FCC Proposes $1.9 Million in Fines Against ESPN, NBCU, Viacom for Running Bogus EAS Tones
The FCC proposed fines totaling $1.9 million against Disney’s ESPN, Viacom and Comcast’s NBCUniversal for repeatedly transmitting a movie trailer that misused the emergency alert system tones. The EAS allegations stemmed from consumer complaints last year about a “No Surrender Trailer” for the movie Olympus Has Fallen, the FCC said. The companies admitted to airing the trailer multiple times, claiming they took action by revising their advertisement review guidelines and ceasing to carry the ads after letters of inquiry (LOI) and advisories from the commission. The commission proposed a $1.1 million fine for Viacom, a $530,000 fine for NBCUniversal and $280,000 for ESPN. The agency last month proposed fining Time Warner’s Turner Broadcasting and others over similar EAS violations in what industry attorneys called a crackdown (CD Jan 16 p7), which they said Monday appears to have continued.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Viacom said that its new ad guidelines prohibit ads that contain the EAS codes or a recording or simulation “in any circumstance other than in a national, state or local area emergency or authorized test of the EAS,” according to a notice of apparent liability (http://bit.ly/1cxl19l). Responses to FCC LOIs from the companies suggest audiences “could not have been deceived because the sounds in this case appeared in an advertisement for a movie,” the FCC said. A deceptive use isn’t required, the FCC said. “Nevertheless, we know from the complaints that viewers were confused,” it said: “This result illustrates why it is so important that EAS tones simply not be used outside the context of an actual alert or an authorized test of the system.”
ESPN was notified of the EAS tones in the trailer by a representative of the Society of Broadcast Engineers, the notice said. ESPN commercial operations staff reviewed all the trailers for Olympus Has Fallen that were provided for ESPN, it said. It removed the trailer from its commercial ad tracking and control system, “and replaced it with versions that did not contain an audible tone that sounded like the EAS attention signal,” it said. Following receipt of a LOI, ESPN “modified its procedures and requirements for reviewing advertisements that will be inserted into programming to be distributed by any of the ESPN cable sports programming networks,” it said.
Last year, the ad ran on seven NBCUniversal-owned networks, including SyFy and USA, the notice said. NBCUniversal became aware of the issues with the ad through advisories from several state broadcaster associations and through a fax from Horizon Media, an ad agency, urging it to remove the ad from its rotation, it said. NBCUniversal didn’t comment. ESPN is assessing the commission’s notice and it plans to respond, said a spokeswoman. “Viacom strongly supports and understands the value of the Emergency Alert System and regrets the airing of the advertisement,” a spokesman said. “Our processes were immediately strengthened when we received word of the error and we no longer accept ads from advertisers containing tones that could be confused with the EAS Attention Signal. ... We are reviewing our options, and will communicate our reply to the FCC."
The FCC rejected NBCUniversal’s argument that it’s unclear whether the EAS rules apply to program providers or cable programming networks, and that the agency never provided notice of such applicability. The language of the FCC rules plainly indicates that the commission didn’t limit applicability to EAS participants, the notice said.
Viacom’s arguments that the ad agency providing the spot is to blame lack merit, the FCC said. An agency rule specifies that no person may transmit or “cause to transmit” the EAS tones, the notice said. “The rule’s use of the disjunctive ‘or’ means that a company may violate the rule if it either transmits or causes the transmission of EAS tones,” the notice said.
From time to time, word gets around through listservs of state broadcast associations after someone spots a commercial or TV show that uses the tone, said Suzanne Goucher, president of Maine Association of Broadcasters and an expert on EAS. The FCC has made the EAS rule very clear in this regard, she said. “They're probably trying to send a message with these big fines that they're adopting a take no prisoners approach to this."
Sometimes the FCC will take into account actions taken to solve the problem, said Scott Flick, a broadcast lawyer at Pillsbury Winthrop, in an interview. More often, the FCC’s tendency is to determine that taking action after the problem was pointed out is too late, he said. The FCC also said one spot aired after the companies were notified, he said. “To the extent that any ads ran after they [companies] were notified, the FCC seems to see that as particularly irritating.” Flick has no clients in this proceeding.
Adhering to the EAS rules is the responsibility of the broadcaster or cable operator, Goucher said. “I think there’s an expectation that somebody ought to be reviewing content before it goes out over the air.” The FCC can’t reach an ad agency, she said: “It falls to an entity that is regulated by the FCC,” which would be broadcasters and pay-TV systems. The FCC went after the programming provider in the Turner case, Flick said. “If you can go after a Turner or a Viacom that provided the programming, then it seems logical that the FCC could have gone one step extra and tried to go after the advertiser.” However, there likely isn’t any precedent yet for it going that far, he said.