The FCC's Enforcement Bureau has proposed a fine on TBS of $25,000 for a simulated Emergency Alert System warning used in a promo for Conan that the FCC says constituted a false distress signal in violation of its rules. It also issued a warning to larger companies to expect larger fines than the base amount so that the fines actually had some impact.
The FCC announced it had reached an agreement with Kentucky TV station WKNY(DT) for apparent misuse of the EASE system and issued a general enforcement advisory about what it said was growing concern about EAS misuse.
"Today's enforcement action sends a strong message: the FCC will not tolerate misuse or abuse of the Emergency Alert System," said Enforcement Bureau Acting Chief Robert H. Ratcliffe. "It is inexcusable to trivialize the sounds specifically used to notify viewers of the dangers of an incoming tornado or to alert them to be on the lookout for a kidnapped child, merely to advertise a talk show or a clothing store. This activity not only undermines the very purpose of a unique set of emergency alert signals, but is a clear violation of the law," he said.
Turner admitted that it had produced and distributed the promo that included a sound effect Turner said was not any portion of an actual EAS code, but was a "sound burst" followed by a tone TBS said was associated with a color bar test pattern rather than an emergency alert.
Turner conceded the obvious--that the promo was not made "in connection with an actual national, state or local emergency or authorized test."
It explained that the promo had a tight turn-around, was not submitted to standards and practices, but that that is now the policy for similar Conan promos. Turner also conceded it had received complaints about the promo, leading to the changed review practices.
Based on a copy of the promo, the FCC concluded that the promo constituted a simulation of the EAS code and attention signal--which it says need not be an exact copy. The FCC also said the tone and bars were also similar to the dual-tone EAS alert signal and not the test pattern.
The base fine for that violation is $8,000, but the FCC said it was a willful and repeated (it was included in both East Coast and West Coast feeds) violation. It also pointed to the fact that Conan reaches "approximately 99.7 million U.S. television households" for increasing the gravity of the violation.
As to Turner's ability to pay such a fine--which can be a mitigating factor--the FCC pointed to Time Warner Networks division's $14.2 billion annual revenues.
The bureau signaled that it would likely be imposing larger than base fines, in some cases much larger, on companies with deeper pockets so that fines would not be treated as simply the cost of doing business.
WKNY conceded it had aired a commercial that included a simulated EAS tone and agreed in a consent decree to a compliance plan, monitoring and a $39,000 contribution to the treasury.