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The FCC Fined 'Jimmy Kimmel Live' 'The Walking Dead' for Use of Emergency Tones (cnn.com)
100 points by LinuxBender 67 days ago | hide | past | web | favorite | 64 comments

You better believe it! EAS is no joke, and FCC is right to take a hard line.

Not very many people know that tone contains data. (It's pretty interesting, really; see wiki link below.)

Broadcasters have an EAS box that listens for alert tones on other frequencies and repeats it over the broadcast frequency (and others may listen, etc). Among other things, the data in the tone affects how far it propagates, so if someone plays a tone over the air that's set to propagate nationwide, it's kind of a problem.

This isn't the first time this has happened, nor will it be the last.

Source: I worked on the engineering team at my college radio station (WSBF-FM Clemson).

EAS header: https://en.wikipedia.org/wiki/Emergency_Alert_System#EAS_hea...

Could people create a synthetic simulated EAS tone that contains no data and couldn't be decoded by any EAS equipment, but that would still remind a human viewer of the EAS tone? Would that be OK with the FCC, or are they also concerned with human listeners recognizing the sound and believing that an alert is imminent?

I worked on the engineering team for my high school radio station, but we didn't learn much about how EAS worked, other than that it was mandatory and was replacing EBS. :-)

> Could people create a synthetic simulated EAS tone that contains no data and couldn't be decoded by any EAS equipment,

Could, but probably shouldn't.

From FCC link https://www.fcc.gov/document/fcc-settles-investigations-misu...

> These rules aim to protect the integrity of the alert system by helping to avoid confusion when the tones are used, alert fatigue among listeners

I like the term "alert fatigue". Very descriptive and useful. Definitely a good thing to avoid.

This reminded me of the illegal number [0]. People being told the number was illegal so created flags that also represented the number. The neat thing was that by making numbers illegal anything that can be used to represent those numbers also becomes illegal. Like art work painted a certain way. Imaging being told you can not paint a certain color pattern as it is illegal. 0: https://en.wikipedia.org/wiki/Illegal_number

The term illegal number is like calling ink contraband because the use of ink in a manner which communicates something illegal may itself be illegal. Illegal numbers aren't illegal themselves. (And, anyway, by the theory justifying calling them illegal, every configuration of matter is illegal, since not only can any information be encoded in a number, but any information can be encoded—by selecting the right encoding scheme—in any finite number, and any configuration of matter can be represented by a number, so any information can be, by choosing the right scheme, be encoded in any configuration of matter.

¶4 from the article: To protect the purpose of the warning system, the agency has a rule against use of EAS tones or their simulations -- except in actual emergencies, authorized tests or qualified public service announcements.

¶1 from the linked order: To preserve and protect the unique purpose of the EAS Tones, the Commission enforces laws prohibiting the use of the tones, or simulations of them, except in actual emergencies, authorized tests of the EAS, or qualified PSAs.

Answer to your question, no, the FCC is not okay with simulations of the EAS tone.


>Could people create a synthetic simulated EAS tone that contains no data and couldn't be decoded by any EAS equipment,

Yup, you could generate two different sine waves that would seem reminiscent of the EAS two-tone alert and be near indistinguishable to all but an FM engineer and forwarding hardware. The SAME header could be invalid data, for a non-existent region code, or out of spec in some other way.

> Would that be OK with the FCC, or are they also concerned with human listeners recognizing the sound and believing that an alert is imminent?

No, if it was meant to be confused with the EAS tone, it's just as if you used the EAS tone. The FCC is a step ahead of "clever" ways of skirting important rules. WiFi deauth attacks are still "malicious interference" even though they're layer 2 attacks that don't "jam" the band.

Thanks, I didn't mean this hypothetical as a way of skirting the rule—I just didn't know if the FCC was concerned about how EAS-like broadcasts are processed by machines or how they're processed both by machines and by humans.

