Three seconds of audio could end up costing Fox $500,000

Despite being a well-known illegal sound that many film and television productions have been fined over, US media titan Fox stands accused of playing the Emergency Alert System attention tone to promote an NFL show on dozens of TV channels.

The Federal Communications Commission, which polices use of the sound to protect its integrity, now wants to fine the organization $504,000 – just as it did for Hollywood action film Olympus Has Fallen ($1.9 million, 2014) right down to Jimmy Kimmel Live ($395,000, 2019).

You see, even if it’s used for comedy, the FCC will fail to see the funny side. During the Cold War, the last time people genuinely feared that Russia could fire off world-ending nukes, the government devised a radio system to alert the entire country to disaster, man-made or otherwise.

This began in 1951 as the Control of Electromagnetic Radiation System (CONELRAD), where air defense control centers would transmit a message to key radio stations around the country by special telephone lines. These stations would then alert smaller radio stations, which would begin broadcasting the message themselves or go offline.

All stations broadcasting would then change their frequency to 640 or 1240, which was supposed to make it difficult for enemy bombers to detect the source, and simplified which frequency people at home would tune to in order to hear the message. This is why radios from the era have little logos on the dial.

It was unwieldy and eventually got replaced in 1963 with the faster Emergency Broadcast System, now the Emergency Alert System (EAS), which can take over practically any television or radio channel in the States. The FEMA National Radio System delivers a message from the White House to the National Public Warning System, a network of 77 radio stations across the country. These stations send the message to nearby radio and TV broadcasters, which are legally required by the FCC to pick up and start delivering the message themselves as soon as received.

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The message is in the form of an Emergency Action Notification (EAN), which has three sections – the SAME header, which contains information about the origin of the alert and nature of the disaster, then the attention signal, the illegal sound, which is two simultaneous tones of 853Hz and 960Hz (don’t broadcast that). Nasty, right? The whole point is to get your attention. What follows is a voice message describing the event.

The use of the sound is prohibited to prevent people becoming desensitized to something you should only hear in the most dire circumstances. “To preserve the unique purpose and effectiveness of the EAS Tones, the Commission enforces laws that prohibit their use or simulation, except for specific permitted uses,” the FCC said.

But according to the FCC’s notice of apparent liability for forfeiture [PDF], Fox admitted using a three-second clip of the attention tone, pulled off YouTube, in a “a short comedic advertisement for an upcoming game, aired as part of the FOX NFL SUNDAY pre-game show” in November 2021.

We told you the FCC wouldn’t find it funny: “We find FOX responsible for broadcasting the Promotional Segment containing the EAS Tones on 18 of its owned-and-operated broadcast stations, transmitting the Promotional Segment to 190 of its network affiliated television broadcast stations, and causing the transmission of the Promotional Segment on Fox Sports Radio and the Fox Sports on XM channel.”

It added: “The Promotional Segment’s ‘comedic tone’ also did not alter or neutralize its overall effect of falsely warning listeners and viewers of a non-existent emergency, as the EAS Tones were clearly audible, cognizable, and appropriated for a non-emergency use. This manner of appropriation of the EAS Tones is exactly the type of simulation that the Commission’s rules seek to address and prohibit in order to avoid diluting the EAS Tones’ real meaning over time.”

Therefore, the regulator deemed Fox’s ad to be an “egregious” and “willful” violation of FCC rules and proposed a forfeiture of $504,000. Still, it’s nowhere near the bill for running an ad during Super Bowl or, indeed, in space. ®