More Fines for Stations That Broadcast Telephone Conversations Without Prior Permission - Permission After "Hello" Is Too Late
The FCC today issued two fines to stations who violated the FCC's rule against airing phone calls for which permission had not been received before the call was either taped for broadcast or aired live. We've written about other fines for the violation of this rule, Section 73.1206, many times (see here, here, and here). What was interesting about the new cases is that they made clear that a station needs to get permission to record or broadcast the phone call even before the person at the other end of the line says "hello."
In one case, the station was broadcasting using a tape delay. The station placed a call to a local restaurant and, when the person at the other end of the line said hello, the station DJ informed the restaurant employee that he was being broadcast and asked if that was OK. The person responded "yep." But he changed his mind later in the call. The station claimed that, had the person not given permission, the tape delay would have allowed the call to be dumped but, as permission was given, the station continued to run with the conversation on the air. The FCC found that insufficient, as permission had not been received prior to the person saying hello. The second case was much more straightforward - a wake up call by the station to a randomly selected phone number. While the station immediately informed the person who answered the phone that the call was on the air - that did not happen until the recipient of the call had already said hello. In the first case, the fine was $6000 - in the second, $3200.
These cases demonstrate that the FCC takes this rule very seriously, and stations need to be very careful to avoid getting into trouble when recording a call for broadcast. Under these rules, even before the tape starts running - get permission to record the call for later broadcast. Don't start recording first. That's the rule.
Dopey question: Don't you want to be recording when you get permission to prove you have permission if it becomes an issue later? I am not sure how you ask someone anything before they say "hello." When they pick up the receiver you tell them not to talk? :>
It does seem kind of weird - and the issue was raised 30 years ago when the FCC adopted the rule. Broadcasters suggested that, to comply with the rule, you'd actually have to make two calls - one to get permission, and then the actual call. The FCC seemed to say that you didn't actually need to do that but it really seems like you would. If you want to do it in one call, it would seem that you couldn't record the permission - you could call, ask permission, get it, and then start the recording. Seems like an awful lot to do to get one call.
Scenerio....
DJ calls person at home. Records call from the beginning. Talks to listen. Gets listerners permission at the end of the call. Airs the phone call.
In this case the listener never denies permission at any point. Is this a violation? It seems like in all of these fines at some point the caller denies permission.
If you obtain consent specifically to use the part of the conversation before consent was obtained, is that enough, or does the regulation forbid explicitly retroactive consent?
If the connection is not carried over the United States public telephone system, but is a telephone-like connection of another sort, or is carried only over a foreign telephone system, does the statute still apply?
Google Talk, private SIP networks, etc are what I'm thinking of. I'm also worried recording not via the telephone, but perhaps from the sender's microphone only, of someone using the PSTN.
What would the CFRs say about those? No one would think of getting consent for any of those.