FOX NFL Pre-Game Emergency Alert Tone Puts Affiliates in a Difficult Position

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As the trades have reported, a rather unusual spot appearing to be a FOX NFL promo aired during yesterday’s NFL pre-game show.  What made it particularly unusual was that it included an EAS-like tone, and had a URL at the bottom of the screen for “WWW.FOXNFLEMERGENCYALERT.COM.”  That URL currently links to a “Let’s Go Brandon” website that I don’t encourage you to visit because our own spam software blocks access to it on the stated grounds of “Risky-Sites.”

We’ve written about the regulatory risks of transmitting false EAS alert tones on multiple occasions (see here, here and here), with the most recent post being about a proposed $272,000 fine against CBS for an EAS tone that was briefly heard in an episode of Young Sheldon.  The principal issue in such circumstances is Section 11.45(a) of the FCC’s Rules:

No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS; or as specified in §§ 10.520(d), 11.46, and 11.61 of this chapter.

In this case, since it was a live broadcast, it would be difficult for an affiliate to move quickly enough to spot and delete the tone before it aired.  Recognizing that this is often the case, the FCC has typically focused inquiries involving network programming on the network’s owned and operated stations rather than on the network’s affiliates.  However, that isn’t always the case, as the FCC has fined individual stations for Children’s Television rule violations even where those violations occurred in network programming.

So an affiliate’s natural reaction in such circumstances might be to lay low and let the network deal with any potential ramifications at the FCC.  However, that isn’t an option, as Section 11.45(b) of the FCC’s Rules states that:

No later than twenty-four (24) hours of an EAS Participant’s discovery (i.e., actual knowledge) that it has transmitted or otherwise sent a false alert to the public, the EAS Participant shall send an email to the Commission at the FCC Ops Center at FCCOPS@fcc.gov, informing the Commission of the event and of any details that the EAS Participant may have concerning the event.

That means remaining silent and hoping it all blows over isn’t an option once an affiliate becomes aware that it has transmitted a false EAS tone.  Section 11.45(b) requires stations to basically hold up their hand and volunteer to the FCC that they aired the tone, and the 24-hour time limit doesn’t give a station much time to contemplate it.  While the FCC and FOX will hopefully resolve any issues with the broadcast itself, stations don’t want to dodge that bullet only to expose themselves to an FCC claim that they failed to promptly report the incident.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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