Federal Communications Commission	DA 20-227


Before the
Federal Communications Commission
Washington, D.C. 20554


In the Matter of 

Entercom License, LLC 

Licensee of Station WNEW(FM), New York,
New York
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                    File No.: EB-IHD-19-00028718 
                    NAL/Acct. No.:  202032080019
                    FRN:  0004434866


NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: April 7, 2020		Released: April 7, 2020

By the Chief, Enforcement Bureau:

I. INTRODUCTION
1. The Commission’s rules prohibit transmitting or causing the transmission of Emergency Alert System (EAS) codes or Attention Signals or simulations thereof (collectively EAS Tones or Tones) in the absence of an actual national, state or local area emergency, authorized test of the EAS, or a qualified public service announcement (PSA).  Unauthorized use of the EAS Tones undermines the EAS and presents a substantial threat to public safety.  To preserve the unique alerting function of the EAS Tones, the Commission is committed to enforcing laws that prohibit the use of the Tones, or simulations of them, except for specific exceptions.  Therefore, we propose a penalty of twenty thousand dollars ($20,000) against Entercom License, LLC (Entercom) Any entity that is a “Small Business Concern” as defined in the Small Business Act (Pub. L. 85-536, as amended) may avail itself of rights set forth in that Act, including rights set forth in 15 U.S.C. § 657, “Oversight of Regulatory Enforcement,” in addition to other rights set forth herein.
 for its apparently willful violation of the Commission’s rules.  Our action today advances the Commission’s goal of preserving the unique alerting function of the EAS Tones and ensuring that the Tones are not used in any unauthorized manner.
II. BACKGROUND
2. The EAS is a public warning system that requires broadcasters, cable television operators, wireless cable operators, wireline video service providers, satellite digital audio radio service providers, and direct broadcast satellite providers to supply the communications capability to the President of the United States to address the American public during a national emergency. CBS Broadcasting Inc. d/b/a CBS Television Network, CBS Television Stations, Inc., CBS Stations Group of Texas LLC, CBS LITV LLC, Notice of Apparent Liability for Forfeiture, 34 FCC Rcd 8417, 8418, para. 2 (2019) (forfeiture paid) (CBS NAL); see FEMA, Fact Sheet: Emergency Alert System (EAS) (2016), https://www.fema.gov/media-library-data/1465326763240-4152791226bbd49cf46aff8cd5f43bb1/Emergency_Alert_System_Fact_Sheet_2016.pdf.

  Federal, state, and local authorities may also use the EAS to deliver important emergency information, such as AMBER alerts and weather information targeted to specific areas.  
3. The Commission’s rule section 11.45 provides that “[n]o person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS, or as specified in [sections] 10.520(d), 11.46, and 11.61 of this chapter.” 47 CFR § 11.45(a).  Section 10.520(d) provides, in part, “[n]o person may transmit or cause to transmit the WEA common audio attention signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test, except as designed and used for Public Service Announcements….”  47 CFR § 10.520(d).  Section 11.46 provides, in part: 
	EAS Participants may use the EAS Attention Signal and a simulation of the EAS
	 codes as provided by FEMA in EAS Public Service Announcements (PSAs) 
	(including commercially-sponsored announcements, infomercials, or programs) provided 
	by federal, state, and local government entities, or non-governmental organizations, 
	to raise public awareness about emergency alerting….

47 CFR § 11.46.  Section 11.61 provides, in part, “EAS Participants shall conduct tests [of EAS procedures] at regular intervals….”  47 CFR § 11.61(a).  
  The Commission adopted section 11.45 to protect the integrity and operation of the EAS, See Amendment of Part 73, Subpart G, of the Commission’s Rules Regarding the Emergency Broadcast System, FO Docket Nos. 91–301 and 91–171, Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, 7 FCC Rcd 6903, 6907, para. 39 (1992).
 acknowledging that while existing laws prohibited false distress signals and broadcast hoaxes, “a specific prohibition against the misuse of the EAS attention signal and codes is necessary . . . because it is more specific and directly addresses the proper use of EAS codes and Tones.” Amendment of Part 73, Subpart G, of the Commission’s Rules Regarding the Emergency Broadcast System, FO Docket Nos. 91–301 and 91–171, Report and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 1786, 1815, para. 84 (1994).
  
