The Federal Communications Commission (“FCC” or the “Commission”) remains consistent in its enforcement of fines for the improper use of Emergency Alert System (“EAS”) tones.  On April 7, 2020, the Commission released a Notice of Apparent Liability for Forfeiture (the “Notice”) proposing to levy a $20,000 fine against Entercom License, LLC (Entercom) station WNEW-FM for the unauthorized use of EAS tones.

A complaint notified the Commission that WNEW-FM, in New York, New York used the EAS tone as part of a skit aired on the “Karen & Jeffrey” program on October 3, 2019.  The skit took place on the same day that Federal Emergency Management Association (FEMA) sent a Wireless Emergency Alert (WEA) message to WEA-capable wireless devices, followed by a live test of the Emergency Alert System.  In response to the complaint, the FCC issued a Letter of Inquiry to Entercom.  Entercom responded, admitting that WNEW-FM had used the signal in the skit.

The FCC’s Notice stresses that stations should not air EAS tones “in the absence of an actual national, state or local area emergency, authorized test of the EAS, or a qualified public service announcement (PSA).”  The use of the EAS tones outside of these contexts can undermine the Emergency Alert System and could present a threat to public safety.  For example, the FCC is concerned that improper use of the tones could confuse people or lead to “alert fatigue,” where listeners begin ignoring the alert tones, causing them to disregard an actual emergency.

The Notice also serves to remind us that the length of time the alert is aired is not the controlling factor when the FCC determines liability.  In this case, WNEW-FM only aired the EAS tone for one second, yet the Commission decided to forego the possible base-fine of $8,000 and issue a more severe penalty of $20,000.  The FCC specified that while no single factor controls its decision to issue a fine or the amount of the fine, it takes into account several factors, including the number of repetitions/individual transmissions; whether the violation occurred for a day or over several days or months; the number of people reached, be it national, regional, or local; and “the extent of the public safety impact.” In our view, the FCC is tired of this happening and is no longer going to be lenient when it comes to using EAS tones in non-emergency situations.

WNEW-FM is just the most recent of numerous stations fined by the Commission for airing EAS tones improperly.  Just last year, the FCC fined Meruelo Media $67,000 for airing the EAS tones on two if its radio stations and fined ABC $395,000 for the Jimmy Kimmel show’s use of the tones.

Considering the Commission has demonstrated that it takes these events very seriously, we urge all stations to reiterate to on-air personalities and program producers that airing EAS tones outside of an actual, bona fide alert or test is dangerous and likely to result in a significant fine to the station.  For additional reading about the Emergency Alert System and EAS tones, check out our previous CommLawBlog posts located here, here, and here.