This Should Get Your Attention III: iHeart Whacked for $1 Million for Misuse of EAS Tones

A one-time only broadcast leads to a "multi-state cascade" of false alarms " and a big penalty

We have previously reported on the FCC's crackdown on the misuse of EAS tones, a crackdown that has thus far resulted in more than $2.5 million in penalties. No, wait - make that more than $3.5 million, thanks to a Consent Decree by which the Commission has extracted a cool $1 million from the coffers of iHeartCommunications for yet another violation of the Commandment Against Non-Emergency EAS Broadcasts.

Unlike previous instances in which the EAS tones were improperly used in advertising (presumably to get the audience's attention), this time the problem is the fault of syndicated radio host Bobby Bones. In October, 2014, Mr. Bones was engaged in "commentary" about an interruption in his viewing of Game 2 of the World Series. Apparently the cable system on which he had been watching the game ran its monthly EAS alert during the game, presumably to Bones's displeasure. While we didn't hear the broadcast, we're guessing that, to illustrate just how annoying and disruptive an EAS alert can be, Bones played the EAS tones - but not the tones as they were heard during the baseball game. Instead, he used a recording of the EAN Event code from the November, 2011, nationwide EAS test.

The mere broadcast of the tones in a non-emergency context would ordinarily have been enough to fetch a hefty fine. (Anyone who doubts that should take a quick look at Section 11.45 of the Commission's rules). But there was more. Bones's show is carried on more than 70 stations. A number of EAS participants downstream from those stations didn't have their own EAS gear set to recognize the November, 2011 date of the EAN Event code, so they responded as though it were a real live EAS message, which they dutifully retransmitted to other EAS participants further downstream.

The result: "a multi-state cascade of false EAS alerts". Oops.

The downstream meltdown should not have been a surprise. As we have reported (with a link, to boot), our friends at the Society of Broadcast Engineers warned us all several years ago that the use of EAS header tones can trigger EAS gear at stations downstream in the EAS system, putting the public in danger.

The FCC has zero tolerance for that kind of thing, as you might have figured from the amount of the iHeart penalty. In 2014 ESPN got nailed for airing a spot for "Olympus Has Fallen" that happened to include a faux EAS tone a total of 13 times over three cable networks. That miscue cost ESPN $280,000. At the same time, Viacom aired the same spot 108 times over seven networks. It got spanked to the tune of $1.12 million. By contrast, Mr. Bones's boner occurred once. But it went out over more than 70 stations and it had that pesky cascading effect. iHeart may figure that it got off easy by keeping the damage to $1 million.

Back in 2013 we provided an emphatic reminder to broadcasters and cable networks, a reminder which we repeated in 2014. Looks like it's time for the 2015 version:

The rationale for the ban on non-emergency broadcast of EAS tones is obvious. Broadcasters (and cable programmers) who air fake EAS attention signals are, in effect, "crying wolf" and thereby undermining the integrity and effectiveness of the EAS system. If the public can't be sure whether a particular announcement is real or fake, the public may not recognize truly dangerous situations until it's too late. And as noted above, the use of EAS header tones can cause EAS gear to lock-up at stations downstream in the EAS system, resulting in unnecessary danger.

The bottom line: Don't broadcast EAS attention signal tones, or anything that might be confused with such tones, except in connection with an actual emergency or an authorized EAS test. As irresistible as the impulse to use EAS tones might on occasion be - since those tones are designed to get the audience's attention, an effect that advertisers and (apparently) syndicated announcers, crave - it must be resisted.

While the iHeart Consent Decree contains no real surprises, it does provide us with a closing take-home message. In addition to forking over one mil, under the Consent Decree iHeart is required to develop and implement a three-year compliance plan that will (at least in theory) prevent a recurrence. One element of that plan: iHeart must "make reasonable best efforts to permanently remove all simulated or actual EAS Tones" from its systems for digital storage and playback of audio content. All stations may wish to take the same step now. That way, if the temptation to broadcast EAS tones creeps up some day, it'll be that much harder to succumb in a moment of weakness.