Fake EAS tones: ABC should know better...

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PID_Stop
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Fake EAS tones: ABC should know better...

Post by PID_Stop » Fri Aug 16, 2019 10:45 am

The FCC just dope-slapped ABC to the tune of $395k for last October's broadcast of EAS-like tones during the Kimmel show. ABC's rather feckless response to the original inquiry was that there was a "misunderstanding that the use of the tone was permissible". I would have thought that pretty much anyone working in the broadcast industry, short of interns and janitors, would have known better. On the bright side, I see no sign that individual stations are being fined -- yet.

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Re: Fake EAS tones: ABC should know better...

Post by Deep Thought » Fri Aug 16, 2019 11:24 am

The rule is very specific, so that response probably cemented the NAL using the "smartass policy".
§11.45 Prohibition of false or deceptive EAS transmissions.

(a) 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; or as specified in §§10.520(d), 11.46, and 11.61 of this chapter.

(b) No later than twenty-four (24) hours of an EAS Participant's discovery (i.e., actual knowledge) that it has transmitted or otherwise sent a false alert to the public, the EAS Participant send an email to the Commission at the FCC Ops Center at FCCOPS@fcc.gov, informing the Commission of the event and of any details that the EAS Participant may have concerning the event.

[83 FR 39621, Aug. 10, 2018]
(my emphasis)
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Re: Fake EAS tones: ABC should know better...

Post by Shane » Fri Aug 16, 2019 11:51 am

I find the words, “transmitted or otherwise sent” intriguing.

The first question is, “How else do you send besides transmitting?”

The second question is, “Could ‘otherwise sent’ mean by way of an internet stream?”

Question #3: Can the FCC regulate that?

I wanted to ask these questions this week at an SBE EAS Update program at Wednesday’s NebBA’s convention but the speaker was a fill in since the scheduled speaker couldn’t make it, so no luck there.
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Re: Fake EAS tones: ABC should know better...

Post by PID_Stop » Fri Aug 16, 2019 12:15 pm

From a television station's perspective, we transmit (i.e., over the air) our program feeds; we also hand off ASI feeds to cable providers directly from the studio, without passing through the transmitter. I would expect that that our direct feeds would fall within the "otherwise sent" category.

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Re: Fake EAS tones: ABC should know better...

Post by PID_Stop » Fri Aug 16, 2019 12:30 pm

Deep Thought wrote:
Fri Aug 16, 2019 11:24 am
The rule is very specific, so that response probably cemented the NAL using the "smartass policy".
I'm thinking the timeline didn't help.
  • 10/3/2018: ABC airs false tones (including time zone delay feeds).
  • 10/4/2018: Stations complain to ABC.
  • 10/4/2018, 7:19pm: ABC informs affiliates, "The Network has initiated a review of this action and will advise you of any conclusions."
  • 10/12/2018: The FCC sends a letter of inquiry to ABC.
  • 11/30/2018: ABC's lawyers finally reply to the FCC's LOI.
Granted, I'm becoming an old poop... but one of the things that FCC license study guides used to emphasize was the importance of being prompt and forthcoming in your dealings with the commission, especially after something has gone wrong. I doubt that an opaque reply nearly two months after the incident helped their cause, either.

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Re: Fake EAS tones: ABC should know better...

Post by TPT » Fri Aug 16, 2019 12:46 pm

"transmit or sent" would include cable, since they don't have FCC licensed transmitters. The same order fined Discovery channel for an EAS tone in one of their programs.

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Re: Fake EAS tones: ABC should know better...

Post by Deep Thought » Fri Aug 16, 2019 8:48 pm

PID_Stop wrote:
Fri Aug 16, 2019 12:30 pm
one of the things that FCC license study guides used to emphasize was the importance of being prompt and forthcoming in your dealings with the commission, especially after something has gone wrong. I doubt that an opaque reply nearly two months after the incident helped their cause, either.
Indeed. I always tell clients that the worst thing you can do when things go sideways is nothing. At the very least send an email and let them know you're on top of whatever is going on.

The not-so-funny thing about this incident is Disney usually has a phalanx of attorneys of all stripes on speed dial who swoop in at the slightest whiff of compliance trouble, so I suspect that someone upstream really dropped the ball.
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Re: Fake EAS tones: ABC should know better...

Post by Shane » Sat Aug 17, 2019 9:19 pm

After I read the recent Radio World article on tower rules, something in that may apply here in that an FCC licensee will be responsible for conduct outside the usual FCC jurisdiction. Such as, where a licensee owns a tower on which it has no licensed facilities but doesn’t paint it when needed, the FCC has jurisdiction over the tower owner even though it has no licensed facilities there itself.

So, too, in answer to my own question, program distributors who have licenses would be within the Commission’s reach for EAS violations.

Not sure where the Discovery Channel fits into that.
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Re: Fake EAS tones: ABC should know better...

Post by PID_Stop » Mon Aug 19, 2019 7:34 am

Shane wrote:
Sat Aug 17, 2019 9:19 pm
So, too, in answer to my own question, program distributors who have licenses would be within the Commission’s reach for EAS violations.
Indeed: we are ultimately responsible for what goes out from our station, even if it is because of something the network does beyond our control. The most immediate example that comes to mind is the Janet Jackson Superbowl case, where affiliates were individually fined the maximum $27,500 apiece. The Supreme Court ultimately overturned that on the grounds that the FCC had been inconsistent in its dealings with fleeting and inadvertent violations. In the Kimmel situation, the FCC has been remarkably consistent: the prohibition against false alerts is not ambiguous, there is no question about whether the violation occurred, and the rules have been consistently enforced. So it is still possible that every ABC station that aired the Kimmel show could eventually be fined; but if I remember correctly, affiliation agreements indemnify stations against this sort of penalty when it results from network actions. My guess is that one effect of reaching the consent decree with ABC is that they are ending the enforcement action for this incident.

Not great, not terrible.

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Re: Fake EAS tones: ABC should know better...

Post by NECRAT » Tue Aug 20, 2019 9:10 pm

Shane wrote:
Sat Aug 17, 2019 9:19 pm

Not sure where the Discovery Channel fits into that.
Cable/DSS operators are all regulated by the FCC, and require licensing, so the commission has enforcement over those as well, hence why cable networks can have action taken against them.
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