WASHINGTON—The FCC has levied a fine of $504,000 against Fox for “willfully violating” commission rules on transmitting EAS Tones during regular programming. The violation occurred during an NFL promotional segment aired Nov. 28, 2021.
Fox described the promotional segment as a “short comedic advertisement” for an upcoming game, which was aired as part of the Fox NFL Sunday pre-game show. The promo used an approximately three-second excerpt of the EAS Tone commonly used to precede broadcast emergency alerts: two simultaneous tones of 853 Hz and 960 Hz and the network admitted that the three-second excerpt had been downloaded or recorded from a YouTube video.
The network acknowledged that it had not obtained permission to air the tones that were broadcast over 18 of its owned-and-operated stations, and transmitted to 190 network affiliated stations nationwide. It was also broadcast on Fox Sports Radio and on the “Fox Sports on XM” channel on Sirius XM.
FCC warned that such use of EAS Tones when unwarranted could lead to “alert fatigue,” in which viewers will dismiss EAS Tones during actual emergencies.
“Despite being shorter in duration than the full EAS Tones, the three-second EAS Tone used in the Promotional Segment possessed the same dual-tone frequency, pitch, and timbre as the actual EAS Tones, and was recognizable by viewers or listeners as substantially similar to the EAS Tones,” the commission said. “The Promotional Segment’s “comedic tone” also did not alter or neutralize its overall effect of falsely warning listeners and viewers of a non-existent emergency, as the EAS Tones were clearly audible, cognizable, and appropriated for a non-emergency use. This manner of appropriation of the EAS Tones is exactly the type of simulation that the Commission’s rules seek to address and prohibit in order to avoid diluting the EAS Tones’ real meaning over time.”
Although fines starting at $8,000 are usually imposed by the commission, it said Fox’s violations were particularly egregious and deserved to be increased, noting that it was “not a minor violation.”
“Despite touting that it is fully knowledgeable and has a policy 'barring the improper use of the EAS Attention Signals,' which was purportedly 'made known generally to employees of Fox involved in the production of programming,' Fox admits that 'all personnel involved in creation and review of the Nov. 28 Segment … lacked full understanding of Fox’s policy against use of EAS Attention Signals.'”
It also criticized Fox for the way it handled the situation afterwards, noting that the network was required to notify the commission within 24 hours after it discovered its mistake and that just sending an email to the commission was not made in “good faith.”
Thirdly, it justified the fee increase by pointing out that Fox reported revenues of $4.44 billion in the relevant quarter. “Fox clearly has an ability to pay, and there is nothing in the record that would indicate that the penalty is otherwise excessive,” it said.