4. The underlying policy concern is not limited to potential listener confusion at the moment of the improper broadcast of the EAS Tones.  The Commission also has warned that the use of simulated or actual EAS Tones for non-authorized purposes—such as commercial or entertainment purposes—can lead to a dangerous “cry-wolf effect” or “alert fatigue.”  In those circumstances, the public becomes desensitized to the alerts, and questions or simply disregards whether a particular alert is intended to warn about a real, imminent threat or some other cause. Viacom, Inc., ESPN, Inc., Forfeiture Order, 30 FCC Rcd 797, 797, para. 1 (2015) (Viacom Forfeiture Order) (“As many of the complaints about EAS abuse have said, misuse of the tones creates a ‘Cry Wolf’ scenario, which risks desensitizing the public to the significance of the tones in a real emergency.”); CBS NAL, 34 FCC Rcd 8417 at 8418, n.4 (citations omitted).
  Moreover, because the EAS Tones include operative data elements, the misuse of simulated or actual EAS Tones may result in false activations of the EAS that can spread false information or lock out legitimate activations of the EAS. See 47 CFR § 11.31(a).    
  
5. The EAS uses a four-part message for an emergency activation.  The four parts are: Preamble and EAS Header Codes; audio Attention Signal; message; and Preamble and EAS End of Message (EOM) Codes.  The component sounds of an EAS message serve the dual purposes of gaining the listener’s or viewer’s attention and conveying specially coded information for the equipment that is activated by the EAS message as part of an actual emergency or authorized test.  In particular, the EAS codes consist of audible sounds in which encoded information concerning the particular alert is embedded.  The separate EAS Attention Signal that follows the EAS codes comprises two Tones that are transmitted simultaneously.  The use of EAS Tones, or simulations of them, is prohibited except for uses permitted under the rules. See 47 CFR § 11.31(a).  
  Permitted uses of the EAS are limited to alerts of actual emergencies, authorized tests of the EAS, or qualified PSAs (collectively Permitted Uses). See 47 CFR § 11.45.

6. Entercom is the licensee of WNEW(FM), and its parent, Entercom Communications Corporation, is one of the two largest radio broadcasters in the United States. Entercom, About Us, https://entercom.com/about (last visited Mar. 5, 2020).  
  Entercom has a network of 235 radio stations in markets across the country. Entercom, Our Portfolio, Radio Stations, https://entercom.com/radio-stations/ (last visited Mar. 5, 2020).  

7. At 2:18 p.m. Eastern Daylight Time (EDT) on October 3, 2018, FEMA, in coordination with the Commission, sent a Wireless Emergency Alert (WEA) The WEA system allows authorized federal, tribal, state, local and territorial government agencies to send geographically targeted emergency alerts to commercial wireless subscribers who have WEA-capable mobile devices and whose commercial wireless service provider has elected to offer the service.  Commercial wireless service providers’ participation in WEA is optional, but those electing to participate must follow the Commission’s rules.  See 47 CFR Part 10.
 test message to WEA-capable wireless devices throughout the entire United States and territories.  Immediately following the WEA nationwide end-to-end test, at 2:20 p.m. EDT, FEMA conducted a live test of the EAS. Public Safety and Homeland Security Bureau Releases its Initial Findings Regarding the 2018 Nationwide Tests of Wireless Emergency Alerts and Emergency Alert System, PS Docket Nos. 15-91 and 15-94, Public Notice, 33 FCC Rcd 12393 (PSHB 2018).
  The Commission received a complaint (Complaint) alleging that Station WNEW-FM, New York, New York (Station), licensed to Entercom, improperly transmitted an EAS Tone on October 3, 2018. Complaint No. 2815339-1 (Oct. 3, 2018) (Complaint) (on file in EB-IHD-19-00028718).  
  According to the Complaint, Entercom used an emergency tone during the “Karen & Jeffrey” program in a skit lampooning the nationwide WEA test that was conducted later that day. Id. 
  
8. In response to the Complaint, the Enforcement Bureau’s Investigations and Hearings Division issued a letter of inquiry (LOI) on June 27, 2019, Letter of Inquiry from Christopher Sova, Deputy Chief, Investigations and Hearings Division, FCC Enforcement Bureau, to Andrew Sutor, Executive Vice President and General Counsel, Entercom License, LLC (June 27, 2019) (on file in EB-IHD-19-00028718).
 directing Entercom to produce, among other things, recordings of the alleged programming, and sworn written statements as to whether it had transmitted, or caused the transmission of, the EAS Tones. Id.
  Entercom responded to the LOI on August 29, 2019. Response to Letter of Inquiry, from Laura Berman, Senior Counsel, Entercom License, LLC, to Kathryn Hinton, Attorney Advisor, Investigations and Hearings Division, FCC Enforcement Bureau (Aug. 29, 2019) (on file in EB-IHD-19-00028718) (LOI Response). 
  In its LOI Response, Entercom admits that the Station aired the Attention Signal as part of the WEA skit and that the transmission was not in connection with an actual emergency, authorized test of the EAS, or a PSA. Id. at 2-3, Responses to Questions 1, 3.
  Entercom explains that the skit was produced by a station employee (Employee) who included the EAS Header Code in the initial version of the skit. Id. at 2, Response to Question 1.
  After the host of the radio show (Host) and the Station Program Director identified the use of the EAS Header Code as problematic and something that must be removed from the segment, Id. at 7, Response to Question 15.
 the Employee replaced it with approximately one second of the Attention Signal. Id. at 2, Response to Question 1.  
  The Station Program Director approved the revised segment for air. Id.
  The Attention Signal was aired once on one station, WNEW-FM, on October 3, 2018 at 7:52 AM. Id.  With respect to online streaming, Entercom explains that the “programming was only available online on a simultaneous stream of the Station on the Station’s website through Radio.com and the Radio.com app.”  Id. at 5-6, Response to Question 11. 
 