I remember that the old EBS tone could automatically trigger some stations (like ours) to switch over to rebroadcasting a transmission from another station. I believe that the EAS signal does the same. At least in the EAS case, I didn't know whether the FCC was specifically hoping to catch humans' attention with the tones, or just to use them as a signal to transmission equipment to rapidly change the content it was broadcasting over to emergency announcement content, even without human intervention.

Several of the replies here, including yours, suggest that the FCC explicitly means for it to serve both purposes.

> but that would still remind a human viewer of the EAS tone?

That's what authorized tests are for.

I agree they should. One time I looked at the TV hearing that with full attention. It was a local lawyer doing a Superbowl ad or something using it exactly for that purpose. We shouldn't treat some extremely-important warnings in a way that creates a mistrust of them. I thought that day he should be fined large enough to absorb the winnings of the cases it brought him. Also, I halfway gave his team props for clever marketing. It worked...

There is an irony in a lawyer flagrantly breaking the law to attract customers.

So I assume in all those cases it was really just the sound without the header, otherwise that would have gone hilariously wrong. How come this happens again and again though? I'd assume someone who does research on how to generate that tone would also learn that it's illegal to broadcast it. Or if it's in some sfx database the channel or studio has access to, you'd assume it would have an according warning notice attached to it.

They may have literally pulled the sound from a recording on YouTube, though.

WizzBiff! - one of my favorite late night stations oh so long ago.

This is why in-band signaling is very, very bad.

See also: phone phreaking.

> This is why in-band signaling is very, very bad.

The system was designed for resilience in the face of disasters up to and including nuclear attack. In this case low complexity in a single channel is a feature, not a bug.

That’s a strong argument.

I rescind my statement.

Adding even just a data time stamp would easily let you filter accidental bad data.

I sincerely hope that none of my equipment would filter an emergency message with a "bad" timestamp.

Ever see a VCR blinking "12:00"?

But it's better than nothing when you have a wide network already in place and are too cheap to extend it.

For one-way wide area communications it might not be a bad tradeoff. AT&T had an issue with blueboxing because people were making free calls on it.

If tones contain data and data is speech, does that not protect their use for entertainment purposes on free speech grounds?

This seems analogous to the free speech issues over the RSA encryption/decryption algorithms during the 90s.

We've written asterisks after most <li>'s in the bill of rights.

Words that have the potential to incite imminent lawless action can't rely on free speech as a shield.


There's also illegal numbers


Some math used to be considered a munition and was heavily controlled for export. Some restrictions remain, with advocates for more.


There's laws that rely on courts to ad hoc determine the artistic validity of work, and thus its restrictions and even legality.


Courts can require you keep secrets or not talk about certain topics.


You can receive a letter that requires that you surrender information on your customers, but forbids you from telling them.


I know not all of those are relevant to this. Just enumerating free speech's cheese holes I can remember to support why I don't think upholding these fines would be hard.

> We've written asterisks after most <li>'s in the bill of rights.

These really aren't "exceptions" to the Free Speech Clause as "freedom of speech" was always a legal term of art. Opinions of precisely what it means vary, even at the time the Constitution was drafted, but it certainly was never equivalent to the mere physical act of communicating. Indeed, speech implies something about the substance and motivation of what's being communicated, which is exactly why performances and many other forms of activity--including abstention--are considered "speech".

More generally, the exercise of any right is always implicitly limited by its effect on others' rights. Here we have a perfect example: the right of the public, through their government, to effectively communicate emergency information in a timely matter would be infringed if anybody could imitate the tones. There's a natural conflict that must be resolved here, and for fairly obvious reasons (even if you don't necessarily agree), it's resolved in favor of the public.

The form of your argument is essentially:

> the right of the public, through their government, to effectively do X via the government would be infringed if anybody could do Y.

Someone could literally substitute anything into X and Y here to justify very bad things. Such as:

> the right of the public, through their government, to effectively forcibly redistribute wealth via the government would be infringed if anybody could refuse to pay taxes.

I know this is a bit of a strawman to illustrate the form of your argument, but the gulf between your statement and my strawmen is a spectrum of X and Y pairs, many of which are legitimately debatable.

