[EAS] The words we use

[Ed Czarnecki]

A strict reading of the Communications Act may only support part of what
Bill is saying - that is, the law (47 USC 326) references censorship, which
is generally defined as the deletion of speech or any communicative
material.

47 USC § 326 - Censorship: "Nothing in this chapter shall be understood or
construed to give the Commission the power of **censorship** over the radio
communications or signals transmitted by any radio station, and no
regulation or condition shall be promulgated or fixed by the Commission
which shall interfere with the right of free speech by means of radio
communication."

The issue at hand is "compelled speech," not "censorship".  There is case
law around compelled speech that may show where there is sufficient public
interest - or governmental interest relating to health of public safety - a
compelled speech mandate may be acceptable.  The tobacco warning label cases
are relevant here, as well as National Association of Manufacturers v. the
Securities and Exchange Commission.  While totally different industries, the
basic point upheld in district courts (and supported by Supreme Court
decisions as far back as Zauderer) is that a compelled speech can be
permissible where there is a clear public interest.

Where the Supreme Court weighs in against compelled speech is in cases where
the government tries to "force a private organization to publicly profess a
viewpoint that mirrors the government's view but is not held by the
organization itself"(Agency for International Development v. Alliance for
Open Society International, Inc., 2013).  But it seems this limitation gets
trumped when a clear matter of public welfare is at stack (i.e. tobacco
warnings, securities disclosures, and ... by extension, one could argue ...
public alerts and warnings).

Also, look at the amended 47 CFR 11.54 - as well as the EAS handbook (2017
version).  There is no provision to opt out of an EAN (or NPT) anymore if
you are an EAS Participant.  This "speech" is indeed "compelled," and fairly
so.

From: EAS [mailto:eas-bounces at radiolists.net] On Behalf Of Bill Ruck

Keep in mind that the Communications Act of 1934 forbids the FCC from
censoring programming.  By law the FCC can not tell a station what to say or
what not to say.

Presidential warnings are given authority by a presidential "finding".  I've
been told by a friend, both PE and Esq, that if challenged this finding
would violate law.

That's why all of the rest of CONELRAD, EBS, and EAS must be voluntary.  If
a city or state passes a law requiring anything by a radio or TV station big
cans of worms get spilled over federal vs local jurisdiction.

I am not a lawyer and this can not be considered a legal opinion.

Bill Ruck
Curmugdeon
San Francisco

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