Viacom is getting whacked $1.12 million, NBCU is on the hook for $530,000, and ESPN is looking at $280,000. The size of the fines was based in part on the size of the networks’ respective revenues – so that the penalties would be more likely to have some deterrent effect.
In the NAL the Commission acknowledged that each of the three had advanced various arguments against assessing any liability. We won’t bother to summarize those arguments here because they went nowhere and it’s doubtful that they’re likely to work any better for anybody else. (Sample losing argument: The cable company did not “cause the transmission” of any EAS tones because, well, the ad agency had embedded the tones in the spot, so it was the agency, and not the network, that caused the tones’ transmission.)
We will repeat a few paragraphs from our earlier post, as an emphatic reminder to broadcasters and cable networks:
The rationale for the rule is obvious.
Broadcasters [and cable programmers] 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.
To pound the point home, the Enforcement Bureau has released not only the NAL and Consent Decree, but a companion public notice and a separate “Enforcement Advisory”.
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.