Free speech is a negative right, which is a limit on government, which in turn means it cannot be infringed and that it has priority over rights of the government.

> Free speech is a negative right, which is a limit on government, which in turn means it cannot be infringed and that it has priority over rights of the government

Saying that it's a negative right only begs the question of what the right actually is. What does "free exercise of religion" mean? In both cases there needs to be an objective, shared understanding of what religion and speech are, and what it means to freely exercise them. Quite obviously the free exercise of religion can't mean anything each individual wishes it to mean. For the same reasons freedom of speech can't mean communicating however, whenever, and whatever by any means you desire.

There's a chapter discussing freedom of discussion in the classic 19th century treatise on English constitutional law, "The Law of the Constitution", by A.V. Dicey. The basic gist is that the author thinks it's a stupid phrase, even though the very concept derives from English legal theory. The TL;DR is basically that in the English conception of government everybody is free to do whatever they want so long as it doesn't interfere with others' rights. Government only intervenes and prohibits activity when it has some legitimate interest, and then it must use a fair means of seeing to that interest. Fair means that, among other things, the government must craft rules of general application that don't unnecessarily single out individuals for arbitrary and capricious treatment. And the executive can only enforce the rules through a separately constituted court system whose basic function is to apply the rules in a fair manner. Likewise for private individuals seeking damages for harm inflicted upon them by others. This is basically Due Process in a nut shell, which all rights in the Anglo-American tradition can be traced back to.

Note that the phrase "freedom of speech" doesn't actually give us any hints about how to gauge the limits of what individuals are free to express, or the limits of how the government can regulate that speech. It's almost entirely context dependent and a function of the extent to which the speech can or does cause harm.

You say that it's a negative right, which I take to imply that we're to construe it as meaning that everything is allowed except when there's justified reasons for not allowing it--an "exception". Well, that's fundamental to Anglo-American law. That's how all rights work in the sense of government's ability to regulate behavior. What Dicey is saying is that there's no need to have an independent concept of "freedom of speech" because for various conceptual and technical reasons we're going to end up applying the same tests as we do for any legitimate government interest and its pursuit generally. And because most speech is essentially harmless--in the Anglo-American tradition we don't consider ideas to be intrinsically harmful--people would naturally have exceptionally wide latitude to say whatever they wished, and the extent and scope of government's legitimate interest would normally be quite narrow. This is actually how it worked in both England and the U.S., at least up until circa 1930s. And, indeed, on the rare occasions we did consider ideas harmful--i.e. communism, incitement to treason, etc--the courts were fairly liberal in permitting government regulation and even censorship.

Arguably the jurisprudence of free speech in the U.S. changed in the mid-part of the 20th century for some interesting reasons. But you could also argue that it didn't change at all, just that that the new jurisprudence was simply more explicit in saying that there's a high bar to meet before we can consider speech harmful. But to the extent there are harmful consequences of the speech, well then naturally the government is free to regulate it, though only to the extent necessary to mitigate the harm.

Contrast that with other rights, like the right to a jury trial. There's no balancing test where we weigh the consequences of exercising that right. You have it, period. For other rights there's more of a grey area. But for freedom of speech, Dicey makes a persuasive point--that throwing around the phrase "freedom of speech" doesn't actually accomplish anything--you're just always begging the question, and you're ultimately going to use generic legal tools and theories to answer the question. Not that I think it's not worthwhile to have it spelled out in our constitution. Americans especially, but also many other countries, do build a complex jurisprudence around the phrase. And it's helpful to be able to put a finger on some specific text when you're resolving a dispute in favor of an individual and against the government, which is pretty much the only reason we have a Bill of Rights anyhow--remember, many people argued it was superfluous and unnecessary.

It's also worth pointing out that though we often claim to hold free speech to be sacrosanct, we rarely bat an eye at the fact that copyrights, patents, and trademarks severely limit the things, including ideas, we're permitted to communicate and how we can communicate them. The FOSS community is maybe more concerned than others, but in any event it's a telling illustration of how we accept that free speech is basically being able to say anything you want to say so long as saying it doesn't impinge upon or "harm" some other legitimate interest--slander, safety, or simply the ability to sell a book at a high markup.

