On April 12, 2018, CBS transmitted an episode of its popular prequel to “The Big Bang Theory” that included something that was hardly offensive.
Yet, the network fined $550,000 for a 2004 Super Bowl snafu involving singer Janet Jackson’s nipple did something on that national telecast that triggered FCC alarms.
This particular episode of “Young Sheldon” included a sound effect accompanying a tornado warning, which the producers modified, but still audibly resembled actual Emergency Alert System (EAS) tones.
That could cost CBS hundreds of thousands of dollars.
In response to the broadcast 19 months ago of the “Young Sheldon” episode across 15 CBS O&Os and “at least” 227 stations airing CBS programming, the FCC proposed a $272,000 fine against CBS.
The announcement of the proposed fine follows the August 15 revelation from the FCC that it had reached four individual settlements for EAS violations; some $600,000 in total civil penalties were assessed.
The Notice of Apparent Liability for Forfeiture sent to CBS is a further statement that the Pai Commission is dead-set against any non-emergency use of EAS signals. “Broadcasting actual or simulated alert tones during non-emergencies and outside of proper testing or authorized public service announcements is a violation of the Commission’s rules and a serious public safety concern,” the Commission said in a statement released Monday, along with details of CBS’s transgressions.
“FCC rules prohibit broadcasting of EAS tones – including simulations of them – aside from actual emergencies or authorized tests or public service announcements,” the Commission further explained. “These rules aim to protect the integrity of the alert system by helping to avoid confusion in the event of a public threat or emergency, alert fatigue among listeners, and false activation of the EAS by the operative data elements contained in the alert tones.”
In the case of the “Young Sheldon” episode, the FCC found that CBS’s modifications to the EAS tones did not make broadcasting such tones permissible because the audio elements used in the episode were substantially similar to the actual EAS tones.
As is the case with all NALs, CBS will be given an opportunity to respond and the FCC will consider their submission of evidence and legal arguments before acting further to resolve the matter.
The FCC received information regarding the EAS attention signals “from multiple sources,” the NAL reads. The FCC Enforcement Bureau’s Investigations and Hearings Division issued a letter of inquiry (LOI) on June 20, 2018; recordings of the episode were requested.
CBS responded to the LOI on August 3, 2018. It explained that the episode included a “tornado warning sound effect integral to a story line about a family’s visceral
reaction to a life-threatening emergency and how surviving a tornado changed family relationships.”
It also noted to the Commission that, while CBS is the broadcast home of “Young Sheldon,” the program is produced by Chuck Lorre Productions in connection with Warner Bros.
Television, an entity not affiliated with CBS.
THE ROOT OF THE PROBLEM
CBS explained in its August 2018 response to the FCC’s letter of inquiry that, according to the production team at Warner Bros. Television, during the sound mixing process “sound producers modified a version of the EAS codes and Attention Signal downloaded from YouTube to alter the audio level of the tornado warning sound effect so it appeared behind the program dialogue and to shorten the Attention Signal to 3.4 seconds.”
This, as the FCC sees it, amounted to an admission of guilt that CBS aired the tornado warning sound effect “based on a modified version of the actual EAS tones.”
That’s not permissible, despite what CBS has to say about it.
“CBS defends its transmissions of the EAS Tones, citing both technical and legal grounds,” the NAL reads. “We have considered CBS’s arguments and are not persuaded.”
CBS contends that the tone at issue in the “Young Sheldon” episode was a “tornado warning sound effect” that was deliberately edited and mixed so as not to confuse viewers that an actual emergency existed.
Further, CBS told the FCC that its control process included passing the edited tone through three quality control rooms “that are equipped with EAS decoders to prescreen CBS network programming.”
How did the Commissioners respond? “We do not find this contention availing,” they said in the NAL. “Even though CBS utilized a ‘modified’ version of the EAS codes and Attention
Signal downloaded from YouTube, that factor is not controlling in our liability determination. Rather, CBS’s error lay in utilizing a tone that, despite being softer in volume and shorter in duration, nonetheless possessed the same dual-tone frequency, pitch, and timbre as the actual EAS Tones, and was recognizable by viewers or listeners as substantially similar to the EAS Tones.”
CBS EXPLANATION FALLS FLAT
As part of its defense, CBS argued that “no reasonable viewer” would have mistaken any message or depiction presented in its programming for an actual EAS tone.
In support, CBS argues that in an actual emergency or authorized test, any programming being transmitted at the time is pre-empted, both visually and audibly, and an EAS graphic covers the full screen, while the EAS Tones sound off in isolation.
CBS contends that, by contrast, in the scene at issue, the initial sounds were included on a separate audio track — deliberately obscured under the dialogue, of all things, a Bugs Bunny cartoon.
CBS didn’t rest there. It further argued that any possible viewer confusion was further obviated by the programming’s on-screen visuals, which, by making reference to a red emergency banner appearing on the television set depicted in the fictional scene, compel viewers to realize that the tornado warning depicted was part of a fictional event, and not a present-day EAS alert.
No dice, the Commissioners said, responding, “CBS’s rationale and arguments are unconvincing.”
It even had to inform CBS that it disagreed with the network’s assertion that sanctions in this matter could violate the company’s freedom of speech.
“CBS … fundamentally misconstrues the Commission’s rules and precedent, while also misapplying the relevant constitutional analysis,” the Commissioners determined.” At the outset, we disagree with CBS’s contention that enforcement of the Rule is necessarily subject to the highest level of constitutional review under the First Amendment. With respect to broadcasters, the programming in question is entitled only to
intermediate scrutiny, the less rigorous standard applied to content-based restrictions on that medium.”
STARKS DEFENDS FCC VIEW
In a statement accompanying the NAL, Democratic FCC Commissioner Geoffrey Starks noted that both the EAS and Wireless Emergency Alert (WEA) tones “are
Calling the item “compelling,” noted that the FCC’s analysis persuasively finds CBS violated section 11.45 of the Commission’s rules, Starks would have also supported a finding of apparent violations of section 325(a) of the Communications Act of 1934, “prohibiting false distress communications.”
He said, “Given the facts presented, I believe that such a finding would have been amply
supported by Commission precedent and Enforcement Bureau guidance.”
Starks was also unswerving in his belief that future instances similar to that scene here will not be tolerated.
“Should broadcasters continue to run afoul of the clear and simple requirements imposed upon them by the Act and our Rules regarding the use of EAS tones, I would welcome additional enforcement action,” he said. “When broadcasters make choices that negatively impact our ability to efficiently convey critical information in situations where life and limb are at risk, we must always be vigilant and respond appropriately.”