In November 2021, FOX Television Stations, and perhaps all of its affiliates, suddenly found themselves potentially liable for its use of an emergency alert system (EAS) code in what appeared to viewers as a somewhat mysterious “NFL EMERGENCY ALERT” supporting the Philadelphia Eagles pro football club.
The promotional message, first shared with RBR+TVBR by radio industry programming veteran Randy Kabrich, consisted of a “FOX :45” promotional message with the familiar FOX | NFL logo, and it aired as a seemingly national advertisement. For three full seconds, the familiar EAS tones could be heard.
Now, FOX faces a whopping $504,000 Notice of Apparent Liability for Forfeiture for this act, the FCC shared late Tuesday (1/24).
In a Notice of Apparent Liability for Forfeiture, the FCC said FOX “apparently willingly” violated the Commission’s rules on the use of Emergency Alert System tones in the promotional segment.
The Commission explained that it received information from multiple sources alleging that at approximately 12:20pm Eastern on Nov. 28., 2021, FOX “apparently transmitted, or
caused the transmission of, EAS Tones during a FOX NFL promotional segment in the absence of any actual emergency, authorized test of the EAS, or qualified PSA.”
On Jan. 4, 2022, a Letter of Inquiry was dispatched to FOX by the Enforcement
Bureau’s Investigations and Hearings Division, seeking clarity on the matter.
FOX, in its reply, admitted that the promotional segment used an approximately three-second excerpt of the EAS Attention Signal, as RBR+TVBR reported at the time. This signal is commonly used to precede broadcast emergency alerts: two simultaneous tones of 853 Hz and 960 Hz.
The three-second excerpt of the EAS Attention Signal was downloaded or recorded from a
YouTube video, FOX added.
There’s more, and it involves the No. 1 licensee of radio stations in the U.S., albeit they are not culpable.
FOX acknowledged that it broadcast the promotional segment over 18 of its owned-and-operated stations, and transmitted it to 190 network affiliated stations nationwide.
In addition to television distribution, FOX caused the transmission of the promotional segment on Fox Sports Radio, reaching nearly 15 million listeners on iHeartRadio and on FOXSportsRadio.com.
Satellite radio operator Sirius XM was also indirectly involved, as the promo aired on the “Fox Sports on XM” channel.
FOX asserts that the promotional segment was provided and distributed by the Fox
Broadcasting Company, an indirect wholly owned subsidiary of Fox Corporation, and told the Commission that “certain members of FOX’s production team reviewed the promotional segment following its development, and prior to its public transmission, but provided no comments or changes.”
That could prove to be difficult for FOX to overcome, as it now faces one of the biggest financial penalties the Commission has levied in recent times.
The FCC is authorized to levy fines of up to $59,316 per violation. In its capacity as a broadcast licensee, FOX transmitted the EAS Tones one time over each of its 18 television broadcast stations, resulting in a base forfeiture of $144,000.
“Reviewing the factors in this case, we find that an upward adjustment is warranted,” the FCC said, citing its airing on affiliates, on Fox Sports Radio and on Sirius XM.
Could FOX appeal by requesting a smaller fine? That could prove fruitless. “We find no basis for a downward adjustment,” the FCC said. “This was not a minor violation.”
It was not clear if FOX intends to challenge the FCC’s proposed fine. A spokesperson for Fox Corporation did not immediately return a request for comment sent by Streamline Publishing as of Tuesday afternoon. The FCC believes FOX can pay the fine because it brought in over $4.44 billion in revenue during the financial quarter in which it aired the promo.
The fine against Fox is the latest example of the FCC’s enforcement bureau taking action against a radio or television broadcaster for using EAS tones outside an actual emergency or system test. In August 2021, the FCC proposed a $20,000 fine against the Walt Disney Company’s sports network ESPN for using the EAS tones in a news magazine program. Six years earlier, the agency hit iHeartMedia with a $1 million fine for similar use of EAS tones during an airing of the syndicated morning program “The Bobby Bones Show.”
— With reporting and research from Matthew Keys of TheDesk.net
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