No, it isn't essentially as you claim.

wahern is correct - free speech is a legal term of art.

As such, it isn't "X ... if anybody could do Y". The ability to do X, and the prohibitions on Y, are decided on "strict scrutiny", which is another legal term of art.

https://www.law.cornell.edu/wex/strict_scrutiny - "Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination." and "To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest."

So the form you should use is: "the right of the public, through their government, to effectively do X = something with a compelling government interest, may prohibit people from doing Y = narrowly tailored action which makes X difficult to do."

"Free speech" cannot be infringed, but not all speech is free speech. Surely you accept that there can be time, place, and manner limits on speech, yes?

Similarly, there are strict rules on who may use the Red Cross symbol, because of the compelling government interest in following the Geneva Convention.

> Free speech is a negative right, which is a limit on government, which in turn means in cannot be infringed and that it has priority over rights of the government.

That’s not true in the sense that free speech is not absolute and never has been. Not all speech is protected by the constitutional directive, which is what others are trying to help you understand.


Make special note of the 3rd paragraph that lists more than a dozen categories of speech to which free speech protections do not apply.

> Someone could literally substitute anything into X and Y here to justify very bad things.

Laws are historical artifacts made by people, they are not math or logic. Though people usually try hard to make them consistent, they cannot be deduced or extrapolated from first principles.

> Free speech is a negative right, which is a limit on government, which in turn means it cannot be infringed and that it has priority over rights of the government.

However, the rights of others – including the government – are considered when determining the precise meaning and boundaries of "free speech". The courts don't always get this right, but that's what they do. See the usual "fire in a crowded theater" example, which demonstrates not only an appropriate exception to free speech (if taken literally) but also an inappropriate one (if you look at the Supreme Court case it was invented in [1]), both of which were justified by how the speech in question would affect others.


Just because courts have weakened the First Amendment as the American justice system understands it, does not mean they should have done so (or that their actions were constitutional). Independent of the specific cases mentioned above, citing governmental restrictions on speech as justification for a weaker 1st Amendment feels circular IMHO (since the amendment exists to restrain the gov. in the first place).

No. For the same reason why you cannot go into a crowded movie theatre and yell "FIRE!"

It’s worth noting that the Supreme Court case that decided this, Schenck vs United States, was primarily about outlawing anti-draft speech. (In a sense, this actually strengthens the parent comment’s argument; speech which might cause harm, like a fake EAS or anti-draft speech, really should be protected by the 1st Amendment.)

The EAS case here is more analagous to the original "War of the Worlds" radio broadcast.

How does broadcasting this tone create a clear and present danger?

It's merely a call to attention and then you need to listen to and process the subsequent message. The tone itself does not create a clear and present danger, but the subsequent message may.

There's no notion of panic or stampede with this tone, it only communicates "hey, listen up, there's something that may be important for you to know about". I'm sure that many of those living in America on HN have been subject to EAS messages that were not of serious concern since it's used pretty liberally for even minor concerns like a tropical storm.

It's also worth know about the Supreme Court case (Schenck v United States) that lead to Oliver Wendell Holmes, Jr's opinion that lead to this legal test, since the issue at hand in that case would most likely be protected by the 1st amendment today. Furthermore, Holmes eventually reversed his position in Abrams v United States.


No reasonable person would look at any of the examples where a fine has been issued over use of the EAS signal and conclude that any of those artistic statements were even close to creating a clear and present danger.

"How does broadcasting this tone create a clear and present danger? It's merely a call to attention and then you need to listen to and process the subsequent message."

False alarms can create a danger because they condition people not to take an alarm seriously.

Even if people are pretty conscientious about treating alarms as if they are real, very few of them will continue doing so against peer pressure.

> because they condition people not to take an alarm seriously.

That'd be a stronger argument if the EAS and its predecessor the EBS were not broadcast with sufficient regularity that people approach such messages with some degree of skepticism already.

