As we reported yesterday, some listeners to Shoals Radio’s WMSR in Alabama believed aliens were taking over the station. The stunt even had some residents thinking schools would be attacked so parents kept their kids home and police beefed up security at schools. Management was trying to bring attention to the station for an upcoming format switch and aired fake conversations between aliens. It worked to perfection bringing the station local and national attention. We asked broadcast attorney John Garziglia if this stunt had any legal downside.
By John Garziglia
Any stunt or hoax that causes the invocation of law enforcement is a promotion that the FCC severely frowns upon. But, assuming that someone files a complaint with the FCC (no one has yet, as far as we know), would the FCC care? It is difficult to say.
The FCC in the past has tried to clarify its hoax rule (yes, the FCC has an actual rule on hoaxes – it is Section 73.1217 of the FCC’s rules) by explaining that a broadcast about amoebas invading the city was an “obvious hoax” and would not be covered by the rule. On the other hand, the FCC noted that the broadcast of a mock nuclear attack on the United States with a siren sounder was not an obvious hoax and merited a $25K fine, and a false report of a nearby volcanic eruption was likewise not an obvious hoax and merited an FCC admonishment.
So, were aliens effectuating a radio station’s format change more akin to a fake amoeba invasion, or more likely to be regarded by the FCC as a fake nuclear attack or volcanic eruption? The seminal event that this promotion recalls is the 1938 Halloween eve broadcast of the War of the Worlds radio drama which, in a fashion similar to the WMSR promotion, had aliens invading the Earth. Notably, this broadcast occurred prior to the FCC’s 1992 adoption of its hoax rule.
We live in a society that is hyper-sensitive to possible catastrophes. Simply substitute the word terrorist for alien in this radio stunt and we would not be debating whether a promotion designed to fool the audience was a good idea. Earlier this year, in the “FCC Protects You From Yourself April 1st”, I noted that the FCC in adopting the hoax rule stated that it was not its intent to “restrict harmless pranks or to deter broadcasts that might upset some listeners but do not pose a substantial threat to public health or safety”. The dividing line, however, might not be as clear as we might prefer.
The FCC’s broadcast hoax rule prohibits the broadcast of false information concerning a crime or a catastrophe when: (1) the broadcaster knows the information is false; (2) it is foreseeable that the broadcast of the information will cause substantial public harm; and (3) the broadcast of the information does, in fact, directly cause substantial public harm. The FCC states that the diversion of law enforcement or other public health and safety authorities from their duties is “public harm”.
The good news from this incident is that people listen to and believe in what they hear on the radio. The bad news, however, is that law enforcement was apparently required to respond to citizen fears by adding security at schools and making social media pronouncements which could arguably fit within the FCC’s definition of “public harm”.
The bottom line is that special place that FCC regulation still occupies in our radio programming landscape. If a cable channel or an internet radio station had run this stunt, we would not be asking if the FCC might get involved because there is no hoax rule for either of these media.
Rather, it is broadcasting’s unique distinction to be saddled with restrictions on programming for public interest reasons – restrictions on indecent speech, political speech, contests, advertising and hoaxes. With that in mind, any radio promotion that leads listeners to believe that something is happening that is not, is a promotion that should be fully vetted in advance for compliance with the FCC’s hoax rule.