The FCC's Enforcement Bureau has proposed a $25,000 fine on TBS for a promo for Conan O'Brien's late-night show, Conan, that the FCC claims was a Emergency Alert System warning.
Turner admitted that it produced and distributed a promo in April 2012 that included a sound effect Turner said was not part of the EAS code but instead a "sound burst" followed by a "bars and tone" sound. Turner admitted it had received complaints about the ad, like the one the FCC received that led the commission to launch its inquiry.
Turner said that the promo was "not made in connection with an actual national, state or local emergency or authorized test of the EAS" but conceded that due to a quick turnaround it was not submitted to standards and practices.
Turner said similar Conan promos have been submitted to standards and practices since May 2012.
The FCC concluded that the promo constituted a simulation of the the EAS warning, which doesn't need to be an exact copy to be a violation of its rules. The FCC also said the sounds used in the promo were "substantially similar to the sounds made by the transmission of EAS codes such that an average audience member would reasonably mistake the sounds for the sounds made by actual EAS codes." The FCC also claims that viewers could mistake the "bars and tone" sound in the Conan promo for an EAS Attention Signal.
The base fine for distress signals is $8,000, but the FCC upped the proposed amount because Conan reached "approximately 99.7 million U.S. television households" as of December 2012, according to Time Warner's annual report for that year, and the FCC claimed it was a willful and repeated violation.
The FCC also argued that Turner could afford the $25,000 fine because of Time Warner Networks division's more than $14.2 billion annual revenues.
"Today's enforcement action sends a strong message: the FCC will not tolerate misuse or abuse of the Emergency Alert System," Enforcement Bureau acting chief Robert H. Ratcliffe told Reuters and other outlets. "It is inexcusable to trivialize the sounds specifically used to notify viewers of the dangers of an incoming tornado or to alert them to be on the lookout for a kidnapped child, merely to advertise a talk show or a clothing store. This activity not only undermines the very purpose of a unique set of emergency alert signals, but is a clear violation of the law."