I was looking over the Wikipedia article for the EAS and I found one illegal broadcast interesting:

> In February 2011, the morning show of WIZM-FM in La Crosse, Wisconsin played a recording of the aforementioned "dead bodies" EAS hack. It inadvertently triggered the EAS on WKBT-DT, relaying both the message, as well as the hosts' laughter

Not even being able to discuss and listen to related primary material of a recent newsworthy event definitely gets into first amendment violation territory.


Since when is a tropical storm a minor concern? That’s one of the stranger assertions to wake up to on a Saturday morning. The National Weather Service maintains a nice list of EAS event codes here: https://www.nws.noaa.gov/nwr/info/eventcodes.html

47 CFR 11.31 defines the AFSK signal used for transmitting EAS alerts. The encoder settings are unique enough to not be accidentally used in any regular setting. For emergency planning purposes especially in lessons learned post-Katrina, avoiding alert fatigue was deemed by internal & external evaluators as being critical. The cited code section is here: https://www.law.cornell.edu/cfr/text/47/11.31

As for being artistic, sometimes there are boundaries. This is one that shouldn’t be crossed.

The issue isn't "making a creative work which includes the tones" (which is where the 1A argument would come in). Nothing's prohibiting that that I'm aware of. Many, many examples of this on YouTube.

The issue would be "an FCC licensed-station broadcasting the tones to the public on the public airwaves in violation of the rules governing their license". The rule is a technical restriction that's a condition of the broadcast license. Very different.

I also wish there was a rule preventing the use of motor vehicle horns and emergency services siren sounds on any radio station. People are tired driving home and may react unpredictably in dense traffic to sirens and horns on the radio.

Every time I hear something that sounds like an emergency vehicle on the radio I think of this. Thankfully on my work commute I mostly listen to podcasts so rarely run into this on my roughest drive, but it's still a terrible idea.

I agree.

Also, I think there should be a law regarding the new electronic billboards, especially at night. They should have a smooth transition over a period of say 10 seconds, instead of instantaneously changing / flashing and distracting drivers.

They should be outlawed completely.

Seconded a thousand times. After I hear one and calm down, I'm always running in my head how I'll explain to the cop that I ran off the road reacting to a siren letting me know that "prices just can't get any lower!".

The thing that startled me in the past was a woman screaming in a radio commercial. That was around Halloween though. I still had to look around and see if someone was in distress outside.

EAS tones were also used in the trailer for "Olympus Has Fallen" in 2014, the networks were fined $1.9 million.


While on the topic of causing a "boy who cried wolf" problem with emergency tones. All of the Amber alerts on cellular networks in Ontario are currently being sent as "presidential alert" priority level.

On many phones' OSes you can disable audible amber alerts but not presidential alerts. Some people in network engineering at the mobile network operators in Canada screwed up big time.



Presidential alerts are only supposed to be used for absolute max priority events, such as literally a nuclear missile attack, a fire storm that's about to engulf a town, tsunami that will affect hundreds of thousands of people, etc.

>Some people in network engineering at the mobile network operators in Canada screwed up big time.

if that was just the network engineers screwing up, they would have fixed it. Broadcasting amber alerts as "presidential" level is an intentional choice at the policy level.

One supposes that this was inevitable, but it seems that the "Amber alert" itself has a bit of a cry-wolf problem. We might imagine a depraved kidnapper every time, but most alerts turn out to be estranged divorced dads who don't take the family court's "no" as final.

Canada doesn’t even have a President!

I believe in the US “Presidential alerts“ actually require approval from POTUS. What’s the intended protocol in Canada?

The entire process was badly bungled. The FCC designed a nicely tiered alert system for mobile phones. The CRTC then adopted the same system but tossed out all but the "Presidential" level. Then they delegated responsibility for what to alert about to local authorities.

The end result is cops in Burlington sending end of the world alerts that can't be silenced to people 1500 km and 15 hours away in Thunder Bay about events that took place 2 hours ago. It's complete lunacy.