III. DISCUSSION
9. The record reflects that on October 3, 2018, at 7:52 AM, the Station transmitted the Attention Signal in the absence of an actual emergency, authorized test of the EAS, or a PSA. See LOI Response at 2-3, Responses to Questions 1, 3.
  As evident in the transcript and audio clip of the skit, the Station lampooned the WEA test that was scheduled to take place later that day. Id. at Attachments D-E.
  In its LOI Response, Entercom admits that the Host and Station Program Director recognized that the use of the EAS Header Code was impermissible. Id. at 7, Response to Question 15. 
  Despite having a policy on the misuse of EAS Tones, Entercom admits that the Station aired the Attention Signal for approximately one second. Id. at 2, 4, Responses to Questions 1, 5, 8. 
  
10. Entercom’s use of the Attention Signal in a parody of the first nationwide test of the EAS and WEA is specifically the type of behavior section 11.45 seeks to prevent.  The unauthorized and inappropriate use of the EAS Tones may confuse people or lead to alert fatigue, resulting in people ignoring potentially life-saving warnings and information.  We find that an average listener could reasonably mistake the airing of part of the Attention Signal for an actual EAS alert.  The length of the transmission is not controlling in our liability determination. CBS NAL, 34 FCC Rcd at 8424, para. 17.
  Section 11.45 specifically prohibits such appropriation because non-emergency uses of the EAS Tones actually dilute their real meaning over time. Id. at 8425, para. 20.
  
11. Based on Entercom’s admission and our review of the audio recording and transcript of the show provided by Entercom in its LOI Response, we find that Entercom transmitted an Attention Signal on October 3, 2018. See LOI Response at 2-3, Responses to Questions 1, 3; id. at Attachments D-E.
  Entercom admits that none of the material in question was transmitted in connection with a Permitted Use. Id. at 2-3, Responses to Questions 1, 3.
  We therefore find that Entercom’s transmission of the Attention Signal on October 3, 2018, as modified, apparently violated section 11.45.
IV. PROPOSED FORFEITURE
12. Section 503(b) of the Act authorizes the Commission to impose a forfeiture against any entity that “willfully or repeatedly fail[s] to comply with any of the provisions of [the Act] or of any rule, regulation, or order issued by the Commission.” 47 U.S.C. § 503(b).  
  Based upon the evidence before us, we find that Entercom apparently willfully violated section 11.45.  
13. Here, Section 503(b)(2)(A) of the Act authorizes us to assess a forfeiture against Entercom of up to $50,334 per violation or for each day of a continuing violation, up to a statutory maximum of $503,349 for a single act or failure to act.  47 U.S.C. § 503(b)(2)(A); 47 CFR § 1.80(b)(1).  These amounts reflect inflation adjustments of the forfeitures specified in section 503(b)(2)(A).  The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. No 114-74, § 701, 129 Stat. 584, 599 (2015 Inflation Adjustment Act) requires agencies, starting in 2017, to adjust annually the civil monetary penalties covered thereunder, and to publish each such annual adjustment by January 15.  The 2015 Inflation Adjustment Act amended the Federal Civil Penalties Inflation Adjustment Act of 1990, which is codified, as amended, at 28 U.S.C. § 2461 note (Inflation Adjustment Act).  The Bureau released the order making the 2019 annual adjustment on December 19, 2018.  See Amendment of section 1.80(b) of the Commission’s Rules, Adjustment of Civil Monetary Penalties to Reflect Inflation, Order, DA 18-1272 (EB Dec. 19, 2018), 2018 WL 6722625; see also Annual Adjustment of Civil Monetary Penalties to Reflect Inflation, 83 Fed. Reg. 4600 (Feb. 1, 2019) (setting February 1, 2019, as the effective date for the increases).  The 2015 Inflation Adjustment Act provides that the new penalty levels shall apply to penalties assessed after the effective date of the increase, “including [penalties] whose associated violation predated such increase.”  See 28 U.S.C. § 2461 note, citing Inflation Adjustment Act, as amended, § 6.
  In exercising our forfeiture authority, we consider the nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, substantial economic gain, and such other matters as justice may require. 47 U.S.C. § 503(b)(2)(E).
  In addition, the Commission has established forfeiture guidelines.  The guidelines establish base penalties for certain violations and identify criteria that we consider when determining the appropriate penalty in any given case. 47 CFR § 1.80(b)(8), Note to paragraph (b)(8). 
  Under these guidelines, we may adjust a forfeiture upward for violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator. Id.
  
