Are EAS Codes In Fictional Programs A First Amendment Right?

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The FCC on Monday released a Notice of Apparent Liability for Forfeiture to CBS for its use of a “modified version” of actual EAS codes and Attention Signal in an April 2018 episode of “Young Sheldon.”

While some may fixate on the proposed fine, in the hundreds of thousands of dollars, being handed to a company fined $550,000 for a 2004 Super Bowl snafu involving singer Janet Jackson’s nipple, many in Washington are instead gripped by CBS’s assertion that sanctions in this matter could violate the company’s freedom of speech.

Several D.C. lawyers have something to say about that.

As RBR+TVBR first reported Sept. 9, CBS presented the FCC with the argument that prohibiting a dramatic presentation of the EAS Tones “that are neither false or fraudulent
nor reasonably cause confusion” is not the “least restrictive means” to achieve the government’s goals, and therefore enforcement action would fail a “strict scrutiny” First Amendment review.

CBS, in essence, asserts that the rule’s broader reach remains subject to First Amendment constraints.

How so? Francisco Montero, a Partner with Fletcher, Heald & Hildreth P.C., first points to a landmark 1978 Supreme Court decision still cited to limit the First Amendment claims of broadcasters.

The case is Red Lion Broadcasting Co. v. FCC, decided in June 1969. The question facing the Warren Court was this: Do the FCC’s fairness doctrine regulations, concerning personal attacks made in the context of public issue debates and political editorializing, violate the First Amendment’s freedom of speech guarantees?

The conclusion, in an unanimous decision, was that the Fairness Doctrine was consistent with the First Amendment.

But, can the Fairness Doctrine defense be used in CBS’s case? That may not be the question.

“The Red Lion decision was again cited in the FCC v. Pacifica Foundation (the famous George Carlin 7 dirty words case) in 1978,” Montero explains. “Red Lion was a challenge to an aspect of the FCC’s Fairness Doctrine obligating broadcasters to offer equal time for personal attacks. The Supreme Court unanimously upheld the FCC rule, concluding that spectrum scarcity justified regulating broadcasting at a different standard than, say, newspapers.”

The Court viewed broadcasters as trustees who administer spectrum with certain public interest obligations that include content-based regulations.

Enter CBS and the “Young Sheldon” EAS codes use.

Montero continues, “Many believe that Red Lion is no longer relevant in the modern day where there are so many media outlets through the internet, cable, wireless, and satellites. There is no longer content scarcity.  Also, the scarcity of spectrum argument is likewise an underpinning of the FCC’s media ownership restrictions. Perhaps the CBS attorneys think it is time to topple Red Lion.”

Another key case that CBS could be using in its defense is Reno v. FCC, decided in 1997.

In fact, it is this case that may be front-and-center for CBS’s legal counsel as it debates whether to take the FCC to court, or pay the $272,000 NAL.

RENO 911: THE ‘OVERBROAD’ ARGUMENT

In Reno v. FCC, in a unanimous vote that saw Sandra Day O’Connor dissent in part, the Stevens Court determined that a law may violate the First Amendment if it is so overly broad that it curtails protected as well as unprotected speech.

CBS’s use of modified EAS codes in a sitcom could fall into this protection, based on the facts in this case and how CBS’s attorneys could interpret the decision.

The 1997 Reno v. FCC case is tied to the enactment of the Communications Decency Law – designed to prevent children from gaining explicit material online at a point in time when the internet shifted from Prodigy to America Online and direct connections via work and home PCs.

The law made it illegal to knowingly send obscene or indecent messages, or anything that depicts sexual or excretory activities or organs in an offensive way as determined by contemporary community standards, to someone under 18. Case law tied to obscene content had been used to formulate the law, including the famed “seven dirty words” case.

For the Stevens Court, the Communications Decency Law was flawed, and “overly broad and vague under the First Amendment.”

If that’s the route CBS counsel is taking, the question then becomes one of how “overly broad and vague” is defined when EAS codes are the subject of the discussion. The FCC made it clear in the NAL that “[w]ith 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.”

Under the intermediate scrutiny test, restrictions are upheld when the government interest advances “important governmental interests unrelated to the suppression of free speech” and does not “burden substantially more speech than necessary to further those interests.”

But, is that fair?

Erwin Krasnow, of counsel at the newly renamed Foster Garvey PC, says yes.

“I doubt that an appellate court would find that the FCC’s application of its EAS rule to the ‘Young Sheldon’ episode was unlawful … for the very compelling reasons that the Commission set forth in Section III.C of the NAL,” says Krasnow, referring to Paragraph 25 of the Notice.

CBS argues that applying section 11.45 to a “dramatic portrayal” renders the
FCC’s interpretation of the Rule void for vagueness. “Here,” CBS argues, “the statute and the rules—as well as the Commission’s enforcement decisions and guidance—fail to address non-misleading dramatic portrayals, and applying the prohibition to such portrayals would result in unconstitutional vagueness in the prohibition’s application.”