The tone is so disruptive and loud people are calling 911 to complain. It's so jarring I'm shocked it hasn't resulted in fatal car collisions.

I've been in the states during amber alerts and even natural disaster warnings and the process is simple and effective. The alerts come in and you action them if warranted. Ours are literally the end of the world tone no matter what.

How those alerts work technically? They are SMS with special header or entirely separate message type?

(eg. in Poland alerts are sent as plain old SMS)

No, they are not done like SMS. Think of SMS like a normal IP packet, it has a source and destination. Belaboring the analogy, the WEA messages are more multicast packets.

WEA messages are encapsulated in Cellular Broadcast data (CB Data) payloads which are then encapsulated in System Information Blocks (SIB12 specifically). The way they are “routed” to your phone is by being near a tower in the coverage area of the alert. Even if you weren’t in range of the tower when the alert initially went off, you’ll still receive the message as soon as you are within range of the tower(s) broadcasting it (assuming the alert hasn’t been cleared). Each payload has the equivalent of a payload ID which is supposed to prevent duplicate notification on your device of the same alert (but for different reasons, isn’t always done right).

It's cell broadcast which is related to SMS but slightly different.


I believe there's a functionally equivalent system that comes from a group of people at DND who report directly to the PM's office and the privy council.

Possibly military/NORAD related, maybe at CFB North Bay, if they ever need to send an alert that is basically "ICBMs inbound, bend over and kiss your ass goodbye".

This is the kind of thing it's easy to imagine anyone doing.

If you're a comedy or TV writer... it would probably never occur to you that this aspect of real life is illegal to reproduce on TV. (It certainly wouldn't occur to me.)

Seeing as this has happened to at least 3 prominent TV channels... it feels like the failure here is at a much higher level -- kind of like, if an intern wipes your prod database, it's not the intern's fault but the fault of your processes that allowed it to even be a possibility.

So... when did the FCC pass this rule? How did it make sure every broadcaster knew about it? Why didn't broadcasters add it to their content review process? Where did the failure occur?

I mean, it's not like this was a cost/benefit calculation the broadcasters made to try to get away with something -- it's obviously just out of sheer ignorance. So are the lawyers at the broadcasters totally incompetent or not being listened to... or is it the FCC's fault here for not ensuring the right people at each and every broadcaster actually found out about it in the first place and added it to their review processes?

I worked at a couple radio stations doing production and engineering. In short, EAS is a legal requirement and not a joke. I have no doubt that production staff did it out of ignorance and that nobody caught onto it until it actually aired. I bet that control room's air turned blue as it aired.

> So... when did the FCC pass this rule?

It existed in 1934: https://transition.fcc.gov/Reports/1934new.pdf (search for 325).

> How did it make sure every broadcaster knew about it?

Broadcast TV only started in 1928, I think this law predates most of the current networks.

These fines don't sound all that hefty?

A $395,000 fine would be absolutely devastating for even an abnormally wealthy individual, but I've got to imagine that producing a professional television show comes with much higher costs.

Jimmy Kimmel is an abnormally wealthy individual, and according to my 10 second lazy Google search, $400k is less than 2 weeks’ pay for him personally. For the Kimmel show production company, or ABC, or Disney, it’s closer to peanuts. I’ll speculate wildly that $400k might not even offset the Kimmel show’s ad revenue for a single night.

Edit: another lazy Google search says a 30 second ad spot on Kimmel runs about $20k. That means they hit $400k with ~10 minutes of commercial? https://www.adweek.com/tv-video/new-data-shows-just-how-much...

Which feels like an entirely appropriate fine given it's a first offense and presumably wasn't done with malicious intent.

If Kimmel decides to go ahead and make this a regular segment and flaunt the rules, I would expect the fines to multiply accordingly.

I think the fine itself is perfectly appropriate for all the reasons you listed. However, I don't understand why the article said the fine will "cost parent company ABC dearly."

I guess that would set the record for the most expensive royalty payment ever. #2 The Beatles #1 Emergency broadcast sounds

This is a solid rule. Glad it's enforced so strictly.

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