FCC 92·208 Federal Communications Commission Record 7 FCC Rcd No. 13 Before the Federal Communications Commission Washington, D.C. 20554 MM Docket No. 91·314 perpetrates hoaxes. 3 In most cases, the Commission can either issue a letter of admonition. which may be consid ered on renewal or sale of the station or. in extreme cases, it can revoke a station'slicense.~A rule. by contrast, offers greater enforcement flexibility by permitting the Commis sion to levy fines against the violators. We therefore sought com~enton how a hoax rule might be crafted without causmg an undue Chilling effect on broadcast speech. In re REPORT AND ORDER (Proceeding Terminated) Amendment of Part 73 Regarding Broadcast Hoaxes INTRODUCTION 1. This Report and Order amends the Commission's Rules to expressly prohibit the broadcast of hoaxes that are harmful to the public. Specifically, we adopt a rule that will prohibit a broadcast licensee or permittee from know ingly broadcasting false information concerning a crime or catastrophe if it is foreseeable that broadcast of the in formation will cause substantial public harm, and broad cast of the information does In fact directly cause substantial public harm. This rule will provide the Com mission with greater enforcement flexibility by subjecting licensees that perpetrate harmful hoaxes to possible for feitures, in addition to other applicable penalties. In def erence to First Amendment COncerns, we have crafted the rule narrov,'ly. restricting only those hoaxes most likely to result in substantial public harm. 2. Background. Recently, serious broadcast hoaxes have occurred where the stations involved fabricated stories concerning a crime or catastrophe that alarmed the public and resulted in the needless diversion of public safety or law enforcement resources. 1 Because hoaxes of this nature are inconsistent with the public interest, we initiated a NOlice of Proposed Rule ,Waking ("iVotice") to determine whether the Commission should adopt a rule specifically prOhibiting such conduct. 2 Under existing policies, the Commission has limited recourse against a licensee that Issue Analysis 3. ProposaL. Our Notice suggested a narrowly crafted rule that would result in licensee liability only -if three ele ments were present. First. we propos·ed that the licensee must know that the material broadcast is false. Because this elemenr would normally implicate dramatizations, which are by nature fictitious. we sought comment on whether other aspects of the rule would sufficiently protect such programming from undue scrutiny. Vie also sug gested limiting the rule to false repons of crimes and catastrophes. 4. Second, we proposed that the hoax must directly cause immediate. substantial and actual public harm. The NOliee sought comment on what should constitute "pUblic harm," as well as possible definitions for the terms "imme diate," "substantial" and "actuaL" For' example. we sug gested that the "substantiality" of the harm might be measured in terms of how "widespread" the harm is (e.g., whether there was widespread diversion of law enforce ment and public safety authorities from their duties), or it might be measured in terms of the severity of the damage resulting from the harm. 5. Third, we proposed that the pUblic harm flowing from the hoax be foreseeable. Our ,VOfiee indicated that to avoid unreasonable Chilling effects on broadcasters, we could consider public harm foreseeable only if the licensee could expect. with a "significant degree of certainty," that such harm would occur as a result of the hoax. We sought comment on factors determinative of foreseeability, such as the timing and content of the broadcast. as well as the number of public complaints received concerning~he broadcast. We also invited comment on whether broad casters should have the right to presume that the public will behave in a rational manner. 6. Comments. Comments were filee! by CBS. Inc. ("CBS"). Haley. Bader & Potts ("Haley"). National Associ ation of Broadcasters ("NAB"). National Public Radio ("NPR"), and reply comments were filed by NBC. Inc. ("NBC").5 All five parties oppose instituting an anti-hoax rule. The commenters argue that adoption of such a rule Released: June 12, 1992 By the Commission: Adopted' May 14, 1992; See Leuer to KSLX-FA1., (MMB, dated October 2, 1989) (station admonished for false report that station had been taken hostage); Letter to WCCC-AMIFM, (MMB. dated July 26, 1990) (station admonished for false report of nearby volcanic erup tion); Letter to KROQ-FM, 6 FCC Rcd 7262 (1991) (station admonished for murder confession hoax); Letter [0 WALE-AAf, 7 FCC Rcd 2345 (MMB 1992) (station admonished for false report that station employee had been shot). Z .'Votiee of Proposed Rule !\laking in MM Docket No. 91-314, 6 FCC Red 6935 (1991). 