8-30-2012
The FCC has been laying down hammer quite a bit lately when it comes to violating the telephone broadcast rule. We wanted to test the waters a bit with broadcast attorney John Garziglia to see if there was any flexibility with the rule. So we asked, "What if a caller is recorded (without their knowing), then, after the call, they are told it was recorded?" The caller says, "Okay fine, air it," which is also on tape. Then, the person files an FCC complaint.
John Garziglia says: Fines issued by the FCC recently in the range of $16,000 to $25,000 for violating the FCC?s telephone broadcast rule certainly suggest that a refresher course in the rule may be in order.
In a nutshell, the FCC?s telephone broadcast rule, Section 73.1206, requires an explicit notification to the other party to the call, before either broadcasting, or recording a telephone conversation for later broadcast use. There is one exception to explicit notification, that being when the other party to the call may be aware or presumed to be aware from the circumstances of the telephone conversation that the call is, or is likely to be, broadcast.
Let?s take up the exception first. Clearly, if the telephone call is to or from a station employee such as a newsperson phoning in a news story, prior notification to the newsperson is not required. But, if the newsperson is standing next to a news source and hands the cell phone to that source, and the source is put on the air without notification, it is possible that a violation of the FCC?s rule has occurred. Likewise, if a newsperson is calling local officials for actualities for later broadcast, a newsperson must inform the called party prior to initiating the recording of the call.
Another exception is present for radio talk shows and request lines where the stated purpose of the telephone number is clearly for the broadcast of received telephone calls. A reasonable-person standard is used by the FCC. Would a reasonable person expect that a telephone call to the telephone number may result in the telephone call being broadcast or recorded for later broadcast? A telephone call placed from a talk show or request line is not covered by the exception.
So, what is not covered by the exception and what can subject a radio station to tens of thousands of dollars in FCC fines? Clearly, a contest run by many stations some years ago in which the public is advised to answer their phones ?I listen to WXXX? is not covered if the station expects to be able to broadcast the calls as they are placed. Nor are cold calls placed to contest winners, hoping to get the excited screams and gasps recorded and subsequently broadcast on the air. Even if the contest entry form advises entrants such a call might be made, there is no telling who will answer a winner?s telephone number.
But, such benign calls are not usually the types that garner FCC complaints. Rather, most FCC telephone broadcast rule complaints involve telephone conversations that have the effect on the called or calling person of embarrassment, anger, or making the person appear to be an idiot.
Thus, in a recent FCC rule violation, a call was broadcast by the station misrepresenting itself as a local hospital to a woman telling her that her husband had died in a motorcycle accident. Later in the call, the station informed the woman that the call was a "joke." Another fine was issued for a station call in which the morning personality broadcast a call pretended to be an intruder hiding under a called person?s bed, and a second call in which the personality pretended to be a loan shark collecting on a debt. Other FCC fines have been issued for radio stations calling competing radio stations and putting personnel from the competition on the air without their knowledge. The FCC did not see the humor in any of these calls.
It is also worth mentioning that state law may also cover the recording of telephone conversations. In a dozen or so states, if a telephone conversation is recorded even without an intention to broadcast it, all parties are required to consent, not just be notified. Each station should apprise itself of its own state law, as well as the FCC?s telephone broadcast rule, in formulating its internal policies on rolling tape (or whatever taping a call is now called in our digital age).
With any FCC complaint proceeding, the process of responding to the FCC?s inquiry is often more expensive than the potential FCC fine levied. If the FCC receives what it deems to be a valid complaint, it will send a multi-page letter to the radio station asking for a stack of affidavits and documentary information. Failing to fully respond to the FCC?s letter is grounds for additional substantial fines, so an FCC licensee has no choice but to respond.
Finally, in answer to Radio Ink?s question above, notification after recording is not compliance with the FCC?s rule, even if the other party to the conversation consents after-the-fact to the recording and broadcast. Also, recording the notification is also presumably not in accord with the FCC?s telephone broadcast rule as the rule prohibits recording until such notification is given, although a case might be made that a recording of the notification was not the ?recording of a telephone conversation for broadcast? as there was no intention of broadcasting the notification. For smaller station operations, it is false economy to share talk show, shopping show, or request line telephone numbers with general station business telephone numbers, as it is far too easy for a caller to be unintentionally put on the air in such circumstances.
It is helpful to keep in mind that complaints filed with the FCC are often spurred by a member of the public who is embarrassed or insulted by the broadcast of a call. Thus, if your newsperson is going to call an official and get something other than a pabulum press release actuality, be certain your news person informs the called party in advance of the recording being made for possible broadcast. If you really want to risk allowing your personalities to do outgoing ?joke? phone calls, have a witness to each call who can swear under penalty of perjury that the called party was clearly informed that the call would be broadcast or recorded for later broadcast. Full compliance with the FCC?s telephone broadcast rule is usually the best way to avoid potential issues.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com. Have a question for our "Ask The Attorney" feature? Send to edryan@radioink.com.
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