14. The Commission has previously applied an $8,000 base forfeiture for violations of section 11.45. See CBS NAL, 34 FCC Rcd 8417 at 8431, para. 36; Viacom Forfeiture Order, 30 FCC Rcd at 804, para. 19; Turner I, 28 FCC Rcd at 15459, para. 11; Turner II, 29 FCC Rcd at 757, para. 12.
  We have discretion to upwardly or downwardly adjust from the base forfeiture, taking into account the particular facts of each individual case. The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087, 17098–99, para. 22 (1997) (noting that “[a]lthough we have adopted the base forfeiture amounts as guidelines to provide a measure of predictability to the forfeiture process, we retain our discretion to depart from the guidelines and issue forfeitures on a case-by-case basis, under our general forfeiture authority contained in Section 503 of the Act”) (1997 Forfeiture Policy Statement), recons. denied, Memorandum Opinion and Order, 15 FCC Rcd 303 (1999).
  In this case, we apply the $8,000 base forfeiture to Entercom’s apparent violation of section 11.45 of the Commission’s rules based upon its transmission of the Attention Signal on October 3, 2018.  Given the totality of the circumstances, however, and consistent with the 1997 Forfeiture Policy Statement, we conclude that an upward adjustment is warranted.  Forfeiture Policy Statement, noting that “[a]lthough we have adopted the base forfeiture amounts as guidelines to provide a measure of predictability to the forfeiture process, we retain our discretion to depart from the guidelines and issue forfeitures on a case-by-case basis, under our general forfeiture authority contained in Section 503 of the Act”.
   This adjustment is based upon the statutory factors, including the nature and circumstances of the violation.  The nature of EAS violations requires particularly serious consideration because, among other issues, such violations undermine the integrity of the EAS and therefore implicate substantial public safety concerns.  As the Commission previously explained, our forfeiture determination in such cases is based on multiple factors associated with the nature of the violation and the violator. See Turner Broadcasting System, Inc., Notice of Apparent Liability for Forfeiture, 29 FCC Rcd 752, 757, para. 13 (2014).
  Nonetheless, no single factor is controlling.  When applying the statutory factors concerning the circumstances, extent, and gravity of an EAS violation, we take into account a number of specific factors, including:  (1) the number of repetitions (i.e., the number of individual transmissions); (2) the duration of the violation (i.e., the number of days or months over which the violation occurred); (3) the audience reach of the transmissions (e.g., nationwide, regional, or local); and (4) the extent of the public safety impact (e.g., whether an EAS activation is triggered). Id.
  
15. Even though the instant violation was limited in duration to a single transmission on a single day and apparently caused no downstream EAS activation, the fact that Entercom’s programming reached potentially vast audiences increases the extent and gravity of the violation and therefore supports an upward adjustment.  In this regard, the Station’s audience reach is considerable; it is ranked #11 in the Nielsen Radio Market Ratings in New York, New York, Nielsen New York Radio Ratings, https://tlr.nielsen.com/tlr/public/ratingsDisplay.do?method=sortRatingTable& sortingColumn=RateSurvey2 (last visited on Dec. 3, 2019).  
 the largest radio market in the U.S. Nielsen Fall 2019 Market Survey Rankings, https://www.nielsen.com/wp-content/uploads/sites/3/2019/09/market-populations-and-rankings.pdf (last visited on Dec. 3, 2019). 
  
16. In applying the applicable statutory factors, we also consider whether there is any basis for a downward adjustment of the proposed forfeiture.  Here, we find none.  Entercom, for instance, did not voluntarily disclose the violation. See LOI Response. 
  Therefore, based on the nature and extent of the violation at issue, Entercom’s vast audience reach, and applying the 1997 Forfeiture Policy Statement, section 1.80 of the Rules, and the statutory factors, we propose a total forfeiture of $20,000. See SBC Communications Inc. v. FCC, 373 F.3d 140, 152 (D.C. Cir. 2004) (noting that “substantial and widespread” behavior with a national scope may warrant an increased forfeiture, and that it is “reasonable to expect that a larger fine might be necessary to deter a large company”).