3 The Commission eliminated a policy against "scare an nouncements" in 1985. See Fourth Order Eliminating Unnec essary Broadcast Regulations, 57 RR 2d 939 (1985). The Commission retained, however, other continuing policies in tended to ensure that each licensee complies with its basic obligation to broadcast in the public interest, such as the policy against news staging. These policies may be invoked to sanction (although not flne) licensees that perpetrate hoaxes. See. e.g., Letter to KROQ-FM, 6 FCC Rcd 7262 (1991) (public interest obligation); W,\I!X Inc., 85 FCC 2d 251 (1981) (news staging policy). Our decision here leaves intact all existing policies. See infra note 17. j In one recent hoax, the Commission assessed a $25,000 for feiture against a licensee for violation of the Communication Act's prohibition on the transmission of false distress commu nications. In that case, the licensee reponed a mock nuclear attack on the United States and aired a siren similar to the Emergency Broadcast System signal. See Letter to KSHE-FM, 6 FCC 2d 2289 (1991). 5 An additional informal comment was filed by David H. Atkins, who simply expressed support for imposing fines on stations that engage in hoaxes. 4106 7 FCC Red No. 13 Federal Communications Commission Record FCC 92·208 is unnecessary because harmful hoax incidents are rare and there are already adequate deterrents to such conduct. In particular, they contend that existing Commission pori· cies adequately discourage responsible broadcasters from engaging in harmful hoaxes. CBS, for example. believes the Commission should not underestimate the effect of a letter of admonition. which may adversely affect a li censee's chances for renewa1. 6 In addition, Haley. NAB and NBC point out that hoax perpetrators may be subject to criminal and civil penalties, which effective}y discour age and punish irresponsible broadcast pranks. Audience reaction to such pranks is yet another deterrent,s Accord ing to NBC, a broadcast station's credibility with the pub lic is certain to be hurt bv such conduct. which could translate into the license; losing significant audience share. 9 7. The commenters also question whether such a rule can be crafted to avoid First Amendment infirmities. For example, these commenters are concerned that vague and overbroad definitions of "falsity," "public harm" and "foreseeability" could inhibit broadcasters' programming decisions. In this regard, CBS, NPR, and NBC are espe ciallv concerned that the rule might implicate legitimate ficti~nalprogram materiaL and they therefore request that we exempt dramatizations from any final rule. tO CBS and NPR are more amenable to a narrower rule prohibiting onIv broadcast hoaxes involving false reports of crimes or cat;strophesY Haley believes a hoax rule based on the tort principles of harm and foreseeability is overly intrusive because it forces broadcasters to perform complex content evaluation before airing programmingY To avoid this problem, Haley suggests that the Commission ,adopt a spe cific policy against hoaxes, rather than a rule. 13 6 CBS Comments at 3-4. -; Haley Comments at 2; NAB Comments at 1-2; NBC Reply Comments at 4. 8 NBC Reply CommentS at 3-4. '1 CBS noted that the licensee had no direct knowledge of the hoax in at least two of the recent cases. According to CBS, in both cases the licensees, upon learning of the hoaxes, promptly took appropriate disciplinary measures and made on-air apolo gies for the incidents. CBS Comments at 2. See Letter to KROQ-FM, 6 FCC Red 7262 (1991); Lefler to KSHE-F}4., 6 FCC Red 2289 (l991). 10 CBS Comments at 5; NPR Comments at 4; NBC Reply Comments at 6. 11 CBS Comments at 5; NPR Comments at 4. [2 Haley Comments at 7. t3 Haley Comments at ll. IJ A "crimes and catastrophes" standard encompasses the kinds of harmful hoaxes that have raised the most public concern to date. for purposes of our rule. a "crime" is defined as any act or omission that makes the offender subject to criminal punish ment by law. A "catastrophe" is defined as a disaster or im minent disaster involving a violent or sudden event affecting the public. 15 Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.c. §§ 151 et seq., gives the Commission au thority to fine any broadcaster who willfully or repeatedly violates any rule, regulation or order. See 47 V.S,c. § 503(b). Congress recently increased the amount of these forfeiture fines. 4107 DECISION 8. We will adopt a rule against hoaxes, but restrict that rule to incidents involving the false report of a crime or catastrophe,14 Accordingly, we are amending Part 73 of our Rules as set forth in Appendix A. Contrary to commenters' assertions that a rule is unnecessary because harmful hoaxes occur infrequently, we believe that this regulation is needed to contend with and deter serious hoaxes that pose a substantial threat to the public safety and welfare. A rule will give us greater enforcement flexi bility to deal with harmful hoaxes by allowing us to sub ject licensees~erpetratingthese hoaxes to a range of monetary fines. 5 In recent cases, we have been limited to only two types of penalties~-admonition and license revocation or non-renewal. 