The Federal Communications Commission (“FCC”) has proposed a $504,000 fine in a Notice of Apparent Liability for Forfeiture against Fox Corporation for its broadcast network's use of the Emergency Alert System (“EAS”) tones in a promotion for the Philadelphia Eagles – New York Giants game in November 2021.
The hefty proposed fine results from the significance of the activity at issue and the fact that the promotion was broadcast nationwide on several Fox programming channels. Fox noted that the EAS tones were used as part of a short comedic advertisement for an upcoming game that aired as part of the Fox NFL Sunday pre-game show. The FCC argued that, even though the promotional segment incorporated a “comedic tone,” Fox “apparently willfully violated” 47 C.F.R. §11.45 with the use of the EAS tones, “in the absence of any actual emergency, authorized test of the EAS, or qualified public service announcement.”
Interestingly, Fox's own Advertising Guidelines prohibit the use of EAS tones in advertisements appearing on its networks: “The Emergency Alert System tones or graphic, or simulation thereof, may not be used in advertisements under any circumstances.”
The FCC's action serves as a reminder that advertisers (even media networks promoting their own programming) should avoid using the EAS tones or simulations thereof in promotional materials - even if such materials are meant to be a joke.
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