David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

A decision from the past week shows that the FCC shows no mercy for broadcasters who don’t know the rules, even when the broadcaster attempts to comply.  The FCC proposed a $369,190 fine against a Texas TV station because the station’s employees did not know how to properly participate in the 2018, 2019, and 2021 nationwide Emergency Alert Service tests.  According to the Notice of Apparent Liability, the station employees apparently knew that Nationwide EAS Tests were to be conducted in these years.  But, from the recitation of the facts, it appears that the station employees did not understand what was supposed to happen during these tests.  Rather than retransmitting the test alert conveyed either by IPAWs (the internet-based delivery system for EAS alerts) or by the traditional over-the-air daisy chain transmission, the station itself created an alert using the test language from some old alerts and transmitted that information on the air.  As the FCC noted in the Notice, that is not what the rule requires and does not further the purpose of the test as it does nothing to show whether the EAS alerting system works to pass along messages from the alert originator to the stations and then to the public.

This issue was compounded by the station filing reports on its participation in the test in the EAS Testing Reporting System certifying that it had received the alerts and retransmitted them as required by the rules.  While the station claimed that it tried to comply with the EAS testing requirements and that its failure to live up to the letter of the law was due to its inexperienced staff not knowing how to receive and retransmit the actual EAS test signals, the FCC rejected the station’s argument.  In fact, the Commission decided to propose more than the base fines for these violations (base fines are on the order of $8000 for each of the four violations, plus separate fines for the reporting issues) because of their repeated nature and given the fact that the apparent violations relate to public safety issues. The large fine for these violations illustrate several concerns for broadcasters – including that ignorance is no excuse for broadcast violations.

The fact that ignorance is no excuse for a broadcast violation is not at all new law – but the size of this fine illustrates the devastating impact that a station staff untrained in FCC regulations can have on a station.  Broadcasters, through seminars and newsletters from state and national broadcast associations and through broadcast publications (including this blog, blogs provided by other law firms, the FCC’s own public notices, and commercial publications geared to the broadcast industry), must stay on the alert for both existing and new regulatory obligations.  Obeying existing rules, particularly ones that deal with public safety like those dealing with the EAS system, is not a partisan issue.  Whether the FCC is run by Democrats or Republicans makes little difference in enforcing obligations like these – so broadcasters must understand and obey the rules.

We have also repeatedly expressed our concern that the FCC would take enforcement actions against stations that did not participate in the Nationwide EAS Tests, or which failed to file the required ETRS reports after the tests were conducted (see, for instance, our articles here and here).  While this decision does not necessarily preview a wave of such enforcement actions, we remain concerned that there will come a time that the FCC will crack down on those stations that do not comply with the test requirements.  Again, stations need to be vigilant.  Particularly in public safety matters (and we have certainly seen the important role that broadcasters play in keeping the public informed in disaster situations like the current LA wildfires and the recent post-hurricane flooding in the southeast), the FCC expects broadcasters to be serving the public interest – and complying with EAS obligations (see, for instance, the fines we have noted in the past for sending false EAS alerts, e.g. our articles here and here).  Prioritize compliance in areas that can affect public safety (this includes tower lighting and fencing issues, which have also brought significant FCC fines in the past).

Finally, it is worth noting that the decision states that the investigation into this violation was triggered by a complaint filed with the FCC.  The decision does not go into detail about who filed the complaint, but it is notable that the complaint seems to have contained significant details about the station’s conduct during these EAS test periods.  When I am speaking about FCC compliance issues before various broadcast groups, I regularly note that many FCC fines are originated by complaints by station employees or former employees who have direct knowledge as to whether a station has complied with FCC rules.  Broadcasters cannot assume that “no one will ever know” about a violation, as many people at a station will be aware of whether a broadcaster is taking its compliance obligations seriously (see, for instance, our article here cautioning about the “disgruntled former employee”).  These individuals can raise issues with the FCC so, once more, this decision requires another warning about how seriously broadcasters must take their regulatory compliance obligations.  Make regulatory compliance one New Year’s resolution that you will keep!

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.