16 This rule will provide us with the option of imposing an intermediate sanction. one which has more deterrence value than admonition but which is less drastic than license revocation or non-re newal. l ; 9. In addition. we believe that the rule is sufficiently narrow to avoid any adverse impact on broadcast speech. In this regard, it is not our intent to restrict harmless pranks, or to deter broadcasts that might upset some listen ers but do not pose a substantial threat to public health or safety. We instead focus on a narrow category of cases _. those inVOlving the false report of a crime or catastrophe - which present the greatest potential for substantial public harm. Moreover, within this narrow category of cases, we restrict the reach of the rule even further by holding licensees liable only when they know the report to be false. and can foresee that the report will, and does in fact, result in substantial public harm. l8 We believe that these careful restraints should sufficiently address our concerns without causing an undue chilling effect on broadcast speech. We also believe that the rule, as drawn, is fully consistent with First Amendment principles. Accordingly, a broadcaster can be fined up to 525,000 for each violation, or each day of a continuing violation, except that the amount for a continuing violation cannot exceed $250,000. See Omnibus Reconciliation Act of 1989, Pub. L. No. 101-239,103 Stat. 2131 (effective Dec. 19, 19R9). III~iedecline to follow Haley's approach and adopt a policy rather than a rule. A policy statement would not augment our enforcement powers in this area. We would still be limited to the penalties of admonition and license revocation or non renewaL with no ability to assess forfeitures where appropriate. 17 We do not intend by our adoption of a specific rule address ing harmful hoaxes to displace our existing range of remedies for false programming that is not covered by this rule, We will continue to enforce other appropriate policies against licensees perpetrating harmful hoaxes (e.g., news staging policy). ln this regard, we note that false programming may be actionable as a violation of a licensee's public interest obligations, even if it falls outside of the strict requirements of the new rule. 18 We do not believe that a hoax rule based on tort principles is overly intrusive. as Haley suggested. Indeed, tort concepts such as knowledge, foreseeability and harm are employed to ensure that the rule is fair, balanced and not overly restrictive of speech. In practice, we do not think that broadcasters will fmd application of these principles to be burdensome. See infra, para. 11. FCC 92-208 Federal Communications Commission Record 7 FCC Red No. 13 10. In this latter regard, the Supreme Court has recog nized that speech may be subject to government regulation if the regulation is narrowly tailored to further a compel ling government interest and is the least restrictive means of furthering that interest. Sable Communicalions of Cali fornia, Inc. v. FCC, 492 U.S. 115 (989) We believe that our rule would meet this exacting test. First. the rule is narrowly tailored to curtail only hoaxes involving the false report of a crime or catastrophe when the licensee knows the report is false and can foresee that the report will. and it does in fact, result in substantia! public harm. Thus. the rule cannot be considered to be overly broad. lll Second, the government has a compelling interest in preventing substantial pUblic harm, such as the substantial diversion of police and emergency reSOurces from their duties, Fi nally, the Commission has chosen the least restrictive means by which it may effectively and precisely further its interest of preventing substantial public harm. 11. Moreover. contrary to the concerns expressed by the commenters, a bedrock principle of First Amendment doc trine holds that "ft]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.,,2o Thus, for example. the Supreme Court has never imposed a constitutional bar to regulating speech that threatens to cause imminent lawless action. 21 Similarly, the First Amendment does not pre clude civil liability for broadcasts that create a foreseeable risk of personal injury. See Werrum v. RKO General, Inc., 15 Cal. 3d 40, 123 Cal. Rptr. .168 (1975)." The broadcast speech in these cases is closely analogous to the hoax programming which we seek to preclude and the courts have not found a First Amendment bar to imposingliabil~ ity in such cases. In each instance, the speech at issue must create a foreseeable risk of substantial harm and such harm must. in fact. result. V>/e now examine each element 0"[ the rule in greater detail. 12. Licensee Knowledge of FalsifY of Cnme or Caws [raphe. In order to incur liability. a licensee must have known that the broadcast concerning a crime or catas trophe was false. To this end. a licensee will be held accountable for the actions of its employees. Such account ability is a well established Commission principle. 2J ~1ore- 1'1 To buttress the specific scope of the rule, we presume that legitimate fIctitious or dramat'lc programming. when accom panied by an appropriate disclaimer, does not create a risk of foreseeable harm_ See infra para. 15. This tailoring of the rule is consistent with cases that have examined First Amendment implications of imposing civil liability on dramatic program· mingo Cf. Zamora v. CBS. .J.HO F. Supp. 199, 20b (S. D. Fla. llrcO"); dtivia .