Fooling Some of the People Some of the Time

(Could Get Your Station a Hefty Fine)

Whenever the big ratings book is around the corner, stations go into overtime mode to conjure up some promotion that will help their station achieve the ratings recognition it deserves.

Here's an idea that the PD at station WELS/Lakehurst, NJ proposed to me.

"Let's broadcast a special announcement," he said, "that the Martians have landed in New Jersey, and that they are systematically making their way to New York, and then, obviously, to the rest of the U.S. These Martians are not particularly friendly, killing every human in sight as they need their blood to survive."

"To make it really exciting, we'll present this invasion as a newscast, live and on the spot, interrupting the morning drive to bring in the story. Now that ought to really bring in the listeners." Right?

Our station's PD is a guy named Orson. Somehow, he said, his idea sounded familiar; he was sure that something very similar had been done already, and therefore it would be okay now, too.

Well, he's right, of course. It has been done before. Remember War of the Worlds? That October 30, 1938 radio broadcast caused quite a sensation, and scared half the East Coast into panic. A brilliant radio creation from Orson Welles, it was broadcast as a mock series of radio newscasts featuring supposed live reports of the destructive Martians' advance across the country. A Halloween event, it was clearly stated at the beginning of the show that it was only a drama. However, many tuned in after the show had started and didn't hear the disclaimer, and the show caused havoc along the east coast.

As a result, War of the Worlds set a standard of what to avoid with a radio broadcast that was honored for many years. In the late 1980s and early 1990s, however, enterprising morning talent started coming up with new "pranks" incorporating fictionalized but sensationalized events to bring in the listeners.

At one station, the morning team invented a segment called "Confess Your Crime." Listeners were asked to confess on- air to transgressions they had committed. One call purportedly came from an anonymous listener confessing to the murder of his girlfriend. The broadcast precipitated widespread publicity as well as a costly and time consuming police homicide investigation. The confession was a hoax, conceived and executed by two morning announcers without management's prior knowledge or consent. While the station was not sanctioned, this incident ... and a few others ... led the FCC to adopt a new rule on hoax broadacsts.

To minimize the serious First Amendment concerns which a rule of this type might invoke, it is limited to prohibiting false information concerning a crime or a catastrophe. As defined in a note following the rule itself, a "crime" is any act or omission subject to criminal punishment and a "catastrophe" is a disaster involving violent or sudden events affecting the public. The rule does not cover a broadcast that might simply upset some listeners, but does not pose a substantial threat to public health or safety. The text reads as follows:

§73.1217 Broadcast hoaxes. - No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or catastrophe if:
(a) the licensee knows this information is false,
(b) it is foreseeable that broadcast of the information will cause substantial public harm, and
(c) 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.

Here are some rules for interpreting and applying the broadcast hoax rule:

Licensee knowledge of falsity - To incur liability, a licensee must have known that the broadcast concerning a crime or catastrophe was false, but remember the cardinal FCC policy that a licensee is held accountable for the actions of its employees. Every licensee should consider it essential to make its employees aware of the hoax proscription and monitor their actions. A licensee's remedial actions will be considered only in determining the severity of sanction to be imposed.

Foreseeability of substantial public harm - Public harm is deemed foreseeable if the licensee could expect with a reasonable degree of certainty that substantial harm would occur. Broadcasters may presume that the public will behave in a rational manner, and will not be held accountable for unreasonable or unpredictable public conduct. The single greatest determinant of foreseeability is to be the degree to which the broadcast itself is inherently believable. Careful here: the Commission does not consider that harm would be unforeseeable based solely on factors of timing, such as airing a hoax on April Fool's Day.

The one blanket exemption under this criterion will apply where programming is accompanied by reasonable disclaimers. To qualify for this exception, a disclaimer must clearly label the broadcast as a fiction and must be aired at the beginning, at the end, and at intervals no more than 15 minutes apart during the program.

Direct causation of substantial public harm - Public harm is defined as 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. The public harm must begin immediately after the broadcast and result in direct and actual damage, rather than a mere threat of harm.

When it adopted the rule, the Commission expressed its intention to exercise judgment and flexibility. Under this standard, the mildest sanction could be a letter of admonition, which could be considered in the context of a renewal or sale application. The other extreme could be revocation of a station's license. The most likely penalty, though, is be a fine.

Even situations short of the hoax definition can be problematic for broadcasters and should be avoided. In one situation, the Commission failed to appreciate the intended humor in a station's request that its listeners send money to help rebuild the station's storm-damaged tower, which was fully covered by insurance. The station received only $98 which, it contended, indicated that listeners did not really take its appeal seriously, and which it donated to charity. While the facts fell well short of the requirements for a hoax broadcast, the Commission fined the station for misusing its facilities to deceive listeners and to obtain money by false pretenses.

So, the lesson here is that even though the hoax rule might not cover a situation, many pranks, unless obviously absurd or immediately disavowed, are apt to be taken seriously by the Commission even if not by a typical listener, and result in a violation and fine.

As in the case of indecency and broadcasting telephone calls and ... well, every situation, stations need to manage and train the on-air talent. The sky is not the limit.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.