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UPDATED: FCC Levels $1.9 Million in EAS Fines
3/3/2014

WASHINGTON—The Federal Communications Commission proposed more than $1.9 million fines against Viacom, ESPN, and NBCUniversal for running a movie promo containing Emergency Alert System tones.

The fines were triggered by a series of complaints in March of 2013 over a trailer for the movie “Olympus has Fallen,” which had run on several Viacom, ESPN and NBCU nets. The trailer, “No Surrender,” opens with actual EAS tones. (Story continues below video.)

The FCC Enforcement Bureau asked the three companies about the complaints in Letters of Inquiry. All acknowledged running it. Doing so in the absence of an actual emergency is against the law. Section 11.45 of the commission’s rules states:
“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.”

The reason is twofold—faking out the public and triggering EAS encoders at other stations.

“The component sounds of an EAS message serve the dual purposes of gaining the listener’s or viewer’s attention, and conveying specially coded information for the equipment that is activated by the EAS message as part of an actual emergency or authorized test,” the commission noted in the Notice of Apparent Liability for Forfeiture. “In particular, the EAS codes consist of audible sounds in which encoded information concerning the particular alert is embedded.”

One of the complainants wrote, “This is misleading and had our entire family running to the TV to find out what was going on, only to find it was a commercial. Very tricky, misleading, and potentially dangerous when people get used to ‘tuning out’ the EAS tones.”

Viacom cable nets BET, Centric, Comedy Central, MTV, MTV2, Spike and VH1 collectively ran the ad 57 times. Viacom responded that the ad confirmed to its own internal 2012 guidelines, and that it has since updated those guidelines and should therefore not be fined.

ESPN, which ran the trailer 13 times on the main net, ESPN2 and ESPN News, had a similar response.

NBCU nets SyFy, USA and five regional RSN cable nets ran the trailer a total of 33 times. It also didn’t prohibit EAS tones in its ad guidelines.

“NBCUniversal notes that, for advertising intended for its cable programming networks, ‘the company focuses its review on certain ‘red flag’ categories, including commercials relating to issues of public controversy, gambling and casino advertising, nutritional supplements, homeopathic treatments and weight loss. . .” and determined that the ‘No Surrender Trailer’ did not fall within one of the red flag categories.”

NBCU told the commission that word spread fast in the TV community that the ad contained the tones. The trailer debuted March 4. By March 6, several state broadcast associations sent out advisories. The following day, Horizon Media, ad rep for the film’s distributor, FilmDistrict, sent a fax to NBCU advising it to stop running the trailer.

All three companies noted their immediate corrective measures, but the FCC said that given the nature and frequency the violations and the companies’ ability to pay, it was leveling fines totaling $1,930,000

Viacom was popped $1,120,000 for seven networks running the ad a total of 108 times over five days. (The dual-feed networks counted twice.) The ESPNs ran the ad 13 times over four days and were fined $280,000.

NBCU was fined $530,000 for its networks running the promo 38 times over six days. (Again, dual feeds counted twice.)

The three have 30 days from March 3 to reply or pay up.
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