V. ORDERING CLAUSES
17. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the Act, 47 U.S.C. § 503(b).
 and section 1.80 of the Commission’s rules, 47 CFR § 1.80.
 that Entercom License, LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of $20,000 for apparently willfully violating section 11.45 of the Commission’s rules. 47 CFR § 11.45.

18. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission’s rules, 47 CFR § 1.80.
 that within 30 days of the release date of this Notice of Apparent Liability for Forfeiture, Entercom License, LLC SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 
19. Payment of the forfeiture must be made by credit card, ACH (Automated Clearing House) debit from a bank account using the Commission’s Fee Filer (the Commission’s online payment system), Payments made using the Commission’s Fee Filer system do not require the submission of an FCC Form 159.
 or by wire transfer.  The Commission no longer accepts forfeiture payments by check or money order.  Below are instructions that payors should follow based on the form of payment selected: For questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone at 1-877-480-3201 (option #6), or by e-mail at ARINQUIRIES@fcc.gov.
	
· Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001.  A completed Form 159 must be faxed to the Federal Communications Commission at 202-418-2843 or e-mailed to RROGWireFaxes@fcc.gov on the same business day the wire transfer is initiated.  Failure to provide all required information in Form 159 may result in payment not being recognized as having been received.  When completing FCC Form 159, enter the Account Number in block number 23A (call sign/other ID), enter the letters “FORF” in block number 24A (payment type code), and enter in block number 11 the FRN(s) captioned above (Payor FRN). Instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. 
  For additional detail and wire transfer instructions, go to https://www.fcc.gov/licensing-databases/fees/wire-transfer.
· Payment by credit card must be made by using the Commission’s Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm.  To pay by credit card, log-in using the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Pay bills” on the Fee Filer Menu, and select the bill number associated with the NAL Account – the bill number is the NAL Account number with the first two digits excluded – and then choose the “Pay by Credit Card” option.  Please note that there is a $24,999.99-dollar limitation on credit card transactions.
· Payment by ACH must be made by using the Commission’s Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm.  To pay by ACH, log in using the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Pay bills” on the Fee Filer Menu and then select the bill number associated to the NAL Account – the bill number is the NAL Account number with the first two digits excluded – and choose the “Pay from Bank Account” option.  Please contact the appropriate financial institution to confirm the correct Routing Number and the correct account number from which payment will be made and verify with that financial institution that the designated account has authorization to accept ACH transactions.
20. Any request for full payment over time under an installment plan should be sent to:  Chief Financial Officer—Financial Operations, Federal Communications Commission, 445 12th Street, SW, Room 1-A625, Washington, DC 20554. See 47 CFR § 1.1914.
  Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk, by phone at (877) 480-3201, or by email at ARINQUIRIES@fcc.gov.
21. The written statement seeking reduction or cancellation of the proposed forfeiture, if any, must include a detailed factual statement supported by appropriate documentation and affidavits pursuant to sections 1.16 and 1.80(f)(3) of the Commission’s rules. Id. §§ 1.16, 1.80(f)(3).
  The written statement must be mailed to the Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554, ATTN:  Enforcement Bureau – Investigations & Hearings Division, and must include the NAL/Account Number referenced in the caption.  The statement must also be e-mailed to Jeffrey Gee at Jeffrey.Gee@fcc.gov, Christopher Sova at Christopher.Sova@fcc.gov, Kenneth Scheibel at Kenneth.Scheibel@fcc.gov, and Anya Baez at Anya.Baez@fcc.gov.  
22. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the respondent submits: (1) federal tax returns for the most recent three-year period; (2) financial statements prepared according to generally accepted accounting practices; or (3) some other reliable and objective documentation that accurately reflects the petitioner’s current financial status.  Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation.
23. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by first class mail and certified mail, return receipt requested, to Laura M. Berman, Senior Counsel, Entercom License, LLC, 1015 Half Street, S.E., Suite 200, Washington, D.C. 20003, with a copy to Andrew P. Sutor, IV, Executive Vice President and General Counsel, Entercom License, LLC, 2400 Market Street, 4th Floor, Philadelphia, PA 19103.

					FEDERAL COMMUNICATIONS COMMISSION


					
					Rosemary C. Harold
					Chief
					Enforcement Bureau

8