In a similar vein, CBS suggests that Commission precedent in enforcing the rule has largely been in the context of commercials and promotions, “leading an average speaker protected by the First Amendment to believe the prohibition focuses on that type of commercial
speech.”

In sum, CBS argues, “the FCC’s vague interpretation of its rules gives rise to a chilling effect on broadcaster’s speech.”

The following paragraphs offer a detailed refute of CBS’s claims, all of which are in line with Krasnow. “It seems very clear to me that the First Amendment does not impinge on the right (indeed, the responsibility) of the FCC to adopt a rule prohibiting the use of a simulated or actual EAS tone for non-authorized purposes,” he says.


 “It seems very clear to me that the First Amendment does not impinge on the right (indeed, the responsibility) of the FCC to adopt a rule prohibiting the use of a simulated or actual EAS tone for non-authorized purposes.” — Erwin Krasnow, of counsel, Foster Garvey PA


 

FACT V. FICTION

In a lengthy blog post posted late MondayPillsbury Winthrop Shaw Pittman Partner Scott Flick noted that fines for airing false EAS tones have become sufficiently common in recent years that the Comm Law Center blog has largely stopped writing about them.

But, the CBS NAL “was a bit different, however.”

False EAS alerts have typically popped up in commercials. In the case of Meruelo Media’s KDAY-FM & KDEY-FM in the Los Angeles DMA, the use was tied to a weather promotion on the station’s morning show. Such use, Flick says, is challenging to successfully defend.

But what happens when the use of the alert tone is not in an ad?

“While the FCC acknowledged that CBS made efforts to ensure the tone was a simulation that did not trigger EAS equipment, the FCC noted that Section 11.45 still prohibits simulations of an EAS tone,” Flick says. ” Among other defenses CBS raised in response to the FCC’s assertion that the broadcast violated Section 11.45, it argued that no viewer would be so confused as to think it was a real emergency, and that the broadcast is protected by the First Amendment to boot.  That’s where this case gets interesting.”

He continues, “The FCC is effectively claiming that CBS falsely yelled ‘fire’ in a crowded theater, which is the well-established exception to First Amendment protections. CBS, on the other hand, is countering that it only yelled ‘boogeyman,’ and that any reasonable viewer isn’t going to panic, because the public knows the difference between real and fictional things.”

Public safety can certainly be a compelling government interest.

However, to survive strict scrutiny, Flick says, “a regulation must also be ‘narrowly tailored’ to further the government’s compelling interest, and be the ‘least restrictive means’ for doing so.  A blanket government ban on using even a simulation of the EAS tone would probably have a tough time surviving strict scrutiny under the First Amendment, but if the FCC could argue to a court that there is something uniquely valuable about the public hearing the tone only when there is an actual emergency, a court might well agree.”

But that’s where the FCC may have undercut its own argument, Flick adds.

In July 2018, the FCC modified its rules to allow the airing of “the EAS Attention Signal and a simulation of the EAS codes as provided by FEMA” where they are used in EAS Public Service Announcements provided by “federal, state, and local government entities or non-governmental organizations, to raise public awareness about emergency alerting.” To avoid confusion, such messages must state that the tone is being presented in the context of a PSA for the purpose of educating the public about EAS.

For Flick, “It would be challenging for the FCC to successfully argue in court that a single use of a simulated EAS tone creates listener fatigue when it has just authorized unlimited use of the actual tone in PSAs.”

That view could very well spur CBS’s legal counsel to action, rather than its accounts payable team to draft a check to the United States Treasury.

“The FCC weakened its argument that any non-emergency use of the tone inevitably leads to public confusion, when, by requiring the PSAs to contain a disclaimer letting the public know it is not an emergency, the FCC concedes that it is possible to present the tone (or a simulation thereof) in a manner that does not confuse the public,” Flick says. “That would seem to make it a finding of fact as to whether a particular use of a simulated tone is likely to cause public confusion versus public education, and to be candid, a dramatic representation of a family reacting to an EAS tone probably conveys the importance of the tone far better than a PSA that most viewers will fast-forward past (or miss while getting a sandwich).  Admittedly, that is a slippery slope, but First Amendment analysis perpetually lives on that slope.”

DID CONTINUITY FAIL KILL CBS?

Having a good continuity director on the set to review the episode of “Young Sheldon” could have been the best way for CBS to have avoided the whole matter with the FCC.

According to Flick, “the real irony of the whole affair is that ‘Young Sheldon’ is set in Texas circa 1989-90.”

The Emergency Alert System was not activated until 1997.

Thus, a realistic portrayal of a tornado watch in 1990 would have featured the twin-frequency monotone Attention Signal of the earlier Emergency Broadcast System.

“The FCC’s restrictions on using the EBS tone outside of an emergency were eliminated twenty years ago,” Flick says. “‘Young Sheldon’ could have been both historically accurate and FCC-compliant had it just used the EBS tone instead.”

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