The recent $504,000 fine proposed to be levied on Fox for the use of simulated EAS tones in an NFL football promotion (see FCC’s Notice of Apparent Liability here) is obviously a message to broadcasters to remember that EAS tones can only be used for real alerts or authorized tests of the system – and not in any advertising, programming or promotions. This is consistent with past big fines for improper use of these simulated EAS tones (see, for instance, the cases we wrote about here, here, and here). This aspect of the Fox case – don’t use EAS tones except for real EAS purposes – has been well noted. What has received less attention are the small details that went into this big proposed fine.
The most obvious of these details was the short duration of the EAS tones that led to the violation itself – the use was only 3 seconds long. The Commission found that even a 3 second use of EAS tones was sufficient to confuse the public about a possible emergency or to contribute to possible desensitization of the public to the importance of these tones. But this is not the first situation where the FCC has imposed a very large fine for a violation that occurred only very briefly – one of the most obvious situations being a $325,000 indecency fine for a 3 second image of sexual organs in a corner of a TV screen when a station broadcast a screenshot of the homepage of an adult website to illustrate a news story about a former adult film star who became a local first responder (see our summary of that case, here). Both in the recent EAS case and in the case of the indecency violation, the issues were not caught in the production of the on-air segments or in any pre-broadcast review of the programming before it was broadcast. Both cases serve as a reminder that stations need to not take anything for granted in their pre-broadcast review of programming segments, reinforcing the need to carefully inspect everything that goes out over the air, as even 3 second violations can lead to fines that exceed $100,000 per second.
But there was another aspect of the case which warrants note – the fact that one violation, even an isolated one years ago, can serve as a basis for the upward adjustment of a penalty for a new violation. In the Fox case, the “base fine” (the $8,000 base fee for a false use of EAS tones, multiplied by the Fox stations involved led to a $144,000 potential fine) was adjusted upward by the FCC to the ultimate $504,000 penalty for several reasons. First, the FCC noted that the company should have known better, as it is an experienced operator, and the violation is one that should be obvious to such an operator. Second, the FCC noted the significant revenue of the company, so a fine, to be meaningful, had to be steep. But there was another factor that led to the upward adjustment that should be noted by all broadcasters. The FCC noted that the company was not a first-time offender – citing two fines paid by Fox over a decade ago for matters having nothing to do with EAS tones. One was a $4,000 fine paid by one Fox station for a video news release in 2011, and the other was a $25,000 penalty for an alleged failure of Fox to respond to an FCC inquiry on indecency (where the affiliate of the Fox network responded to an indecency complaint even though the FCC addressed the inquiry to Fox itself). These isolated violations from over a decade ago were cited to justify the increase of the EAS fine from $144,000 to $504,000. The FCC looks at past instances of violations in deciding whether to increase a potential fine from the “base fine” suggested in the FCC’s “forfeiture” guidelines.
This is not the first time that we’ve seen the FCC rely on a supposed pattern of violations to justify a substantial increase in a base fine amount. We recently noted a $32,000 fine on Cumulus for the late upload of one EEO annual report at one of its radio clusters. The amount of the proposed fine for this isolated violation was based partially on the fact that the company had two other past EEO violations (in 2017 and 2009, each resulting in a $2,000 fine). The FCC also noted that the company had also been found to have violated the sponsorship identification rules in the past. In fact, those sponsorship identification cases also illustrate how the FCC uses past violations as a way to increase present proposed fines for new violations (see our article here). As these cases illustrate, even small past violations can lead the FCC to conclude that what was seemingly an isolated, inadvertent issue that will likely, over the course of time, arise in any business, can be escalated to a major liability where there are past violations on a station’s record. This can occur at any broadcast company, big or small, so it is important to carefully adhere to all FCC rules as even an insignificant FCC violation today can lead to far enhanced penalties in the future should a more serious violation arise at some point in the future.
Courtesy Broadcast Law Blog