\'. v. ssc. l2b CaL App. 3d -IRH. 17K Cal. Rptr. KKH ( jGHt). ~oSchenck v. ['nired States. 2-l9 U.S ..-lB. 57 (1919). ~lBrandenburg v. Ohio. .31·)5 U.S. -+-t-l (19bl)). See also C·nired Stau's v. Kelner. 53.J. F.2d lO'-:O (2d Cir. [Gin) (televised threats of political assassination punishable wIthout violating FlrSt Amendment); Cnited States v. Irving. SOl) F.2d 1325 (5th Cir. IG7S) {f:dse threat of hijacking punishable without violaling First Amendment).(j. Jfiller v. California, --+13 U.S. 15 (l Ui 3) (uhscene materials); ChapLinsky v. Sew Hampshire. 315 C.S. 56B (jlJ.j.2) (fightine: words); Gertz v. Roberl Welch. [nc., --JlH U.S. 323 (lG/4) (defama-tion); Zauderer v. Office of Disciplinary Coullsel, 471 U.S. 626 (l9RS) (false or deceptive advertising), .:~In Weirum, the California Supreme Coun upheld a jury verdict against a radio station, finding that a radio contest negligentl'}· caused listeners to drive recklessly, resulting in a motorist'S death. The broadcasts actively and repeatedly encour- 4108 over, accountability encourages licensees to make employees aware of the hoax proscription and to police their actions. Some commenters argue that prompt and appropriate corrective action on the part of the licensee should be a factor in assessing liability. Although our general policy is not to consider such remedial actions in determining whether a rule violarion has In fact occurred,l--l we do note that a licensee's overall conduct in connection with such a violation is always assessed in determining the appropriate sanction andco~ld,in~ertain circumstances, result in a decision that no sanction is warranted,25 Finally, we have taken steps to ensure that this element of our rule does not implicate legitimate dramatic or other fictional programming. Thus, as ex plained below in our discussion on foreseeability, we are instituting a presumption that will effectively remove fic tional material accompanied by disclaimer from liability. 13. ForeseeabililY of the Subsranrial Public Harm. For a hoax to be actionable, the substantial public harm that results frJm the broadcast must be foreseeable. We believe that a foreseeability test is needed to avoid imposing un reasonable or Chilling constraints on broadcast speech. For purposes of this rule, the public harm will be deemed foreseeable if the licensee could expect with a significant degree of certainty that substantial harm would occur. We will presume, and will accord broadcasters the right to presume. that the public will behave in a rational manner. We will not hold broadcasters accountable for unreason able or unpredictable public conduct. 14. Also. we believe that the nature of the broadcast will be the single greatest determinant of foreseeability. ThUS, the more inherently unbelievable the broadcasL the more certain broadcasters can be that substantial public harm is unforeseeable. By COntraSL the timing of the broadcast will not necessarily determine foreseeability. although it may be one factor that is considered. rhus. for example. if substantial harm results from a very realistic broadcast hoax. we will not conclude that the harm was unforeseeable simply because the program aired on April fool's Da)·. Other factors. such as the number of pUblic 3 s cd listeners to speed to :mnounced locations. Li3bility w3S imr()~edon the broadcaster for urging li"'teners to act in an inherentlv dan£erous manner. Weirum v. RKO GeneraL. [ne., 15 CaL 3d -.+b.123 CaL Rptr.4b~{1(75). See also Olivia .V. v. SBc' 126 Cal. App. 3d .tRR. 17"8 Cal. Rptr. 8HH (l9Kl) (distinguishing W·eirwn as involving a broadcast that urged listeners to act in an inherently d3ngerous manner). ~JSCI.', e.g., Empire Broadcasring Corp.. 25 FCC 2d 6K (lqi(Jj (holding licensee accountable for actions of employees who vio lated technic.al and progr;:;m log, requirements). ~~Sec. e.g.. Leuer to IVALE,_-Ul, ; FCC Red 23.t5 (\[.\-[B [l)q2) (~,dmonishinglicensee for hoax despite prompt disciplinary :lnd remedial action). cs The Commission recentlv set standardS for assessing for' feimrcs Jnd indicJted that certain criteria (e.g .. good faith or voluntary disclosure. history of overall compliance) may be taken into consideration and could result in J. reduction in the amount of the fine imposed. See Policy Statement on StandardS for Assessing Forfeitures. b FCC Red --+695. -+iOn (1991), recon. denied, Jfemorundum Opinion and Order in Standards for As sessing Forfeitures, released June 4, 1992. FCC 112-212. 7 FCC Red No. 13 Federal Communications Commission Record FCC 92-208 complaints received about the broadcast, mav also be rel evant to determine whether the station's action should have been foreseeable. 