Here’s a piece of advice to media producers – do NOT play emergency alert tones in any advertising that you do or else it is going to cost you big time. This is a lesson that ESPN has apparently yet to learn.
In a ruling published by the Federal Communications Commission today, the FCC is proposing a maximum fine of $146,976 for ESPN for using Emergency Alert System tones in promotional spots hyping up the start of the 2023-2024 NBA season. The FCC found that the violations occurred on six separate occasions from October 20-24 on ESPN airwaves.
Here it is straight from the FCC‘s Notice of Apparent Liability for Forfeiture:
We propose a penalty of $146,976, the statutory maximum for six apparent violations by a Federal Communications Commission (Commission or FCC) regulatee, against ESPN, Inc. (ESPN) for apparently willfully and repeatedly violating the FCC’s rules that prohibit the transmission of, or causing the transmission of, false or deceptive emergency alert system (EAS) codes or the EAS Attention Signal, or simulations thereof (together, EAS Tones). On October 20, 2023, October 23, 2023, and October 24, 2023, ESPN apparently transmitted, or caused the transmission of, EAS codes during a promotional segment (Promo Spot) concerning the start of the 2023-2024 National Basketball Association (NBA) season in the absence of any actual emergency, authorized test of the EAS, or qualified public service announcement (PSA).
The commission found that ESPN “willfully and repeatedly violated” regulations against using emergency alert sounds for non-emergencies, which the FCC takes seriously so as to not undermine them in the case of, you know, an actual emergency.
The notice also includes a background of what exactly happened. Although a quick search of the interwebs couldn’t find the offending ad (which has probably been scrubbed for obvious reasons) it appears to be a satirical dramatization of an EAS announcement in regards to the new NBA season.
9. In its LOI Response, ESPN admits that it developed, produced, and transmitted the subject programming. ESPN further admits that “[f]or each Transmission, ESPN Transmitted or caused to be Transmitted a portion of the EAS Attention Signals as part of the Promo Spot.” ESPN notes that the Promo Spot was “accompanied by a brief, less than two second excerpt of the EAS Attention Signals, immediately followed by a . . . voiceover of a man who states, in an exaggerated, stentorian tone, that ‘we interrupt our program to bring you this important message.’” ESPN believes that “the brief portion of the EAS Attention Signals included in the Promo Spot [was] an excerpt of the EAS header tone” and did “not include other elements of the EAS Attention Signals, such as the dual-tone attention signal.” ESPN further admits that for the Promo Spot airings, ESPN did not transmit or cause to be transmitted a portion of the EAS Tones in connection with any Permitted Use, i.e., an actual emergency, authorized test of the EAS, or qualified PSA. ESPN acknowledges that it transmitted the Promo Spot a total of six times during October 20-24, 2023, on two ESPN-owned networks.
10. ESPN admits that ESPN producers “likely . . . obtained the portion of the EAS Attention Signal recordings from a publicly available YouTube video,” and that its producers, and potentially other ESPN production staff, reviewed the Promo Spot before its initial transmission in 2023. ESPN indicates that it was aware that the Promo Spot was transmitted to the public at approximately the time it was transmitted. After the initial airings, ESPN believes that “some members of the production team may have discussed the presence of the excerpt of the EAS Attention Signals in the Promo Spot, but they apparently did not comprehend that its use was prohibited.” ESPN notes that it “is taking this opportunity to revisit its internal review processes and reeducate its personnel” regarding the FCC’s EAS rules.
Why was ESPN fined the maximum amount? Because as luck would have it this is not the first time ESPN has been pinged by the FCC for airing emergency alert system tones in an improper way. It happened again in 2020 when ESPN re-aired a Roll Tide/War Eagle documentary that also had them. For that offense, ESPN was fined $20,000. In 2015, ESPN was fined a whopping $280,000 for airing the sounds in a trailer for the movie No Surrender.
The FCC said that ESPN’s history of fines was a “significant factor” in dropping the hammer this time around. If it happens again, ESPN may have to start seriously re-thinking whether or not they have the money to re-sign Stephen A. Smith.
[FCC]
