Potential EAS Problem with Broadcast Commercial

There is a potential problem that exists for television stations that have already aired, or are contemplating airing, a commercial for the movie Skyline, which begins its theatrical run in movie theaters on Nov. 12. 

Officials with the Society of Broadcast Engineers say a specific Skyline television ad, ISCI code UPSU3132H, features EAS alert tones six times about midway through the spot.  No EOM signal tones are part of the spot.   When decoded, SBE says, it appears to be an RMT for Central Pennsylvania.  A copy of the spot can be found on the SBE website here.

Use of EAS tones in a commercial advertisement is a potential violation of two FCC rules: 

• §  11.45      Prohibition of false or deceptive EAS transmissions
• §  73.1217  FCC broadcast hoax rule

It is unclear what the FCC would do in this instance, but these rules are normally enforced against broadcast stations that air such material, not the advertising agency that produced the ads.   TAB?s FCC legal counsel Pillsbury Winthrop Shaw Pittman said the following today:

Stations airing such spots put themselves at risk of adverse action by the FCC, particularly for any airings that occur after the station has learned of the issue. However, stations that aired the spot before SBE's announcement are not off the hook, as the FCC holds broadcasters liable for the content they air, and normally takes the position that stations should have checked the spots before they aired for problematic content.

Unfortunately, because it is generally the broadcast station and not the creator of the ad that will be held liable, advertisers are not always adequately incentivized to make sure their ads comply with FCC regulations. That means it is up to broadcasters to check each and every ad they run for violations of the law, including violations of the FCC's sponsorship identification rule, the FCC's rules involving ads in children's programming, and ads with questionable content, whether it be indecency, defamation, false product claims, or, in this case, false EAS alerts. 

Stations should contact their FCC counsel if they have broadcast the Skyline commercial in question or are contemplating doing so.