15. We are also mindful of commenters' concern that legitimate fictitious programming might be implicated bv our rule. since all fiction is, by definition, "false" prograrri' mingo Therefore. onc situation in which we will presume that programming otherwise sUbject to this rule will pose no foreseeable harm is if the programming is accompanied by a diSClaimer. Toqualif~ifor this presumption. diSClaim ers must clear1\' label the broadcast as a fiction and be presented in a way that is reasonable under the circum stances..!h 16. Direcl Causalion of Subslafllial Public Harm. Finally. the hoax must in fact directly cause substantial public harm, "Public harm" will include damage to the health or safety of the general public, diversion of law enforcement or other public health or safety authorities from their duties and damage to property. In all cases, the public harm must be substantiaL The public harm must also begin immediately after the broadcast and result in actual damage.2~ 17. Several commenters asked us to define public harm in more concrete terms. In particular. they were con cerned with how we would measure the "substantialitv" of the public harm. Rather than adopt a particular be·nch mark or definition b)' which we will assess "substantial" public harm, we have decided to leave this determination to the factual context of each case. In generaL hov.'ever. a broadcast concerning an imaginary danger that diverts lo cal police and emergency resources from their duties. causes widespread public disorder or harms the health or safety of the general public. would most likely inflict substantial public harm. By contrast, a broadcast hoax that results in no more than a few questions to the police or complaints to the station would probably not impose sub stantial public harm. Clearly. we are concerned with pub lic harm that is more than nominal in nature. CONCLUSION 18. By this Report and Order. we adopt a rule specifically prOhibiting licensees from knowingly engaging in hoaxes involving a false report of a crime or catastrophe when it is foreseeable that the report will. and does in fact. result in substaniial public harm. These hoaxes endanger the public health. safety and welfare and are inconsistent with licensee public interest ohligations. This hoax rule will give us greater regulatory flexihility by providing us with the sanction of forfeitures. which is less drastic than license revocation or non-renewal. but which has more deterrence value than admonition. The rule is also nar rowly tailored so that it will nOt unduly inhibit broadcast speech. 26 For example, indicia of reasonableness would include airing disclaimers at the beginning and end of a program and ensuring that no more than 15 minutes elapses between disclaimers dur ing a program. \Ve do not, of course, intend to impose a requirement that all fictional works must now include disclaim ers. Rather, disclaimers would be necessary' only in those pro grams that would otherwise meet all elements of the rule. For 4109 ORDERING CLAUSES 19. Accordingly, IT IS ORDERED that pursuant to authority contained in Sections 4 and 303 of the Commu nications Act of 1934. 47 U.S.c. Section 154 and 303 as amended. Part 73 of the Commissions Rules IS AMEND ED as set forth below in Appendix A. 20. IT IS FURTHER ORDERED that the amendments to .+7 C.F.R. Part 73 adopted in this Report and Order will be effectiv·e 30 days after publication in the Federal Regis ter. 21. IT IS FCRTHER ORDERED that this proceeding is terminated. 22. Further information on this proceeding may be ob tained by contacting Kathleen O'Brien Ham. Mass Media Bureau at (202) 632-7792. FEDERAL COMMUNICATIONS COMMISSION Donna R. Searcy Secretary Appendix A Part 73 of Title 47 of the Code of Federal RegUlations is amended as follows: 1. The authority citation for Part 73 continues to read as follows: Authority: 47 U.s.C. 154, 303. 2. Section 73.1217, Broadcast hoaxes. is added to Part 73 to read as follows: § 73.1217 Broadcast hoaxes. ~olicensee or permittee of any hroadcast station shall broadcast false information concerning a crime or a catas trophe if (a) the licensee knows this information is false. (b) it is foreseeable that broadcast of the information will cause substantial public harm. and (cl broadcast of the information does in fact directly cause substantial public harm. Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances. NOTE I: For purposes of this rule. "public harm" must begin immediately, Clnd cause direct and actual damage to prop erty or to the health or safety of the general public. or diversion of law enforcement or other public health and safety authorities from their duties. The public harm will example, a fictional work that is not reasonably susceptible to being understood as a report of a crime or catastrophe would not need a disclaimer. ~~By "immediate." we mean that the harm would have to occur contemporaneously or shortly after the broadcast. By "actual" damage, we mean that there must be injury in fact; the mere threat of harm is not sufficient. FCC 92-208 Federal Communications Commission Record 7 FCC Red No. 13 be deemed foreseeable if the licensee could expect with a significant degree of certainty that public harm would occur. A "crime" is any act or omission that makes the offender subject to criminal punishment by law. A "catas trophe" is a disaster or imminent disaster involving violent or sudden event affecting the public. 4110