As widely reported, the FCC this week issued a $25K fine to a cable system for a Conan show promotional clip, and settled for $39K along with stringent reporting and compliance conditions with a TV station for a commercial, each of which used a simulation of the EAS codes and attention signal. Let’s take a look at exactly what the FCC prohibits in the use of EAS tones.
Section 325(a) of the Communications Act prohibits the transmission of any false distress signals. Section 11.45 of the Commission’s rules prohibits the transmission of false or deceptive EAS codes or attention signals, 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. This is specific enough to prohibit EAS tones from being used in commercials or for promotional purposes. Nothing further needs to be said.
But, while our attention is focused on sound effects, what other attention-getting sounds might cause issues for a radio broadcaster?
Those in the industry long term will recall that the FCC, in a now defunct rule, previously prohibited sirens and similar emergency sound effects from being used in commercials and promotions. The anti-siren rule was deleted in 1983 as part of what the FCC called its “underbrush” proceedings.
Today, most sound effects that are responsibly used, other than EAS tones, are unlikely to create FCC issues for a radio broadcaster. But what is responsible use? The FCC still will pursue radio stations for “false or fraudulent signals of distress” in violation of Section 325(a) of the Communications Act. This prohibition can come into play in conjunction with the FCC’s anti-hoax rule (Section 73.1217 of the Commission’s rules) in which, for instance, 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 (Radio Ink – FCC Protects You From Yourself April 1st) .
A poster identified as mjohn3006 commented on an unrelated website forum that the FCC should ban the following things from the radio: sirens, car and truck horns, train track crossing signal sounds, and people yelling, noting that he was “backing out of a parking spot and a car horn blasted … I slammed the brakes [and] it was the radio”. He observed that it was dangerous, stupid and ignorant to play such sounds on the radio when most people listen to the radio in their vehicles. Other posters chimed in with deteriorating replies advocating that sounds of squealing tires, phones ringing and talk show hosts eating stuff on the air, should likewise be banned on the radio.
The FCC, in eliminating its ban on siren sounders on the radio in 1983, stated that its purpose was to eliminate rules that “have the potential to impede the competitive functioning of the marketplace by imposing unnecessary restraints upon licensee discretion.” The FCC noted that the siren prohibition was among the Commission’s “most trivial” rules.
Other legacy restrictions eliminated in that same 1983 FCC order included: radio advertising policies relating to alcoholic beverages; prohibitions on advertising the services of a fortune-teller or astrologer promising monetary, health or other benefits; policies on the broadcast of foreign language programs; policies prohibiting broadcast stations from inciting people to make harassing or threatening phone calls, or to otherwise incite people to annoy and harass others; a prohibition on the repeated playing of a single record; and restrictions on call-in polling.
Yes, there was a time when the FCC was a lot more restrictive with radio stations than now. Today, provided the FCC’s anti-hoax rule is not violated, there are few sounds that might be broadcast on the radio that will merit FCC sanctions save for one – the EAS tone.
The prohibition on the unauthorized use of EAS tones is an absolute. Other than its use for an actual national, state or local emergency, or for an authorized EAS test, the FCC prohibits the use of EAS tones on the air and enforces this prohibition with six figure fines