The issue isn't "making a creative work which includes the tones" (which is where the 1A argument would come in). Nothing's prohibiting that that I'm aware of.

The issue isn't "making a creative work which includes the tones" (which is where the 1A argument would come in). Nothing's prohibiting that that I'm aware of. Many, many examples of this on YouTube. The issue would be "an FCC licensed-station broadcasting the tones to the public on the public airwaves in violation of the rules governing their license". The rule is a technical restriction that's a condition of the broadcast license. Very different.