Federal complaint filed against Wisconsin Republicans after fake emergency alert

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By Ethan Duran and Steve Schuster
[email protected] and [email protected]

The Democratic Party of Wisconsin Saturday filed a complaint with the Federal Communications Commission (FCC) following a Republican-backed ad broadcasting fake weather alerts via SMS text messages telling Wisconsin voters not to elect Wisconsin Supreme Court candidate, Milwaukee County Circuit Court Judge Janet Protasiewicz.

The ads sponsored by the Republican Party of Wisconsin and Friends of Justice Daniel Kelly aired just as many parts of Wisconsin were placed under real tornado watches, which in some parts of the state turned into tornado warnings.

An SMS message with a video and title placard displayed “***EMERGENCY ALERT SYSTEM*** WISCONSIN VOTER ALERT.” around 2:30 p.m. on Friday, the complaint says. The backdrop showed different colored bars used when TV programming is interrupted with a scratchy voice and beeps used commonly during emergency broadcasts.

“Large portions of Wisconsin were under severe weather alerts, and were watching their phones and other devices for communications,” according to the complaint. “This storm, generally, had been deemed a “particularly dangerous situation” of the highest order risk, and millions in the southern part of Wisconsin were under tornado watches. At least three separate tornados were spotted. On the other hand, portions of northern Wisconsin were under blizzard warnings. Threats were severe and widespread.”

While it’s not clear how many people received the message, attorneys for the Wisconsin Democrats pointed out the text simulated tones and signals used were prohibited under law. The attorneys asked the FCC to investigate whether the simulated use was unlawful and “take all appropriate remedial and punitive measures.”

“Emergency alerts are intended to ensure that those in a storm’s path can stay safe, not to generate attention for a political attack advertisement. Misuse of the alert signal while millions of people were wondering whether they needed to seek shelter to protect their lives is not only highly irresponsible, but illegal,” according to the complaint.

According to the complaint written by Milwaukee-based Hailing & Cayo, S.C., “On Tuesday, April 4, 2023, Wisconsin voters will elect a new state Supreme Court Justice. As has been widely reported, this is the most expensive judicial race in history. While this race is nonpartisan, political parties (including both DPW and the Republican Party of Wisconsin) have endorsed candidates and have communicated with voters through various means, including SMS/text messaging, in support of their endorsed candidates.”

The complaint further states that audio began with a series of tones substantially similar to the Common Audio Alert Signal as defined in 10 CFR § 10.520. Transmittal of such audio is a violation of 10 CFR 10.520(d)(2), which not only prohibits unauthorized use of the Common Audio Alert Signal, but unauthorized use of a “simulation” of such a signal. “Simulation” is defined by the FCC4 to include “not only recordings of actual EAS codes or EAS or WEA Attention Signals, but also sounds that mimic or are substantially similar to them, such that an average listener could reasonably mistake the sounds for an actual EAS code or EAS or WEA Attention Signals.”

The complaint continues to state that false use of the EAS codes or EAS or WEA Attention Signals may be considered a “false distress signal,” which is prohibited under 47 U.S. Code § 325. The FCC has broad jurisdiction to investigate and remediate offenses under both of the sections cited above, and has proposed or imposed substantial forfeitures for those violations. See, e.g. Forfeiture Order FCC 15-2 (imposing $1.3 million in forfeitures on Viacom and ESPN.)

The National Weather Service issued a Tornado Watch for Sauk, Dane, Jefferson, Waukesha and Milwaukee counties mid-afternoon Friday. The warning for severe storms with large hail, damaging wind and a few tornadoes lasted until 10 p.m.

As of publication, more than 30 people have died amid a surge of storms and confirmed or suspected tornadoes across the Midwest and south. Real tornado sirens sounded, one person was killed just across the Illinois state line and dozens of others were injured when a roof collapsed at a concert venue in Northern Illinois.

As previously reported by the Wisconsin Law Journal, the Democratic Party of Wisconsin issued a statement about the fake weather alert ads.

“For the Republican Party of Wisconsin to send this fake emergency alert on behalf of Dan Kelly at a time when many Wisconsinites are under the first Tornado Watch of the season is abhorrent, dangerous, and profoundly irresponsible,” said Democratic Party of Wisconsin Executive Director Devin Remiker.

“We’re calling on Wisconsin GOP Chair Brian Schimming and Dan Kelly to cease and desist further dissemination of this video via SMS or any other mediums, and to refrain from any further plans to broadcast this message via television or radio. We also call on the FCC to investigate this potentially illegal abuse of the Emergency Alert System and hold those responsible for this reckless broadcast accountable.”

The fake weather alerts came out just as Wisconsin television stations pulled “false” Kelly campaign ads.

The ads were launched just days after a Wisconsin Right Row interview with Kelly on March 23, where he was encouraged to “take the gloves off.”

The Wisconsin Law Journal reached out the Kelly Campaign, but did not receive a response prior to publication.